Prohibiting Plunder: How Norms Change 9780195337235, 0195337239

Table of contents :
CONTENTS......Page 10
ACKNOWLEDGMENTS......Page 8
LIST OF FIGURES......Page 12
CHAPTER 1: INTERNATIONAL NORM CHANGE......Page 14
CHAPTER 2: PLUNDER AND THE SPOILS OF VICTORY......Page 44
CHAPTER 3: NAPOLEONIC PLUNDER AND THE EMERGENCE OF NORMS......Page 60
CHAPTER 4: THE INTERNATIONAL LAW ACTIVISTS: ELABORATING NORMS IN THE NINETEENTH CENTURY......Page 84
CHAPTER 5: THE GREAT WAR AND THE PROTECTION OF ART......Page 114
CHAPTER 6: NAZI PLUNDER: STRENGTHENING THE RULES......Page 140
CHAPTER 7: CODIFYING NORMS: NUREMBERG AND THE HAGUE......Page 180
CHAPTER 8: WAR IN THE 1990S: CRIMES AGAINST CULTURAL HERITAGE......Page 204
CHAPTER 9: REPERCUSSIONS OF NAZI PLUNDER: INTERNALIZING INTERNATIONAL NORMS......Page 224
CHAPTER 10: BAGHDAD AND BEYOND......Page 254
CHAPTER 11: DYNAMICS OF INTERNATIONAL NORM CHANGE......Page 274
REFERENCES......Page 286
B......Page 340
C......Page 341
E......Page 342
H......Page 343
I......Page 344
M......Page 345
N......Page 346
P......Page 347
S......Page 348
U......Page 349
W......Page 350
Z......Page 351

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Prohibiting Plunder

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Prohibiting Plunder: How Norms Change Wayne Sandholtz

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1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Copyright © 2007 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 Oxford is a registered trade mark of Oxford University Press Oceana is a registered trade mark of Oxford University Press, Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press, Inc.

Library of Congress Cataloging-in-Publication Data Sandholtz, Wayne. Prohibiting plunder : how norms change / Wayne Sandholtz p. cm. Includes bibliographical references and index. ISBN 978-0-19-533723-5 ((clothbound) : alk. paper) 1. Cultural property—protection (International law)—History. 2. Cultural property—Protection—Law and legislation. 3. Art thefts. I. Title. K3791.S26 2007 344′.094—dc22 2007020816 Note to Readers: This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate.

(Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.)

You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com

For Judy, Sarah, and Will

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Acknowledgments Piecing together the two hundred-year story of rules to protect cultural treasures in wartime brought moments of insight, discovery, and genuine pleasure. The passions behind the work were a love of art, a fascination with the world of diverse countries and peoples, and a growing appreciation of the centrality of norms and rules in social life, including international relations. Even so, I could not have written the book without inspiration and concrete assistance from many people. My first mentor, Ernie Haas, introduced me to the world of scholarship and always encouraged my explorations in it. Ernie passed away when the project was perhaps half done; I wish he could have seen the finished book. My second mentor, Harry Eckstein, was also my colleague at the University of California, Irvine. He too guided me into the rigors and satisfactions of social science and would, I think, have appreciated this book. Friends and colleagues kept me moving forward. I am grateful to Alison Brysk, Gregory Fox, Susan Sell, and Ken Stiles for ideas and encouragement. The book benefited from dozens of conversations over many years with Alec Stone Sweet and Martha Lewis; Martha’s art graces the book’s jacket. Nicholas Onuf constantly checked my progress and urged me on. He read the entire manuscript (some chapters twice), and the book is better for his suggestions. A number of Irvine students also helped with the research. Alexander Frid began the project with me and wrote an outstanding honors thesis on the subject. Joseph Hekmat, Jason Sanicola, and Bradford Young assisted on parts of the research. I am grateful for grants from the National Science Foundation (SES-0094550) and the Center for Global Peace and Conflict Studies at the University of California, Irvine. Their financial support was indispensable, especially in making possible the archival research. A number of professionals at various archives made my visits as fruitful as possible. Carol Leadenham of the Hoover Institution Archives in Palo Alto, California, acquainted me with the relevant resources available there. Anne Ritchie and her colleagues lent genial and solicitous assistance at the Archives of the National Gallery of Art in Washington, DC. Jan Hladík at UNESCO in Paris generously sent numerous documents relating to the Second Protocol to

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Acknowledgments

the Convention for the Protection of Cultural Property in the Event of Armed Conflict. Jens Boel welcomed me to the UNESCO Archives in Paris. I appreciated as well the efficient services provided at the National Archives in College Park, Maryland; the Archives of the Ministère des Affaires Étrangères in Paris; and the Public Record Office in Kew, England. My most profound and ongoing debts are to family. My parents, Willis and LaMyrl Sandholtz, opened the doors of my mind by teaching me that curiosity is a virtue. Now I learn every day from three indispensable partners, Judy, Sarah, and Will. They accompanied me (figuratively and sometimes literally) on the journey that produced this volume; I am grateful to share with them the journeys that make up our life. I dedicate the book to them. Wayne Sandholtz Irvine, California May 2007

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Contents Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii List of Figures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xi Chapter : International Norm Change . . . . . . . . . . . . . . .  Chapter : Plunder and the Spoils of Victory . . . . . . . .  Chapter : Napoleonic Plunder and the Emergence of Norms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  Chapter : The International Law Activists: Elaborating Norms in the Nineteenth Century . . . . . .  Chapter : The Great War and the Protection of Art . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  Chapter : Nazi Plunder: Strengthening the Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  Chapter : Codifying Norms: Nuremberg and the Hague . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  Chapter : War in the s: Crimes against Cultural Heritage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

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Contents

Chapter : Repercussions of Nazi Plunder: Internalizing International Norms . . . . . . . . . . . . . . . . .  Chapter : Baghdad and Beyond . . . . . . . . . . . . . . . . . . . .  Chapter : Dynamics of International Norm Change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

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List of Figures 1.1:

The continuum of rule properties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

1.2:

The cycle of norm change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

1.3:

The development of anti-plunder norms . . . . . . . . . . . . . . . . . . . . . . . . . . 28

2.4:

The normative context pre-1800 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

3.5:

Cycle of change: Napoleon and the emergence of norms . . . . . . . . . . . . . 48

4.6:

The international law activists and the development of norms . . . . . . . . 72

5.7:

Cycle of change: The Great War and the protection of art . . . . . . . . . . . 102

6.8:

Cycle of change: Nazi plunder and the strengthening of norms . . . . . . 128

7.9:

Cycle of change: Nazi plunder and the codification of norms . . . . . . . . 168

8.10: Cycle of change: Wars of the 1990s . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 9.11: Cycle of change: Governments adapt to international norms . . . . . . . . 213 9.12: Cycle of change: Museums adapt to international norms . . . . . . . . . . . 231 10.13: Cycle of change: The Iraqi National Museum . . . . . . . . . . . . . . . . . . . . . 242

How Norms Change

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CHAPTER 1

International Norm Change During the Thirty Years’ War, Swedish armies fought their way across the German states. Gustavus Adolphus, king of Sweden and leader of its forces, upon capturing Munich in 1632, seized the spectacular art collection of the Dukes of Bavaria, including paintings by Dürer, Holbein, and Cranach. Gustavus died in battle later that year, and his daughter Christina continued both the war and the art plunder. She pushed Swedish troops to capture Prague in 1648 to obtain its imperial art collection before treaties brought the fighting to an end. She specifically instructed her cousin, the general Prince Charles Gustavus, to “take good care to send me the library and the works of art that are there: for you know that they are the only things for which I care” (Trevor-Roper 1970, 22–44). In seizing the cultural treasures of their defeated enemies, Gustavus and Christina were not simply brigands with elevated tastes. They were enacting the traditional rule, “to the victor go the spoils.” Three and a half centuries later, in the spring of 2003, U.S. forces surged across Iraq. As they entered Baghdad, local authority—and armed resistance—quickly evaporated. While U.S. troops occupied the Iraqi capital, looters entered the National Museum and carried away thousands of items from its collections, which included priceless artifacts from some of the world’s first civilizations. The international outcry was instant, and searing. The critics condemned the United States not for having plundered Iraq’s cultural patrimony; U.S. forces had done nothing of the sort. Rather, much of the world rebuked the United States for failing to protect the museum and its treasures. How could the Americans carefully prepare to secure the Oil Ministry but not one of the world’s greatest collections of antiquities? Clearly, standards had changed between 1648 and 2003. For much of history, plunder was the norm; the artistic and cultural patrimony of a defeated foe became the war trophies of the victor. Returning from conquest, Roman generals

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literally paraded their booty through the avenues of Rome. Today, however, a set of international legal rules, codified in treaties and charters, forbids such plunder. Modern international courts, including the Nuremberg Tribunal and the International Criminal Tribunal for the former Yugoslavia (ICTY), have convicted individual perpetrators of crimes against cultural heritage. I explain the emergence and elaboration of those rules, beginning in Napoleon’s Paris and ending in Baghdad in April 2003. The story takes place in episodes, each of which represents a turn through what I call the cycle of norm change. This book is about the dynamics of change in international norms. International norms evolve as actions trigger disputes about the meaning and application of rules. In short, I offer a general model of international norm change and probe its usefulness by explaining the development of rules that prohibit the wartime plunder of cultural treasures. My account of the evolution of international rules is in part a response to the common assertion that great powers simply do what they want and make up rules to justify their conduct. Certainly, the most powerful states have the greatest influence in shaping international norms. Yet the power to act in specific ways is not the same as the power to make or modify international rules. A superpower can violate norms and suffer fewer consequences than other states might. But there is a difference between breaking rules and making rules. I argue that even a superpower cannot decree rules to the rest of the international community. Rules are social; they exist by agreement or assent. Normative change depends on much more than the acts of a single powerful state. It depends on the extent to which other states concur in altering the norm and adjust their actions to the new rule. Thanks to a steadily growing body of research on international norms, many students of international relations (IR) now recognize that the social and normative structure of international relations is as important as its power structure. International social structure consists of rules that constitute actors and institutions and establish standards of conduct for the occupants of various roles. In modern international relations, many of these rules are of a particular kind, namely, legal rules, or laws. A rich body of studies has demonstrated the effects of international norms in virtually every substantive domain, from security, arming, and war, to decolonization, apartheid, and human rights, to the

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environment and economic relations.1 Norms (rules) shape the ways in which actors define their ends (goals and preferences) and choose the means for pursuing them. Norms thus affect outcomes in international relations.2 Yet despite the vastly enhanced appreciation of the role of norms in international life, and despite an immense body of international law scholarship, we understand poorly the processes by which international rules change over time. Clearly, international rules are not static. Slavery and colonization were previously accepted features of international society; today international norms prohibit them. War was formerly a matter of sovereign prerogative; today it is circumscribed by rules. Entire bodies of contemporary international law— human rights, environment—did not exist a century ago. Though we know that international norms evolve, our tools for explaining how and why they change remain inadequate. I argue that rules in international society often evolve in response to practical problems that incessantly arise out of the gap between general rules and specific actions. Change is an inherent feature of all normative systems as general rules collide with the infinite particularity of social life, and people must argue about how the two should mesh. Because the fit between rules and situations is never perfect, states and other international actors constantly behave in ways that provoke arguments about the meaning and application of the rules. Such debates are an essential feature of international society. The outcomes of these disputes inevitably modify the rules, giving them new content, making them stronger (or weaker), clearer (or less), more specific (or less), more subject to

1

2

The following works represent only a sampling of this extensive literature: Barnett and Finnemore (2004); Crawford (2002); Finnemore (1996, 2004); Goertz and Diehl (1992); Jackson (1993); Katzenstein (1996); Klotz (1995); Legro (1995); Mueller (1989); Nadelmann (1990); Price (1997); Ray (1989); Strang (1992, 1996); Thomson (1990); Vincent (1984). Rules are statements that identify standards of conduct; they are the same as norms. The word norm and the word rule have similar etymological origins. Norm derives from the Latin norma, “a carpenter’s square, a rule, pattern.” Rule derives from the Latin regula, “straight stick, pattern” (The Random House College Dictionary, rev. ed., 1988). Unfortunately, norm sometimes leads to confusion because it has two common but divergent meanings. On the one hand, norms are standards of conduct (my usage); on the other hand, they are often thought to be generalizations about customary or habitual behavior. The latter sense is clearly not the one I want to invoke. As Giddens notes: “‘Rules,’ as I understand them, certainly impinge upon numerous aspects of routine practice, but a routine practice is not as such a rule” (Giddens 1984, 19). Generalizations about habitual practice may have normative significance, but they are not norms.

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exceptions (or less). The modified rules then establish the context for subsequent rounds of action and disputation. Norm change thus occurs in cycles, and those cycles are linked backward and forward in time. Earlier cycles provide the normative context and a set of precedents for current disputes. The outcomes of today’s disputes help shape the context and the pool of precedents for later cycles. Because of these linkages, analyzing single instances of norm change may be misleading. Sometimes the longer historical view alone can reveal how episodes are connected, each shaped by previous disputes and each shaping subsequent ones. The cyclic process that dynamically links norms, actions, and disputes may not be the only mechanism of rule change, but it is a ubiquitous and important one.

Rules in international relations As scholars of international relations became more interested in norms, they naturally looked toward international law for ideas. After all, international law is all about norms and their significance. At the same time, students of international law began to look to IR for analytical tools for understanding the empirical processes involved in making and applying international norms. As a result of this budding mutual awareness, scholars in international law and international relations have called for greater intellectual bridge building between the two disciplines (Abbott 1989; Burley 1993; Keohane 1997; Slaughter, Tulumello, and Wood 1998). The flow of ideas, however, seems to have been almost entirely in one direction. International relations concepts and theories have found their way into international law scholarship. But, as Toope notes, “In reading most international relations literature, one looks in vain for the musings of international lawyers – even those who adopted theoretical stances closely allied to methodologies of the other social sciences” (Toope 2000, 91). International law ideas play virtually no important role in IR theorizing. Whereas regime theory and neoliberal institutionalism from IR have influenced international law theorizing, it would be difficult to find a comparable example moving in the opposite direction. One obstacle to the flow of theoretical ideas from international law to IR is that, whereas international law scholars tend to assume that norms affect outcomes, IR specialists often do not share that assumption. IR scholarship commonly views international norms solely as an outcome. A related tendency in IR is thus to explain the evolution of norms strictly in terms of the goals and choices of actors, 4

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International Norm Change

be they governments, international organizations, or transnational activists. Actors choose norms (or institutions) for their utility in reducing transaction and information costs (Keohane 1984). Or, in Krasner’s account, self-interest, not norms, drives the behavior of states, and norms are simply “organized hypocrisy” (1999). Legalization at the international level has also received considerable recent attention. One prominent set of analyses begins with the observation that a “move to law” is underway in some international institutions (Goldstein et al. 2000). These studies note varying degrees of legalization, on a spectrum ranging from soft to hard. Where a specific institution lands on that spectrum is a matter of regime choice or institutional design, in which actors choose the legal form of a regime to reduce transaction and other costs. Norms are outcomes of political decisions, products of the interplay of interests and power. Missing is an attempt to theorize the ways in which normative structures might have their own internal logic or how they change and evolve once established. An alternative (generally constructivist) account sees norm change as essentially a product of plural politics, in which norm activists seek to rally support for a new rule. Domestic groups favoring the new norm establish coalitions with like-minded groups, sometimes within the same country but, increasingly, with foreign or international nongovernmental organizations (NGOs). These alliances produce transnational activist networks (Keck and Sikkink 1998) that are able to bring pressure on national governments from above (internationally) and below (domestically; Brysk 1993, 2000). The result can be a “spiral” (Risse and Sikkink 1999) or “cascade” (Finnemore and Sikkink 1998) of norm acceptance. The constructivist approach to international norm change has generated useful conceptual tools, including the idea of “tipping points” and the notion of “norm entrepreneurs.” My approach is largely compatible with core constructivist insights. I begin with the premise that social rules guide the conduct of actors but that actors constantly reshape the rules. This premise is another way of stating the central constructivist claim—that actors and social structures are mutually constitutive. My cyclic theory of norm change implicitly includes the idea of tipping points, arguing that a proposed or emergent norm becomes a norm per se once a sufficient number of actors has accepted it as one. And the international law activists I examine in Chapter 4 were, perhaps, the first modern international norm entrepreneurs. Still, the norm spiral and norm cascade theories do not (and their How Norms Change

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proponents do not claim to) cover all modes of international norm change. The dynamic model of norm change that I propose moves beyond existing constructivist approaches in several respects. First, I suggest that episodes involving transnational activist networks and norm cascades should frequently be seen as taking place within cycles of norm change. I argue that norm change occurs in cycles that are linked, forward and backward, in longer historical dynamics. Second, my approach attempts to bridge social construction and instrumental rationality, which proponents of both perspectives too often depict as incompatible alternatives (see Finnemore and Sikkink 1998, 909–910). I show how even the traditional “rational actor” (utility maximizer) is thoroughly enmeshed in social rules and relies on normative reasoning. Third, my framework recognizes, more explicitly than constructivist approaches usually do, the importance of power in altering norms. I distinguish between breaking rules and making rules; the power to “get away with” the former is not the same as the capacity to achieve the latter. A single great power cannot dictate norms, therefore, but agreement among the major states is usually a prerequisite for norm change. Fourth, the core of my theory is not transnational political activism but disputes that arise out of specific actions. Events trigger disputes that end up modifying the norms. More broadly, approaches that assess international rules only as outcomes are necessarily incomplete (Byers 1999, chap. 2; Hurrell 2000, 329; Kratochwil 2000, 52–54). Actors do modify social rules, but rules also shape the range of strategic and discursive options available to actors. As Kratochwil puts it, “Actors are not only programmed by rules and norms, but they reproduce and change by their practice the normative structures by which they are able to act, share meanings, communicate intentions, criticize claims, and justify choices” (1989, 61). This book develops some of the implications of that under-studied insight. In other words, a theory of international norm change must be dynamic, or dialectic. I borrow from legal theory the notion that legal systems are in a state of constant adaptation, as specific cases lead to clarification of the law, and the insight that disputes are a crucial motor of normative change. I also build on recent developments in IR theory that establish the importance of argumentation and persuasion in international relations (Crawford 2002; Hawkins 2004; Kratochwil 2000; Risse 2000).

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International Norm Change

Rules and social life All of what we think of as elemental features of human life—families, communities, work, culture—is social. And social systems are built around an armature of rules (Kratochwil 1989; Onuf 1994, 1998). Indeed, social existence of any kind is impossible without rules. As Kratochwil puts it, Human action in general is “rule-governed,” which means that–with the exception of pure reflexes or unthinking conditioned behavior– it becomes understandable against the background of norms . . . . Thus, not only must an actor refer to rules and norms when he/she want to make a choice, but the observer, as well, must understand the normative structure underlying the action in order to interpret and appraise choices. (1989)

Rules, and the social and discursive practices associated with them, are at the center of social existence and hence at the core of politics (Kratochwil 1989; Onuf 1996; Stone Sweet 1999). Rules define the various roles in a society as well as the bounds of appropriate action (rights and duties) that attach to those roles. When people interact in anything other than the most transitory, unrepeated ways, they inevitably develop rules to guide their dealings with each other. In Onuf ’s words, “When [people] confront the necessity of dealing with each other without knowing if they follow the same rules, they learn what they commonly know and make what other rules they need” (1996, 9). Rules are the material of social structures, from the family to international relations. Indeed, the English School explicitly treats international relations in terms of international society (Bull 1995 [1977]; Buzan 1993; Dunne 1998; Watson 1992). Hedley Bull posited that international relations occur within a society of states, which shared institutions and rules define (1995 [1977]). Rules are statements that identify standards of conduct.3 Rules and norms are the same thing; I use the terms interchangeably. Rules vary on three principal dimensions: they can be more or less formal, more or less specific, and more or less authoritative (Stone Sweet, Fligstein, and Sandholtz 2001, 6–7). Formal rules are generally produced by organized rule-making procedures and take written form.

3

In Onuf ’s (n.d., 17) more extended definition, rules are statements that “address some class of agents, describe some class of actions as appropriate for those agents, and link agents and standards with oughtstatements: agents ought to behave in accordance with standards.”

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Specificity has to do with whether rules provide broad principles or guidelines (“Drive safely”) as opposed to narrowly focused requirements (“Do not exceed 65 miles per hour”). Authoritativeness refers to the extent to which the relevant social group thinks the rules are compulsory (violations requiring punishment) or advisory (establishing desirable behaviors but eliciting little in the way of sanctions). More authoritative rules often have organizational supports (agents empowered to monitor compliance, adjudicate disputes, and mete out punishment; Raz 1975).4 A regular lunch group, for instance, is likely to have informal rules that are somewhat specific (what time to meet, who pays), with a low level of authoritativeness and no organizational supports (transgressions might elicit a shrug or some good-natured ribbing). The notion that rules vary along three dimensions suggests that there are degrees of “ruleness.” We could, in principle, situate all norms along a continuum (see fig. 1.1). At the left end of the continuum, norms are informal, nonspecific, and nonauthoritative (“in professional settings, shake hands when meeting someone”). At the right end, norms show a high degree of formality, specificity, and authoritativeness (“the speed limit in school zones is 25 miles per hour, with violations punishable by fines”). Legal rules, or laws, cluster at the right end of the spectrum. Indeed, a full measure of all three properties sets legal rules apart from other kinds of rules, though at this point traditional legal theory runs into problems. The dominant positivist tradition in legal theory tends to see the properties of norms in binary terms: either they are present, or not; a norm is either a legal norm, or not. Such decisive distinctions are essential, of course, in the practical work of lawyers—they must be able to identify legal rules.5 No legal consequences can attach to violation of (or compliance with) a norm that is not also a law. In domestic legal systems, identifying the laws is usually straightforward. But in international law, it is not always clear whether a particular norm is a legal norm, entailing legal rights and obligations, or not. Customary international law (CIL) is a bottomless mine of such problems because CIL norms are, by definition, informal (not codified in treaties). Thus the problem of identifying customary international law (consistent practice of states and opinio juris) is a virtually permanent live topic for international legal scholars.

4 5

8

Organizational supports are themselves created and defined by rules and, therefore, do not constitute an additional attribute of rules themselves. Thus legal systems include rules of recognition that allow practitioners to identify laws (Hart 1994).

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International Norm Change

Informal Nonspecific Nonauthoritative (International anarchy)

Formal Specific Authoritative (European Union, WTO)

Fig. 1.1. The continuum of rule properties In this study, my primary interest is in how informal rules first emerge and how they develop over time greater degrees of formality, specificity, and authoritativeness. The historical account will, in fact, demonstrate that through a succession of cycles, rules prohibiting the wartime plundering of cultural treasures moved along the continuum from informal to formal (becoming codified in conventions), from general to specific (culminating in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict), and from nonbinding to moderately authoritative (being enforced against individual violators in international tribunals). By the end of the narrative, there is no question that antiplunder norms have achieved the status of law. However, the book will not attempt to specify when those norms became legal norms nor will it discuss these developments in the language of sources of international law. The movement along the continuum of rule properties toward the legal pole is what matters; identifying the moment at which a rule of customary international law emerged is not. The continuum of rule properties is also intelligible in terms of the traditional concerns of international relations. At the left extreme we find the “anarchy” of traditional international relations, where rules are few, imprecise, and seldom authoritative. Moving to the right, we encounter international institutions whose rules are more formal, precise, and authoritative, including legislative and judicial organizations.6 Highly developed international legal rules and institutions exist, for example, in the European Union and the World Trade Organization (Stone Sweet 2002b).

The Cycle of normative change International law, of course, has well-established rules for adding to or changing the stock of international legal norms: the sources of international law. New rules emerge and existing rules evolve through the formal process of treaty creation as well as through the development of customary law. Domestic laws 6

Alec Stone Sweet offered such a continuum of international institutions, incorporating the dimensions of formality, specificity, and authoritativeness Stone (1994). The research project on legalization in world politics subsequently adopted an essentially similar conception (Goldstein et al., 2000).

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that can be found in all or nearly all national legal systems can also indicate the existence of an international legal rule (general principles of law). Judicial decisions and scholarly treatises also provide evidence as to the existence of an international legal norm.7 The traditional international law concern with sources is grounded in the need to identify rules of international law; my concern is somewhat different. I am interested in how informal international norms first emerge and then develop, over time, greater degrees of formality, specificity, and authoritativeness. Thus, though much of the empirical account deals with what international lawyers recognize as the formation of customary international law and the making of treaties, I do not focus on the formal legal status, at each stage in the story, of the norms in question. My concern is not to measure specific norms against the technical standards for sources of international law but rather to explain how international norms (formal or informal, legal or not) change. Normative change is continual, a product of the constant interplay between rules and behavior. In every social system, the evolution of norms follows a cyclical, or dialectical, pattern. I do not claim that this dynamic is the only mechanism of normative change, but I do argue that it is a fundamental feature of all normative systems, domestic and international, centralized and decentralized. In this section, I briefly describe, in schematic fashion, the cycle of normative change; subsequent sections examine in more detail each phase of the cycle. The cycle begins with the constellation of existing rules, which provide the normative structure within which actors choose what to do, decide how to justify their acts, and evaluate the behavior of others. Because rules cannot cover every contingency, and because conflicts among rules are commonplace, actions regularly trigger disputes. Actors argue about which norms apply and what the norms require or permit. The outcome of such arguments is always to modify the norms under dispute, making them stronger or weaker, more specific (or less), broader or narrower. In other words, rules may change in their substantive content (which acts are prohibited, permitted, or required), but they can also change along other dimensions (formality, specificity, and authoritativeness). Of course, weakening rules is also a form of change. The absence of consensus, or the proliferation of qualifications and exceptions, can both indicate that a rule is becoming weakened or ambiguous. The crucial point, however, is that the cycle of normative change has completed a turn and modified the norms underlying the dispute.

7

10

See the Statute of the International Court of Justice, Art. 38 (International Court of Justice, 2007).

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The altered norms establish the context for subsequent actions, disputes, and discourses (see fig. 1.2).8

IV. Modified rules alter rule structures

Rule change

I. Rule structures guide actor choices

Rule structure

Precedents shape argumentation

Actions

Arguments II. Acts trigger disputes

III. Arguments modify the rules

Fig. 1.2. The cycle of norm change

Phase I: Rules and the context of choice For the sake of argument, I begin with a rational maximizer who estimates the payoffs from alternative courses of action (within cognitive and resource limits) and chooses the option that generates the greatest utility (however the chooser defines it).9 But whereas the traditional rational actor is an essentially autonomous calculator, I place her at the outset in a normative context. To estimate expected payoffs, the rational actor must engage in reasoning about social norms.

8

9

Of course I am not the first to depict the relations among rules, practices, and discourses as a cycle; see Giddens (1979) and Dessler (1989). My conception of the cycle is similar to that of Stone Sweet (1999); but whereas Sweet’s framework includes a third-party dispute resolver (and ties the construction of governance to the emergence of triadic dispute resolution), my framework excludes the dispute resolver and focuses on decentralized social persuasion as a mechanism of rule change. Utility maximizing is not the only form of human rationality. There is no a priori scientific reason to privilege it over other forms of rationality. There is, however, a practical reason: utility-based rationality offers the convenience of lending itself to mathematical and quantitative techniques.

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Indeed, normative reasoning comes before utility calculations, and arguing about rules is an unavoidable part of pursuing valued ends. Again, for the sake of argument, I assume that actors are strategic; when engaged in a dispute, they will call upon whatever norms and offer whatever arguments are likely to maximize the achievement of self-regarding interests. The point is to show that social norms constrain even such strategic, insincere actors in their actions and arguments. The arguments hold with even more force if one assumes that actors, through socialization, internalize norms, which then shape their preferences and objectives. Because the maximizer is strategic, she attempts to foresee the costs and benefits of various courses of action, given limits that time, resources, and cognitive capacity impose. Her anticipatory calculation focuses on how other actors are likely to react to her choices. Therefore, rational actors must anticipate which actions would be deemed (by other relevant actors) compatible with the rules and which would not, because, of course, various sanctions are likely to attach to acts judged incompatible with group norms.10 To make such determinations, the actor must understand not only the society’s rules but also its current standards for interpreting and applying the rules. She must assess which justifying arguments tend to be successful, and which previous cases (precedents) carry persuasive force.11 Normative reasoning, then, shapes her choice of action. As a consequence, people routinely and constantly engage in normative reasoning. We observe people reasoning and talking about rules in every kind of social context, from families, to circles of friends, to workplaces, volunteer groups, clubs, and the editorial pages—not to mention the courts. Children seem to develop the capacity to reason and argue normatively at a remarkably young age, demonstrating early on an ability to assert vigorous claims about what is fair or unfair. Indeed, writers from Aristotle to the present have posited that the ability to reason about rules is inherently human (Aristotle 1988, bk. I; Kratochwil 1989; Onuf 1998).

10

11

12

My account is at least partially compatible with Gary Becker’s (1968) economic model of crime and punishment, which has its roots in the utilitarian approach of Bentham. According to Becker, someone contemplating a potential violation of rules estimates the costs and benefits of the infraction. Essential to this calculation are the probability of conviction and the severity of the punishment. Estimating the probability of conviction requires the kind of anticipatory normative reasoning I have described. For many specialized areas of the law, ordinary citizens do not possess the normative expertise they need, so they hire attorneys. But in less formalized and centralized social settings, actors engage in this kind of reasoning on their own. We do it routinely every day. At work, do the norms of my group require that I raise concerns in an open meeting or in private with the group leader? Or, in the family, what are the acceptable justifications for staying home from school?

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It seems likely that the capacity to reason about rules in complex ways, including situations of normative ambiguity and conflict, is as innately human as the “language instinct.”12 Sugden (1989, 89, 95) points out that “ordinary people with limited rationality” find little difficulty in solving coordination problems that the fully rational players in game theory find intractable, and suggests that the ability to work with norms is innate, even biological. It may well be, then, that there exist two major logics of action (or “microfoundations”), one based on maximizing utility and the other based on reasoning by analogy to determine the appropriateness or “fit” of actions with norms. The two modes are almost certainly complementary (Sandholtz and Stone Sweet, 2004; Stone Sweet, Fligstein, and Sandholtz, 2001).

Phase II: All normative structures generate disputes Though rule structures establish contexts for individual choice, they also, and inevitably, generate disputes about specific choices. Two important features of rule systems guarantee a constant stream of disputes: incompleteness and internal contradictions. No system of rules can be complete, in the sense that rules cannot spell out the behavioral requirements for every situation, nor can they foresee all possible circumstances or disagreements. Some acts may constitute clear violations of a norm, but other acts will not be easy to assess; they will be arguable, which is exactly the point. The classic statement of the problem is H. L. A. Hart’s: “Nothing can eliminate this duality of a core of certainty and a penumbra of doubt when we are engaged in bringing particular situations under general rules. This imparts to all rules a fringe of vagueness or ‘open texture’”(Hart 1994, 123). Or, in MacCormick’s words, “Almost any rule can prove to be ambiguous or unclear in relation to some disputed or disputable context of litigation” (MacCormick 1978, 65– 66). In international relations, events routinely fall within the zone of ambiguity where the rules cannot be applied in a straightforward, mechanistic way. Internal contradictions also generate disputes. Because there are multiple rule structures in any given society, tensions and contradictions between different rules are commonplace (Kratochwil 1989, 62, 190; Lowe 2000, 213–214; Schachter 1991, 20–21). Some actions can, therefore, evoke different rules, entailing divergent

12

The phrase borrows the title of a superb book by Steven Pinker (1994).

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requirements (Kratochwil 2000, 48). For instance, the right of free speech sometimes clashes with the right to be protected from slander and libel. Rules to protect dolphins have been in tension with rules of free trade. In international relations, actions commonly evoke different sets of rules, which are then seen to be in tension (e.g., nonintervention vs. protection of human rights). Gaps and contradictions in the rules are, then, inevitable. But normative change does not occur as a process of abstract reflection. Rather, specific acts reveal the gaps and contradictions.

Phase III: Arguments Sooner or later, despite her best efforts at anticipatory normative reasoning, the maximizer does something that triggers opposition. She finds herself embroiled in a dispute, and winning the dispute would provide a better payoff than losing. To win, she must persuade other relevant actors that her conduct complies with the group’s rules and, therefore, should not be sanctioned.13 She must offer the most convincing arguments possible that her position in the current dispute best fits what the rules require and best conforms to the ways in which previous disputes were resolved (precedents). In other words, even the selfish maximizer has strong incentives to offer normative arguments, and normative arguments require, as Elster points out, a certain degree of impartiality. Actors try to find impartial arguments as close as possible to their self-interests. But arguments too close to self-interest are suspect. There must therefore be some distance between the self-interest and the impartial argument. Actors, accordingly, argue rather than simply assert a self-interest and demand assent; arguments persuasive to third parties (not directly involved in the dispute) are especially valuable (Elster 1995, 246–47). The determination of which arguments are likely to prevail depends on analogical reasoning, which involves shared standards of fit, similarity, and relevance. At this moment, the maximizer has entered the world of normative discourse, where payoffs depend on making persuasive arguments fitting situations to norms and precedents.

13

14

The audience that must be persuaded varies according to the context. In a legalized setting, the audience is the judge or a jury. In less formal contexts, like a dinner group, the audience is a nonhierarchical set of peers. International relations usually resemble the less formal setting in which actors must persuade their peers.

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Consistency, analogy, and precedent Legal scholars recognize analogical reasoning, and the logic of fit, as central to legal systems and to the development of law (Hart 1994, chap. 7; MacCormick 1978, chap. 7; Murray 1982; Sunstein 1993, 1996). In systems of law, litigants as well as judges must constantly justify their claims and conclusions by drawing analogies between the case before them and past cases (precedent). Much legal argumentation, therefore, has to do with invoking persuasive analogies, establishing significant parallels between salient features of the case at hand and those of earlier cases. Arguing by analogy and precedent, I argue, is a feature of all normative systems, not just legalized ones.14 In fact, some cognitive psychologists conclude that the ability to construct analogies is a fundamental part of thinking.15 Disputants—even when driven by purely selfish motives—must argue within the bounds established by precedent, because those who decide cases have powerful incentives to decide them according to precedent. Judges face a constant “crisis of legitimacy”: parties will be less inclined to abide by judicial decisions to the extent that they appear arbitrary or inconsistent. Following precedent defuses this crisis of legitimacy (Shapiro 1972, 1981; Stone Sweet 1999) by showing that like cases are judged alike (MacCormick 1978, chap. 4), that judgments are not simple predilections or random events. The urge for consistency and legitimacy is so powerful that even in legal systems that explicitly reject the doctrine of binding precedent (stare decisis), judges tend to cite previous decisions to justify their rulings, and lawyers begin to cite precedents in their briefs. If cases were not resolved so as to fit with the norms established by previous outcomes, law would cease to serve any purpose. As D’Amato explains, “If no discernible, articulated, intelligible pattern of judicial law-making resulted from the activities of judges, people would not be able to order their lives in a reasonable, stable manner. More than that, vast chaos would ensue as soon as a number of people realized the potentiality for personal gain in such an arbitrary system.” Indeed, D’Amato concludes, “ ‘law’ in the sense of verbal norms affecting human behavior would cease to exist” (1971, 176). A similar logic applies to international norms and disputes. As Alvarez notes with respect to the arguments over NATO’s intervention in Kosovo, 14 15

Consistency, analogy, and precedent undergird not just the formal sources of law but also systems of law as such. For a review of this literature and its relevance to the study of legal systems, see Stone Sweet (2002a).

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Even the United States understands that the legitimacy of its arguments about the legality of NATO’s action [in Kosovo] will depend on whether these arguments will reflect shared understandings and expectations—and not merely of other governments, but also by the legal appraisals of other IOs, academics, NGOs, and other organs of public opinion. And, because of the intersubjective nature of these arguments, as well as, more precisely, the law’s needs for consistency and coherency, even the United States understands that whatever it argues about the legality of NATO action will necessarily have to apply to other communal responses that are deemed comparable in the future. (2001, 135).

More generally, argumentation “is constrained by the need to remain faithful to its accepted process and sources of authority; that is, to maintain its credibility before its intended addressees” (Alvarez 2001, 135). Precedents provide actors with evidence of what behaviors states have accepted (or condemned) in the past. Decision makers therefore examine precedents and establish analogies with current situations. Put differently, examining precedent helps actors to form expectations about how others are likely to react to their conduct. Because consistency is so fundamental to all normative systems, parties on both sides of a dispute will marshal whatever precedents they can (D’Amato 1971, 91). The actor who can offer several pertinent precedents consistent with her interpretation of the current dispute will generally be more persuasive than the actor who cannot cite relevant precedents (Byers 1999, 159). The position unsupported by precedent can prevail, but when it does, other persuasive reasons must support it (powerful ethical values, for instance; see Crawford [2002]). In international society, even a small number of precedents can be crucial in establishing a norm. A disputant acting contrary to existing precedents will find it much harder to persuade others that her actions are justified (D’Amato 1971, 91–98). The notion of persuasiveness implies an audience that weighs the arguments and reaches conclusions. At the international level, judges are not usually the key dispute resolvers (except in substantially judicialized settings like the WTO dispute panels, the European Court of Justice, and a few other fora). Rather, disputants seek to persuade other members of international society that their understandings of the rules and of the disputed acts are the most appropriate, given how the community has reacted to similar situations in the past. Whereas in a domestic court the litigants aim to persuade a judge or jury, in decentralized international society the parties to a dispute seek to persuade other states that have, or think 16

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they have, a stake in the matter at issue or in the norms being contested. International disputants must persuade what amounts to a jury of their peers. This conception is similar to one McDougal offers: international rule making is a process of continuous demand and response in which the decision-makers of particular nation-states unilaterally put forward claims of the most diverse and conflicting character . . . and in which other decision-makers, external to the demanding state and including both national and international officials, weigh and appraise these competing claims in terms of the interests of the world community and of the rival claimants, and ultimately accept or reject them. (1955, 356–57)

State officials will argue in fully self-interested ways and will draw selectively and strategically on rules and precedents that support their goals. But, as Schachter points out, the representative of a state “is able to do this successfully only to the extent that his positions are accepted (at least acquiesced in) by other States concerned” (1991, 23). Consistency is indispensable to the functioning of systems of rules. This is as true of the decentralized, horizontal system of international relations as it is of a fullfledged system of law (Alvarez 2001, 135).

Power, norms, and international relations International relations, it is commonly assumed, are different. Power presumably overrides rules and arguments. Let us accept for the moment the typical characterization of international relations as minimally rule-structured, leaving aside the expanding islands of transnational rule making and dispute resolution. Let us also accept for the moment the simplifying assumption that in anarchic international relations, states are the principal actors. The question is, Does normative argumentation, guided by past cases, take place even in the lightly rulestructured domain of anarchic international relations? A growing body of research indicates that it does (Crawford 2002; Hawkins 2004; Risse 2000). Of course, normative argumentation in world politics differs from that in other settings. Anarchic international relations imply a different kind of politics, one in which power is less mediated by institutions (see Krasner 1999). Naturally, the more How Norms Change

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powerful an actor is, the more it will be able to bear the costs of transgressing rules. The same could be said of domestic judicial systems. Lawyers who fall asleep in court are a problem for destitute defendants, not for wealthy executives and famous athletes. But it is a mistake to assume that violating international norms carries no costs for powerful actors. Those costs can include reciprocal noncompliance, retaliation, reputation loss, domestic criticism, or even court sanction. As Schachter points out, “violations . . . are rarely cost-free even to powerful states,” though they are better able than others to absorb the costs of rule breaking (1991, 7–8). The 2003 U.S. invasion of Iraq provides a telling illustration. U.S. arguments that the invasion was justified failed to persuade most states. Neither the Security Council nor the broader international community was convinced that the invasion of Iraq was permitted by earlier Security Council resolutions or by the rules governing anticipatory self-defense. In much of the world, then, the invasion was viewed as a violation of international law. When U.N. Secretary General Kofi Annan labeled the war in Iraq “illegal” (he had previously termed it “not in conformity” with the UN Charter), he was voicing a widely shared assessment (“The Primacy of International Law” 2004; Tyler 2004). The perception that the U.S. invasion of Iraq contravened international rules imposed significant costs on the United States. The war in Iraq has so far cost the United States over 3,000 lives and hundreds of billions of dollars. The widespread view that the 2003 war in Iraq was illegal also meant that fewer countries (as compared with the 1991 Persian Gulf War) contributed military forces to the effort. The United States has born the burden of troop and hardware commitments that have markedly reduced the capacity of the U.S. military to respond to other threats or undertake other missions (Mazzetti 2005). In contrast, the U.S.-led military effort that ousted Iraqi forces from Kuwait in 1991 was on solid normative ground, and the United States received Security Council authorization to use force. Monetary contributions from other countries (notably Japan and Saudi Arabia) fully covered the costs of the massive U.S. involvement in that war. Therefore, even the most powerful country in the world pays the costs when its actions are seen as violating international rules. The key point, though, is that violation of an international rule by a powerful state does not in itself change the rule. Put differently, the claim that powerful actors in international relations can often avoid sanctions for noncompliance with international rules is not equivalent to the claim that great powers are thereby 18

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rewriting the rules. Breaking the rules is not the same thing as making the rules. The effect of a violation depends crucially on the justifications offered by the violator and the reactions of other states. One study of instances of U.S. noncompliance with international rules concluded that other states, and international organizations, “became involved in each case and the impact on international law of US noncompliance has therefore generally been indirect” (Scott 2003, 449). If the violating state justifies its conduct as a permissible exception to a general rule, the effect is generally to strengthen the norm. As the International Court of Justice explained in its decision in the Nicaragua case, if a state breaks a rule of customary international law but “defends its conduct by appealing to exceptions or justification contained within the rule itself, whether or not the State’s conduct is in fact justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the rule” (1986, 98, para. 186). Similarly, the reactions of other states are crucial in determining the consequences of a violation for the development of international norms. A major state may transgress an international norm and suffer few immediate penalties. But its apparent impunity does not necessarily imply a shift in the rules. On the contrary: if most other states condemn the great power’s conduct, its violation remains simply a violation, and the rule is affirmed. In the longer term, violations of international norms can lead to new or modified rules if other conditions are met. If an apparent violation provokes only mild or pro forma condemnation, that is evidence that the rule itself is weakening and possibly undergoing change. If, in addition, an apparent violation is followed in subsequent years by similar behavior on the part of other states, then the new pattern of conduct can be evidence of an emerging norm. In that case, the initial noncompliant act would be seen as not just a violation but as the first step in defining a new rule. Of course, such judgments can only be made in retrospect. To return to the Iraq war example, if international criticism of the 2003 U.S. invasion were more muted and if, over the next ten or twenty years, additional countries carried out preventive attacks and justified them in terms of a new rule of permissible preventive self-defense, then the U.S. invasion would be seen as initiating a process of rule change. Even in the most lopsided international distribution of power, with one superpower or “hyperpower,” the one great power might be able to compel specific outcomes, but it cannot necessarily dictate norms. By itself, the United States can neither create new norms nor prevent them from emerging (Toope 2003, 313). How Norms Change

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Despite its unprecedented hegemony in the international system, the “incredible power of the United States will not be enough to enable it to ‘go it alone’ in international rule making” (Kwakwa 2003, 26). For instance, the United States, in its “unipolar moment,” has by no means been able to impose its preferred norms on the rest of the world in trade, in humanitarian intervention, or in combating international terrorism. Not even superpowers can always rely on superior power and compulsion; even they must employ persuasion, seeking to establish consensus among multiple interested parties. In any case, unipolar systems are exceptionally rare, and never absolute. Britain, at the height of is ascendance, did not dictate the terms of the nineteenth-century Pax Britannica; it negotiated those rules with the continental European powers (McKeown 1986). The dynamic of normative evolution is not simply reducible to the exercise of power. Great powers cannot generally, by themselves, decree changes in international norms. They, too, must persuade other powers, large and small, to support changes in existing norms. That said, support from powerful states increases the chances that norm modifications will be accepted. The concurrence of multiple powerful states thus increases the likelihood of normative change, especially when the agreement among great powers crosses over other great-power differences.

Phase IV: Rule change The outcomes of arguments modify the rules. The rule may become more clear or less, more specific or less, more qualified by exceptions or less, but it cannot remain unchanged. Broad agreement among states, in favor of one side or the other, strengthens the norm being asserted by the prevailing side. Absence of consensus leaves the norms in question subject to continuing contestation (Byers 1999, 154, 158). Of course, many international norm arguments take decades or even centuries to be resolved. Some debates fade away with no clear outcome, only to be revived in a later period. The long duration and the on-and-off nature of many international norm debates affirm the necessity, in many instances, of taking the long historical view. Arguments that are inconclusive in the short term may be part of more consequential long-term processes. At a minimum, each dispute adds to the pool of precedents. In international society, a small number of precedents can be crucial in establishing a norm. A sole precedent can be contradicted by a single subsequent contrary outcome. With two or three or more precedents, the weight of the emerging norm increases. A disputant acting in accord with the line of precedents can be more confident 20

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that other actors will accept her action as legitimate. A disputant acting contrary to existing precedents will find it much harder to persuade others that her actions are justified (D’Amato 1971, 91–98). Finally, to the extent that powerful actors internalize rules, their values, goals, and choices are shaped from within by normative structures that have been “domesticated.” When international rules alter the terms of domestic policy debates, get incorporated into domestic legislation, affect the decisions of domestic judges, and become integrated in the organizational cultures and routines of domestic bureaucracies, then international rules have been absorbed into a country’s own practices and institutions (Cortell and Davis 1996, 2000; Koh 1998). Even superpowers internalize international norms.

Winning arguments The argument so far holds that actions in international relations constantly provoke disputes about the meaning and application of international norms. Actors favoring differing interpretations of the rules offer arguments designed to persuade others. Which arguments are likely to prevail? Certain features of the dispute context and of the arguments being offered increase the likelihood that a specific position will be more persuasive than its rivals. These factors fall into three categories: power, foundational norms, and precedents. 1. Power: Great powers may not be able unilaterally to create or change international norms, but acceptance by most of the world’s leading powers is necessary for norm change. Assent by multiple great powers increases the likelihood that a new (or newly modified) norm will take root. Norms that win consensus across great-power divides (e.g., U.S.Soviet agreement during the Cold War) are especially likely to become established. The major powers can often offer various incentives (carrots and sticks) to gain the consent of smaller states. 2. Foundational metanorms of international society: A number of scholars have noted that certain international norms are so fundamental that they underpin a huge variety of other rules. These foundational norms are at the core of the liberal Western tradition, which is becoming increasingly globalized. To the extent that these liberal metanorms are globalizing, arguments that are grounded in one or more of them How Norms Change

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are difficult to oppose, and therefore carry persuasive weight. Key foundational norms include: •

Universality: international rules should apply universally, across cultures, nations, religions, and so on (Boli and Thomas 1998; Meyer, Boli, and Thomas 1987).

•

Equality: all persons should enjoy the same rights and protections (Keck and Sikkink 1998).

•

Individual dignity: a notion of the inherent dignity of each person undergirds a broad range of norms against behaviors that would be degrading to the individual. Rules to ensure bodily integrity and the prevention of harm (Keck and Sikkink 1998)—including norms against slavery, torture, cruel treatment, and sexual exploitation, for example— are grounded in a basic norm of the dignity of every person.

The foregoing metanorms frequently clash with two other metanorms that are the foundation of the international legal order: sovereignty and nonintervention (which, of course, were also products of the liberal tradition). Many of the most important international normative debates of the last several decades arise out of the conflict between claims based on equality and individual dignity, on the one hand, and sovereignty and nonintervention on the other. For instance, can states intervene to halt massive human rights abuses in other states, or are domestic relations between governments and their own citizens shielded from outside intervention by sovereignty norms? As argued earlier, tensions between coexisting norms are a constant source of the disputes that drive normative change. 3. Precedents: arguments are stronger when they can reference similar instances in which the norm being asserted was similarly applied. The idea is not that precedent is binding in international relations. Rather, as argued earlier, there is a powerful inclination for participants in normative systems to seek consistency; without consistency, rules do not fulfill their function of providing for stable expectations. Arguments based on analogous cases thus draw strength from the value attached to consistency. Two dimensions of precedent are important: •

22

Number: A single precedent provides some minimum level of support to an argument, but just one contrary example can offset a Prohibiting Plunder

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single precedent. Two consistent precedents are therefore substantially more persuasive than one, and three are more persuasive than two. In general, the larger the number of consistent precedents, the stronger the argument (D’Amato 1971, 88–91). •

Closeness in time: Recent precedents tend to carry more argumentative weight than historically remote ones. The more distant in time a precedent is, the less likely it will appear analogous to current disputes, given the changes in social values and political systems that time inevitably produces. In contemporary debates, the Persian Gulf War is much more likely to be a source of persuasive precedents than are the Peloponnesian Wars.

To sum up, arguments lead to normative change, whether existing norms are reinforced or new norms emerge. Sometimes specific debates do not produce winners; arguments are inconclusive or suspended at one stage and resumed later. Furthermore, change in the substantive content of rules is only one form of change; norms can also shift along other dimensions, including strength, formality, specificity, and authoritativeness. Thus, rules are changing when they become stronger (or weaker), more (or less) specific, more (or less) formal, and more (or less) binding. Normative systems are thus in constant evolution, as a product of arguments triggered by disputes. Arguments are more likely to prevail to the extent that they: (a) are supported by multiple great powers; (b) are consistent with foundational metanorms (universality, equality, individual dignity); and (c) are supported by multiple, recent precedents. At this point, the cycle has completed one turn. The modified rules establish the context for subsequent choices of action and the precedents available in subsequent disputes.

Applying the model I have suggested that the dynamic model just described represents a regular pattern of international norm change. It is not the only way in which international rules evolve, but it is an important and ubiquitous one. In the chapters that follow, I offer an account of the evolution of international rules against wartime art plunder, covering more than 200 years. The history of norms against plunder includes several turns through the norm cycle, and can thus demonstrate the plausibility and utility of the theoretical argument. Wartime plunder offers a rich lode of events and debates, a vein of history running through all of the most convulsive conflicts of the last two centuries, from Napoleon’s Paris to Baghdad in 2003. How Norms Change

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These accounts of looting and loss, of argument and counterargument, of restitution and reform, explore the interaction among rules, actions, and arguments. The evolution of norms against plunder makes a fascinating story, but as told here, it is a story with a purpose. Because the theoretical framework makes social scientific claims—about how the normative structures of international life change— the empirical account should highlight those historical events and processes that confirm, or refute, the theoretical expectations. Examining the history of wartime plunder and related norms, therefore, should show the following: •

That international norms regarding the plunder of cultural objects in war have indeed changed

•

That the process of norm change included the kinds of phenomena I have posited, namely, actions that trigger disputes about the rules, argumentation drawing on precedents, and subsequent shifts in the understanding of the rules

The empirical account, then, must include four specific elements: 1. The preexisting rules, establishing the context for actions and disputes 2. The actions or events that trigger a dispute 3. The arguments on both sides of the dispute, invoking rules and precedents 4. The ways in which those arguments modified international norms First is the normative context, those rules that existed at the time when the empirical story begins. Chapter 2 briefly delineates the norms and practices of wartime plundering prior to 1800. Because the empirical analysis really begins with the wars of Revolutionary France and the Napoleonic Empire, the history of norms before that period is important both as a baseline against which to compare change in those norms and as a source of principles and precedents to be deployed by actors. Each subsequent episode then alters the normative context in which later disputes arise. Thus, as we will see, the debates in the 1990s and 2003 were not the same as those that occurred in 1815. At the conclusion of the Napoleonic Wars, the allies had to decide whether the rule “to the victor go the spoils” would apply. 24

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In the 1990s and 2003, the international community debated means of prosecuting those responsible for crimes against cultural heritage and argued about whether occupying powers have a duty to protect cultural treasures from theft and vandalism by other actors. Second, the crucial events in the account consist of plundering—the seizure (and sometimes destruction) of cultural items in war. For example, in the case of Napoleonic France and Nazi Germany, the looting was massive, organized, and purposeful (to establish cultural predominance). Third, the empirical accounts examine the disputes triggered by events. Did acts of plunder provoke protests and contestation, that is, normative arguments? Assessments of the Napoleonic Wars (chap. 3), World War I (chap. 5), World War II (chaps. 6 and 9), the conflicts in the Balkans and the Persian Gulf in the 1990s (chap. 8), and Iraq (chap. 10) will show that they did. Fourth, the empirical analysis must show that the arguments modified the norms. In fact, the analysis reveals that disputes about plundering led to clarification and strengthening of the norms, and sometimes to efforts to formalize the new understandings in treaty form. But how do we know when the rules have changed?

Identifying normative change One clear marker of normative change is the development of international treaties and other agreements. The emergence of formal conventions prohibiting the seizure or destruction of cultural treasures during wartime would therefore constitute evidence of changing international rules (at this point my objectives do intersect with international law’s concern with sources; see the earlier discussion of sources of international law). Chapters 4 and 6 describe the negotiation and enforcement of two such agreements, the Hague Conventions of 1899 and 1907 and the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. Chapter 8 assesses the efforts to clarify and reinforce the antiplunder norms, in response to the conflicts of the 1990s. Chapter 9 evaluates how those rules have filtered into national policies and legal systems, as well as the world of museums. Changing norms should also become visible in changing behavior—what states, and other actors, regularly do. We know that rules have changed when states alter How Norms Change

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their general behavior (this is at the heart of customary international law). States that refrain from looting would be evidence of a normative shift. The reversal of looting—returning plundered objects to their owners—would also constitute evidence of an antiplundering norm. Compulsory restitution is a way of enforcing norms against plunder. The empirical account examines the aftermath of three major wars that produced the destruction or plundering of cultural properties (the Napoleonic Wars, World War I, and World War II). In each case, the victors oversaw the restitution of looted treasures, which I take as evidence of a norm against plundering. One might object, Why would enforced restitution not be simply another instance of might making right, of the winners doing whatever serves their interests? We must therefore look for crucial cases. Episodes that would most decisively demonstrate the development of antiplunder norms would be those in which we observe countries that 1. prevail in war (identifying them as powers); 2. were not plundered themselves (so that if they compel restitution it is not merely self-interested); 3. oblige defeated plunderers to effect restitution to third countries (nonself-interested restitution); and 4. do not engage in plundering of their own. Such cases would have to be considered compelling evidence of the new norm. In fact, historical investigation reveals two such instances: Great Britain at the conclusion of the Napoleonic Wars and the United States at the end of World War II.

Plan of the book The story of art and war, plunder and restitution, will illustrate the dynamic process of international norm change, and affirm the utility of the analytical perspective I have offered. With one exception, each episode constitutes a cycle of normative development, including the phases I outlined: rule context, action, dispute, arguments, rule change. Yet viewing each case by itself would not capture

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the full dynamic I have theorized. Each turn through the cycle alters the normative and discursive context for subsequent actions and arguments. The largely chronological organization of the narrative might lend the account a linear character. But the geometry of norm development is more complex than a line. I have labeled it a cycle, yet even that depiction is only partially accurate. Each episode of norm change is a cycle, but it is a moving cycle; one turn through the loop takes us not to where we started, but to a new place, where the structure of rules has been modified. An episode of norm change thus brings us back to the same phase on the loop—normative structure—but a different location in normative space. Only by viewing the long-run development of rules, in this case covering more than 200 years, can we perceive the spiral nature of the process. Figure 1.3 offers a schematic depiction of the full analysis. Each turn through the cycle of norm change appears as a circle, with arrows indicating movement through the phases of the cycle (fig. 1.2). Each cycle modifies the normative context for events and debates that follow in time (moving left to right). Two elements in the diagram do not represent loops through the cycle of normative change. The first is the box that represents the international norms regarding wartime plunder that prevailed before the Napoleonic Wars. I do not explain in great detail the evolution of those norms in earlier historic periods; what is important is to describe the normative context that existed on the eve of the developments that I analyze in depth. A second rectangle, labeled “International law activists,” represents a set of developments (evaluated in chap. 4) that did not occur in the cyclic mode that typifies the other episodes. The law activists were international law scholars and jurists, active in the latter half of the 1800s, many of whom were also involved in their respective national foreign policy and diplomatic establishments. This network of experts worked together to promote the elaboration and codification of international rules to govern the conduct of war, including norms against the destruction or plunder of cultural treasures. These jurists and diplomats were an early example of what scholars now call a transnational activist network, or international civil society. Indeed, the second half of the nineteenth century was the era in which national and international civil societies were beginning to emerge. The international law activists were also forerunners of today’s networks of experts and epistemic communities (Haas 1989, 1990). The Hague Conventions of 1899 and 1907 were the culmination of their efforts.

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28 Chapter 2

Chapter 3

Chapter 4

Chapter 5

Chapter 6 & 7

Chapter 8

Chapter 9

Chapter 10

National policies

Museums Pre-1800 norms

International law activists Napoleonic Wars

World War I

World War II

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Fig. 1.3. The development of antiplunder norms

Baghdad and beyond

International Norm Change

Two smaller circles above the main line represent cycles of normative development that have translated international norms into national policies, domestic law, and norms for the world of art museums. In a sense, these are subcycles of international norm change. The subcycles were generally triggered by disputes over specific artworks or collections that had been seized during World War II. The curving lines that link these circles to the World War II cycle show that the disputes and arguments involved were repercussions, decades later, of events that occurred during the war (chap. 9). The final empirical chapter brings the account up to the present, evaluating the looting of the Iraqi National Museum as American troops overran Baghdad in early April 2003. The outcry over the loss of valuable antiquities from some of the world’s oldest civilizations may well have pushed the development of international norms toward a positive duty of states to protect cultural treasures not just from their own soldiers, but from looters and thieves (Sandholtz 2005). Chapter 11 summarizes the key points and contemplates the application of the model to additional empirical domains.

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CHAPTER 2

Plunder and the Spoils of Victory When people argue about rules and their application to events, they inevitably reach into the past. History is the repository of analogies and precedents, which in turn are building blocks of normative arguments. The creativity in normative suasion comes generally not in inventing new raw materials but in arranging the pieces already available in novel or unexpected ways. Ideas created out of nothing would be incomprehensible to those they were meant to persuade. In fact, the meaning of norms and principles resides in the ways they have been applied and interpreted previously. One of the primary tasks in explaining the development of norms, therefore, is to identify the preexisting normative context. Opposing sides may well invoke different sets of norms and ideas and consequently refer to distinct precedents (past applications of rules and principles in concrete cases). It may frequently be possible to predict which bodies of principles and precedents each side will call upon; indeed, good lawyers routinely anticipate the laws and lines of precedent that the opposing side will advance. Even so, creativity and innovation are by definition unpredictable, and contestants sometimes transform disputes by drawing analogies and invoking principles that are initially surprising yet, in the end, persuasive. Because the account in this book begins with art plunder in the wars of the French Revolution and the Napoleonic Empire, it must lay out the bodies of principles and precedents that the various players in that drama could invoke. Napoleonic plunder is a sensible starting point for two reasons. First, the art seizures Napoleon’s agents carried out, and which Bonaparte himself often oversaw, were so massive and methodical that they dwarfed previous instances, at least in medieval and early modern Europe. Second, in the half century or so

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before the French looting, philosophers and publicists had begun to offer arguments against the legitimacy of plundering. Their arguments did not constitute norms, as international actors did not yet accept them as rules of conduct. The publicists’ arguments were, however, normative ideas that actors could draw upon in arguing for new international rules. Events are the real test of the existence of norms, and Napoleonic plundering was the first episode in which the new ideas were asserted. More specifically, French looting triggered debates, in which the opponents of plunder could draw on recently developed principles. Each side in 1814 and 1815 could extract from the past ideas and examples to bolster its case. The French evoked parallels with classical antiquity (the Roman trophies of war) to defend the practice. The allies countered with arguments that drew on two bodies of ideas and principles. One of these concerned the status of artists and great works of art, which, especially since the Renaissance, assumed a privileged place in the European social and cultural pantheon. The second set of ideas that framed debates about art plunder had to do with the rules of war. During the preceding century, the period of the “Enlightenment,” legal philosophers and statesmen had sought to establish, or find in nature, rules of restraint in the conduct of war. Figure 2.4, a segment of the schematic presented in Figure 1.3, previews the discussion and connects it to the larger narrative.

1. The tradition of plunder 2. Changing ideas and values: The veneration of art and the Grand Tour Restraint in warfare

Fig. 2.4. The normative context pre-1800 The Tradition of Plunder Art plunder, at one level, is simply crossborder theft: the strong seize what they covet because they are able to. Looting works of art has always been a means to personal enrichment for officers, and, occasionally, common soldiers. But the significance of plunder has not resided primarily in the cash value of the seized treasures. Rather, in the public arena, art plunder has been a symbolic dimension of war, by which the victors demonstrated their cultural ascendance over the vanquished. By appropriating and carrying home the greatest artistic and 32

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cultural artifacts of the defeated, the winners in war thus symbolically absorbed “lesser” cultures. Or, as Hugh Trevor-Roper puts it, to the extent that art confers prestige upon a polity, its rivals in war will seek to destroy that aura and appropriate it for themselves, “like cannibals who, by devouring parts of their enemies, think thereby to acquire their mana, the intangible source of their strength” (1970, 7). The enriched state was not just the home of victorious armies but also the center of a superior civilization. Elaborate public rites, like triumphal processions or the creation of splendid museums, served the symbolic purpose of asserting the cultural supremacy of the conquerors. The ancient Romans made the display of plunder a central feature of the public celebration of their victories. The practice apparently dates from the early period of Roman expansion, as “Rome became a vast museum where the masterpieces of Greece, Egypt and Asia Minor were crowded together” (Treue 1961, 13). In the Roman Republic, triumphs became highly ritualized, with a procession from the Campus Martius to the Capitol. In addition to political officials and the victorious general robed as a conqueror, the processions included the spoils of war. Sulla, for example, during his expedition in Greece, was an avid looter. He seized paintings, busts, marble columns, architectural decorations, and vast quantities of marble sculptures. The procession upon his return to Rome in 81 bce lasted more than a week, the chariots piled high with plunder (Grant 1968, 15–18). Lucullus, Roman governor and general in Asia, celebrated his triumph in Rome in 63 bce; the gardens of his villa contained statues and other artworks from the ancient civilizations. Roman plundering was not driven merely by the monetary value of the objects taken; rather, the importance of the looted art was as “tokens of triumph” (Treue 1961, 18). After the collapse of Rome, art plunder was a regular feature of European wars. One of the more notorious instances occurred during the Fourth Crusade, which reached Constantinople in 1203. When the assault on the city succeeded, the Christian soldiers spent the next week in a rampage of looting and destruction, carrying away treasures from palaces, churches, monasteries, and libraries. The famous bronze horses of Lysippus, taken from the hippodrome, traveled to Venice where they assumed their place of honor above the doors of the cathedral of San Marco. During the Napoleonic wars, the French would remove the horses to Paris and place them on a triumphal arch in the Tuileries. After the final defeat of Napoleon, the horses would retrace the route back to Venice (Grant 1968, 34–36; Treue 1961, 34–35).

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Charles VIII and his successor Louis XII of France were acquisitive plunderers of art and libraries during their Italian wars in the late 1400s and early 1500s. The sack of Rome by German, Italian, and Spanish forces in 1527 also yielded a substantial haul of art treasures for the victors. The last major looting of art before the Napoleonic era occurred during the Thirty Years’ War. When the armies of the Holy Roman Empire, led by Tilly, captured Heidelberg in 1622, they seized the famous library, the Palatina, of the Elector Frederick V. Pope Gregory XV ordered that the library be brought to Rome, where most of it remains in the Vatican collections. The Swedish armies of Gustavus Adolphus sent back to Stockholm treasures from all across Europe. Upon capturing Munich in 1632, Gustavus seized the spectacular art collection of the Dukes of Bavaria, including paintings by Dürer, Holbein, and Cranach. His daughter Christina, who succeeded him in command of Swedish forces, was perhaps even more voracious. She urged Swedish troops to capture Prague in 1648 so that she could obtain the imperial collection there before the peace of Westphalia could be concluded. She specifically instructed her cousin, the general Prince Charles Gustavus, to “take good care to send me the library and the works of art that are there: for you know that they are the only things for which I care” (Trevor-Roper 1970, 22–44). The notion that cultural treasures are not legitimate spoils of war thus contradicts norms that had been accepted and acted upon for centuries. The principle of protection for cultural properties emerged in Europe and was consistent with two clusters of developing norms and values. First, European elites conferred upon art an almost sacred status that separated works of art from other kinds of property, like horses and shoes. The veneration of art was a crucial precondition for the wartime protection of cultural property. Second, ideas about military force and its use were also changing. Enlightenment thought held that force should be applied rationally and humanely, that is, to the degree necessary for victory but not more. Treatise writers began to point out that the destruction of cultural treasures did nothing to secure military success. The rational use of force also intersected with the increasing need for maintaining discipline in armies composed largely of commoners. In the age of standing armies, widespread plundering by troops was disastrous for discipline. New rules regulated battlefield looting. But they said nothing against organized plunder in the service of the state. If anything, the regulation of looting made the armies more efficient tools of large scale cultural plundering for the state, as Napoleon would prove.

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The Veneration of art Prior to the Renaissance, painting and sculpture were viewed as crafts, or manual trades, and art works were generally identified not with a single artist but with a workshop. In fact, artists in most cities worked within the guild system; painters might belong to the guild of doctors and pharmacists, sculptors to the “goldsmiths, stonemasons, or carpenters guild, depending on the materials they used and the city they lived in” (Barker, Webb, and Woods 1999, 14; Weber 1971, 95). During the Renaissance, however, that status began to change. “Appreciable progress was made during the Renaissance, due primarily to the recognition that a work of art has qualities surpassing those embodied in the works of ordinary craftsmanship, a unique character, marking the individual genius of its creator” (Nahlik 1988, 203). The individual artist emerged as hero and celebrity. The humanism emerging in the Renaissance “encouraged a new focus on the virtues and deeds of individual human beings who had left their mark on history,” including artists (Barker, Webb, and Woods 1999, 16). Thus it became standard practice for artists to sign their names to their paintings (though there were occasional instances of this before the Renaissance). Equally important, the works of the most renowned artists were in demand in cities across Europe, and the artists themselves were eagerly wooed by princely and ecclesiastical patrons far from their homelands. This competition among patrons produced a social liberation for artists. In early-sixteenth-century Italy, for example, numerous small courts sought to place commissions with the most famous artists. As a result, artists could increasingly exercise choice among the various offers (Gombrich 1995, 307). Michelangelo was, of course, one of these Renaissance stars. He (and other sculptors at the papal court) was allowed by special permission from Pope Paul III to remain outside the guild (Barker, Webb, and Woods 1999, 15). When Pope Julius II cancelled his commission for a tomb, Michelangelo quit Rome in a fury and told the pope by letter to find him in Florence if he wanted him. The pope did so, negotiating with the rulers of Florence to convince the artist to return to Rome. In the end, Michelangelo agreed, and received a commission to paint the Sistine Chapel. The biographers of Titian relate that the Holy Roman Emperor Charles V honored the painter by picking up for him a dropped brush (Gombrich 1995, 307, 331). In the north, Albrecht Dürer received commissions from diverse princes, including the Emperor Maximilian. The Lives of the Artists, published by Giorgio Vasari in 1550, elevated both artists and their works to extraordinary status: the great masterpieces were deemed

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worthy of sustained admiration and could be understood through study of the circumstances and experiences of their creators. The Enlightenment further enhanced the social and cultural place of art and artists. The rise of individualism, so central to Enlightenment thought, had important repercussions in the domain of art, and was linked to the development of humanism in the arts. Man1 was gradually displacing God as the center of the cosmos and was learning to master nature and even to surpass nature in creative brilliance. Art came to hold an exalted status, not just because collecting it was a sign of wealth, power, and taste, but because art was seen as the most transcendent product of human genius and creativity. Indeed, by the time of the French Revolution, the arts in Europe increasingly served as “substitutes for religion.” Art museums became modern temples, complete with monumental architecture and the hushed and reverential attitude that prevails within them (Burke 1979, 315). Only in the context of this veneration of art and artists, developing since the Renaissance, is it possible to understand the meaning of wartime plunder both for those who engaged in it and for those who suffered it during the wars of the French Revolution and Empire. For neither group was art a simple possession, like cattle. Depriving a people of its great art was tantamount to cutting it out of participation in the highest expression of culture and (in the language of the time) civilization. In the language of rights, so characteristic of the Enlightenment, people were entitled not just to their property but to their share of humanity’s artistic patrimony.

Europeans and the Grand Tour Art became, then, an object of veneration, with all of the religious overtones that term implies. The arts performed, for Enlightenment thinkers, some of the roles previously associated with faith and devotion, in elevating and improving the spirit. For example, the Encyclopédie of Diderot and d’Alembert, that distillation and touchstone of Enlightenment thought, in the entry on “Peinture,” declares, “One should place Painting among those things that are purely enjoyable, for this art . . . is entirely for the pleasure of the eyes and of the spirit” (Encyclopédie, ou Dictionnaire Raisonné des Sciences, des Arts et des Métiers 1966 [1765], 267). Masterpieces of art came to be seen as not merely valuable, but

1

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The gender-specific language is appropriate for the thought of the period.

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as nearly sacred. The institution of the Grand Tour demonstrates how this attitude toward cultural treasures was shared among elite classes across Europe. In the seventeenth and eighteenth centuries, Europeans from the upper social and political classes began to traverse the continent to render homage to monuments of architecture, painting, and sculpture. Whereas the main destinations of European travelers had for centuries been the shrines of Santiago de Compostela and Rome, the new pilgrims of art flocked to Paris, Florence, Rome, Naples, and Venice. Whereas earlier generations arrived at Rome to adore the relics and shrines of Christianity, visitors in the Age of Enlightenment visited the Vatican to wonder at the masterpieces of Michelangelo and Raphael. Just as the Christian devout had followed well-established routes, the eighteenthcentury devotees of art and culture developed standard itineraries. For most of them, Italy was the indispensable destination, with Rome as its crown jewel. Indeed, beginning in the sixteenth century, “Rome was agreed to be the centre of gravity for European artistic culture, where many of the most revered treasures of the ancient world, the Renaissance, and the seventeenth century were to be found” (Wrigley 1996, 77). Travelers from northern Europe thus made their way to Italy, frequently by way of the Netherlands and France, with Paris naturally an irresistible hub of culture and fashion. Returning from Italy they often passed through Germany, which gained in popularity as a destination in the latter half of the eighteenth century (Burgess 1967, 13). One preferred destination in Germany during the first half of the century was Düsseldorf, which housed the substantial art collection of the Wittelsbachs. Later on, Dresden attracted more travelers, drawn in part by the art collection, then one of Europe’s most resplendent, assembled by Augustus III of Saxony (Black 1992, 63, 271). The itinerary became a standardized circuit known as the “Grand Tour,” a label that first appeared in an early travel book on Italy, the Voyage or a Compleat Journey through Italy, published by Richard Lassels in 1670 (Redford 1996, 10–12; Seta 1996, 13). In fact, travelers could follow paths laid out for them in numerous books, forerunners of today’s Baedeker or Michelin guides. One popular English example was An Account of Some of the Statues, Bas-reliefs, Drawings, and Pictures in Italy (1722), which listed the significant artworks by city and provided descriptive information as well as aesthetic judgments (35–37). Within Italy, the typical circuit began in Florence, reached as far south as Naples, then headed north to Rome and Venice, and left Italy through the northern cities of Verona, Mantua, Bologna, Milan, and Turin (Ingamells 1996, 22). How Norms Change

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For Europe’s elite classes, the Grand Tour was an important rite of passage. To be sure, only persons of wealth, by inheritance or (especially in Britain) by commercial success, could afford to travel for the two or three years that a Grand Tour could typically last (Redford 1996, 14). Yet the culture pilgrims came from everywhere in Europe: Spain, Flanders, Holland, Germany, Sweden, Poland, Russia, Hungary, France, and Britain (Seta 1996, 13, 14). And the voyage was not for men only. During the 1700s in particular, an “important phenomenon” in the Grand Tour was the “conspicuous presence of women among the numbers of the most tireless and passionate travelers” (Brilli 1987, 42).2 Among the French elite of letters who traveled in Italy were Montaigne (in 1580–81, though his letters were not published until 1774 as Journal de Voyage en Italie), Rousseau, and Montesquieu (Bertault 1913). Voltaire disparaged the traditional Italian voyage of the French aristocrats and their travel accounts, though he frequently proclaimed his own intention of traveling in Italy (Harder 1981, 170–75, 195–96). The “voyage d’Italie” was such a common experience that it gave rise to a veritable literary genre.3 “Between them, during the eighteenth and nineteenth centuries, French artists, writers, soldiers, administrators, and tourists produced several hundred published accounts of Italian travel” (Wrigley 1996, 77). Aristocratic and educated Germans joined the tour of Italy as well and also composed travel letters and guidebooks (Schudt 1959, 63–76). Goethe himself wrote of his Italian journeys, most famously in Italienische Reise (1816–17) and also in his Tagebücher und Briefe aus Italien (not published until 1886; Harder 1981, 153; Klenze 1907, 30–31, 65; Seta 1992, 205–19). Yet among all the countries of Europe, Britain embraced the Grand Tour most ardently and converted it into a central, in some ways even defining, practice for the social and political upper strata (Redford 1996, 11).4 With the country’s growing wealth, it became common among the successful middle classes (Ingamells 1997). The flow of British tourists produced a thriving industry 2 3 4

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“ . . . il Settecento assiste al sorgere di un altro importante fenomeno, vale a dire la cospicua presenza delle donne nel novero dei più infaticabili ed appassionati viaggiatori.” See also Bignamini (1996). For a broad selection of French travel writing on Italy, see Hersant (1988). So well established was the institution of the Grand Tour in Britain that it provoked a contrary literature that subjected the Tour to scathing criticism and satire, beginning with Pope’s The Dunciad. The antiTourists included John Locke (Some Thoughts Concerning Education) and Laurence Sterne (A Sentimental Journey; Tristram Shandy also began as a satirical Tour anti-narrative); Redford (1996). Cartoons and caricatures lampooned the Grand Tourists. For reproductions of examples, see Black (1992) and Redford (1996).

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producing portraits for travelers and another for the production of fakes and reproductions (Black 1992, 265–66; Ingamells 1996, 23, 29). Among the educated and well born, who filled the institutions of government, education, literature and the arts across Europe, the grand tour was a shared experience. The Tour was both a mobile, revolving dinner party and a vast classroom where Europeans of means acquired both aesthetic refinement and knowledge of the world. Travelers from every country stayed in the same inns and visited the same cathedrals, palaces, and monuments. The result was a pan-European elite, many of whose tastes and ideas had been informed by the shared experience of Italy. As de Seta puts it, “taking place around the 1740s was an internationalization of the tour on a vast scale; the cosmopolitan character of such a culture is well expressed in this incessant traveling through the four ends of the continent” (1992, 155). The shared cultural values of Europe’s elites was an important foundation for the opposition to French plundering during the wars of 1793–1815. Among those who opposed the French art seizures on aesthetic or theoretical grounds were the German poet Schiller and the French theorist Quatremère de Quincy. Quatremère himself undertook an extended Grand Tour in Italy in the 1770s and 1780s; he met leading artists, theorists, and collectors (Boime 1987, 145). In particular, Quatremère vehemently objected to the French removing artworks from Rome. In a 1796 letter to a General Miranda, he argued that removing Rome’s masterpieces from their natural ambience would sap their life and vitality. “Except for Rome, there is not a city in Europe that could present to these masterpieces a home worthy of them, nor a temple suitable for the contemplation that their study requires. It is not in the fog and smoke of London, the rain and mud of Paris, the ice and snow of Petersburg” (Quatremère de Quincy 1989 [1815, 1836], 221–222). Many of the travelers who had admired those masterpieces in their Roman environs would likely have agreed. As a social and cultural practice, the Grand Tour manifested and reproduced the reverence, shared by elites across Europe, for artistic treasures. The notion that cultural goods should enjoy special protections during wartime derived in part from that reverence.

Rules of war The mass atrocities committed in twentieth-century wars, often carried out with pitiless and methodical lack of inhibition, have made it difficult for us to regard

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the notion of restraint or limits in warfare with anything other than irony or disillusionment. Virtually all of the supposed boundaries, whether prohibiting specific weapons or shielding noncombatants, have been transgressed. Even so, international tribunals today do hold individuals accountable for cruelties and excesses that are considered war crimes or crimes against humanity. So perhaps the efforts of eighteenth century thinkers and statesmen to define rules restraining the conduct of war should not seem entirely quixotic. During the mid- and late-eighteenth century, the “mature Enlightenment,” philosophers and essayists sought to bring reason to bear in solving problems both natural and social. Among the scourges so addressed was war. Law publicists and philosophers of the period reached broadly similar conclusions, to the effect that the harms entailed by warfare should be limited to those required by the objectives of the war and necessary for its prosecution. A primary goal of these writers was to humanize war, to submit it to rational control (Best 1980). In this project, the Enlightenment writers themselves drew upon traditions of thinking that predated them by many centuries. During the Middle Ages (roughly 1200–1500), the principal writings on the laws of war came from Church scholars and theologians, whose primary concern was with the conditions under which a Christian would be justified in fighting a war in the first place (jus ad bellum, or rules on just causes; Best 1994). Aquinas, preeminent among the scholars, offered the seed of a doctrine limiting the conduct of war (jus in bello, or rules of warfare), placing Christians, even in war, under the law of charity (Johnson 1975, 39–41). Canon law in the thirteenth century, notably in the treatise De Treuga et Pace (Of Truces and Peace), sketched an early doctrine of immunity for noncombatants. Those to be exempt both from fighting wars and from suffering the harm of warfare under this “Peace of God” were the holders of religious offices (clerics, monks, friars), pilgrims, travelers, merchants, and peasants. Furthermore, their animals, goods, and land were to be similarly protected (44). A parallel secular tradition of chivalric virtue led toward similar proscriptions. The code of chivalry applied only to a narrow social stratum, namely, the nobility who, as knights, were solely responsible for fighting wars. An important function of the knightly rules of fighting was to maintain the nobility’s monopoly on the use of force; armed peasants who could challenge the armored chevaliers were a nightmare that eventually, of course, came true. But in its time during the early Middle Ages, the chivalric code established rules for the honorable 40

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treatment of opponents on the field of battle, as well as a positive duty to protect from harm the weak and innocent (Johnson 1981, 134–37). Beginning about 1500, the principal concern of just war thinking gradually shifted, away from just causes and toward limits on the conduct of war. The canonic law and chivalric traditions merged into a single body of law on warfare (Best 1994, 19; Johnson 1975, 66). The Spanish theologian Francisco de Victoria accelerated the development of rules of war, and his arguments exercised a powerful influence on later writers. In a set of lectures delivered in 1532, and subsequently published, Victoria made two major contributions. First, he sought a natural basis for limitations on war fighting so that these could apply to the Spanish conquests of non-Christian peoples in the Americas. Christian just war thought was by and large directed toward conflicts among Christians; the laws of war did not apply when Christians fought nonbelievers. Victoria thus laid the groundwork for universal rules of war. Second, he also admitted the possibility that both sides in a war could be fighting with just cause or that the origins of a conflict could be so obscure that even a dispassionate outsider would be unable to untangle the justifications. As the issue of just causes became increasingly moot, rules on the conduct of war assumed first importance (Johnson 1981, 176–77). Grotius gave additional impetus to the transition Victoria had begun. He reduced the jus ad bellum to a set of formalities: war had to be declared by a sovereign. A just war, then, was one fought in accordance with the jus in bello, the rules of warfare. For Grotius, these rules could be known from nature and were thus binding on all, not just Christians. The core principles informing the rules of war were, for Grotius, “modesty” and “moderation.” The means used in fighting a war should be proportional to the ends (Best 1994, 28–29; Johnson 1975, 210–32; 1981, 178). Grotius also left his imprint on norms of plunder. In fact, his earliest major work, Commentary on the Law of Prize and Booty (De Jure Praedae Commentarius 1950 [1604]), dealt with the question of prize at sea. Grotius wrote on behalf of a Dutch firm of shipowners (later part of the Dutch East Indies Company). The captain of one of the firm’s ships had captured a Portuguese vessel, the Catharine, and seized it and its cargo as prize. The incident went before a prize court, which upheld its legality and awarded most of the proceeds to the Company. Some shareholders, however, disapproved of taking profits from prize and of the government’s subsequent grant of monopoly trading rights in the East Indies to the Company. How Norms Change

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Grotius argued in defense of the legality and practical wisdom of the seizure of the Catharine.5 He never published the Commentary as a whole (only one chapter under the title Mare Liberum), but it contains the essence of the broader arguments on war and peace that would appear in his great treatise on that topic. In the Catharine case, at least, Grotius was not an unmotivated party. With respect to the laws of war on land, however, he clearly wrote as the generalizer in search of natural and universal foundations for international rules. In The Rights of War and Peace (De Jure Belli ac Pacis), Grotius argues, citing Cicero, Polybius, and Livy, that conquerors have always possessed the right to destroy the possessions of the enemy, including sacred places (1901 [1625], 332). He further asserts that “any one whatever, engaged in regular and formal war, becomes absolute proprietor of every thing which he takes from the enemy,” and adds that the property of subjects is considered the property of the enemy and thus can also be seized (335). However, Grotius continues, reason enjoins the destruction of objects that do not increase an enemy’s strength or decrease one’s own, including “Porticos, Temples, statues and all other elegant works and monuments of art.” The right of destruction is thus limited by a “rule of moderation” (367). Two relevant points emerge: first, though the traditional law of nations permitted plunder, some practices were nevertheless unjustifiable; and second, works of art should enjoy a special protected status. The move Victoria and Grotius began toward limitations in warfare did not lead to immediate consensus among treatise writers, however. For instance, Cornelius van Bynkershoek, writing in the Netherlands in 1737, held that “everything is lawful against enemies as such . . . . We make war because we think that our enemy, by the injury done us, has merited the destruction of himself and his people. As this is the object of our welfare, does it matter what means we employ to accomplish it?” (1930 [1737], 16). International law writers into the eighteenth century generally held that any means were justified in war and that combatants possessed “unlimited right” over the person and property of their enemies (Williams 1978, 5).

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Though there is apparently no conclusive proof that Grotius wrote the Commentary at the request of the Dutch East Indies Company, the treatise clearly defends the interests of the company in the case in question (Finch 1950).

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Still, by the latter half of the 1700s, Enlightenment writers had more or less accepted the transition Victoria and Grotius had begun. A broad consensus among the leading writers and publicists held that the cruelty and damage associated with war could and should be limited to what was rationally necessary for victory (Best 1980, 38). The two most cited by subsequent generations of writers were Wolff and Vattel. Their treatises were widely read in Europe, not just by scholars and jurists but also by rulers and diplomats. Wolff argued that only the degree of force necessary to obtain the “right” (i.e., the object of war) is justified; any use of violence beyond that, or that is not essential to attaining the ends of the war, is not allowable (Wolff 1964 [1764], 403–404). The Swiss jurist Emmerich de Vattel was preeminent among the publicists concerned with the law of nations; his treatise, The Law of Nations, or the Principles of Natural Law (Le Droit des Gens ou Principes de la Loi Naturelle), was widely known across Europe. First published in 1758 in Neuchâtel, within twenty years it had appeared in editions from Leyden, Amsterdam, Basle, and two more from Neuchâtel. The first edition printed in France came out in 1793. Vattel’s treatise was published in Britain three times (1760, 1793, and 1797, all in English) and in Dublin (1787, 1792). The first German translation appeared in 1760. After the Revolutionary War, Americans eagerly embraced The Law of Nations. Benjamin Franklin received three copies from a sympathetic Amsterdam publisher, and by 1780, it was in use as a textbook in American universities (Lapradelle 1916, xvii–lix). American editions were printed in 1787, 1796 (both in New York), 1805 (Northampton), 1817 (Philadelphia), and 1820 (Northampton). Vattel separates the laws of war from just war doctrines, justifying legal limits on war fighting regardless of the rightness of the causes on either side (Best 1980, 39). He also establishes that conduct in the prosecution of war should be measured against necessity: “A lawful end confers a right only to those means that are necessary to attain that end. Whatever is done in excess of such measures is contrary to the natural law” (1916 [1758], 279). Though there would be, and are, ambiguities regarding whether specific actions are strictly necessary to the pursuit of war objectives, the implications for plunder followed. Vattel notes at the outset, however, that not only the sovereign but also “his entire Nation, down to the women and children,” are enemies in war and that “all that belongs to that Nation, to the State, to the sovereign, to the subjects of every age and both sexes, constitutes enemy property” (1916 [1758], 259). All enemy property is subject to seizure, and a belligerent is justified “in destroying How Norms Change

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what he cannot conveniently carry off.” In fact, “it is not, generally speaking, contrary to the laws of war to plunder and lay waste to a country” (291–92, 295). However, such measures should only be taken to achieve the objectives of the war, and “should be used with moderation and only when necessary” (291–93). Even then, certain objects and properties should be exempt from the demands of war. Vattel displays the reverence for artistic treasures that, as described above, emerged and spread during the Enlightenment. Vattel suggests that cultural goods should be spared because of their significance for all humanity: “For whatever cause a country could be devastated, those buildings should be spared which are an honor to the human race and which do not add to the strength of the enemy, such as temples, public buildings, and all the edifices of remarkable beauty. . . . It is the act of a declared enemy of the human race thus wantonly to deprive men of these monuments of art and models of architecture.” Vattel adds, more pointedly: “The deliberate destruction of public monuments, temples, tombs, statues, pictures, etc., is, therefore, absolutely condemned even by the voluntary Law of Nations, as being under no circumstances conducive to the lawful objects of war” (1916 [1758], 293, 295). These injunctions refer explicitly to the destruction of artistic treasures, not necessarily to their seizure by the victors. But some of the underlying principles could, and would later, be extended to the confiscation of art works. First, if destruction of cultural treasures contributes nothing to success in war, then seizure does not either. Second, by connecting monuments of art and architecture to humanity in general, Vattel prefigures the notion of “common heritage of mankind.” Such articles are not “property” in the usual sense; thus the way was open for arguing that other special protections should apply to cultural treasures. The writings of Wolff, Vattel, and the other publicists were not the esoteric domain of a coterie of specialists. Indeed, their ideas about restraint in war diffused throughout the educated elite classes across Europe, among scholars, rulers, and military officers. The highest ranking officers were by and large aristocratic or possessed sufficient means to adopt the social ways of the hereditary nobility. These elites were “cosmopolitan, homogeneous, and concerned to keep up with the intellectual progress of the age”; they spoke the same languages, and family ties or professional activities, including those of military officers, frequently crossed state borders (Best 1980, 32–33). Eighteenth century ideas of restraint and limits in war certainly found their way into the military officer class.

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Conclusion In short, two sets of changes seemed, in the eighteenth century, to be weakening the foundations of what had long been the practice, and acknowledged right, of plunder. First, the veneration of art, shared by cultural and political elites across Europe, implied special protections for masterpieces of artistic creation. Second, Enlightenment efforts to rationalize war justified only those applications of force that were necessary to achieve military objectives, and sought to limit war’s destructiveness. Protections for cultural monuments were part of the emerging principles of restraint in war. The notion that cultural treasures should be immune from war was, by the latter half of the eighteenth century, a respectable idea. But it was not yet a rule. The idea had not yet been considered by governments as a standard of conduct, and events had not yet forced the issue. That would change as French armies marched across Europe following the Revolution of 1793. The French armies followed the tradition of seizing as war trophies the masterpieces of art in conquered lands. In the next chapter, we will see how French art seizures, and the debates that ensued, launched the development of international norms against art plunder.

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CHAPTER 3

Napoleonic Plunder and the Emergence of Norms Revolutionary and imperial France followed the Roman model, in which the display of plunder was a central feature of the public celebration of war victories. Wagonloads of masterpieces from Italy, for example, rumbled through the streets of Paris. The Louvre housed the best pieces from the greatest collections of Europe and embodied the French claim that Paris was the new capital of European civilization. Not until the conclusion of the Napoleonic wars did a repudiation of art plunder begin to crystallize in the international society of states. Chapter 2 examined the evolution of two clusters of principles and ideas that were precursors to the development of norms against art plunder. The first dealt with the veneration of art; the second concerned limitations in war. Only in the context of the reverence for art and artists, developing since the Renaissance, is it possible to understand the meaning of wartime plunder both for those who engaged in it and for those who suffered it during the wars of the French Revolution and Empire. Normative arguments can only take place in a shared normative setting, however rudimentary. Ideas that justified limits in war and elevated art in the pantheon of values created a context that was necessary for the emergence of norms against plunder. That context made it possible to argue against art plunder by drawing on reasons and norms that could find broad resonance. That is, the case against wartime plunder was intelligible against the backdrop of ideas that had emerged in the previous century. French plundering triggered intense debates in 1814 and 1815, which in turn led to new, emergent norms against the seizure of art treasures as trophies of war. The entire episode thus follows the cycle pattern outlined in Chapter 1. Indeed, French

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plunder and the ensuing normative shifts constituted a crucial first turn through the cycle, one which created the normative context for subsequent developments (see fig. 2.3). Figure 3.5 depicts the Napoleonic case in schematic form, previewing the phases of the cycle.

I. Norm context: historical practice of victors seizing the cultural treasures of the vanquished

IV. Rule change: emergent norm delegitimizing plunder and requiring substantial restitution

II. Action: French plundering across Europe

III. Arguments: restitution debates among allies at the conclusion of the wars (1814–1815)

Fig. 3.5. Cycle of change: Napoleon and the emergence of norms

French plunder French armies carried out a systematic confiscation of art treasures across Europe. As they crossed the continent, they sent back to Paris convoys laden with Europe’s most celebrated masterpieces. Organized French art confiscations began under the Convention and continued through the Directoire, the Consulat,

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and the Empire (Boyer 1964).1 French forces in the first occupation of Belgium (1792–93) primarily seized precious metal objects that could be converted into coin, but French commissioners also removed to France 1,500 manuscripts (Müntz 1895, 381). Plundering after the second conquest of Belgium was much more systematic and focused on art treasures. The plundering was officially organized. For instance, in May 1794, the Committee of Public Safety (Comité de Salut Public) created a Commission of Trade and Supply (Commission de Commerce et d’Approvisionnement) and included in its charge the “extraction” of artworks from Belgium to France (Müntz 1895, 377; Verhaegen 1922–29a, 420). The Committee of Public Safety issued a further order to its representatives in Belgium in mid-July 1794, instructing them “to despoil the country even of its works of art” (Verhaegen 1922–29a, 422). A separate Commission of Public Instruction in June 1794 proposed “sending secretly after our armies educated citizens who will be commissioned to identify and to have removed with care the masterpieces that are found in the countries entered by our armies” (Müntz 1895, 377; Verhaegen 1922–29a, 462). By October 1794, the Temporary Art Commission had established a subcommittee to compile lists of artistic and scientific objects in countries where the French armies were expected to enter (Gould 1965, 41). In addition, the same Commission appointed a painter, Jean-Baptiste Wicar, to travel to Belgium to “examine and collect the precious paintings that are found in that conquered country” (32). The group Wicar headed never made it to Belgium; Representatives of the People, assigned by the government to accompany the armies, preempted it. The Representative in Brussels, the chemist Guyton de Morveau, assigned two officers there (one of them a former student of the painter David) to carry out the collection of paintings and sculptures, and “other products of genius” (Saunier 1902, 29). This pair eventually seized some 40 paintings by Rubens, as well as works by Van Dyck, Crayer, and Jordaens and a marble Madonna by Michelangelo from Bruges (Gould 1965, 35). Finally, the Committee of Public Instruction in February 1795 opened the field for its commissioners, citizens Leblond and Dewailly, instructing them to gather from “public buildings, monasteries and emigrants homes, in all of the conquered lands, books, manuscripts, letters, stamps,

1

For convenience, I generally refer to the entire period as the “Napoleonic era” and to the looting as “Napoleonic plunder” even though, strictly speaking, some of it transpired before Bonaparte’s ascent to supreme power. Still, Napoleon was centrally involved in the art confiscations organized by the Directoire, and the most systematic plundering occurred under his rule.

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pictures, both originals and copies, statues, bas-reliefs, precious furniture and generally books and art objects that they deem worthy to join the collections and Museum of the Republic [forerunner of the Louvre]” (Müntz 1895, 382). The various French agents carried out their tasks; paintings and collections from Belgian churches, monasteries, city halls, and private residences were seized and carted to Paris (Verhaegen 1922–29a, 463). The French also raided Aix-la-Chapelle (Aachen), removing all of the art works from the cathedral plus 46 marble pillars and the Prosperine sarcophagus, the traditional tomb of Charlemagne. French agents combed the Rhine cities (Cologne, Bonn, Coblenz, Mainz) for manuscripts, early books, ancient coins, gems, and paintings (Quynn 1945, 443; Treue 1961, 144–45). Napoleon began his illustrious career in art plunder as general of the French forces in Italy. Both the general and the Directoire in Paris assigned art experts to accompany the army. Napoleon’s commission to Jacques-Pierre Tinet named him “agent attached to the army of Italy charged with gathering, in the conquered lands, paintings, masterpieces and other monuments of antiquity that will be judged worthy to be sent to Paris” (Gould 1965, 45). The art requisitions in Italy differed from those in Belgium and the Rhine cities in that they were generally formalized in the treaties imposed on the various Italian states. Subsequently, the French could claim that the flow of masterpieces from Italy to France was proper because the Italians had assented to it in legal documents. The haul from Italy was commensurate with the extent of the treasures to be harvested: immense. In early May, Bonaparte had requested a list of the paintings, sculptures, and other collections to be found in Milan, Parma, Piacenza, Modena, and Bologna. The armistice with the Duke of Parma (May 1796) required him to turn over 20 paintings, to be chosen by the French commanding general. The Duke of Modena was obligated to offer 20 paintings plus 70 manuscripts from the library. Bologna lost 31 paintings, 115 prints, 546 manuscripts, and some Etruscan antiquities. The treaty with Venice (May 1797) stipulated 20 paintings and 500 manuscripts. In addition, the French carried away the four bronze horses of St. Mark’s cathedral and the lion of St. Mark’s square, though the treaty had made no mention of them. Milan, Verona, Perugia, Loreto, Pavia, Cento, Cremona, Pesaro, Fano, and Massa all rendered to Napoleon his artistic tribute. By the Treaty of Tolentino (February 1797), Pope Pius VI agreed to hand over 100 treasures from the Vatican, to be shipped immediately to France (Müntz 1895, 385–92; 1896, 481–502).

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One of the art commissioners in Italy, Thouin, wrote a letter urging that the treasures from the peninsula not be unloaded on the quai du Louvre like so many boxes of soap and proposing a triumphal procession. The ensuing celebration in July 1798 included a parade of art treasures—including the Apollo Belvedere, the Laocoön, Raphael’s Transfiguration, the Saint Jerome of Correggio, and paintings by Titian and Veronese—on 29 carts, accompanied by troops, dignitaries, a military band, and wagons with caged bears, lions, and camels. Preceding the carts was a banner whose inscription explicitly placed France alongside the great ancient civilizations: “La Grèce les cèda; Rome les a perdus; Leur sort changea deux fois, il ne changera plus” (Saunier 1902, 35, 37).2 The parade ended at the Champ-de-Mars and moved on the next day to the Louvre, which had become the preeminent collection of art in Europe (Gould 1965, 65; Lanzac de Laborie 1913, 236). In November 1802, the Louvre (soon to be renamed the Musée Napoléon) received a new director, citizen Dominique Vivant Denon (Lanzac de Laborie 1913, 256–60). Denon had prior experience with art plunder, as part of a Scientific and Artistic Commission that accompanied Napoleon’s Expeditionary Force to Egypt (1798–99). Beginning with the German campaign of 1806, Denon accompanied Napoleon’s armies across Europe. He held unrestricted authority to select the best art works for the Musée and earned himself the nickname, l ’emballeur (the packer; Treue 1961, 166). After the battle of Jena, Denon hurried to Germany, urging Napoleon to demand from the King of Saxony, in place of cash indemnities, a certain number of paintings from the renowned gallery of Dresden, especially some works by Correggio and Holbein. Napoleon, hoping to make an ally of Frederick-August, declined. Denon then headed for Cassel, where he took 299 paintings plus other art objects (Lanzac de Laborie 1913, 296). It was then on to Brunswick, whose duke had issued a 1792 manifesto against the French revolution and had commanded the enemies of Napoleon at Jena. In September 1806, Denon requisitioned from Brunswick 278 paintings and 250 drawings plus other art works, always carefully selecting the most outstanding pieces (Treue 1961, 170–71). From Schwerin, Denon lifted 209 items. In Berlin, he raked in 116 paintings and 204 statues, busts and reliefs, for which he provided a receipt (172).3

2 3

“Greece gave them up; Rome lost them; Their fate changed twice; It won’t change again.” The receipt may well explain the detailed accounting of Berlin’s losses: in addition to the paintings and sculptures, the French took “over 500 gems and cameos, over 7,000 Roman bronze coins, 5,000 ancient and medieval silver coins as well as terracottas, inscriptions and small bronze figures,” plus carved ivories and amber, 22 West Indian curiosities, busts of Frederick the Great, engravings, maps, and wood carvings. The loot filled two convoys to Paris; see Treue (1961).

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By 1809, the French armies had reached Vienna, where Denon personally supervised an inventory of the collections of the Belvedere. He selected 40 paintings for deportation to Paris, including 15 of the 36 Titians; the Belvedere lost 250 paintings in all (Treue 1961, 166–68). The French exacted their artistic toll also on Salzburg, Munich, Nuremberg, Düsseldorf, and Zweibrücken (Quynn 1945, 444).4 Spain also suffered major losses. The castles and Catholic orders in and around Madrid turned over 50 paintings, and other parts of Spain made similar sacrifices (Treue 1961, 174). At Denon’s urging, the Emperor Napoleon suggested that his brother Joseph, King of Spain, make a gift of Spanish paintings to the Musée Napoléon. In the event, Denon was disappointed with the paintings, complaining that only six could be hung in the museum.5 The French also punished Spanish nobles loyal to Ferdinand VII by confiscating their art collections; 250 of these paintings were eventually returned (Lanzac de Laborie 1913, 298–99). By 1810, parts of Italy had been incorporated into the Napoleonic kingdoms of Italy or Naples, and other parts had become départements of France. The latter category included Pisa, Siena, Genoa, Perugia, and Florence. The suppression of the monasteries in Italy, by a decree of September 13, 1810, produced the motive for Denon’s last collecting tour, which lasted five months in 1811 and 1812 (Lanzac de Laborie 1913, 301). He specialized in fifteenth-century Italian artists: Cimabue, Giotto, Fra Angelico, Lippo Lippi, di Credi, Ghirlandaio, Cima, Albertinelli. The major gaps were Masaccio and Botticelli, though not, in the latter case, for want of effort (Gould 1965, 112–14). These accounts of organized French art plunder in Europe do not take into account the private looting French officers and officials carried out, nor the activities of French dealers and merchants who were able to take advantage of distress sales and forced auctions. In any event, Napoleon largely succeeded in gathering to Paris many of the masterpieces of European art.

Discourses and arguments French art plunder was stunning not just for the vast quantity of masterpieces it netted, but also for the systematic and informed nature of its execution.

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The higher figure for Vienna comes from Quynn. Treue also remarks that the French took only a share of the Titians because the artist, and the Renaissance masters in general, were not highly regarded at the time. Joseph apparently tried to keep some of the best paintings for himself. These fell into the hands of the Duke of Wellington when King Joseph abandoned his carriage at the Battle of Vittoria in 1813.

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Not surprisingly, French actions provoked debates both within France and across the continent. In this section, I provide examples of the major normative arguments offered on the various sides. The account begins with the official French position and the internal opposition to it, then proceeds to the crucial restitution debates of 1814 and 1815.

Official France The policy of acquisition of art trophies enjoyed enthusiastic support within France. The justifications for plunder took three main forms. One was that the masterpieces of European art could only reside appropriately in the seat of liberty—France. In this vein, the Paris journal La Décade Philosophique, declared in its October 1, 1794, edition, “The first conquest of Belgium was ruinous and trifling. . . . The masterpieces of art remained there. For them to be presented in their true fatherland, nothing less than a second conquest was necessary” (Saunier 1902, 33). The idea that France was the genuine home of all expressions of artistic genius emerged also in the orders given by Guyton de Morveau to the two officers who were to direct the acquisition of art works in Belgium. The decree read in part, “The People’s commissioners with the Armies of the North and Sambre-et-Meuse have learned that in the territories invaded by the victorious armies of the French Republic in order to expel the hirelings of the tyrants there are works of painting and sculpture and other products of genius. They are of the opinion that the proper place for them, in the interests and for the honor of art, is in the home of free men. They therefore make the following order” (29). Barbier, the hussar lieutenant who was one of the two Morveau commissioned, escorted the first convoy of paintings taken from Belgium. Once in Paris, he declared before the Convention that “these immortal works are no longer on foreign soil; they are today in the fatherland of the arts and genius, in the fatherland of liberty and freedom, of the French Republic” (26). The same rationale was deployed under the Directoire. In a letter of May 1796, the Directoire explained to Napoleon, then commanding the army in Italy, “The time has arrived when the reign of the fine arts should pass to France, to strengthen and embellish the reign of liberty. The National Museum should contain the most celebrated monuments of all the arts,” adding that the dispossessed countries would find consolation in being tied to the “great nation” (Lanzac de Laborie 1913, 234). In March 1797, Merlin de Douai, Minister of Justice, wrote to Napoleon in Italy: “The arts and sciences reclaim a multitude of precious objects of their creation that, too long turned away from their true destination, How Norms Change

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should today return to the Domain of Freedom, first source of everything beautiful and useful that they offer” (Saunier 1902, 33). A second argument held that France should by right be the capital of art and culture, sometimes drawing a comparison with the great centers of ancient civilization, Greece and Rome. Abbé Grégoire referred, in a 1794 report on the destructive vandalism carried out in France during the revolution, to the art treasures then making their way from Belgium to Paris: “The Republic acquires by its courage what Louis XIV could never obtain with his immense riches. Crayer, Van Dyck and Rubens are en route to Paris, and the Flemish school rises as one to come adorn our museums. . . . One sees that France will possess inexhaustible means for expanding human knowledge and perfecting civilization” (Saunier 1902, 26). An article from La Décade Philosophique declared that “Paris must be the métropole of the arts in Europe . . . Antwerp, Ghent, Brussels send her in tribute the most sublime products of the brushes of Rubens and Van Dyck” (33). Indeed, much of official France, both Republican and Imperial, held the view that through its conquests France was making itself the political and cultural center of civilization. The conquered countries were therefore simply parts of a larger and more glorious realm whose capital was Paris. Not only did the best of the best belong there, but Paris was, in fact, the capital for Belgians, Italians, Germans, and others. So Denon could dismiss the Milanese who resisted his requisitions at the Brera museum with the remark that “the Emperor takes from his museum of Brera five paintings for his museum in Paris” (Lanzac de Laborie 1913, 302), the point being that under the Empire, Milan belonged to Bonaparte exactly as Paris did. Napoleon took this mode of thinking to an all-encompassing extreme, declaring that “all men of genius, all those who have earned a distinguished rank in the republic of letters, are French, whatever their land of birth” (Müntz 1895, 393). A third rationale, sometimes also citing ancient precedent, referred to the customary practice of nations, by which plunder was the appropriate reward for military virtue and victory. One member of the Institute of France justified the looting of the “principal riches” of the libraries of Liège and other Belgian cities, writing that “the Republic exercised its right, in choosing among the spoils of the vanquished those objects with which it wanted to enrich itself ” (Müntz 1895, 378). Thouin, an art commissioner in Italy, wrote in a letter to Napoleon that the French plunder there was the reward of “military virtue” and compared it with how the Greeks had treated conquered Egypt and how the Romans had dealt with 54

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vanquished Greece (Gould 1965, 65). Denon, director of the Louvre, in a letter of July 1803 wrote of the museum, “This precious monument to the glory of our armies is now, with its new arrangement and numerous masterpieces that it houses, the most beautiful establishment in the universe” (Lanzac de Laborie 1913, 281). Denon also wrote often to the Emperor, to keep him apprized of developments at the museum, and to offer advice on how best to enrich it further. In a letter of December 13, 1805, he wrote, “Sire, there should exist in France a trophy of our victories in Germany as there was for those in Italy. If Your Majesty permits me, I will indicate some objects of different genres with which Your Majesty could build one, in dictating treaties” (Chatelain 1973, 169).6 Later, in January 1809, Denon wrote to the Emperor from Spain, where he was scouting for pictures for the Louvre: “If any prince but the brother of your majesty were occupying the throne of Madrid I should have begged for orders to add to the collection of the museum 20 pictures of the Spanish school which it lacks altogether and which would have been an eternal trophy of the present campaign” (Gould 1965, 97). In one instance at least, a victim of plunder may even have recognized the preexisting international norm that allowed the victors to control the spoils. Pius VII visited Paris to perform the marriage of Napoleon to Marie Louise (1810) and visited the Louvre. When one of his guides remarked that some of the pieces on display might cause him some discomfort, the Pope reportedly responded, “These objects have always followed victory; it is very straightforward for them to be here” (Chatelain 1973, 245).7 Finally, even the restored King Louis XVIII appealed to the rights of conquest and the example of Rome in arguing that France was entitled to retain art works taken from the Vatican. In a letter to Pius VII (whose position had clearly changed from that attributed to him in 1810), the French king wrote, “If France pushed too far the right of conquest, in extending it to objects of art and science, this was perhaps simply to imitate both ancient Rome and modern Rome” (Malamani 1914, 198).

6 7

In this instance Denon suggested that Cassel could yield at least 40 paintings, including some by Dürer and Holbein. He also recommended a collection of medallions in Vienna. The account is not entirely reliable, as the source is an anonymous document published in Paris in 1815. At that date, the French were vigorously resisting restitution. It is possible that the words attributed to Pius VII were manufactured in order to undercut the Pope’s then current demands for restitution.

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French opposition The discourse on art plunder took place on at least two levels, between France and other European states, and within France. The official position throughout the period was that France, by virtue of its victories, was the new center of world civilization and was thus entitled to its looting. But there were voices of opposition. Ginguené, a “revolutionary voltairean,” protested the convoys of art from the Low Countries. Referring to a Rubens painting he argued, “It would be desirable, for the good of the arts, to remove it from the Museum [the Louvre] and return it to the place where Rubens made it” (quoted in Lanzac de Laborie 1913, 233). In 1796, Antoine C. Quatremère de Quincy, a sculptor and archaeologist (and lover of Italy), wrote a series of letters to his friend General Miranda, opposing French art requisitions. The letters were published in Paris as a booklet in mid-1796; they stoked an ongoing debate in the pages of Paris newspapers and reviews.8 Quatremère argued that the arts and sciences had “long since formed in Europe a republic, whose members, bound by a love and a quest for the beautiful and the true,” formed a “universal brotherhood.” Quatremère asserted that everything that led toward civilization, learning, and reason belonged “to all peoples; no one has the right to appropriate it or use it arbitrarily.” Those who sought exclusive privileges in this regard violated “the common property” (Quatremère de Quincy 1989 [1815, 1836], 190–92). Quatremère’s notion of the “common property” strikingly foreshadows the twentieth century idea of “the common heritage of mankind,” which would play a major role in later efforts to codify an international prohibition against art plunder. Quatremère also argued directly against the traditional right of victors to plunder. He condemned the revival of the “Roman right of conquest, that rendered men and goods the property of the strongest.” Everyone knows, he wrote, that “this absurd and monstrous right existed in the public code of Rome, on the same basis as slavery” (Quatremère de Quincy 1989 [1815, 1836], 193–94). In addition to the letter, Quatremère published a petition signed by some fifty artists and intellectuals, urging the Directoire to reconsider the removal of art treasures from Rome.9 A second letter, signed by a group of journalists, including

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Pommier (1989). Pommier’s essay includes an excellent overview of the arguments published in the newspapers and journals of Paris. The petition is reproduced in Quatremère de Quincy (1989 [1796]) and Quatremère de Quincy (1989 [1815, 1836]). See also Saunier (1902).

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the editor of the Journal littéraire, publicly asked whether anyone other than a barbarian could applaud the plunder being carried out by French armies. And a group of eight painters and sculptors, all members of the Institute of France, along with forty-three other artists, signed a petition in which they circumspectly urged the Directoire to consider whether the removal of antiquities and masterpieces of painting and sculpture from Rome was really in the interests of France, or advantageous for the arts or artists in general (Müntz 1895, 379). The normative arguments against plunder, in other words, were also circulating within France, though they were overwhelmed in the zeal of conquest. The petition of Quatremère, for example, provoked a counterpetition published in the Moniteur (October 3, 1796) that proclaimed: “We also are artists, and if we demand that the masterpieces be transported here, it is for the honor, the glory of France, and the love that we have for those very masterpieces.” The pro-plunder artists argued additionally that the masterpieces should flow to Paris to educate the French nation to “love and judge the arts as becomes a free people,” and to prevent the art treasures of Italy from falling into the hands of the enemies (England, Austria). “The French Republic, by her strength, and the superiority of her geniuses and artists, is the only country in the world that can provide an inviolable asylum for these masterworks. It is necessary that all nations come to borrow from us the fine arts with the same eagerness that they formerly imitated our frivolity.”10

The Restitution debates: 1814 Initially, after the defeat of Napoleon in 1814, the states allied against him were not in agreement regarding the fate of the art treasures France had accumulated. Some of the German states pushed for immediate restitution, but England was noncommittal and Russia favored the French view, which opposed restitution. After Napoleon’s return, and his defeat at Waterloo in 1815, some positions changed. In particular, England became a supporter of restitution. A large share of the plundered masterpieces was then returned—but not all of them. This section presents the debates that occurred among the various players. By early 1814, the Austrians and the Prussians had already prepared lists of the art works the French had taken (Treue 1961, 187). Müffling, the military governor

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The counterpetition is reproduced in Quatremère de Quincy (1989 [1796]). See also Saunier (1902).

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of Paris under the 1815 allied occupation, confirms this in his memoirs; he recounts that even before the First Peace of Paris (May 30, 1814), “the Allies had re-demanded their treasures of art, and proposed to the King to restore these to them of his own free will, as property unjustly taken.” When the king hesitated, the allies suggested that if he refused, they would seize the art works themselves. The king responded that the people of Paris had become attached to the art masterpieces, and that therefore restoration must proceed slowly. The allies agreed, but when they later raised the issue again, it became clear that the King hoped to retain the art works (Müffling 1997 [1844], 264). Nevertheless, some of the allies vigorously pushed for restitution in 1814. The Prussians in particular insisted on the return (not necessarily immediate) of art works, as did the Duke of Brunswick and the king of Bavaria (Saunier 1902, 87). The English, initially at least, leaned toward the French position, against restitution. Lord Aberdeen, their representative at the Paris Congress, stated, “I am convinced that a restitution would do more than anything else in the world to discredit the French governments. The withdrawal from the Netherlands and Antwerp will not be felt so keenly as a national humiliation as would the restitution of these spoils of victory.” A note of May 29, 1814, from Castlereagh communicated the English crown’s opposition to restitution and left it to Louis XVIII to determine the amount of compensation to be offered to the prior owners of the art (Treue 1961, 188). The English feared that a wholesale emptying of the Louvre would incite the Parisian public against the king and destabilize the newly restored monarchy, an outcome the other monarchies clearly preferred to avoid. Castlereagh, the English minister, later spelled out this reasoning: the Allies used “their influence to repress at that moment any agitation of these claims [for restitution],” in hopes of preserving the peace that had been established “as a bond of reconciliation between the nation and the King” (1815a). Czar Alexander was also sympathetic to the new French king. The czar argued that, in 1814, the Allies could have relied upon their right of conquest to reclaim the works of art France had seized during the wars. In a later note, looking back at 1814, the Russians explained: “But at that time the necessity of treating with care a newly established government, and of avoiding any measure that might discredit it in the eyes of the nation, compelled a rejection of that proposition” (Russia 1815). The czar helped to arrange an agreement, confirmed on May 8, 1814, by Louis XVIII, whereby only those art works held in storage at the Paris museums would be returned to their previous owners; pieces on regular display would remain (Chatelain 1973, 221). 58

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In the end, the documents of the First Peace of Paris (May 30, 1814) were silent on the question of art restitution. Talleyrand considered the treaty a diplomatic success for France. In his Mémoires, he listed the points that were favorable to France, concluding, “And finally, we have retained all of the admirable pieces of art conquered by our arms in nearly all the museums of Europe.” That France later lost the fruits of the peace of 1814, he argued, was entirely the fault of Napoleon (Talleyrand-Périgord 1957 [1807–15], 343). However, Prussia pressed for a resolution to its claims. A letter from Louis XVIII assured Frederick William III that all of the art taken from Prussia would be returned. In the negotiations, the Prussians subsequently pressed for restitution to the other powers (Treue 1961, 187). The Prussian representative, Count Goltz, ultimately agreed that the paintings and statues taken from Prussia and currently on exhibit in the museums could remain “for the moment,” provided the French would promise to return them during the space of a year as replacements could be installed (Saunier 1902, 88). In other words, the French would promptly return only those items still in storage. Consequently, Denon made use of delays to install public exhibitions of the plundered art, thus preserving it from restitution (Chatelain 1973, 222–23). The French and the Prussian representative secretly agreed to a compromise (never officially approved by the Prussian government) that produced only minimal restitution. By a decree of May 8, 1814, Louis XVIII returned pieces that had been taken from German states and that were not currently on display (39 paintings to Prussia, 85 to Brunswick), plus paintings expropriated from the Spanish nobles (Gould 1965, 117). As of early 1815, the Prussians had recovered 15 of 28 statues, 6 of 56 ancient busts and reliefs, 3 of 7 modern pieces, and 41 of 123 paintings. The best of the plunder from Prussia remained in France because it was already on exhibit (Treue 1961, 189). Other German states achieved equally modest results. The agents of Hesse-Cassel, when finally allowed to visit the storage sites, found the art had long since been vacated elsewhere. They did, however, reclaim much of the art that Jerome (formerly King of Westphalia under Napoleon) and his entourage had stolen from castles and museums when they fled in October 1813—16 cases of art objects and 69 paintings. Brunswick obtained about 80 of 278 paintings. The return of Napoleon from exile put an end to discussions with Bavaria (190). The Austrians likewise pursued a modest form of restitution. Metternich, on behalf of the Emperor Francis II, wrote to his representative in Paris (September 1, 1814) How Norms Change

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that “there could be no desire to obtain a restitution of the paintings and art works that the previous French government carried away from Vienna and other cities of the monarchy, and that are already displayed in Paris in the museums” (Boyer 1970, 67). The Emperor had assented to a proposal to suggest to the French an exchange, by which the Austrians would receive other paintings not already on exhibit but equal in value. In fact, by the end of October the Austrian Director of Imperial Museums, Füger, had prepared a list of works he would like to obtain for the Vienna gallery, including paintings by Vouet, Poussin, David, Regnault, and Gérard (Boyer 1970, 67). Nothing happened with respect to the list before Napoleon’s return from Elba.

The Restitution debates: 1815 Napoleon’s return transformed the debates. In the fall of 1815, after Waterloo, the allies resolved to repossess the stolen art “without any diplomatic negotiations, and to disregard any protestations” (Müffling 1997 [1844], 264). Indeed, the Prussians were first to Paris and were determined to enforce restitution. Field Marshal Blücher, with support from Wellington, excised from the terms of the proposed truce a clause the French had inserted that “public establishments and monuments, museums and libraries and all institutions of the kind shall be respected”; the Musée Napoléon would be treated as private property, making it immune from claims (Nys 1912, 281–82; Saunier 190, 121). On the very day the Prussians entered Paris, they sent an armed contingent to the Louvre demanding the restoration of plundered artworks (Chamberlin 1983, 144). Denon refused, arguing that the 1814 Treaty of Paris (which did not mention restitution of art) had ratified their presence in Paris. Talleyrand intervened, noting that it would take some time to identify the relevant items (Chatelain 1973, 226). The Prussians were not in a mood to wait. Marshal Blücher appointed Quartermaster General von Ribbentrop as the Prussian commissioner on questions of art. Ribbentrop, faced with Denon’s stalling at the Louvre, threatened on July 9 to send soldiers to arrest him. On July 11, the Prussians appeared at the museum with 200 soldiers and the repossession began in earnest. In addition to their own art, the Prussians also reclaimed pieces from Brunswick and the 209 paintings removed from Schwerin in 1807. By September 1815, 272 of 299 paintings Denon had seized in German lands had been returned (Treue 1961, 192). However, the Prussian king himself agreed to leave in place ten columns taken from the cathedral at Aachen and subsequently built into the structure of the Louvre.

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The Austrians also achieved a substantial restitution. Francis II himself had arrived in Paris and met with Louis XVIII. Subsequently, the Austrian monarch instructed Metternich to repossess the Lion of Saint Mark (then displayed at the esplanade of the Invalides) and the four bronze horses, both from Venice (which had returned to Austrian rule). The Austrians received from the Louvre over 300 paintings out of 362 identified as having been taken. The rest had been distributed to various Parisian churches, palaces, and (mostly) to provincial museums in Toulouse, Lyon, Caen, Grenoble, Dijon, and Brussels. In their place, Denon offered paintings of equal value from the French school (Boyer 1970, 69–70). The fate of art looted from other lands was the subject of intense debate in the ensuing negotiations in Paris. The Allied plenipotentiaries, gathered again to decide the terms of the second peace, received demands from various sides for the complete restitution of artistic treasures France had plundered during the wars. For instance, the ministers received a long note from Antonio Canova, a famous sculptor Pope Pius VII commissioned to petition for the return of masterpieces the French had taken from Rome and the Papal States. Canova had to refute the contention, offered by the French, that the treasures from Rome were ceded to France by the Treaty of Tolentino (1797). He argued that the Pope had been forced to conclude an armistice with burdensome conditions in order to save his states from devastation and pillage. To respect the treaties would be to “respect that which the wolf dictated to the lamb.” Furthermore, to permit the French to retain the precious objects from Rome would be to approve the principles of spoliation and rapine, and would set “a disastrous example for conquerors and usurpers to follow in the future.” The Pope was thus not reclaiming the works of art solely for the Romans, but also for the benefit and advantage of all the civilized nations of Europe (Canova 1815). In response, the French relied on a legal point, which was that the Treaty of Tolentino, signed by Pius VI, stipulated the transfer of art to the French. The Treaty also included a clause that made it binding on all subsequent popes. Thus, responding to Canova’s letter, Denon asked by what right the allies could break the treaty, signed between the Pope and the French nation, and which the Pope had not renounced, even when he came to Paris to crown Napoleon. In fact, the Treaty of Tolentino included the following provision in Article 25: “All the articles, clauses, conditions of the present treaty, without exception, are How Norms Change

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binding in perpetuity, both for His Holiness the Pope Pius VI and for his successors” (Saunier 1902, 135, n. 1). Louis XVIII himself initially replied to Canova’s claim with stark refusal. In fact, he wrote directly to Pius VII, respectfully (signing the letter “votre devot fils”) but firmly pointing out that the movement of art treasures from Rome to Paris had been sealed by treaty. It was true, he noted, that France had given up other acquisitions of the same character, but “those were made without treaty, and were consequently less legitimate” (Malamani 1914, 199). Though Canova met with Francis II, he was unable to win the Austrian Emperor’s support for his mission (Boyer 1970, 76). In the multilateral discussions, however, the legalistic French argument was unpersuasive. One idea that had been floated was to distinguish items that had been seized by conquest from those whose acquisition had been ratified by recognized treaties. This would affect art taken from the Low Countries, Modena and Parma, and the Vatican (Boyer 1970, 74). However, Castlereagh considered the Treaty of Tolentino to be “not inferior in immorality to [Napoleon’s] wars,” though he thought that the French claim to art taken from the Netherlands was more solid, since the Peace of Amiens had been universally recognized (Gould 1965, 121). In the end, though, the treaty argument did not prevail.11 The envoys of the King of the Netherlands also submitted to the French minister, Prince Talleyrand, a request that France return art objects that had belonged to the family of the king as well as to various towns and churches in Belgium and Holland (Netherlands 1815). After receiving no response from the French, the Dutch appealed to the Allied plenipotentiaries. The minutes of the ministers’ meeting of September 6, 1815, record that the Dutch envoys had received from their court repeated orders to obtain restitution of paintings taken from the Netherlands. “The return of the products of the fine arts to the places where they had been, for the inhabitants of the Kingdom of the Netherlands, the object of national attachment and of religious worship, is of high importance” (Minutes of the Conference of Allied Plenipotentiaries, Annex 104 1815). The

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An interesting epilogue to the treaty argument involves the French writer Henri Beyle, better known by his nom de plume, Stendhal. Henri Beyle, then a young commissary attached to the French army, was one of Denon’s assistants. Beyle occupied himself mainly with looting German libraries (he supervised the removal of the entire library belonging to the Duke of Brunswick); Chamberlin (1983). In 1817, writing from Rome, he argued that the French had acquired art treasures legitimately, by treaty, but that “the allies, on the contrary, took away our paintings without treaty” Müntz (1895).

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Elector of Hesse similarly requested the return of 48 paintings taken from Cassel (Carlshausen 1815). In the meantime, Denon had met with Metternich and, reminding him of the French paintings given to Austria, hoped that the prince might help to persuade the allies against a total restitution. In the event, Metternich disappointed him. In a note to Castlereagh in early September 1815, Metternich proposed that all art taken from churches and private owners be returned within one month and that all other claims be reviewed by a panel of five arbiters to be named by the five great powers. Whether the collections of the sovereigns were to be treated as private or state property was left unclear (Metternich 1815). The victims of plundering thus asserted various claims and explored different avenues for effecting restitution. But, in mid-August 1815, Castlereagh informed Lord Liverpool, the English Prime Minister, that the representatives in Paris were not prepared to agree to a complete restitution. One purpose of the discussions was to reach consensus on general principles regarding the looted art (Protocol of the Conference: Meeting of 6 September 1815 1815). The initiative appears to have come from Viscount Castlereagh, though opinion within the English elite was divided. If anything, English dealers and collectors had benefited from the sales and auctions that flooded art markets across Europe during the Napoleonic Wars. Indeed, the English had not favored restitution the previous year, and in mid-1815 some in England’s circles of power hoped to benefit from the uncertain status of the Louvre’s plunder trove. In fact, Lord Liverpool, the Prime Minister, in July 1815, at the request of the Prince Regent (future George IV), floated the idea to Castlereagh of obtaining for England some of the Louvre treasures. Liverpool argued, “It is most desirable . . . to remove them . . . from France, as, whilst in that country, they must necessarily have the effect of keeping up the remembrance of their former conquests, and of cherishing the military spirit and vanity of the nation.” On August 3, he followed up his argument: The Prince Regent is desirous of getting some of them [paintings and sculptures] for a museum or a gallery here. The men of taste and virtù encourage this idea. The reasonable part of the world are for general restoration to the original possessors; and they blame the policy of leaving the trophies of the French victories at Paris, and making that capital in future the centre of the arts. Might there not be some compromise upon this question? (Gould 1965, 120–21)

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In formulating the English position in Paris, Castlereagh had to bury that idea before he could propose a policy of complete restitution. In a letter dated September 11, 1815, Castlereagh informed the Prince Regent that he had already submitted to the Allied ministers a note clarifying that the English crown had no wish to acquire any of the looted artworks. Castlereagh had felt compelled to take this action given “insinuations that were circulated here, as to the motives” of the English government. He had been “rather anxious” to avoid “the imputation of any interested motive” on the part of England. Certainly, neither the Prince Regent nor the government could “have endured thus to participate in the plunder of Europe.” Castlereagh concluded by declaring that it was “necessary to place His Royal Highness on the high ground of desiring to see Justice done,” which would in any case “do Honor to His Royal Highness in the Eyes of Europe” (1815b). Castlereagh also wrote to Talleyrand (September 11, 1815), expressing his view that retention of the art was inappropriate. Castlereagh inquired on what basis the powers of Europe would establish accord with Louis XVIII, on the retention or the surrender of the revolutionary spoils. Castlereagh asked, “Can the king think to raise his proper dignity while surrounded by the monuments of art that recall no less the sufferings of his illustrious house than those of the other nations of Europe?” (Talleyrand-Périgord 1957 [1807–15], 475). The other great English figure in Paris, the victorious Duke of Wellington, aligned himself with Castlereagh.12 In a September 1815 letter to Castlereagh, Wellington pointed out that the silence of the Treaty of Paris (May 1814) and the Convention of Paris (March 1815) with respect to works of art could not be construed as supporting the French claim because the allies explicitly rejected the proposed truce articles that would have exempted the museums from restitution. He argued that French national vanity wanted to retain the art works “because they were obtained by military concessions, of which they are the trophies,” and that it was necessary to teach them a “great moral lesson.” Wellington asserted, “The Allies then, having the contents of the museum justly in their power, could not do otherwise than restore them to the countries from which, contrary to

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Denon blamed the English diplomat William R. Hamilton for winning Wellington’s support for restitution (Gould 1965). Hamilton, attached to Castlereagh’s delegation in Paris, had experience in the art world. He had a role in seizing the Rosetta stone from the French in 1801 and in bringing to London the Parthenon sculptures acquired by Lord Elgin. Canova praised Hamilton, with whom he had established a friendship, for swinging the English position in favor restitution, and the Pope later rewarded Hamilton with a Titian painting (Treue 1961). Prohibiting Plunder

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the practice of civilized warfare, they had been torn during the disastrous period of the French revolution and the tyranny of Bonaparte” (Gould 1965, 131–35). Talleyrand later lamented that “the Duke of Wellington . . . placed himself at the head of those who wanted to despoil the Museum” (Talleyrand-Périgord 1957 [1807–15], 463). A memoir Castlereagh submitted to the conference in Paris had been drafted after “full consultation with the Duke of Wellington” and in light of communications received from the Allied Ministers (1815b). In the note, Castlereagh argued that the Allies had not insisted on restitution of the artworks in 1814 not because they wished to approve of the plunder; in fact, they “uniformly refused” to recognize any French title to the art objects. Their forbearance the previous year was based on a desire to solidify the position of Louis XVIII. The situation in 1815 being different, Castlereagh declared, the Prince Regent “deems it to be the duty of the Allies Sovereigns . . . to facilitate the return” of the art treasures to “the places from whence they were torn.” His Royal Highness further believed that the removal of the objects from the Louvre should not provide the occasion for the allies to bring “within their own dominions a single article which did not of right, at the period of their conquest, belong either to their respective family collections, or to the countries over which they now actually reign.” The restitution had to be complete, for otherwise it would “recognise a variety of spoliation under the Covers of Treaties” (1815a). The Prussian minister, Prince Hardenberg, quickly expressed, in a note to Castlereagh, complete agreement with reasoning contained in the memoir (Hardenberg 1815). Metternich (the Austrian minister) had earlier submitted a note similarly calling for full restitution (Metternich 1815). Castlereagh made a further assertion in his memoir, namely, that the French art seizures were “contrary to every Principle of Justice, and to the usages of Modern Warfare” (Castlereagh 1815a). (Wellington had made a similar assertion; see above.) The two English leaders invoked what they saw as a “usage” or “practice,” what modern international lawyers might refer to as “customary international law.” But, in fact, art plunder had been a feature of European warfare for centuries, with striking instances of it occurring in the 1600s (Trevor-Roper 1970). It is true that the mid-1700s saw some instances of restraint; for example, the contestants in the Seven Years’ War (1756–63) seem to have refrained from plundering each others’ art collections (Treue 1961, 117–18). Still, in the partition of Poland in 1795, Prussia, Austria, and Russia helped themselves to the art collections and royal treasures of Stanislaus Augustus (Treue 1961, 155–57). How Norms Change

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In short, though there were examples of restraint in the 1700s, there was a much longer history of plunder, including instances in recent decades. The claims of Wellington and Castlereagh should therefore be seen as argumentation tactics, asserting an antiplunder norm that did not yet exist but which they wanted to emerge. The allied ministers referred the practical matters of repossession to the three field marshals then in Paris—Wellington, Schwarzenberg, and Blücher. In fact, according to the report of a French guard at the Louvre, Müffling himself, accompanied by a number of his staff officers, appeared at the museum in late September 1815 and ordered the French guard to step aside and grant full access to the Belgian and Dutch contingents that would arrive to reclaim their paintings (Boudier [Sergeant of the Guard] 1815). A Belgian painter, JosephDenis Odevaere, led the commission charged with identifying and reclaiming artworks taken from the Low Countries. Odevaere presented himself at the Louvre on September 24, 1815, and, backed by Prussian and English soldiers (the latter provided by Wellington himself), proceeded to take down and remove the Dutch and Belgian paintings (Verhaegen 1922–29b, 277–78). In his memoirs Müffling also reproduces an order, signed by Wellington, Schwarzenberg, and Blücher on September 20, 1815. In it they declare that it seemed “just and necessary to the allied Sovereigns that the objects of art and science spoken of be handed over without delay to the Pope and the Roman state.” They also empowered Müffling to deploy the same military means that he had already used to secure the restitution of art objects to the Netherlands, Austria, and Tuscany (Müffling 1997 [1844], 277). The following week, Castlereagh reported that “Canova was made happy last night by Austria, Prussia, and England agreeing to support him in removing the Pope’s property. The joint order is issued, and he begins tomorrow” (Gould 1965, 122). The return of the plunder was not merely an affair of high-level diplomats and officers. At times, the restitution of art treasures evoked (perhaps surprising) displays of public passion. For instance, the Venetian Horses (the four bronze sculptures taken from Venice) had been installed prominently on the top of the triumphal arch in the Tuileries (today’s Arc du Carrousel). Müffling, charged with lowering the bronze horses and returning them to the Austrians (who then controlled Venice), decided to effect the removal at night. The appearance of a division of guards from Louis XVIII’s palace halted the first attempt. The second night, an angry crowd of Parisian citizens interrupted. The next morning, Müffling ordered four battalions of Austrian troops and a cavalry division to the Tuileries. 66

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In daylight, the Austrians formed a square around the arch. “A large mob collected . . . and a portion became very vociferous; I had the guns well loaded in their presence; no one ventured to interrupt the work; and by evening the Horses were in the Austrian barracks” (Müffling 1997 [1844], 262–65). Public passion of the opposite sort greeted the arrival of Belgian paintings in Brussels. A convoy of wagons took three weeks to carry the artworks from Paris. They arrived in the main square of the Belgian capital, with a Rubens painting at the head of the convoy, to the cheers of an “enthusiastic crowd.” The mayor welcomed the commissioners and hailed the masterpieces (Verhaegen 1922-29b, 278).

Incomplete consensus The great powers in 1815 were not in full agreement that plunder was impermissible. France, of course, remained unconvinced. In a letter to Castlereagh, Talleyrand argued that the French could not be held responsible for the misdeeds of the revolutionary and Napoleonic governments. He contended that there had been two wars, in 1814 and 1815, and that the two differed fundamentally. The first was a war of the French nation and had to be concluded with a treaty of peace. The second was a war of Europe against Napoleon personally and his followers, who did not represent France. The conclusion of the second war did not therefore necessitate a change in the situation established by the peace of 1814, which had not required the French to return the art treasures (Talleyrand-Périgord 1957 [1807–15], 475). Responding on behalf of Louis XVIII to Castlereagh’s memoir, Talleyrand offered additional arguments. He invoked a “right of conquest . . . [that] has been admitted by all nations in all times.” Finally, if the king were to return the art objects, the nation would see it as a crime even more than the cession of territories, and would be felt as a vital injury to the national pride (Talleyrand 1815). On June 4, 1814, presenting the new Constitutional Charter to the Chamber of Representatives, Louis XVIII also made a statement regarding the fate of the museums. He declared, “The fame of the armies of France has suffered no diminution; the monuments to their bravery remain, and the masterpieces of art belong to us in the future by virtue of claims more enduring than those of conquest” (Saunier 1902, 85; Treue 1961, 189). Here was an argument that France was entitled to keep the looted art not necessarily because of a right of conquest (the same logic could,

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of course, justify allied plundering of French museums), but because the valor of the French armies had somehow earned such commemoration. The Emperor of Russia, Czar Alexander, sided with the French. Through his ministers in Paris, the czar argued that “the military success of the allies gave them no right to profit from their current position by demanding concessions from France contrary to the treaty of Paris.” The emperor believed that the same principle should apply “equally to the art objects in France’s possession.” In fact, the czar believed that the Allies could have, the previous year, “in all fairness exercised their rights of conquest to reclaim the art objects that France had taken from other countries.” But the Treaty of Paris had in effect approved France’s possession of them. Furthermore, as in the previous year, forced restitutions might undermine the new government (of Louis XVIII). The czar would, however, welcome any partial and voluntary restitution to which the King of France could agree (Russia 1815).13 In the end, the Allies, without the concurrence of Russia, required France to surrender the looted art treasures. Though for all practical purposes the debate was over, the allied ministers meeting in Vienna would further affirm the general principle that plunder was illegitimate. The Congress had opened on September 20, 1815. The Gazette de la Cour, in the Austrian capital, reported on the conference; extracts appeared in Paris in the Moniteur. The October 26 edition contained the following summary: “The courts of Austria, England, and Prussia are united on the principle that the masterpieces of art and science that had become, in all of Europe, the spoils of the revolutionary wars, should be returned to their owners and the cities for which they were the ornament and riches. As a result of this principle, the masterpieces taken in Italy, in Germany, in Spain and in the Low Countries will be removed from the Museum of Paris and from other sites where they might be found” (Saunier 1902, 122).

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At the same time that he opposed the other allies on restitution, the Czar was also urging Louis XVIII to be moderate. The French king had appealed once more to Alexander for help regarding the art treasures. The Czar advised Louis: “Since you retain the provinces that some wanted to detach from your kingdom, suffer them to take away some paintings and statues . . . Allow me to care for your interests that are more important, where I will assert the great compensations that will be owed you for the pillage of your museum”; Chatelain (1973).

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Rule change By insisting that the plundered treasures sitting in the Louvre be returned to their previous owners, the allies were asserting a new norm, that wartime art plunder was no longer acceptable in the European society of states. Even Talleyrand, in his Mémoires written years later, conceded that the right of conquest was a tenuous justification for the art seizures: “perhaps the monuments of art should never have entered the domain of conquest” (Talleyrand-Périgord 1957 [1807–15], 463). But at the time, the consensus surrounding the new rule was incomplete. The French continued to assert the right of the victor, and Russia would have been content to allow the art treasures to remain in France. The new rule was therefore an emergent norm. It was not part of any treaty law; neither the Treaty of Paris (1814) nor the Conventions of Paris (1815) contained any specific provision regarding the return of art works (Gould 1965, 118). Still, aside from France and Russia, the actors gathered in Paris in 1815 accepted the argument that plunder was illegitimate. Compelling restitution, sometimes with armed contingents knocking on the doors of the Louvre, was a way of putting the new norm into action.14 A counterargument might be that the restitutions imposed on the French had nothing to do with international norms but were simply the equivalent of victims of robbery reclaiming their property. The argument fails. First, parties who were not recovering their own property, like the English, also favored restitution. And second, and more significant, the allies did not engage in plunder of their own.

14

A judicial case relating to the status of cultural goods in wartime arose contemporaneously in Nova Scotia. An American ship, the Marquis de Somerueles, was transporting from Italy to the Academy of Arts in Philadelphia, Pennsylvania, a crate containing 21 paintings and 52 prints. A British vessel captured the Marquis de Somerueles in 1812 (Britain and the United States being at war) and took the ship and its cargo to the British Court of Vice-Admiralty in Nova Scotia, for judgment as prize. The Academy of Arts petitioned the court for the return of the artworks. In his decision, judge Alexander Croke granted the petition and wrote as follows: “The same law of nations, which prescribes that all property belonging to the enemy shall be liable to confiscation, has likewise its modifications and relaxations of that rule. The arts and sciences are admitted amongst all civilized nations, as forming an exception to the severe rights of warfare, and as entitled to favour and protection. They are considered not as the peculium of this or of that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species”; see Nova Scotia Vice-Admiralty Court (Halifax; 1814). Croke’s dramatic claim regarding the limits placed by law on warfare is, however, like some of the declarations of Wellington and Castlereagh, better seen as law making than law applying. In fact, as Merryman points out, there was scant support for Croke’s assertion in the international law authorities of the time; Merryman could locate no judicial precedents and few supportive statements among scholars. Vattel’s argument on the subject referred to buildings (immoveable property) rather than specific works of art (moveable property); Merryman (1996).

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Those who defeated Napoleon and occupied Paris could have reclaimed their own art treasures and then proceeded to raid French collections, thus inflicting a plunder of art on their defeated enemy. Indeed, a reverse plunder would have affirmed the historic rule that “to the victor go the spoils.” But the allies did not loot, and they thus rejected the previous norm. The case of Napoleonic plunder represents a crucial first turn through the cycle of normative change.

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The International Law Activists: Elaborating Norms in the Nineteenth Century Voracious French art plundering in the wars of 1793–1815 shocked Europe and crystallized the sense that such looting was illegitimate. It was not just that the victims of the confiscations were the ultimate victors and could thus insist on the return of their treasures. The English, who suffered no losses, endorsed (and Wellington enforced) the restitution of plundered art. The episode thrust the problem of art plunder into European consciousness and, more important, provided the foundation for an international norm against it. Indeed, the prohibition of plunder figured in each of the attempts made in the nineteenth century to codify rules of war. The effort to establish laws of war was the project of lawyers, diplomats, and scholars who, especially in the latter part of the century, formed a transnational network with shared professional interests and objectives. Because many of these writers actively participated in the conventions on the laws of war, I have called them the “international law activists.” The developments assessed in this chapter thus do not represent a loop through the cycle of norm change (in which specific acts trigger arguments that in turn modify the rules). Rather, the elaboration of rules against plunder was, in the latter part of the nineteenth century, the work of what international relations scholars today would label a “transnational activist network” (Finnemore and Sikkink 1998; Keck and Sikkink 1998). Civil society (politically mobilized actors and groups outside of state and commercial institutions) was becoming transnationalized in the nineteenth century, most dramatically with the abolition and peace movements. The international law activists established personal and professional ties across national borders in order to press for the codification 71

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of international rules that would regulate and “civilize” warfare. They selfconsciously sought to professionalize their movement and establish it on what they thought of as a “scientific” basis.1 The international law activists of the nineteenth century thus pioneered a form that is now ubiquitous, namely, the professionalized transnational civil society. Today’s transnational activist networks rely on professionals and technical expertise from a variety of disciplines (law, medicine, the sciences, communication, engineering, and so on). However, the international law activists also exploited an advantage that might not be common among twenty-first-century networks: they were frequently insiders, advisors to governments if not members of the political and diplomatic establishment. After a brief discussion of early nineteenth-century writers, this chapter turns to Francis Lieber. Lieber was one of the first of the law activists and certainly the most influential. His work informed all subsequent efforts to establish positive international law against wartime art plunder. I discuss Lieber’s ideas on the rules of war, tying them both to his own life experience and to the intellectual currents that influenced him. The chapter then tracks Lieber’s influence on the major conferences and conventions of the latter part of the century, through the second Hague Peace Conference (1907). Figure 4.6 presents in schematic form the role of the law activists in developing international antiplunder norms (refer to fig. 1.3 in chap. 1 to review the place of this episode in the larger analysis).

Players: Wheaton, Martens, Lieber, Bluntschili, Moyneir, Rolin, Westlake, and others Objective: to codify international rules to regulate warfare and limit its destructiveness, including the prohibition of plunder Outcomes: the Lieber Code, the Brusseis Declaration, the Oxford Manual, the Hague Convention (IV) on the Laws and Customs of War on Land, and annexed Regulations (1899 and 1907)

Fig. 4.6. The international law activists and the development of norms

1

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For an excellent account of international law as a profession and a transnational cause in the late nineteenth century, see Koskenniemi (2002).

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Law Publicists and the Napoleonic Wars Legal writers in the first half of the nineteenth century took full notice of the outcome of the Napoleonic Wars, including the requirement that France return the plundered artworks. One of the most cited jurists of the nineteenth century was Georg Friedrich von Martens, a Hanoverian diplomat and professor of law at the University of Göttingen. Martens was the founder and sole editor of the original Recueil des Traités, which developed into the largest collection of treaties in the world (the Nouveau Recueil Général des Traités). He also wrote an influential international law treatise, his Précis du Droit Moderne de l’Europe. Published first in Latin in 1785, translations into French, German, and English appeared over the next several decades. The first American edition came out in 1795, and its Philadelphia publisher dedicated it to George Washington. A Paris edition, complete with notes and commentary, was published as late as 1864. In the 1795 Philadelphia edition, Martens adopts the stance of other Enlightenment commentators. “A power at war,” he asserts, “has a right to destroy the property and possessions of the enemy, for the express purpose of doing him mischief,” to the extent justified by military necessity or “reasons of war” (Martens 1986 [1795], 287–88). With respect to private property, “the conqueror has a right, strictly speaking, to appropriate the whole of it to himself,” though, in contemporary practice, the victor typically requires only a “contribution” (289). The treatise makes no mention of artworks or cultural institutions. Martens published the first French edition of the book in 1788. In the preface to his 1801 edition, he writes that the French revolution had so altered Europe that there was “hardly a chapter” that “had not undergone corrections or considerable changes” (1858b, 24). By 1820, the conclusion of the Napoleonic Wars had brought even more dramatic developments; Martens notes, in the preface to the 1820 edition (the last before his death), that “few paragraphs remained unrevised, both in the text and in the notes” (27). In that 1820 edition, he asserts that “one may appropriate as much property of the enemy . . . as is necessary to obtain satisfaction,” though he remarks that the widely recognized laws of war that regulate the right of conquest and booty were frequently violated during the wars of 1793–1814 (1858a, 247). However, he adds, the law of war also holds that the private property of rulers and their subjects should be spared, “especially monuments of art and industry” (251–52). The stipulation regarding monuments

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of art did not appear in the 1795 Philadelphia edition (1986 [1795], 287–90).2 In other words, after the Napoleonic Wars, Martens added to his treatise new protections for cultural treasures. Henry Wheaton, the American jurist, authored another of the most cited international law treatises of the 1800s. His Elements of International Law was first published in London and Philadelphia in 1836. Numerous editions in English followed, even up to 1916 and 1929.3 French editions appeared in 1848, 1852, and 1874; a Spanish edition in Mexico in 1854; and an Italian edition in 1860. The Chinese edition (1864) was also reprinted with adaptations for Japan in 1865; a new Japanese edition came out in 1876 (Wilson 1936a, 1936b). Wheaton makes note of the “forcible restitution of the pictures, statues, and other monuments of art, collected from different conquered countries during the wars of the French revolution, and deposited at the Museum of the Louvre” (Wheaton 1936 [1836], 375, § 352). To explain the grounds for the restitution, Wheaton quotes and paraphrases extensively, without comment, from Castlereagh’s September 11, 1815, note to the allies. However, he also quotes at length from a February 20, 1816, speech in the House of Commons by Sir Samuel Romilly, who criticized the restitution of artworks, pointing out that “many, and the most valuable of them, had become the property of France by express treaty stipulations,” which should have been inviolate (377, § 354). To this assertion the editor of the 1866 edition of Wheaton, Richard Henry Dana, Jr., adds a footnote quoting Henry Wager Halleck’s International Law (1861), which concluded that either the works of art were “legitimate trophies of war [for the allies], or that the conduct of the allied powers in 1815 was in direct violation of the law of nations” (Wheaton 1936 [1836], 377, n. 170). Dana, in turn, argues against Halleck: “To strip a conquered belligerent, whose sovereignty we recognize and permit to continue, of works of art, —the instructors and civilizers, as well as the just pride, of the nation, —simply to transfer those advantages to ourselves . . . is a course which the enlightened and liberal civilization of modern times ought to denounce” (377–78, n. 170). The point and counterpoint is revealing, first because it demonstrates that international law commentators were aware of the restitution of artworks in 1815, and second because it reveals ongoing

2 3

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The notes and commentary added by later editors, and included in the 1858 edition, are more protective than Martens of the property of the vanquished; see Martens (1858a). The edition cited here is a reproduction of the 1866 edition as edited, and with notes, by Richard Henry Dana, Jr.

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disagreement, in the 1860s, as to whether the restitution had violated international rules or established new ones. In short, the international law publicists, at least, were well aware of the plunder and restitution associated with the Napoleonic Wars. They continued to debate, into the second half of the nineteenth century, the implications of the events of 1814 and 1815 for international law. That is, the publicists had not found agreement on whether international law imposed obligations on belligerents and conquerors with respect to artistic treasures, and if they did, what those obligations were. Of course, it was a separate question whether governments recognized and accepted new rules for the protection of cultural goods during wartime. In the latter half of the century, the law activists sought to bring governments to that recognition and acceptance, and to have the obligations codified in treaties.

Francis Lieber Francis Lieber’s life and outlook bore the imprint of, strangely enough, Napoleon. More precisely, Lieber’s views on war and the rules of war emerged in part from his near-fatal injury on a field in Belgium, where, as a young soldier, he fought against the emperor’s armies. Lieber was born in 1798 in Berlin. His father was a businessman whose fortunes had suffered in Prussia’s wars. Two passions, nationalism and liberal politics, dominated Lieber’s young life. Events in the early 1800s placed the two commitments in awkward tension. On the one hand, Napoleon had conquered Prussia; Lieber loathed the French occupiers and longed to help expel them. On the other hand, reclaiming Prussia meant reclaiming it for the autocratic Hohenzollern monarchy, which Lieber also despised. First things necessarily coming first, Lieber hoped for the chance to fight against Napoleon. He remembered his anguish at the sight, viewed from a window, of French troops parading through Berlin in 1806 after the disaster at Jena,4 and the pervading sense of humiliation at the Treaty of Tilsit. When his brothers enlisted in the king’s armies in 1813, all that young Lieber could do was to swear an oath to seek to assassinate Napoleon. After Bonaparte’s escape from Elba in 1815, Lieber was thrilled by the “glorious news,” for it finally gave him the chance to take part in the national struggle. He and a brother enlisted in the “Colberg” regiment. A battle at Ligny in Belgium sorely depleted his company,

4

As related to M. Russell Thayer; Thayer (1873).

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which remained in reserve at Waterloo. At Namur days later, Lieber was shot through the neck and in the chest. Lying in the woods in agony, Lieber asked a fellow soldier to shoot him and was helpless as peasants took his watch and money.5 Transported painfully to Liège, Lieber eventually found benefactors and with decent care began to recover from his wounds. After the war, Lieber turned to the study of law and to the cause of liberty and democracy within Prussia. He joined various progressive societies, but in the climate of the conservative reaction of Europe’s monarchies after 1815, this only brought him the unfavorable attention of the state authorities. Lieber was eventually arrested because of his acquaintance with Karl Sand, a leader of the liberal youth, who had assassinated the reactionary writer August von Kotzebue. Lieber spent four months in jail in 1819, and after his release, the state authorities prohibited him from entering the University of Berlin or any other Prussian university (Freidel 1968, 24; Rolin-Jaequemyns 1872, 701). They did permit him to enroll at Jena, where he quickly took a doctorate (Perry 1882, 30–31). Later the government relented and allowed him to matriculate at Halle, under constant police surveillance. Before moving to Halle, Lieber traveled to Dresden to visit the renowned collection of paintings. He described a rapturous response to the “Madonna di Sisto”: “I stood surprized [sic]—overcome—and wept, and looked again, amazed and touched—and so I stood from nine to one, when the gallery was closed and I walked down those stairs another being—I felt at once, [that] my soul was wider” (Freidel 1968, 29). Lieber’s admiration for art may have been in part responsible for his inclusion, decades later, of special protections for cultural properties in his rules of war. He studied at Halle and Dresden and, in 1821, set out with other young German idealists to help fight for the independence of Greece from the Turks. He made his way on foot to Marseille, and from there, by ship to Greece. But the rebels were disorganized and fractious, and Lieber left Greece disillusioned and penniless (Freidel 1968, 31; Rolin-Jaequemyns 1872, 701). After a sojourn in Rome, Lieber returned to Prussia. Arrested again in 1824, on charges of disloyalty to the government, he spent nearly a year in prison. After his release, the police continued to hound and harass him, and Lieber at last departed Prussia for England and, in 1827, the United States (Rolin-Jaequemyns 1872, 701; Root 1913, 460). Lieber quickly integrated himself into American

5

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From Lieber’s own account; Lieber (1835).

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intellectual life, teaching law in Boston and planning, and then editing, the thirteen-volume Encyclopedia Americana (1829). The job of enlisting distinguished contributors placed Lieber in contact with a number of prominent American writers and scholars. He became Professor of History and Political Economy at South Carolina College in 1835 and taught there for twenty-two years, after which he joined the faculty of Columbia College in New York City. He lectured on politics and law and wrote prolifically on the same subjects, earning a substantial reputation. When the Civil War erupted, Lieber threw himself behind the Union cause. He was passionately against slavery and for the unity of the republic and became an active columnist and pamphleteer. In 1863, he founded and served as president of the Loyal Publication Society, which disseminated a stream of books and essays, many of them written by Lieber himself (Rolin-Jaequemyns 1872, 705). Still, he longed to play an active or political role in the war, as his three sons did, two of them fighting on the Union side and another who died in the Confederate Army. His connections with highly placed officials in Washington gave him that chance. Lieber became a steady correspondent with, and advisor to, Senator Charles Sumner, with whom he had first come into contact while preparing the Encyclopedia Americana. Sumner was chairman of the Senate Foreign Relations Committee from 1861 to 1871 and was an energetic and influential advocate of the Union’s war effort. In addition, Lieber advised the attorney general, Edward Bates, who had sought Lieber’s help in framing legal justifications for Lincoln’s war measures (Freidel 1968, 301, 309). Lieber’s greatest influence both on the Union endeavor and on subsequent international developments, however, grew out of a request from General Henry Wager Halleck (Childress 1976, 37).

Halleck, Lieber, and General Orders No. 100 As the Civil War plunged into ever greater depths of destruction, Lieber became caught up in the legal and political debates surrounding issues cast up by the fighting: the treatment of prisoners of war, the punishments for spies and marauders, the status of slaves in territories occupied by U.S. armies, the devastation of the lands and properties of enemy citizens. In particular, the variation in practice among Union officers troubled Lieber, and he conceived a project to write a small book on the laws and usages of war to bring about some consistency within the armies of the North. He had delivered a series of lectures, on the “Law and Usages of War” and on “Twenty-seven Definitions and Elementary Positions Concerning How Norms Change

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the Laws and Usages of War,” at Columbia’s Law School in 1861–62. Some of the lectures had been published in the New York Times and, apparently in that form, came to the attention of General Henry W. Halleck, who asked for a copy of them. Halleck and Lieber struck up what would become a fruitful friendship (Freidel 1968, 323–26). Halleck held a field command during the early stages of the war in the immense region stretching from the west bank of the Mississippi River east to the Appalachian Mountains. In July 1862, he became General-in-Chief of the Union Army, which took him to the War Department in Washington, DC (Childress 1976, 37; Johnson 1981, 286 –88).6 Halleck was, in addition to being a soldier, an attorney, and had published in 1861 a book titled International Law,7 the largest part of which dealt with the laws of war. Lieber was unable to send the lectures Halleck had requested because they had not been printed. But Lieber did mention that he was undertaking a study of the question of laws related to guerrilla warfare (a topic of painful relevance in the Civil War). Halleck encouraged Lieber to write a treatise on the subject, which he did, and Halleck ordered 5,000 copies for distribution within the army (Childress 1976, 37; Freidel 1968, 327). The book, Guerrilla Parties Considered with Reference to the Laws and Usages of War, found an interested audience across the Atlantic as well. Rolin-Jaequemyns refers to Lieber’s “excellent essay” on guerrilla war and its frequent invocation by himself and other writers during the discussions provoked by the then recent Franco-Prussian War (Rolin-Jaequemyns 1872, 705). His connection with Halleck thus established, Lieber, in November 1862, wrote proposing that President Lincoln publish a document laying out rules of war for the U.S. Army. The war was continuously casting up questions regarding prisoners of war, parole, irregular troops, slaves, enemy properties, and so on. The problems were especially acute in an army where a large proportion of the soldiers were nonprofessionals and thus had not been trained in the laws of war and military organization. Furthermore, they were fighting in a huge territory, in some parts of which the distinctions between combatants and noncombatants were difficult to calibrate (foreshadowing many of the wars that would follow).

6

7

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Coincidentally, Union troops under Halleck’s command captured Fort Donelson on the Cumberland River. It was at Fort Donelson that Lieber’s son Hamilton suffered the injury that cost him an arm. In fact, Lieber traveled west to be with his son and during the trip met Halleck; Freidel (1968), Hartigan (1983). The book was published in both San Francisco and New York; Halleck (1861). It appeared in various subsequent editions, including three published in London (1878, 1893, 1908).

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Halleck invited Lieber to Washington the following month. A Special Order of the Adjutant General’s Office commissioned a board consisting of Lieber and four generals for the purpose of proposing amendments to the American rules and articles of war and the regulations for armies in the field. Lieber accepted the task of drafting the document and by February 1863 was able to send to the board members and others copies of his Code for the Government of Armies in the Field as Authorized by the Laws and Usages of War on Land. On the basis of suggestions he received back, especially from Halleck, Lieber continued to add to and revise the Code. After final review by the board, and approval by both the Secretary of War and President Lincoln himself, the code was promulgated in May 1863 as General Orders No. 100, Instructions for the Government of Armies of the United States in the Field (Childress 1976, 37–38; Freidel 1968, 331–35).8 Given Lieber’s painful experience with war and his liberal political bent, one might expect him to have favored highly restrictive rules of war. But that was not necessarily the case. If anything, Halleck, the soldier, inclined toward more and stricter limitations on the conduct of war. The differences between Lieber and Halleck stand out in their preferences regarding earlier writers on the laws of war. Lieber’s preferred source was Bynkershoek, whereas Halleck’s was Vattel (Johnson 1981, 298). Of the two, Vattel clearly required more restraint in the treatment of the enemy, noncombatants, and their property (see chap. 2). Bynkershoek held that “every thing is lawful against an enemy. . . . We make war because we think that our enemy, by the injury he has done us, has merited destruction of himself and all his adherents. As this is the object of our warfare, it is immaterial what means we embrace to accomplish it” (Bynkershoek 1810, 2).9 Lieber praises Bynkershoek’s “excellent treatise on the Law of War” (Lieber 1839, 631), and, in a letter to Halleck, belittles Vattel: “It makes me impatient to find old Vattel so often quoted. He ought to be called Father namby pamby” (quoted in Childress 1976, 59). Lieber, then, was far from being a pacifist. He rejects the notion that war is in itself immoral or illegitimate and even argues that wars can benefit a nation, rousing

8 9

Hereafter referred to as Instructions. The earlier draft will be referred to as the Code. The edition cited here is the first English translation, published in Philadelphia in 1810. The treatise was originally published in the Netherlands as part of Bynkershoek’s Questiones Juris Publici (1737). It would also have been available in a 1752 Leyden edition of Questiones Juris Publici and in a 1761 Lausanne edition of the collected works. Lieber may well have known the earlier editions, as he was well acquainted with European legal scholarship and read Latin.

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“public spirit” and producing “a moral elevation” (Lieber 1839, 635–50). In his early writings, like the Manual of Political Ethics, Lieber seems to adopt a position close to that of Bynkershoek: “It is my duty to injure my enemy, as enemy, the most seriously I can, in order to obtain my end . . . If destruction of the enemy is my object, it is not only right, but my duty, to resort to the most destructive means” (660). Yet he qualifies this aggressive stance in terms that are reminiscent of Vattel: “War . . . by no means absolves us from all obligation toward the enemy, on various grounds. They result in part from the object of war, in part from the fact, that the belligerents are human beings, that the declaration of war is, among civilized nations, always made upon the tacit acknowledgment of certain usages and obligations” (657). In other words, the requirement of constraint in war derives both from nature (shared humanity) and from the law of nations (“usages and obligations”). Lieber could have been taking his cue from the Swiss jurist. “Let us never forget that our enemies are men,” wrote Vattel. “Although we may be under the unfortunate necessity of prosecuting our right by force of arms, let us never put aside the ties of charity which bind us to the whole human race.” And further, “[T]he voluntary Law of Nations limits itself to forbidding acts that are essentially unlawful and obnoxious . . . [and] condemns every act of hostility which . . . contributes nothing to the success of our arms and neither increases our strength nor weakens the enemy” (Vattel 1916 [1758], 289–90). Lieber, again like Vattel, found additional bases for the limitation of war’s destructiveness in long-term expediency. Vattel had written that “there are a thousand occasions during the actual course of the war when, for the sake of setting bounds to its fury and to the disasters which accompany it, the common interest and the welfare of both belligerents require that they be able to agree together on certain things.” Aside from the obvious interest in avoiding unnecessary destruction, there was a more far-reaching practical motive for setting limits: without them, “war would degenerate into cruel and unrestrained acts of violence . . . How could it ever be brought to an end and peace re-established?” In other words, fighting without limits would make it harder to stop the fighting (1916 [1758], 296). In his Political Ethics, Lieber offers a similar argument, even more explicit. He asserts that the ultimate goal of war is peace, and armies should avoid actions that make peace more difficult to achieve or less durable once attained. Belligerents must observe “certain usages,” he argues, “because they are necessary, either for mitigating the evils of war and bringing it within the sphere of civilization, or for 80

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the obtaining of the end of peace” (1839, 664). He applies this reasoning to “capitulations” (surrenders): “Hence capitulations must be kept [respected]; for peace is the end of war; peace is founded upon confidence, but the breaking of capitulations would destroy it” (661–62). The same principle shows up even more clearly in the Instructions, Article 29, where Lieber again asserts that “the ultimate object of all modern war is a renewed state of peace,” and Article 16, which declares that “in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.”10 Despite the disdain he expressed for Vattel, Lieber seems often to follow Vattel’s lead in arguing for restraints in war. With respect to the treatment of art and cultural monuments, Lieber appealed both to expediency and to ethical principles. Destruction of such objects was, in any case, impermissible. Thus Lieber declares, in Political Ethics, “All avoidable destruction of works of art or science, in particular, and all unnecessary destruction of any kind is criminal . . . because it is not serviceable to the general object of war.” Here Lieber echoes Vattel’s more general principle, that “a lawful end confers a right only to those means which are necessary to attain that end. Whatever is done in excess of those measures is contrary to natural law” (Vattel 1916 [1758], 279). The Instructions distinguish between private and public property, and all private properties are immune from seizure or destruction, except in instances of “military necessity” (Art. 38). The Instructions furthermore protect “works of art, libraries, collections, or instruments belonging to a hostile nation or government [i.e., as public property] . . . In no case shall they be sold or given away, if captured by the armies of the United States, nor shall they ever be privately appropriated, or wantonly destroyed or injured” (Art. 36). The property belonging to charitable, educational, and scientific institutions, including “museums of fine arts,” are not to be considered public property subject to seizure and sequestration (Arts. 34, 31). Seizure of works of art had a more ambiguous status. In Political Ethics Lieber acknowledged that he could see no legal grounds for denying “the right of carrying off books and works of art, provided they belong to the nation.” But he did assert practical grounds for avoiding the practice: it would obstruct the establishment of peace. “Generally, works of art ought not to be carried off, by the victorious party; because it galls the conquered nation, beyond the time of war,

10

I cite the Instructions as reprinted in Schindler and Toman (1973).

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and as peace requires mutual good will . . . the carrying off of these works would operate against the object of war” (1839, 663). There is no evidence as to whether Lieber knew about French plundering in the Napoleonic Wars, but the practice certainly did “gall the conquered” nations. Still, Lieber’s disapproval of art plunder is far from absolute. He recognizes it as a legitimate “chastisement” imposed on nations that pursue a “wrongful war” and further notes that the removal of artworks might actually save them from destruction: “What should we possess of the wonders of ancient art, had Rome’s conquering sword not collected them? There would be no Vatican” (663–64). Ultimately, the Instructions are quite permissive. Article 36 states, “If such works of art, libraries, collections, or instruments belonging to a hostile nation or government, can be removed without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of the said nation,” with final ownership to be determined by the eventual peace treaty.

The Influence of Lieber and the Instructions The Instructions stood as the rules of land warfare for the U.S. Army until 1914, at which time a new manual, still based on General Orders No. 100, replaced it. But Lieber’s project for distilling laws of warfare set off more distant reverberations. It inspired a number of influential European jurists and publicists, who in turn lent their energies to various transnational efforts to codify rules of war. These law activists put greater stock than had their predecessors of previous centuries in international treaties and conventions, both as a source of international law and as an effective means of regulating the conduct of states. One of the Europeans, Rolin-Jaequemyns, praised Lieber for “his faith and his devotion to the progress of knowledge and humanity” (Rolin-Jaequemyns 1872, 700).11 The transnational network of jurists shared that spirit and a confidence in the power of law and reason that, from the vantage of the early twenty-first century, seems perhaps naïve. But their efforts did transform the international stock of ideas on rules of war and therefore contributed to the development of norms against wartime art plunder. Primarily because of the law activists, “the law of war now entered its epoch of highest repute,” as Geoffrey Best puts it. “Between 1870 and 1914, one may safely say, it was more enthusiastically studied and widely talked about than ever before” (1980, 129).

11

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“Il n’est aucun de nos lecteurs . . . qui n’ait dû être frappé . . . de sa foi et de son dévouement aux progrès de la science et de l’humanité”

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Lieber’s work, especially the Instructions, energized and inspired a generation of European international law specialists. Rolin-Jaequemyns wrote a eulogy for Lieber; in its first paragraph he praises the Instructions, “so often invoked in Europe, especially since the last war” (1872, 700). Already in 1863, Lieber had received glowing praise from August W. Heffter (one of the most renowned and oft-cited German international law publicists), calling the Instructions “precious” and declaring that the code was “calculated to form the foundation of a general code of international law of war, or . . . rather, is such a basis.”12 Johan-Kaspar Bluntschli, professor of international law at Heidelberg from 1861 and one of the most prominent international law publicists of the late nineteenth century, so thoroughly admired Lieber’s Instructions that he wrote his own study of modern laws of war (1866). In the foreword, Bluntschli frankly acknowledged that he had followed Lieber’s example: “The articles of war, drawn up by Professor Lieber in New York and issued in 1863 by President Lincoln for the army of the United States, have served as a model for this work. To my knowledge, a similar code of war does not yet exist in European literature. These articles of war have been greatly and often literally used” (quoted in Childress 1976, 35). Bluntschli also wrote a small volume specifically on the laws of wartime plunder, with a special focus on sea prize. In it he cites key documents in the development of the modern international law of war, with a special mention of President Lincoln’s 1864 Instructions for the army, which, Bluntschli remarks, “were composed by my friend Francis Lieber in New York,” and which, he adds, “merit special emphasis, because they clearly and energetically proclaim modern principles.”13 Bluntschli subsequently authored a full-fledged international law treatise and recognized a debt to Lieber: “These instructions prepared by Lieber, prompted me to draw up, after his model, first, the laws of war, and then, in general, the law of nations, in the form of a code, or law book, which should express the present state of the legal consciousness of civilized peoples. Lieber, in his correspondence with me, had strongly urged that I should do this, and he lent me continual encouragement” (1880, 13). In fact, Bluntschli included the full text of General Orders No. 100 as an appendix in his volume. The book had an immense influence in international law circles. It first appeared in German in 1868, with subsequent editions in 1872 and 1878. French editions appeared in 1869, 1881,

12 13

Letter from Heffter to Lieber, August 26, 1863, as quoted in Childress (1976). “Die Nordamerikanische Instruktion des Präsidenten Lincoln für die Armee von 1864, die von meinem Freunde Franz Lieber in New-York verfasst ist, verdient besonders hervorgehoben zu werden, weil sie die modernen Grundsätze mit Energie klar verkündet”; Bluntschli (1970 [1878], 66.

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and 1895 (Bluntschli 1895). Bluntschli himself became a participant in projects to translate ideas on limiting war into positive international conventions. The movement to codify rules of war did not remain confined to the essays of theorists and publicists; it took political shape in a variety of conferences and congresses, whose aims were to establish valid international rules. These efforts shared the same spirit as, and probably benefited from, a project that began slightly earlier, with the efforts of Henri Dunant and others to establish international conventions to improve conditions for soldiers wounded in battle. Their labors bore fruit in 1864, when fifteen states sent delegates to Geneva and produced the first Geneva Convention. The Convention declared that sick and wounded soldiers should receive humane treatment regardless of nationality, and that persons engaged in relieving the suffering of the wounded, as well as their vehicles and hospitals, were to be accorded the protections due to neutrals. From this beginning emerged later the International Committee of the Red Cross with its web of national Red Cross and Red Crescent societies, as well as the subsequent Geneva Conventions. Rules to govern care for the sick and wounded did not directly seek to constrain warfare. Other international gatherings in the same period did, however, take up that problem. An initial step was the 1856 Declaration of Paris, at the conclusion of the Crimean War. European states agreed to curtail certain practices in naval warfare, mostly related to privateering, neutral shipping and goods, and blockades (Hattendorf 1994, 108–109). However, war at sea and war on land were subject to distinct traditions and bodies of international law. The era of treaties regarding land warfare opened with a conference in 1868. At the invitation of the Russian government, delegates gathered in St. Petersburg in November 1868 to discuss a Russian proposal to ban exploding projectiles. Russia had developed a bullet that exploded and shattered even on contact with soft tissues. The Imperial War Minister did not want Russian armies, or those of any other state, to use the new bullet, and proposed to Czar Alexander II its renunciation (Roberts and Guelff 1989, 29). The czar extended his invitation, and in the end, seventeen powers signed the Declaration of St. Petersburg, renouncing the use of such bullets (Oppenheim 1952, 341). The Declaration embodies the faith of the law activists: Considering that the progress of civilization should have the effect of alleviating as much as possible the calamities of war; 84

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That the only legitimate object which States should endeavor to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men; That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable; That the employment of such arms, would, therefore, be contrary to the laws of humanity.14

Catastrophic events frequently trigger normative debates, that is, arguments about where the bounds of acceptable conduct do, or should, lie (see chap. 1). Just as the unfolding horrors of the American Civil War provoked Lieber to seek a codification of the rules of war, the Franco-Prussian War of 1870–71 mobilized European jurists. Among the fruits of their activity were the creation of the Institute of International Law, the 1874 Brussels Declaration, and the 1880 Oxford Manual. The conflict between France and Prussia fueled the desire of idealistic law activists to establish rules that might limit war. With specific regard to the fate of artistic and cultural properties, the Franco-Prussian War also offered reasons for action. The destruction by bombardment of the cathedral and library of Strasbourg, along with the treasures they contained, was a notorious catastrophe (and easy propaganda material for depicting the Germans as barbaric). The events of 1870–71 clearly moved European scholars. In his eulogy for Lieber, Rolin-Jaequemyns had referred to the discussions “to which had given rise the Franco-German war” (Rolin-Jaequemyns 1872, 701); he had also published a series of three lengthy articles on the war in successive issues of the Revue de Droit International et de Législation Comparée. Albéric Rolin, who, like Rolin-Jaecquemyns, was present at the creation of the Institute of International Law, depicted the war as the immediate catalyst behind the founding of the organization. He recalled that the Franco-German war had been, “because of the importance and the high culture of the nations pursuing the conflict, a European and even, almost, a worldwide catastrophe.” As a consequence, many of those who witnessed the war from outside the belligerent countries “were probably the first to experience the intense desire to avoid, in the future, similar calamities.”

14

Taken from the text as reproduced in Roberts and Guelff (1989, 30—31).

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Thus a number of “generous voices” from neutral states “rose to advocate an entirely new method of working in order to make international law progress.” Rolin summarized the essence of their hopes: to “make war more and more rare, to limit it, to diminish its horrors, by the progressive development of international law” (1923, 6, 7). Lieber played a notable role in the creation of the Institute of International Law. In some of his letters in the 1860s and 1870s, he had expressed a wish for a gathering of eminent international jurists. To Bluntschli, commending him for undertaking his code of international law, Lieber wrote: For a long time it was a favorite project of mine that four or five of the most distinguished jurists should hold a congress in order to decide on several important but still unsettled questions of national equity, and perhaps draw up a code. [The meeting should be] a private congress . . . whose work would stand as an authority by its excellence, truthfulness, justice, and superiority in every respect.15

Bluntschli later credited Lieber with the original idea for the Institute: “Lieber had great influence, I might add, in founding the Institut de Droit International . . . Lieber was the first to propose and to encourage the idea of professional jurists of all nations thus coming together” (1880, 14). Lieber transmitted to Rolin-Jaequemyns the same proposition. A French translation of his letter appears in the introduction to the first volume of the Annuaire de l’Institut de Droit International (Institut de Droit International 1877, 12; Rolin 1923, 10). Rolin-Jaequemyns recounts that Lieber had even “cherished the dream” of traveling to Ghent to take part in such a meeting; unfortunately, death intervened for Lieber in October 1872. In the meantime, Rolin-Jaequemyns had received other communications to similar effect. One came, through intermediaries, from Gustave Moynier, who had been instrumental in the founding of the International Committee of the Red Cross. Another came from Bluntschli, who added to Lieber’s idea by proposing not just a conference but a permanent organization or institute (Rolin 1923, 9–11). Rolin-Jaequemyns subsequently wrote to twenty-two well known experts in international law and related disciplines, from a variety of countries, inviting them to Ghent. The general response

15

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was enthusiastically supportive, even from those who would not be able to attend the meeting. In the end, ten participants (plus Rolin and Rolin-Jaequemyns) arrived for the September 1873 meeting, among them Bluntschli and Moynier (11–46). The twelve present at Ghent established the Institute of International Law as a permanent organization. Members associated themselves with it as private citizens, not as representatives of states or governments. The Institute did not, and would not, seek or accept financial support from any government, so as not to compromise its independence. The participants hoped that their ideas would make their own way in the world, on the strength of their morality and rationality. They elected a president (P. S. Mancini) and a secretary-general (RolinJaequemyns). Those present also inscribed on the list of founding members other notables who supported the endeavor but were unable to attend. These included the renowned international law publicists John Westlake (England) and Franz von Holtzendorff (Germany). In the end, the group approved a set of statutes for the organization, planned for the next meeting (1874 in Geneva), and signed a public manifesto. The manifesto declared, in part: Our principal goal is to be able, by the free action of a limited number of eminent jurists, to record, in the most certain manner possible, the juridical opinion of the civilized world, and to give to this opinion an expression clear enough, and exact enough to be accepted by the different States as a rule of their external relations. The Institute will thus prepare, through gradual effort, this codification of international law. (Rolin 1923, 68)

The Institute’s principal contribution in this direction would be the 1880 Oxford Manual.16 Prior to that step, however, came another initiated by Russia. Czar Alexander II invited European nations to send delegates to a meeting at Brussels, the subject of which would be a proposed convention, drafted by Russia, on the rules of war. Fifteen states sent representatives, and the conference convened in July 1874; Bluntschli was one of the German delegates. The participants adopted the proposed convention with minor changes. Ratification did not follow, so the

16

Rolin-Jaecquemyns and Tobias Asser had earlier, in 1862, founded the first journal of international law, the Revue de Droit Internationalet de Législation Comparée. In 1875, the Revue became the official publication of the Institute of International Law; Koskenniemi (2002).

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document, since known as the “Brussels Declaration,” never became international law. However, its influence was substantial, providing as it did much of the normative material out of which were constructed the Oxford Manual and the Hague Conventions. The Russian delegate, and chairman of the meetings, Baron Jomini, traced the roots of the proposed convention to Lieber’s Instructions (Root 1913, 457). Jomini undoubtedly referred to the idea of codifying restraints in war, and to the similar topics both documents covered. With regard specifically to art works, the parallels are evident, as shown by a side-by-side comparison of selected passages. The following excerpts have to do with enemy properties, both public (including cultural goods) and private.17 Lieber’s Instructions (1863)

Brussels Declaration (1874)

Art. 16. Military necessity does not admit of cruelty, that is, the infliction of suffering for the sake of suffering or for revenge . . .

Art. 12. The laws of war do not recognize in belligerents an unlimited power in the adoption of means of injuring the enemy.

Art. 34. As a general rule, the property belonging to churches, to hospitals, or other establishments of an exclusively charitable character, to establishments of education . . . museums of the fine arts, or of a scientific character—such property is not to be considered public property [subject to appropriation]. . .

Art. 8. 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.

Art. 35. Classical works of art, libraries, scientific collections, or precious instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury, even when they are contained in fortified places whilst besieged or bombarded.

Art. 8. All seizure or destruction of, or willful damage to, institutions of this character, historic monuments, works of art and science should be made the subject of legal proceedings by the competent authorities.

17

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The excerpts are taken from the documents as reprinted in Schindler and Toman (1973, 8, 38).

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Lieber’s Instructions (1863) (cont.)

Brussels Declaration (1874)

Art. 37. The United States acknowledge and protect, in hostile countries occupied by them, religion and morality; strictly private property; the persons of the inhabitants, especially those of women; and the sacredness of domestic relations . . .

Art. 38. Family honour and rights, and the lives and property of persons, as well as their religious convictions and their practice, must be respected. Private property cannot be confiscated.

Art. 38. Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity. . . . If the owner has not fled, the commanding officer will cause receipts to be given, which may serve the spoliated owner to obtain indemnity.

Art. 39. Pillage is formally forbidden.

The Brussels Declaration is actually more restrictive than Lieber’s Instructions in two respects. Whereas the Instructions permit a conquering army to seize and remove works of art (Art. 36), the Brussels Declaration not only forbids “all seizure” but also would make violations subject to prosecution. In addition, the Instructions permit seizures of private property (with provision of a receipt, where possible), but the Declaration prohibits any confiscation of private property, explicitly banning pillage. At its 1874 meeting in Geneva, the Institute of International Law designated a committee to examine the Brussels Declaration and submit to the group its assessment, along with any proposals for further development. The Institute met at the Hague in 1875 and debated the committee’s proposed conclusions. In the end, they approved a statement praising the Brussels Declaration and called on governments to extend and complete it. The Institute recognized that the Declaration had much in common with the “instructions américains du président Lincoln” but also noted that it improved on them in two ways: by “extending to international relations a regulation made for a single state” and by “containing new prescriptions, conceived in a spirit at once practical, humane, and progressive” (Institut de Droit International 1928b, 62). The committee that had studied the Declaration was not disbanded, though it remained inactive for a few years. At the Paris meetings of 1878, Rolin-Jaequemyns suggested that the Institute should examine the codes and regulations that various governments had recently How Norms Change

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issued to their armies, prescribing observance of the laws and customs of war. The committee undertook this comparative review, and Moynier prepared a report on their efforts. They found few national army codes of recent date; in fact, only the Russian regulations of 1877 fit that description. In his presentation, Moynier argued that “it is indispensable that the laws of war . . . be expressed in the regulations, taught in times of peace in the military academies and sanctioned by severe penalties” (481). In the ensuing discussion, two propositions emerged. One (advanced by Moynier and others) suggested that the Institute should urge governments to set out in a treaty the laws of war and the penalties to be imposed for their violation. The other proposal (urged by Martens) envisioned instead a manual on the laws of war prepared by the Institute to serve as a model for each state’s own military regulations. Bluntschli moved that the Institute do both, and the assembly agreed (Institut de Droit International 1928a). The committee entrusted to Moynier the task of drafting a manual. Among the works he used as bases for his project were the Geneva and St. Petersburg Conventions; the 1874 Brussels Declaration; recent manuals adopted in France, Russia, and the Netherlands; and the Lieber Code. Moynier, Bluntschli, Fyodor Martens,18 and a few others worked on final revisions. The end result of the Institute’s effort was The Laws of War on Land, unanimously adopted in September 1880 at the meeting held in Oxford, and known since as the Oxford Manual. The Preface to the Manual described its objectives. It explained that outside of existing international law, certain “principles of justice” and “general customs” limited the destructiveness of war. The purpose of the Institute was to “fix and render obligatory” these common principles as the Brussels Declaration had attempted to do. The mechanism for instituting such legal restraints was not to be international treaty, but rather national regulations. The Institute was thus offering to governments a Manual “suitable as a basis, in each State, for national legislation” and adapted to the need to inculcate in their soldiers the “rights and duties” attached to the conduct of war (Institut de Droit International 1928a, 700–709). The Oxford Manual directly incorporates many of the provisions of the Brussels Declaration. And, again, the founders of the Institute had been inspired both by Lieber’s idea for such an organization, and especially by his effort to codify rules of war. A parallel comparison highlights the similarities (see the table below).

18

90

Fyodor Martens was a Russian diplomat, advisor to the Russian government, professor of law at St. Petersburg, and author of international law treatises. He was part of the Russian delegation to the second peace conference at the Hague.

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Lieber’s Instructions Art. 16. Military necessity does not admit of cruelty, that is, the infliction of suffering for the sake of suffering or for revenge . . .

Oxford Manual (1880)

Art. 12. The laws of war do not recognize in belligerents an unlimited power in the adoption of means of injuring the enemy.

Art. 4. The laws of war do not recognize in belligerents an unlimited liberty as to the means of injuring the enemy. They are to abstain from all needless severity . . .

Art. 39. Pillage is formally forbidden.

Art. 32. It is forbidden: (a) To pillage, even towns taken by assault; (b) To destroy public or private property, if this destruction is not demanded by an imperative necessity of war . . .

Art. 8. The property of municipali- Art. 53. The property of municipalities, and ties, that of institutions dedicated that of institutions devoted to religion, to religion, charity and education, charity, the arts

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Art. 34. As a general rule, the property belonging to churches, to hospitals, or other establishments of an

Brussels Declaration (1874)

Brussels Declaration (1874)

Oxford Manual (1880)

and sciences even when State property, shall be treated as private property. All seizure or destruction of, or willful damage to, institutions of this character, historic monuments, works of art and science should be made the subject of legal proceedings by the competent authorities.

education, art and science, cannot be seized. All destruction of or willful damage to institutions of this character, historic monuments, archives, works of art, or science, is formally forbidden, save when urgently demanded by military necessity.

Art. 38. Private property cannot be Art. 37. The United States acknowledge and protect, in hostile countries occupied by them, confiscated. religion and morality; strictly private property . . .

Art. 54. Private property, whether belonging to individuals or corporations, must be respected and can be confiscated only under the limitations contained in the following articles.

exclusively charitable character, to establishments of education . . . museums of the fine arts, or of a scientific character—such property is not to be considered public property [subject to appropriation] . . . Art. 35. Classical works of art, libraries, scientific collections, or precious instruments, such as astronomical telescopes, as well as hospitals, must be secured against all avoidable injury . . .

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Art. 38. Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity . . .

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The Brussels statement is alone in banning the confiscation of private property; both Lieber and the Manual permit it under certain conditions dictated by military necessity. However, the Oxford Manual goes further than the earlier documents do in forbidding the destruction of both private and public properties.

The Hague Peace Conferences Lieber’s Instructions, the Brussels Declaration, and the Oxford Manual all provided building blocks for the two Hague Peace Conferences (1899 and 1907). The initiative for the first conference was, once again, Russian. Czar Nicholas II’s proposal for an international peace conference took the diplomatic world by surprise, though the idea for such a meeting had been circulating for some time. In fact, a transnational peace movement had gathered momentum during the 1880s and early 1890s. The movement took up the cause of international arbitration. Parliamentarians in Britain, France, and the United States signed memorials and petitions urging their governments to sign bilateral arbitration treaties. In June 1889, nearly a hundred legislators attended the inaugural meeting of the Interparliamentary Union, dedicated to world peace. The Union championed arbitration and the establishment of a world court (Davis 1962, 17–22). Citizen groups were also organizing to publicize the cause of peace; the peace campaign was an exemplar of what is now commonly referred to as “transnational civil society.” Quakers in Britain and North America actively campaigned for arms reductions and a permanent system of international arbitration. A conference of representatives of the “Free Churches” in Britain endorsed both goals in an open letter to the British government, signed by thirty-five thousand citizens, including bishops, eighty members of Parliament, mayors of more than fifty towns and cities (including London, Glasgow, and Dublin), as well as prominent intellectuals (Stead 1899, 4–6).19 Peace leaders organized a Universal Peace Congress in Paris in 1889; the conference, and one the following year, was so successful that the planners created a permanent bureau to organize subsequent sessions, which took place every year until 1913 (excepting 1898 and 1899). In the United States, business and civic leaders joined the cause, most prominently

19

William Stead was a British journalist, editor, and publisher, and was thoroughly engaged in the peace movement. He founded the influential Review of Reviews and published in its pages (as well as in other pamphlets) his own polemics in favor of arbitration and disarmament; Davis (1962, 28); Stead (1899, 4). He attended the 1899 Hague Peace Conference as a journalist and published daily reports in a local Dutch newspaper, a labor that eventually led to the book cited here; Stead (1899). Stead was a passenger on the Titanic and did not survive the ship’s catastrophic demise.

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Andrew Carnegie, who would subsequently endow institutions devoted to world peace (Davis 1962, 17–19, 28). Nicholas II’s invitation, then, had a receptive audience in segments of the public, and in some governments in Europe and North America. In fact, Chamberlain de Basily, a high-level Russian official, had attended the 1896 Interparliamentary Union conference. His report on it, favoring some action to halt the rapid growth of armaments, may have planted seeds within the Russian government (Davis 1962, 141, n. 9; Stead 1899, 7–8). But the immediate origins of the czar’s proposal were more mundane. His war minister, General Alexei Kuropatkin, dreaded the prospect of the immense outlay that would be needed to reequip the Imperial Army with artillery equal to the new rapid-fire field guns adopted by Germany and possibly to be acquired by Austria-Hungary. He suggested to the czar that perhaps Austria and Russia could agree to forego the new artillery for ten years. When Nicholas II responded favorably, Kuropatkin approached the foreign minister, Mikhail Muraviev, who in turn, spoke of the idea to the finance minister, Sergei Witte. Witte suggested that the idea would only work as part of a general agreement among all the powers to curtail their arms programs. It was this proposal that a ministerial council approved (Davis 1962, 44–46). Muraviev held in St. Petersburg a weekly reception for the foreign diplomatic corps. For the meeting of August 24, 1898, he had prepared copies of a document proposing, in the name of the czar, an international conference for the purpose of ending the expansion of armaments.20 As the diplomats entered the chamber, each received a copy. Subsequently known as the “Rescript,” Muraviev’s letter proposed international discussions on “the most effectual means of insuring to all peoples the benefits of a real and durable peace, and, above all, of putting an end to the progressive development of the present armaments” (Russia 1908a, 1). The document surprised everybody. Most governments were initially skeptical regarding Russia’s motives, even if they did not express it. No one was interested in discussing the curtailment of armaments—not Germany, trying desperately to take its place as a great power; not Britain, embroiled with France in the Fashoda crisis (though in May 1899 the British did indicate a willingness to reduce naval building if other powers agreed to do the same); not the

20

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The dates are in the Gregorian calendar, though Russia at the time employed the Julian calendar. Muraviev’s document thus bore the date August 12, 1898.

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United States, recently victorious in its war with Spain and seeing its armed forces as already well below European levels (Davis 1962, 38–41, 84–89). Still, polite responses trickled in, often with other ideas for the conference agenda. In January 1899, Muraviev issued a “Circular” to the foreign representatives in St. Petersburg. The Circular noted that several powers had undertaken “fresh armaments” since the Rescript. Still, the letter suggested that “it would be possible to proceed forthwith to a preliminary exchange of ideas,” and listed eight subjects to be submitted to the conference. These included (among others) the freezing, and possible reduction, of arms levels; a system of arbitration of disputes; application of the Geneva Convention of 1864 (the Red Cross) to naval warfare; and revision of the “Declaration concerning the laws and customs of war elaborated in 1874 by the Conference of Brussels” (Russia 1908b). The Russians, thinking it best that the conference not take place in the capital of one of the great powers, asked the Netherlands to host it. The Dutch agreed, and extended a formal invitation to meet at the Hague. Most of the powers were no happier with the expanded agenda than they had been with the much simpler Rescript program. Still, all of the invited countries but Brazil accepted, and delegations from twenty-six governments took their places when the conference opened on May 18, 1899. The Conference quickly created three commissions and divided the delegates among them. The task of the second of these was to examine those elements of the Russian agenda relating to the Geneva Convention of 1864 (the Red Cross) and to the laws of war. With respect to the latter, the starting point was the Brussels Declaration of 1874 to which the Second Commission would propose revisions. The Second Commission then subdivided into two subcommissions. According to the minutes of the meetings of the Second Commission, “As to the task of the second subcommission, it is defined by the text of the Declaration of 1874” (Hague International Peace Conference 1920, 386). Dr. Fyodor de Martens presided over the plenary meetings of the Second Commission, as well as the sessions of its second subcommission. Martens was a professor of law in St. Petersburg and also a “permanent member of the Council of the Imperial Ministry for Foreign Affairs” and a “Privy Councilor” (Hague International Peace Conference 1920, 5). He figured in the transnational network that, inspired by Lieber, was promoting the idea of codifying rules of war. He was thus an early member of the Institute of International Law, in whose

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founding Lieber had played a catalytic role; though not present at the founding in Ghent in 1873, Martens appears on the list of members attending the session at the Hague in 1875 (Institut de Droit International 1928b, 11) and subsequent meetings. He had written in 1882 a massive treatise on international law, translated the following year from Russian into French. In it, Martens cites Lieber’s Instructions as the first step toward a codification of the laws and usages of war (1883, 193). During the proceedings of the second subcommission, which he chaired, Martens traced the development of the idea of rules of war, paying particular tribute to Lieber’s Instructions. He recalled that Emperor Alexander II convoked the 1874 Brussels Conference (to which Martens had been one of the Russian delegates) for the purpose of formulating international rules of war. But, he noted, “the initiative of my august sovereign was not all due to a new idea. Already during the War of Succession, had President Lincoln directed Professor Lieber to prepare instructions for the armies of General Grant. . . . The example had been set. The Brussels Declaration brought about by Alexander II was the logical and natural development thereof ” (Hague International Peace Conference 1920, 505–506). The 1899 Hague Conference ultimately accepted the work of the Second Commission, and signed the Convention (II) Respecting the Laws and Customs of War on Land, with its Annex containing the specific regulations (for the full text of the Convention and Regulations see Scott 1917, 126–37). Where they dealt with private and cultural properties, the Regulations made only minor changes to the corresponding articles of the Brussels Declaration (the changes appear in italics in the chart below). Brussels Declaration, 1874

Hague Convention (II), 1899

Article 38. Family honor and rights, and the lives and property of persons, as well as their religious convictions and their practice, must be respected. Private property cannot be confiscated.

Article 46. Family honor 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 39. Pillage is formally forbidden.

Article 47. Pillage is formally forbidden.

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Brussels Declaration, 1874 (cont.)

Hague Convention (II), 1899

Article 8. 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 or destruction of, or willful damage to, institutions of this character, historic monuments, works of art and science should be made the subject of legal proceedings by the competent authorities.

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

The most significant change is in Article 56, which strengthens the prohibition enunciated in 1874 by adding the phrase “is forbidden.” The Final Act of the 1899 conference called for a subsequent such meeting to be convened in the “near future” (Hague International Peace Conference 1920, 233–34) to resolve some questions left open. The following years offered reasons for both hope and disillusion to the supporters of the international peace conferences. On the one hand, the Permanent Court of Arbitration (the “Hague Court”), established at the 1899 Conference, heard and decided its first cases, including the sensitive Venezuela case, and Britain and the United States submitted to arbitration their dispute over the Alaska-Canada boundary. Andrew Carnegie had in 1903 offered a gift of $1,500,000 to build a palace for the Permanent Court in the Hague. On the other hand, the armed uprising in the Philippines (1899), the Boxer Rebellion in China (1900), the Boer War (1899–1902), and the Russo-Japanese War (1904–1905) were discouraging developments. Even so, peace activists in the United States were busy during 1903 and 1904. Speeches, leaflets, meetings, and conferences publicized the cause, in particular, of arbitration. A high profile conference met in Washington, DC, in January 1904. Among those assembled were Samuel Gompers, Edward Everett Hale, James Cardinal Gibbons, the governor of Indiana, several university presidents, a number of prominent diplomats, and leaders of the American Peace Society. At one of the meetings, Missouri Congressman Richard Bartholdt proposed the creation of an American branch of the Interparliamentary Union so that the United States could host a meeting of the Union at the St. Louis World’s Fair, How Norms Change

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which would open in the summer of 1904. Bartholdt, German born, traveled frequently in Europe and had, in fact, visited the Hague during the 1899 Peace Conference. He had already joined the Interparliamentary Union himself and convinced the organization to consider St. Louis as a site for its 1904 meeting. After enlisting the support of President Theodore Roosevelt, Bartholdt secured the necessary official invitation from the U.S. Congress, as well as an appropriation to cover the costs of hosting the Union delegates (Davis 1975, 100–106). The Interparliamentary Union thus convened its meeting in September 1904 in the Festival Hall of the St. Louis Exposition. Bartholdt and his American collaborators were responsible for preparing the agenda. They proposed one major item of business: that the Union request that President Roosevelt convene another international peace conference. A resolution to that effect passed by unanimous vote, and later that month, the entire conference traveled by train to Washington, D.C. (after a grand tour that had taken them as far west as Denver). The delegates were taken to the White House for a meeting with President Roosevelt. The Union’s president presented the St. Louis Declaration, and, in a brief response, Roosevelt agreed to invite the other governments to a second conference at the Hague (Davis 1975, 106–110). The following month, Secretary of State John Hay sent a letter to all U. S. ambassadors accredited to the governments that had signed the Acts of the Hague Conference of 1899. The letter instructed American diplomats to sound out the ministers of foreign affairs as to their attitudes regarding a Second Hague Conference, “to complete the postponed work of the first conference” (United States Department of State 1904, 6). Once the Russo-Japanese War ended, with the September 1905 Treaty of Portsmouth, New Hampshire— achieved in part through the mediation of Theodore Roosevelt—the Russians inquired as to whether the U.S. president might be willing to cede to the czar the role of convoking the second Hague conference. Roosevelt gladly assented (Davis 1975, 123; Hull 1970 [1908], 5; Scott 1917, 184–85). In letters to the various foreign ministries, the Russian government formally proposed a second peace conference, outlined a possible agenda, and suggested a procedure by which states not represented at the first Hague conference could adhere to the Conventions signed in 1899 and thus participate in the second meeting as signatories.21 Because the diplomatic calendar for 1906 was already packed, the Russians decided to hold the conference the following year. The formal invitations from

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The letters are reprinted in Scott (1917) and in United Kingdom Foreign Office (1908).

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The International Law Activists

Russia and the Netherlands went out in April 1907, and the Conference convened in June with representatives of forty-four countries. Among the topics Russia initially listed for discussion at the second conference was “additions to the Convention of the laws and usages of land warfare.”22 The Russians, however, according to a letter of instructions from the British Foreign Secretary to the British lead delegate, had never provided any “intimation” as to “the precise measures or principles which are to be brought forward for adoption” (United Kingdom Foreign Office 1908, 11–14). At the conference, the various agenda items were parceled out among four commissions, with the headings “Improvements to be made to the Convention of 1899 respecting the laws and customs of war on land” and “Declarations of 1899” assigned to the Second Commission. Presiding over the Second Commission, as well as its first subcommission (which addressed the questions relating to rules of land warfare), was Auguste Beernaert. Beernaert had represented Belgium at the first Hague Conference and became a member of the Permanent Court of Arbitration that it established. He was also a member of the Institute of International Law and had attended its 1906 meetings in Ghent. Beernaert won the 1909 Nobel Peace Prize, which he shared with Paul-Henri-Benjamin d’Estournelles de Constant, who represented France at both Hague conferences and was also a member of the Permanent Court of Arbitration. Serving with Beernaert on the Second Commission were a few prominent members of the transnational network of international law activists that had played such a catalytic role in late 1800s. Fyodor de Martens was there, a veteran of the 1874 Brussels meeting, the Institute of International Law, and the 1899 Hague Conference. T. M. C. Asser, a Dutch jurist, was one of the founders and first editors, with Rolins-Jaequemyns and Westlake, of the Revue de Droit International et de Législation Comparée, as well as one of the original members of the Institute. He represented the Netherlands at the Hague in 1907 and chaired the subcommission on “Rights and duties of neutrals on land” and “Opening of hostilities.” The delegates considered only one small amendment to the 1899 Convention as it related to the treatment of private property and works of art and science.

22

From a letter from Russian Ambassador Rosen to U.S. Secretary of State John Hay, reprinted in Scott (1917).

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The delegation of Austria-Hungary proposed inserting the words “in principle,” so that Article 46 (1899) would read, “Family honor and rights, the lives of persons, religious convictions and practice, as well as in principle private property, must be respected.” But finding no support, the Austrians withdrew the proposal (Hague International Peace Conference 1921, 108, 128). Though the 1907 Conference agreed on numerous new conventions, especially with respect to naval warfare, it made no changes relevant to pillaging or plunder.23 By the first decade of the twentieth century, then, states had agreed on a series of rules that prohibited the plundering or destruction of all private property, and of all works of art and the institutions that housed them. As this chapter has shown, a transnational network of international lawyers and diplomats, sharing a commitment to the development and codification of rules regulating the conduct of war, played a central part in translating the outcome of 1815— France’s restitution of plundered artworks—into general international norms. Of course there would be violations. But, as the framework presented in chapter 1 would predict, violations triggered new debates, and the ensuing arguments would further modify the rules. Still, the Hague rules were crucial in that they formalized and codified, for the first time, international norms for the wartime protection of cultural patrimony. Again, as the theory would expect, the Hague rules established the context for subsequent actions and controversies, and provided a foundation upon which further normative developments could be built.

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The various specific Conventions were renumbered. Consequently, the Convention Respecting the Laws and Customs of War on Land, which was Convention II in 1899, became Convention IV in 1907.

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CHAPTER 5

The Great War and the Protection of Art The First World War demolished the sense of progress and optimism that had blossomed around the turn of the century, at least in Europe and North America. The advance of science, the thickening ties of trade, the acclaimed Hague Conventions, all seemed to augur an era of international comity, in which the great powers would resolve their differences by means more rational than war. The Great War wiped away those visions, leaving permanent traces on the modern psyche (Fussell 1975). For many, especially in the worlds of art and literature, the war revealed that “progress” and “modernity” were bitter illusions. One would suppose that the hopes and efforts of the international law activists and the diplomats, who were building (as they thought) a new international system based on law and the peaceful settlement of disputes, would likewise be blasted by the horrors of World War I. Surely the war demonstrated the naïveté of such projects. After 1918, who could regard Peace Conferences and international rules of war as anything other than impractical dreams, if not dangerous follies? Yet, in the postwar decades, efforts to tame international relations did not collapse but rather redoubled. Perhaps one lesson of the war was that the Peace Conferences had not gone far enough, that more, not less, rule making was called for. Thus pacifist movements thrived (Lynch 1999). Diplomacy produced the League of Nations, as well as a treaty on naval armaments and a draft convention on aerial warfare. With respect to the treatment of cultural properties during wartime, the 1920s and 1930s produced the first international treaty on the subject, as well as additional draft conventions whose development was cut off by the onset of the century’s second great war. The point is not that these projects achieved what the activists hoped they would; they clearly did not. Their importance was that they continued the development of international rules, and laid the groundwork

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for subsequent developments. Figure 5.7 summarizes the cycle of norm change triggered by World War I. I. Norm context: recently ratified Hague Convention IV

IV. Rule change: Versailles settlement reinforces protection of cultural treasures by requiring compensation; new postwar treaties and treaty projects

II. Action: destruction by the Germans of historic buildings and cultural monuments

III. Arguments: debates at Versailles over restitution and compensation for cultural losses; new treaty proposals

Fig. 5.7. Cycle of change: The Great War and the protection of art

The Destruction of Cultural Property during World War I On the eve of World War I, Germany’s officers’ manual, Kriegsbrauch in Landkrieg (translated as The Usages of War on Land), refers to developments in the international laws of war, citing Bluntschli, Rolin-Jaequemyns, Moynier, and others. With respect to the property of the defeated, the manual states that the victor has unconditional right to the property of the state. “On the other hand,” it continues, “an exception is made as to all objects which serve the purpose of religious worship, education, the sciences and arts, charities and nursing.” Libraries and museums, among other kinds of institutions, had to be protected. In fact,

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the manual specifically declares that Napoleon’s “ruthless” practice of “carrying off art treasures, antiquities, and whole collections, in order to incorporate them into one’s own art galleries, is no longer allowed by the law of nations to-day” (Germany, Armee, Grosser Generalstab, Kriegsgeschichtliche Abteilung 1915, 130). Germany had, furthermore, ratified the 1907 Hague Conventions. The destruction of, or damage to, historic and artistic monuments provoked furor and debate both during World War I and after. The bombardment or burning of culturally significant sites aroused popular feeling, provoked heated public protests in the press, and led to propaganda campaigns on both sides. Hundreds of churches and historic buildings—indeed, entire towns with centuries-old neighborhoods of architectural distinction—along with the art treasures they housed, were destroyed during the course of World War I (Lettenhove 1917). Such devastation befell dozens of towns in Belgium and France. Dinant, Namur, Malines, Termonde, Dixmude, and Ypres were among the Belgian casualties. Termonde was burned, including its fourteenth-century Hotel de Ville, its churches (in one of which were lost two Van Dyck paintings and one Crayer), its museum of antiquities, and hundreds of houses. The central plaza of Ypres, an architectural treasure, was shelled into rubble. Dozens of churches across the country were bombarded or torched.1 In France, Senlis, Soissons, and Arras suffered similar fates (Garner 1920, 446–51; Marguillier 1919; Phillipson 1915, 162–73). Louvain and Rheims suffered some of the most notorious cultural losses. The library of the University of Louvain, its 1636 building an architectural jewel, was a major repository of rare and ancient books. It also held valuable scientific collections and various works of art. On the night of August 25, 1914, the Germans put the torch to much of the town, including the library, which was entirely lost. The incident provoked international outrage; the British prime minister assailed it as “the greatest crime committed against civilization and culture since the Thirty Years’ war—a shameless holocaust of irreparable treasures lit up by blind barbarian vengeance” (quoted in Garner 1920, 439). Another British commentator of the time declared, “The destruction of Louvain was an act of downright barbarism, an outrage to humanity and an insult to the laws of war” (Phillipson 1915, 168).

1

H. Kervyn de Lettenhove, a member of the Belgian Royal Commission on Monuments and Sites, and of the High Council of Fine Arts of Belgium, published in 1917 an extensive account of the damage the Germans inflicted on cultural sites across Belgium. His book includes numerous prints and photographs. De Lettenhove dedicated the book to the memory of his son, who died as a volunteer at the Yser River in October 1914. See Lettenhove (1917).

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Yet another book from the time declaimed that “a peculiar infamy will attach to the memory of the sack and fire of Louvain, one of the oldest of European seats of learning, and not the least of Belgium’s treasuries of art and history” (Perris 1915, 53). The historian Arnold Toynbee published in 1917 The German Terror in Belgium, including a detailed account of the events in Louvain (89–160). In allied countries, commentators excoriated Germany (Marguillier 1919) and newspapers carried letters condemning the destruction. In Germany, newspapers published explanations and justifications (Garner 1915, 1920). German leaders, stung by the condemnations, offered an official response, justifying the actions in Louvain as an appropriate reaction to sniper fire directed by the town’s residents at German troops (Germany, Auswärtiges Amt 1915b).2 Belgium published a lengthy official reply to the German document, refuting in detail the statements of German officers (Belgium, Ministère de la Justice et Ministère des Affaires Étrangeres 1916, 1917). The Belgian government separately published a pair of extended eyewitness accounts (mémoires) that contradicted the German case regarding Louvain (Belgium 1917). The cathedral at Rheims, a high gothic masterpiece with spectacular stained-glass windows, also became an international cause célèbre. The Germans subjected the cathedral to artillery bombardment in September 1914, inflicting heavy damage. The French government denounced “to universal indignation this revolting act of vandalism which, by handing over to the flames a sanctuary of our history, has robbed humanity of an incomparable portion of its artistic heritage” (quoted in Phillipson 1915, 171). A professor of politics at the University of Illinois lamented that “such architectural landmarks as this noble cathedral belong not to France but to the world. They are the common heritage of civilization and are protected not only by their sanctity but by the law of nations” (Garner 1915, 108). One narrative of the first year of the war proclaimed that the bombardment of the cathedral of Rheims would “be received, not only throughout France, but throughout the educated world, with a thrill of disgust and indignation” (Perris 1915, 231). The international outcry was so intense that the Germans felt obligated to respond. In fact, the German general staff presented its justification for firing on

2

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The German publication addressed numerous allegations and events, with a sizable section devoted to Louvain. It was published in English translation after the war; see Germany, Auswärtiges Amt (1921).

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the cathedral in a pamphlet the War Ministry published in both German and French.3 The brochure explained that German artillery targeted troop concentrations around the cathedral. It further claimed that German officers authorized only a single shot on the cathedral tower to dislodge an observation post the French army had set up there (Garner 1920, 442–43). The Germans also alleged that heavy artillery had been placed next to the cathedral and that the fire that ran through the structure was actually caused by scaffolding placed around it for restoration work (the scaffolding catching fire from neighboring buildings; Marguillier 1919, 40–41). The French contradicted the German claims and characterized the incident as one of wanton destruction (39–49). They argued that the cathedral of Rheims had been targeted because of its historic and cultural importance to the nation, as the coronation site for 25 kings of France over 600 years, the last being Charles X in 1825. The fate of Louvain and Rheims, and the other sites, ensured that the treatment of cultural treasures was among the topics of international debate during the war. Belgium repeatedly appealed to the international community for assistance in the face of German aggression and for redress of its cultural losses. In a book aimed at the American audience, for example, Belgium enumerated Germany’s violations of the laws of war. Reporting on German atrocities at Louvain, the document “deems it necessary, in the midst of these horrors, to insist on the crime of lèse-humanity which the deliberate annihilation of an academic library—a library which was one of the treasures of our time—constitutes” (Belgium 1914, 44). Numerous contemporary books publicized and condemned German excesses, including the destruction of cultural sites.4 In fact, the international outcry was so great that the Germans felt compelled to respond, and even to mount their own propaganda offensive. With respect to their actions in Belgium, for example, the German Foreign Ministry published a lengthy compilation of documents and reports intended to show that the destructive measures taken were justified responses to the illegal actions of the Belgian resistance.5 One indication of the

3 4

5

Marguillier cites the booklet as Le Bombardement de la cathédrale de Reims (Berlin: G. Reimer, 1915); Marguillier (1919). Including Garner (1915), Perris (1915), Phillipson (1915), and Toynbee (1917). It is true that some of the rhetoric directed against German was exaggerated and intemperate and was part of the propaganda campaign. Still, it is significant that authors thought that German destruction of cultural sites would be seen as a serious wrong. The title of the book (also cited above) translates as The Conduct of the Belgian Popular War in Violation of International Law; Germany, Auswärtiges Amt (1915b).

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importance the Germans attached to the international debates was that the imperial government published in New York an English translation of the Foreign Ministry volume; the English title referred to the Belgian resistance as “A Violation of International Law” (Germany, Auswärtiges Amt 1915a). As one historical account puts it, “So violent was the reaction in neutral countries that the Germans found it necessary to redeem their country in the eyes of the world by inaugurating ‘wartime protection of monuments of art’” (Posner 1944, 215–16). To that end, they charged a well-known German art scholar, Paul Clemen, with inspecting and administering monuments in the occupied regions of Belgium and France. After the war, Clemen and his coworkers published a collection of reports detailing their efforts (Clemen 1919). The Germans also appointed Dr. Otto von Falke, director of the Museum of Industrial Art in Berlin, as “commissioner for art with the German civil administration in Belgium.” In addition, “from the fall of 1914 . . . so-called art officers were attached to the army commands, including those in the hinterland, and to the governments of occupation and became the official protectors of such monuments in their respective districts” (Posner 1944, 215–16). Clemen prepared numerous reports and already in December 1914 published an extensive article, “The Protection of Monuments and the War,” in the International Monthly Review of Science and the Arts. Responses, and counterreplies, appeared in French and German newspapers (Treue 1961, 216). Clemen continued to publish articles and brochures expressing regret for the damage, but justifying German actions under the rules of war. For instance, the Germans convened a conference in Brussels in August 1915, titled “War Conference for the Safeguarding of Monuments,” and published the proceedings. At the conference, Clemen accused the French of having committed similar depredations in the past and pointed out that the Hague Convention protected monuments to the extent possible, given military necessity (Marguillier 1919, 5–7). Debate sprang up within Germany over the disposition of art treasures in the territories occupied by German forces. The question of traditional plunder—the victor taking the spoils—arose, and was rejected. The art review, Die Kunst, published an article posing the provocative question, “Shall we take pictures from Belgium for German galleries?” One writer proposed that Germany was entitled to take the “best pictures captured as war booty in Belgium.” But, according to Treue, these suggestions were soundly rejected in Germany: “At once scholars,

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artists and keepers of museums rose in protest against the mere thought of plundering the art of any occupied or conquered country. French plunder of the Napoleonic era was recalled with lively horror.” Wilhelm von Bode, Germany’s preeminent museum director and art advisor to the Kaiser, declared, “My conviction is that all civilized countries should have their own artistic creations and all their lawful artistic possessions left them intact and that the same principles of protection should be exercised in enemy territory as at home” (Treue 1961, 216–18, 222–23). One writer in Die Kunst responded to the idea of artworks as war indemnity by arguing, Popular sentiment will, indeed must, declare, ‘We have not sacrificed life and property in order to add to our artistic possessions. . . . [Taking art as indemnity for war costs would imply that] the purpose of war was not the insurance and strengthening of a country’s own economic and political life, but the weakening and destruction of the enemy’s spiritual and cultural existence. This aim, which would lead to the impoverishment of mankind, is not perhaps acceptable to any of the countries at war and certainly not to the German Empire. (218)

In fact, von Falke declared for the German government in occupied Belgium, no work of art was to be taken from the country and orders to that effect to the German army were in place by the summer of 1915 (218). Germany’s moves to protect cultural monuments (or at least to be seen as doing so) reveal a great deal. At a minimum, Germany’s published justifications and its appointment of art officers demonstrate that the Germans wanted to avoid being seen as violating international norms. Furthermore, Germany’s justifications constituted recognition of international norms against the destruction or plunder of cultural properties during wartime. One who rejects a norm does not try to justify her conduct as a valid exception to that norm; rather, she denies outright the existence of the rule. But the Germans did not deny the norms. Instead, they depicted the damage to churches and historic buildings as exceptions to the rules, made necessary by the demands of combat, as a response to French or Belgian partisan snipers, for example. They justified the targeting of church towers by claiming that the towers had been used for observation or for machine gun posts (Marguillier 1919, 34–38).

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The Restitution Debates at Versailles After the war, the incidents at Louvain, Rheims, and other sites became the subject both of German justifications (Clemen 1919) and of critical responses (Marguillier 1919; Mennevée 1925). In addition, the question of cultural properties arose in the Peace Conference debates over reparations. Among the various committees created by the victorious allies for the peace negotiations at Paris was one on “War Responsibility and Sanctions” (“Responsabilités des auteurs de la Guerre et Sanctions”). The U. S. Secretary of State, Robert Lansing, who chaired the commission, compared it with a grand jury, whose primary tasks were to document the facts relative to possible crimes in starting the war and in the conduct of the war, and to determine whether the evidence would justify prosecution (La Documentation Internationale 1930, 12, 17). Speakers before the commission frequently spoke of its mandate with reference to “crimes in violation of the laws of war and of humanity” and the responsibility “to punish those who have committed crimes revolting to the conscience of humanity” (24–26). Various country delegations presented reports to the commission. The French memorandum, for instance, under the heading “Pillage and confiscation,” asserted that “an enormous quantity” of silver, jewels, paintings, furniture, linens, and other items were loaded into cars and sent to Germany. With regard to “Religious and charitable establishments and the like” the French declared that “the violations of the prescriptions are too many to count. It would suffice to list the localities that have been entirely destroyed in the course of the German retreat, outside any engagement or combat, and where, therefore, none of these establishments has been respected” (La Documentation Internationale 1930, 47–48). The Belgian memorandum mentions “innumerable thefts”; “damage or destruction, without necessity of war, of private properties”; and “pillage and burning of houses, villages, and entire towns.” There follow sixteen pages of tables, listing every kind of German violation of the laws of war: murders, thefts, houses burned, churches and convents destroyed (63). The Italians submitted a similar complaint against the Austro-Hungarian armies. The Serbian memorandum listed numerous headings; number 20 was “Pillage of churches, libraries, museums.” “The National Museum of Belgrade,” it reported, “the Ethnographic Museum, the National Library, and numerous private collections have been pillaged. Committees of specialists had been designated to make selections and indicate books, art objects, and antiquities to be sent to Vienna or Budapest” (La Documentation Internationale 1930). The Rumanians reported on 108

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“the pillage of teaching facilities, scientific and artistic institutions, of museums, and destruction and profanation of churches.” They stated that “the enemy seemed to have pursued especially the goal of destroying, degrading, and pillaging facilities of education, scientific laboratories, and everything related to science or to the arts.” Museums had been the special target of pillaging. The submission quotes from a report of the vice president of the Rumanian Academy, who wrote that the German military authorities had removed, and handed over to the Bulgarians, over three hundred volumes from its manuscript collection, including some of “of very great artistic value.” In addition, “the museums of Dobringea, Constanza, Mangalia, and Harsava were robbed and destroyed” (216–17). In its final report to the “Conférence des Préliminaires de Paix” the Commission summarized its findings regarding “Violations of the laws and customs of war.” It listed the types of offenses under 32 headings, which included: “13. Pillage; “14. Confiscation de la propriété; . . . “18. Destruction et devastation de propriété sans raison; . . . “20. Destruction sans raison d’édifices, de monuments historiques et d’édifices consacrés aux cultes, à la charité et à l’instruction; . . . ” (La Documentation Internationale 1930). Operating parallel to the commission on responsibility and sanctions was a “Commission on Reparation of Damage.” Because the Paris Peace Conference was a conference of the victors, there was never any question that the Germans and their partners would have to bear some sort of reparations burden. The difficult questions, of course, had to do with how the Germans would pay (cash, materials, labor?), when they would pay (on what sort of schedule), and to whom they would pay. On the last issue, the allies jostled to be at the front of the queue; this was the struggle for “priority.”6 Works of art and cultural monuments were also clearly on the table during the reparations debates. One topic on which the

6

There is no space, nor reason, to recapitulate here the bargaining among the allies with respect to reparations payments. Interested readers can find reasonably detailed accounts in Marks (1981) and Burnett (1965 [1940]), which also reproduces a number of the documents.

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various delegations did agree was restitution, which meant the return of identifiable objects taken from the territories occupied by the Central Powers. Such returns would not apply against the (yet to be determined) reparations accounts. A second category was “payments in kind,” which referred to specific kinds of articles that would count toward the reparations burden. Allied experts prepared lists of materials that could be accepted as payment in kind, including works of art, along with items like machinery, cattle, and coal. A crucial area of debate centered on whether specific objects, like works of art, that had been lost or destroyed during the war should be subject to replacement by similar objects taken from the Central Powers (what might be termed “restitution in kind”). In other words, there were two knotted questions regarding cultural properties. First, should art works from the Central Powers be valid as payment in kind, toward the general reparations account (i.e., not as restitution for specific items lost during the war)? And second, should works of art be taken from Germany and its allies in order to replace specific pieces lost or destroyed during the war (i.e., restitution in kind)? One of the first tasks of the Commission on Reparation of Damage was to determine “the categories of damages for which reparations should be required.” Its First Sub-Commission addressed that question and received from numerous delegations proposed “lists of categories of damage.” Delegations enumerated a variety of damages to persons, properties, enterprises, the state, public finances, agriculture, and so on; many of them also included harm to cultural properties. For instance, the first category in the Italian list named “the artistic patrimony.” The Serb memorandum created a heading that covered “libraries, museums, theaters, physical and chemical exhibits, collections, etc.” France named among the “objects of destruction” monuments and art objects. The Czechoslovak submission listed “pillage committed by soldiers or by military detachments” among the illegal acts against persons, and included “the taking of moveable properties, particularly works of art” among the illegal acts against property. Belgium placed near the top of its memorandum “churches, monuments, and objects of art.” The British and Rumanian submission likewise listed art objects. Naturally, “art objects,” “monuments,” and “artistic patrimony” appeared in the Sub-Commission’s summary table of categories of damages “mentioned by all or most of the delegations” (La Documentation Internationale 1932a, 185–220), and in its report to the Conference, “Categories of Damage” (1932b, 694–98). The Commission on Reparation of Damage assigned the question of restitution to its Second Sub-committee. In a February 1919 meeting, the Italians proposed 110

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various means “by which the enemy may be required to make payment” for cultural losses: “7. Restoration of works and objects of art or of historical interest and documents, removed from the Associated countries. “8. Cession of works and objects of art or of historical interest in compensation especially for those which have been destroyed by the enemy in the Associated countries.”7

The Italians also inquired, two days later, about the possibility of requiring Austria to provide “replacements by equivalents of works of art taken from Lombardy by the Austrians in preceding wars.”8 In other words, Italy suggested that the Central Powers be required to return not just objects taken during the recent war, but also items removed in earlier conflicts. In fact, the final settlement did reach further into the past to mandate the return of some items of special significance. Both France and Italy favored permitting the replacement of “works of art stolen or destroyed by the enemy by similar works of art,” that is, restitution in kind.9 In fact, the French proposed on April 7, 1919, that France, in order to “reestablish to the fullest extent possible the artistic patrimony of the devastated regions,” be authorized to “choose art objects in Germany of a nature approximately comparable to the destroyed art objects.” In addition, the French proposal would have the art objects count toward the total German reparations bill: “the value of these objects will be credited to the German account and will be considered like payment in cash.”10 This would be a combined restitution in kind (to replace works lost or destroyed) and reparation payment (because it would count on the reparations account).

7 8 9 10

“Methods by Which the Enemy May be Required to Make Payment,” presented by the Italian Delegation, February 19, 1919; reproduced in Burnett (1965 [1940]). “Second Sub-committee: Minutes of the Seventh Meeting, February 21, 1919, 3:30 pm”; reproduced in Ibid. “Second Subcommittee: Minutes of the Twelfth Meeting, March 5, 1919, 4:30 pm”; reproduced in Ibid. “Dans le but de rétablir dans toute la mesure du possible le patrimoine d’art des régions dévastées, la France sera autorisée à faire choisir en Allemagne des objets d’art de nature sensiblement analogue à celle des objets d’art détruits. . . . La valeur de ces objets sera portée au crédit de l’Allemagne et sera considérée comme un paiement en espèces”; from “Exhibit 18, Loucheur’s Proposal for Reparation in Kind and for Reparation by Means of German Labor, April 7, 1919,” reprinted in Ibid.

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The committee of experts constituted by the Group of Four (Britain, France, Italy, and the United States) considered the French proposal at its meeting on April 19, 1919. With respect to the article concerning art objects, the following interchange took place: “Lord Sumner [Great Britain]: I accept this Article, if the French want it. I think it questionable whether it is wise politically, but that is France’s affair. The bartering about objects of art caused very bitter feelings in 1814. “Mr. Baruch [U.S.]: I sympathize with the replacement of works of art. It is impossible to create them anew. “Mr. Loucheur [France]: Italy and Belgium are insistent on a right of this sort. Belgium particularly wants to replace the Louvain library. “Lord Sumner: I assume that the value of these objects will also go into the pool [of reparations payments, presumably]. “Mr. Loucheur: Yes. I take it then that we all accept Article 4. Let us adjourn until 5:30 tomorrow.”11 The historical memory invoked by Lord Sumner of similar negotiations in 1814, also in Paris, is noteworthy. Nevertheless, this French proposal did not find its way into the draft treaties. The Council of Four ultimately dropped, without providing reasons, the Second Sub-committee’s recommendation in favor of permitting reparation by works of art. The minutes of a meeting of the three powers (Britain, France, United States) on April 23, 1919, record that “after some discussion, it was agreed to omit” specified paragraphs, including one that would have permitted restitution in kind, from the draft articles.12 Ultimately the Second Sub-committee proposed for inclusion in the treaty a general policy requiring “immediate restitution of all property, generally, and of whatsoever kind, belonging to the Allied Powers of which they [the enemy states]

11 12

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“Minutes of the Experts, April 9, 1919, 10 pm,” reprinted in Ibid. “Minutes of the Council of Four (I.C. 176 A), April 23, 1919, 4 P.M.,” reprinted in Ibid. The deleted paragraphs can be found in “British First Print (Including Annexes 1-5), April 21, 1919,” Annex 4; reprinted in Burnett (1965 [1940]).

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have possessed themselves for any purpose, and which is now found on their territory.”13 John Foster Dulles of the American delegation, at the request of the Committee of Experts of the Group of Four, drafted on May 4 the provisions that became Art. 247 of the Treaty.14 The language of the Article was based on a letter from the Belgian delegation to Georges Clemenceau.15 In fact, the Belgians took every opportunity to urge the leaders of the great powers to give Belgium priority in the receipt of reparations from Germany, to grant Belgium reimbursement for its war costs, and to provide for restitution of art works. By May 3, the powers had rejected the war costs demand but agreed to the other two requests (Burnett 1965 [1940], 128). According to one Allied proposal, the restoration of works of art should include “proper crediting of Germany with respect to the paintings, etc.”16 In the end, the draft Treaty submitted to the Germans did include a number of special provisions obligating Germany to return specific cultural treasures to Belgium, to Britain, to France, and to the King of the Hejaz.17 There was no mention in the draft treaty submitted to Germany, nor in the final version, of the art works applying to reparations, which implies that they were meant not as reparation but as restitution (Burnett 1965 [1940], 129). The “Preliminary Treaty Text” presented to Germany on May 7, 1919, included, in “Part VIII, Reparation,” a “Section II, Special Provisions.” The special provisions, comprising three articles, appeared unchanged in the final treaty text of June 28, 1919. Article 245 required that the “German government must restore to the French Government the trophies, archives, historical souvenirs or works of art carried away from France by the German authorities in the course of the war of 1870–1871 and during the last war, in accordance with a list which will be communicated to it by the French Government.” Particularly mentioned were the

13 14 15 16 17

“Annex – (Of the Supplementary Interim Report): Clauses Proposed for Insertion in the Treaty of Peace,” reproduced in Burnett (1965 [1940]). “Minutes of the Experts, May 3, 1919,” reprinted in Ibid. “Letter from the Belgian Delegation to Clemenceau Regarding the Special Position of Belgium, May 1, 1919,” reprinted in Ibid. “Allied Proposal Regarding the Special Position of Belgium, May 3, 1919,” reprinted in Ibid. The Hejaz is the western portion of the Arabian Peninsula, along the Red Sea. In 1916, Sharif Husayn ibn ‘Ali led a revolt against the Ottomans, who had controlled the region since 1845, and proclaimed himself King of the Hejaz. With a Wahhabi invasion imminent in 1924, Husayn abdicated. Ibn Sa‘ud, the sultan of Najd, claimed the kingship of the Hejaz in 1926 and, in 1932, united the regions under his rule, thus forming Saudi Arabia.

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French flags taken in 1870–71 and the political papers of a former Minister of State. Article 246 ordered Germany to return to “His Majesty the King of the Hejaz the original Koran of the Caliph Othman,” which the Turks had removed from Medina and presented to Kaiser Wilhelm II. It also required Germany to surrender to Britain the “skull of the Sultan Mkwawa which was removed from the Protectorate of German East Africa and taken to Germany.” The most extensive Article, 247, dealt with Belgium. “Germany undertakes to furnish to the University of Louvain . . . manuscripts, incunabula, printed books, maps and objects of collection corresponding in number and value to those destroyed in the burning by Germany of the Library of Louvain.” In addition, the article obligated Germany “to deliver to Belgium . . . in order to enable Belgium to reconstitute two great artistic works: (a) The leaves of the triptych of the Mystic Lamb painted by the Van Eyck brothers, formerly in the Church of St. Bavon at Ghent, now in the Berlin Museum; (b) The leaves of the triptych of the Last Supper, painted by Dierick Bouts, formerly in the Church of St. Peter at Louvain, two of which are now in the Berlin Museum and two in the Old Pinakothek at Munich.” The latter provisions of Article 247 are somewhat perplexing. The pieces in question (parts of altarpieces painted by the Van Eycks and by Bouts) were not seized as war plunder nor extorted by the terms of a treaty of peace; they had found their way into Germany via legitimate transactions. The van Eyck altarpiece has long been considered one of Belgium’s premier artistic treasures, and possibly the greatest Belgian masterpiece. Commissioned by a wealthy patron for the cathedral of Saint Bavon in Ghent in 1432, the altarpiece consists of multiple panels with wings that fold in to cover the central sections.18 French commissioners had seized the middle panels during the invasion of the Low Countries in 1794 and sent them to Paris, only to be returned to Brussels in 1815 (Treue 1961, 146). The wing panels were sold in 1816, then sold again, and in 1821 Friedrich Wilhelm III, King of Prussia, bought them; they eventually landed in the Berlin Museum. The triptych painted by Dierick Bouts, also known as “The Last Supper,” had followed a similar path. Originally commissioned for the Church of St. Peter in Louvain in 1464, its outer panels changed hands several times through valid sales. By 1834, the Berlin Museum had acquired two of the panels and the Pinakothek in Munich

18

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The triptych is commonly known as the “Ghent Altarpiece.” It is also frequently called “The Mystic Lamb” or “The Adoration of the Lamb,” in reference to its primary theme.

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another two. During the peace negotiations, the Belgians insisted that their cultural losses be made good, and, in the letter to Clemenceau, demanded the return specifically of the van Eyck and Bouts masterpieces. Even so, they never questioned the legitimacy of the transactions that took the van Eyck and Bouts paintings to Germany (De Visscher 1949 [1939–40], 829–30). The Belgians sought general compensation for pieces of the country’s cultural heritage that had been destroyed during the fighting. The Belgian memorandum to Clemenceau, upon which Dulles based his draft of Article 247, states “that Belgium has a right to a just reparation for the literary and artistic losses that she has suffered”; the clauses on the Louvain library and on the van Eyck and Bouts altarpieces immediately follow.19 The justification for the return of the altarpiece panels was “to enable her [Belgium] to reconstitute her two great artistic works that have been mutilated.”20 The language on reconstituting the artistic works found its way into the treaty, but without the reference to mutilation.21 The Treaty of Saint-Germain, which established the terms of peace with AustriaHungary, also contained clauses relating to the transfer of pieces of intellectual and artistic patrimony. Austria and Hungary, for example, were required to give to the successor states created by the dissolution of the Empire the archives and cultural monuments connected to those territories. Italy, in addition, was to receive archives and “objects of art and science” initially taken from Italian territories by the Empire but relating to regions subsequently ceded to Italy. Article 195 of the Treaty established a committee of jurists, under the Reparation Commission, to hear and adjudicate claims advanced by Italy, Belgium, Czechoslovakia, and Poland for the return of items of historic and artistic importance taken in other times to Austria. Only Belgium and Czechoslovakia submitted claims under Article 195. The Belgians also asked for the return of a triptych of St. Ildefonso by Rubens and of the treasure of the Order of the Golden Fleece. The Rubens painting had been purchased, with the help of funds from the government of the Netherlands

19 20 21

“Letter from the Belgian Delegation to Clemenceau Regarding the Special Position of Belgium, May 1, 1919”; reproduced in Burnett (1965 [1940]). “Letter from the Belgian Delegation to Clemenceau Regarding the Special Position of Belgium, May 1, 1919”; reproduced in Ibid. The treaty language in article 247 is as follows: “in order to enable Belgium to reconstitute two great artistic works.”

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(then a part of the Austrian Empire), and brought by Maria Theresa to Vienna. The Belgians argued that the transfer of the painting violated the rights of the Netherlands, rights inherited by Belgium. Because the painting had been acquired with state funds of the Netherlands, it should benefit the (now) Belgian provinces, not the personal fortune of the sovereign. The Committee of Jurists rejected the Belgian claim, based on the constitutional rights of the Austrian crown and of other sovereigns of the time. The Empress Maria Theresa was entitled to do with the painting what she wished. The treasure of the Order of the Golden Fleece had been removed from Brussels in 1794 to protect it from the danger of the French invasion. The Committee of Jurists again ruled against Belgium, deciding that the Order had long since become a dynastic institution, attached not to the territory of Belgium but to the Austrian court. The Czechs claimed a variety of historical documents and artistic treasures that had been moved from Bohemia to Vienna at various times in the past. The Committee disagreed, finding that the objects in question were legally the private property of the Austrian sovereign (De Visscher 1949 [1939–40], 831–34).22

Norm Development The wartime debates and the reparations settlements establish several points with respect to evolving international norms. First, plundering in the classic historical mode, in which the victor takes the spoils, was clearly illicit, being rejected by all sides. Second, in those instances in which the Germans moved collections away from the battle zones for safekeeping, restoration was completely noncontroversial and occurred without complications. Third, small-scale looting nevertheless did occur. Because thefts from private owners were difficult to verify and trace (especially in the face of German passivity on the issue), restitution in these cases was extremely limited. Fourth, the postwar settlements explored new normative territory in several respects. One of these was the notion of restitution in kind, with the transfer from Germany of items to replace those destroyed in the Louvain library. 22

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Denmark made a similar claim to the Peace Conference generally. The Danes requested that a number of “works of art or articles of a scientifical, literary or historical character” connected to the territory of Danish Slesvig be returned from Germany. These included a collection of Nordic antiquities from Flensborg, a historic runic stone carried away as booty by Prince Frederick Charles of Prussia, a bronze monument removed to an officers’ school near Berlin, and three large paintings by the Danish artist Lorenz Frölich. All of these items had come under German (Prussian) control in or after 1864, when Prussia annexed Slesvig (Schleswig) Denmark (1919). The northern part of the territory was to revert to Denmark under the terms of the Versailles Treaty.

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Looking ahead, at the conclusion of World War II, some parties urged restitution in kind with respect to art treasures, but the idea failed to win support. The limited precedent of the Versailles treaty was, therefore, insufficient to establish an international norm of restitution in kind. Finally, Article 247 suggested a principle of reparation in kind, Belgium being recompensed for its cultural losses in general by the transfer of the van Eyck and Bouts altarpieces. After Versailles, the cultural losses of World War I continued to generate debates on international rules and how they might be strengthened. Indeed, the horror and disillusionment World War I produced did not put an end to efforts to pacify international relations through international law and institutions. If anything, the war gave a renewed impetus to international law projects. The League of Nations was born, and subsequent diplomacy led to the Washington Conference on naval armaments (1922), a conference on limiting aerial warfare (1923), and the Kellogg-Briand pact (1928). The two decades after Versailles also witnessed the first efforts to design international conventions specifically addressing the protection of works of art and cultural treasures in wartime. The effort to strengthen the rules began during the war. In Switzerland, a professor from Bern, Fernand Vetter, and others, proposed at a public meeting in April 1915 the creation of an international body to be named “La Croix d’Or” (The Gold Cross), as a cultural parallel to the Red Cross. The August 1915 conference in Brussels on the safeguarding of monuments, attended by German, Austrian, and Swiss representatives, pursued the same theme, but without results.

The Dutch initiative In April 1918, the Netherlands Archaeological Society proposed to the Queen of the Netherlands that she call for an international conference on the protection of cultural monuments during war. The Dutch Minister of Foreign Affairs responded by asking the Society to draft a report assessing the weaknesses of existing international rules and offering proposals to improve them (Conférence Intergouvernementale sur la Protection des Biens Culturels en cas de Conflit Armé 1961, 102). A special commission of the Society, with Jonkheer W. J. M. Eysinga as rapporteur, submitted its report in October 1918; the Society subsequently circulated the report to foreign art associations. One of the suggestions contained in the report was that an international organization be created to prepare a list, which would be publicized internationally, of cultural sites to be held immune from attack or bombardment, provided that they were never How Norms Change

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employed for military activities. The Dutch report further proposed that a small number of European city centers, of particular historic and architectural value, likewise be exempted in their entirety from any military use, offensive or defensive (including Brussels, Florence, Nuremberg, Oxford, Paris, Rome, Rothenburg, and Venice; De Visscher 1949 [1939–40], 838–39; Toman 1996, 14).

Proposed Rules of Aerial Warfare The Dutch report did not generate any movement toward a specific convention or regime, though some of its ideas did reappear a few years later. The Washington Conference of 1922, having failed to reach agreement on rules of air warfare, created a Commission of Jurists to study the issue. The Commission met at the Hague in 1922, with representatives from the United States, Britain, France, Italy, the Netherlands, and Japan; one member of the Commission was Professor Eysinga, who had worked on the earlier Dutch proposals. The Commission began its work on the rules of aerial warfare with American and British drafts (Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare 1938, 12). Italy also offered “detailed” proposals for the protection of monuments and works of art (Conférence Intergouvernementale sur la Protection des Biens Culturels en cas de Conflit Armé 1961, 102). One of the most important, and difficult, issues the Commission addressed was that of aerial bombardment, the terrible possibilities of which the First World War had just provided a glimpse. The general norms relating to bombardment were set out in Article 24, which was based on the Italian proposal and “on which the text ultimately adopted was in great part founded” (Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare 1938, 23).23 Draft Article 24 declared that “aerial bombardment is legitimate only when directed at a military objective.” The article also created a stringent rule on targeting civilian structures: “The bombardment of cities, towns, villages, dwellings or buildings not in the immediate neighborhood of the operations of land forces is prohibited.” Furthermore, when legitimate military targets “are so situated that they cannot be bombarded without the indiscriminate bombardment of the civilian population, the aircraft must abstain from bombardment.”

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The full text of the Commission’s General Report was reprinted in the American Journal of International Law in 1938 in its supplement containing official documents. The General Report includes both the draft articles and the comments of the Commission.

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Article 25 dealt with special protections for specific categories of buildings. The Commission explicitly based it on Article 27 of the 1907 Hague Convention IV (Respecting the Laws and Customs of War on Land) and on Article 5 of the 1907 Hague Convention IX (Concerning Bombardment by Naval Forces in Time of War; Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare 1938, 24). In that sense, the lineage of the draft articles on air war extends directly through the Hague Conventions and the Brussels Declaration to the Lieber Code. Draft Article 25 read in part, In bombardment by aircraft, all necessary steps must be taken by the commander to spare as far as possible buildings dedicated to public worship, art, science, or charitable purposes, historic monuments, hospital ships, hospitals and other places where the sick and wounded are collected, provided such buildings, objects or places are not at the time used for military purposes. (Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare 1938, 25)

The article goes on to require that all such buildings be clearly indicated by marks “visible to aircraft” and to stipulate that the marking to be used should be the same one specified in the Hague Convention on Naval Bombardment (a large rectangular panel divided in half diagonally into two triangles, one black and one white). Article 26 also grew out of the Italian proposal. The government of Italy “was justly concerned at the memory of the irreparable damage done to historic monuments and works of art, especially in Venice and Ravenna, by bombing from enemy aircraft during World War I” (De Visscher 1949 [1939–40], 842). It submitted a provision that would allow states to create zones of immunity from bombardment around “important historic monuments.” The zones could include a buffer extending five-hundred meters from the designated monuments. For its part, the designating government would refrain from using the monuments and their surrounding areas for any military purpose whatsoever and would be obligated in peacetime to notify other states of the zones so identified. Inspection committees of three neutral diplomatic representatives would inspect the zones to ensure that they were not being used in contravention of the ban on military activities. The comments of the Commission with respect to Article 26 note that “the Italian proposal comprised not only historic but also artistic monuments,” but the term artistic was left out of the final draft for the sake of consistency with Article 25. However, the comments also make clear that the words “historic How Norms Change

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monument . . . are used in a broad sense,” to include “monuments . . . of great artistic value” (Commission of Jurists to Consider and Report upon the Revision of the Rules of Warfare 1938, 25–26). In February 1923 the Commission adopted a General Report on the Revision of the Rules of Warfare. Part II of the Report consisted of the Rules of Aerial Warfare. The proposed Rules resembled the rules relating to land and naval bombardment (and in particular the Tenth Hague Convention of 1907, with its specific prohibition of the bombardment of religious and other cultural buildings; Boylan 1993, 27–28). The United States urged that the rules be embodied in a treaty open to all countries, but that never happened. Still, the draft rules represented at least a partial consensus among countries on the rules of war, and several states declared themselves willing to abide by the draft rules (De Visscher 1949 [1939–40], 839–41; Roberts and Guelff 1989, 121–22). Though the rules on aerial warfare never achieved treaty status, the six countries responsible for them endorsed the document unanimously. The draft rules thus expressed a partial, and emerging, international consensus on the privileged status of cultural treasures during war.

The Roerich Pact and the Inter-American Convention Nicholas Roerich, born in St. Petersburg in 1874, was a prolific painter, a world traveler, and a lifelong promoter of the pacifying and unifying role of the arts. Roerich was also renowned as a designer of sets and costumes for operas, ballets, and plays. His designs appeared in productions of the major companies in Moscow, St. Petersburg, Paris, and London. He collaborated frequently with Sergei Diaghilev. Roerich was cocreator, with Igor Stravinsky, of The Rite of Spring, and designed the sets and costumes for the May 1913 Paris premiere (Decter 1989, 71–93). Twice within the second decade of the twentieth century, the toll of war on art and culture impressed themselves upon Roerich. Reports of the bombardment and destruction of cultural monuments in France and Belgium appalled Roerich; his 1914 painting of the destruction of the library at Louvain and of Rheims cathedral circulated as a poster. He began to work during the First World War to protect cultural treasures, advocating an international agreement. He was able to present proposals to that effect to the Russian high command, to the czar himself, and to the French and American governments, though none acted on Roerich’s idea. 120

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In 1917, concerns for the fate of cultural and artistic treasures in the Russian Revolution and under the new government moved Roerich, with other prominent artists including Maxim Gorky, to call for action to preserve the cultural heritage of the country (Decter 1989, 104, 110). Roerich fled the Revolution at the last minute and traveled to Sweden and Britain. In London, he wrote a brief tract, published by an organization of Russian expatriates, in which he declaimed against the Bolsheviks as “Violators of Art” and persecutors of artists and scientists (Roerich 1919). Having received an invitation from the Chicago Art Institute, Roerich sailed from London in September 1920. He traveled extensively in the United States, painting and exhibiting his works. In November 1921, he opened the Master Institute of United Arts, a school for all the visual and performing arts, in New York City. The following year, also in New York City, Roerich created Corona Mundi, a center dedicated to promoting peace and understanding among nations through art. A group of Roerich followers and benefactors founded the Roerich Museum in November 1923 (Decter 1989, 129).24 In March 1929, the University of Paris, with support from institutions from around the world, nominated Roerich for the Nobel Peace Prize. The following month, Roerich traveled to New York City, where the mayor, James J. Walker, welcomed him at City Hall. A variety of well-known Americans sent telegrams with congratulations and greetings, and President Herbert Hoover invited Roerich to visit the White House (Decter 1989, 129). Roerich brought with him a new project aiming at the establishment of an international convention on the protection of cultural monuments during wartime. In 1928, at Roerich’s request, Georges Chklaver, a professor of international law at the University of Paris, had prepared a draft treaty. The draft convention declared that institutions of education, the arts, and science “constitute a common treasure of all the Nations of the World” and cited earlier international agreements, such as the 1864 Geneva Convention and the Hague Conventions. Its Article I stated that “educational, artistic, and scientific institutions, artistic and scientific missions, the personnel, the property and collections of such institutions 24

A financial crisis, combined with a bitter schism among the Museum’s officers, shut down the original Roerich Museum, and the related institutions founded by Roerich, in 1935. A group of friends and supporters of Roerich in 1958 opened a new Nicholas Roerich Museum on 107th Street in New York City, where it continues to reside.

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and missions shall be deemed neutral and as such, shall be protected and respected by belligerents.” The draft included a design for a “distinctive flag” that would fly over buildings dedicated to art and culture to protect them in the same way that the Red Cross banner did for relief and medical workers and facilities. The flag, subsequently known as the “Banner of Peace,” displayed three solid red circles inside a red ring on a white background. The draft convention also stipulated that countries could register with any one of three international bodies25 a list of their institutions to be so protected (Roerich 1931, 11–13). During his U.S. stay in 1929, Roerich campaigned on behalf of his international treaty. Writing in the New York Times, Roerich recalled scenes from the first World War: “We deplore the loss of the Library of Louvain and the unreplaceable loveliness of the Cathedral of Rheims.” He wrote that his Banner of Peace project had as its purpose “to prevent the repetition of the atrocities of the last war on cathedrals, museums, libraries and other lasting memorials of creation of the past.”26 Roerich did not ground the protection of cultural treasures in notions of national patrimony but rather in terms “common heritage” of humankind: “Culture belongs to no one man, group, nation, or era. It is the mutual property of all mankind and the heritage of generations” (Roerich Pact and the Banner of Peace 1947, 1–2). The efforts of Roerich and his supporters resulted in the creation of the first Banner of Peace Committee in New York City in 1929. A number of world figures endorsed the proposed pact, among them George Bernard Shaw, Albert Einstein, H. G. Wells, and Rabindranath Tagore. Additional Committees were established in 1930 in Paris and Bruges, and international conferences to promote the treaty took place in the following years (Decter 1989, 130–32). The effort Roerich catalyzed bore fruit on April 15, 1935—Pan-American Day— when delegates of twenty-one countries signed the Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments, also known as the Roerich Pact. The signatories included the United States and twenty Latin American states, all members of the Pan-American Union. A year and a half earlier, representatives attending the Seventh International Conference of American

25 26

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The Registrar of the Permanent Court of International Justice, the International Institute of Intellectual Cooperation, and the Educational Department of the Pan-American Union. From the New York Times of March 16, 1930; reprinted in Roerich (1931).

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States in Montevideo had approved a resolution on the protection of cultural monuments. The final paragraph of the resolution recommended to the Governments of America which have not yet done so that they sign the “Roerich Pact”, initiated by the Roerich Museum in the United States, and which has as its object, the universal adoption of a flag, already designed and generally known, in order thereby to preserve in time of danger all nationally and privately owned immovable monuments which form the cultural treasure of peoples. (Carnegie Endowment for International Peace 1940, 32)

The Governing Board of the Pan-American Union drew up a Treaty. Article I declared, “The historic monuments, museums, scientific, artistic, educational and cultural institutions shall be considered as neutral and as such respected and protected by belligerents” (Union Panamericana 1966, 4). The signing ceremony was hosted at the White House by President Franklin D. Roosevelt, who spoke briefly in praise of the Treaty’s objectives. Eleven countries ratified the agreement, which came into effect in August 1935 (Decter 1989, 132–33; Roerich Pact and the Banner of Peace 1947, 10–11, 36–37; Schindler and Toman 1988, 737–40). The Roerich Pact involved only a limited number of countries, and none of them were from the continent that had suffered the worst wartime depredations against cultural treasures. It was, nevertheless, the first international convention specifically devoted to the protection of artistic and cultural monuments in times of war.

The International Museums Office draft treaty Once again, events provoked a new round of dialogue about international rules regarding the fate of artworks in war. The civil war in Spain demonstrated some of the frightening possibilities of new technologies of destruction, especially bomber aircraft and heavy artillery. The destruction of Spanish historic centers and cultural monuments, including the library of Oviedo, aroused worldwide concern (Boylan 1993, 32). The initiative for an international response came from the League of Nations and some of its affiliated organizations. The Sixth Committee of the Assembly of the League of Nations discussed the problem of protecting cultural monuments during war, and the International Museums Office (IMO), an agency of the League, created a Committee of Experts, led by Charles de Visscher, to prepare a report on the subject (Société des Nations (League of Nations), Institut International de Coopération Intellectuelle 1938, 42). The International Institute on Intellectual Cooperation (IIIC) approved the resulting How Norms Change

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report and called for a meeting of legal and military experts, which took place in November 1937. The OIM then urged that work begin on a new international convention; the IIIC approved the creation of two subcommittees to begin that work (Société des Nations (League of Nations), Institut International de Coopération Intellectuelle 1938, 42). The result of this effort was a 1938 Preliminary Draft International Convention for the Protection of Historic Buildings and Works of Art in Time of War (Kurtz 1985, 7–8). The preamble to the Draft Convention began, “Whereas the preservation of artistic treasures is a concern of the community of States and it is important that such treasures should receive international protection; Being convinced that the destruction of a masterpiece, whatever nation may have produced it, is a spiritual impoverishment for the entire international community.” The Draft cited the 1899 and 1907 Hague Conventions as foundations and also borrowed from the 1923 Draft Convention on aerial warfare and from the Roerich Pact. The Draft Convention asserted that governments had a duty to protect historic buildings and works of art, and “to prepare that defense in time of peace.” In other words, like the 1923 aerial warfare draft and the Roerich Pact, it established obligations prior to the outbreak of war. Governments would also incorporate principles for protecting cultural monuments into their military regulations and the training of troops (De Visscher 1949 [1939–40], Appen. A; Toman 1996, 18–19). One innovation in the 1938 Draft Convention was the notion of refuges, places to be designated by governments as shelters for moveable artistic treasures. The refuges would have to be announced during peacetime, “not be used directly or indirectly for purposes of national defense,” and be open to international inspectors during hostilities. The refuges would be marked with a special symbol, consisting of a “light blue triangle inscribed in a white disc.” The Draft also borrowed from the proposed aerial warfare convention the idea of zones of immunity extending 500 meters around historic and artistic monuments. These too had to be designated in peacetime, not be used for any military purpose, and be open to international inspection. Finally, the Draft Convention included a set of “Regulations for the Execution of the Convention,” an innovation that the 1954 Convention would later imitate (De Visscher 1949 [1939–40], Appen. A; Toman 1996, 18–19). The International Museums Office endorsed the Draft Convention and submitted it to the Council and Assembly of the League of Nations in the fall of 1938. The government of the Netherlands volunteered to host a diplomatic conference to finalize a treaty. The Assembly of the League accepted the Dutch offer, and in early 124

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1939, the Dutch circulated the draft to sixty-two governments. By October 1939, thirty states had responded that they were willing to participate in such a conference; other states supported the ideals expressed but made no commitment regarding the conference. Then, Germany invaded Poland on September 1, 1939, putting an end to those plans (Toman 1996, 19). A last-ditch effort by the International Museums Office to salvage some part of the convention project consisted of a Draft Declaration Concerning the Protection of Historic Buildings and Works of Art in Time of War. The Declaration contained the same principles and mechanisms stipulated in the Draft Convention. The IMO hoped that states would sign the Declaration as an expression of shared international principles. Five did: Belgium, Greece, the Netherlands, Spain, and the United States. But by the spring of 1940, two of these countries were at war, and further work ceased (De Visscher 1949 [1939–40], Appen. A; Kurtz 1985, 9).

Conclusions World War I triggered another important turn through the cycle of norm change. Specific actions, in particular, the destruction by the Germans of cultural monuments in Belgium and northern France, triggered intense debates about the meaning and application of the rules of war and the protection of cultural treasures. Governments and public opinion alike, in Belgium, France, Britain, and the United States, condemned the destruction of the library at Louvain and of Rheims cathedral (and other similar events) as German violations of the rules of war. Germany sought to justify its conduct as fitting within those same rules. After the armistice, the peace agreements imposed on Germany explicit obligations to return artworks or replace those that had been destroyed. The arguments triggered by the destruction of heritage sites continued after Versailles. In the two decades following World War I, a series of initiatives sought to improve and strengthen the norms protecting cultural property during wartime: the draft Rules of Aerial Warfare (1923), the Roerich Pact (1935), and the IMO Draft Convention (1938). The IMO project had received additional impetus from the cultural destruction occurring in the Spanish Civil War—a smaller, and never completed, cycle of normative change. The interwar projects, however, were swept aside by a second, and more devastating, World War. Even Napoleon’s looting would be dwarfed by the scale and ruthlessness of Nazi plundering, which would trigger a decisive turn through the cycle of normative change.

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CHAPTER 6

Nazi Plunder: Strengthening the Rules Hitler and the Nazis surpassed even Napoleon as relentless plunderers of Europe’s artistic patrimony. Of course, the Nazis could exploit tools and technologies that Napoleon never imagined. Where the French relied on carts and barges, the Germans could loot on a scale made possible by trucks, trains, and aircraft. Yet the same spirit that drove Napoleonic plundering inspired the Nazis. In both cases, the looters gathered (what they saw as) the highest expressions of artistic genius and civilization to what were meant to be the capitals of new empires. That is, like Napoleon, Hitler and his helpers seized the art treasures of vanquished countries not primarily for their financial value but as an assertion of cultural and political supremacy. The masterpieces that filled Napoleon’s Louvre and the trainloads of paintings and sculptures that stocked huge repositories in Germany and Austria, were, like they had been for the Romans, trophies of conquest. This chapter offers a brief overview of the organization and extent of Nazi plundering during World War II. It then moves to an account of how the Allies perceived and applied anti–plundering norms. The Allied program of restitution reaffirmed international rules against the seizure of cultural properties during wartime. The debates that surrounded (primarily) American and British efforts to undo the Nazi confiscations offer a view of normative evolution as it occurred in the rush of events. Figure 6.8 depicts the World War II cycle of norm change and its constituent phases.

Planning for cultural supremacy The Nazis were serious about art, not least for its use in propaganda. Monumental architecture embodied the grandeur of the new Reich, as did the films of Leni Riefenstahl (“Triumph of the Will,” “Olympia”). But artistic expression became an obsession for the Nazis, who bent every branch of culture to the service of the 127

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I. Norm context: the Hague Convention, the Versailles settlements, and the Roerich Pact

IV. Rule change: restitution carried out by the Allies reinforced antiplunder norms

II. Action: the organized, systematic plunder of artistic and cultural objects by the Nazis across Europe

III. Arguments: debates during and after the war over restitution of and reparations for lost or destroyed cultural property

Fig. 6.8: Cycle of change: Nazi plunder and the strengthening of norms

totalitarian German state (Barron 1991a, 9–10). Already in Mein Kampf, Hitler had exposed his peculiar art dogmas, lauding traditional German art and excoriating all forms of modernism: “Aside from the trash of the more modern artistic development . . . the German alone possessed and disseminated a truly artistic attitude.” Twentieth-century art movements were “morbid excrescences of insane and degenerate men” (1971 [1925], 70, 258). The first important piece of public architecture Hitler commissioned was the Haus der Deutschen Kunst (House of German Art) in Munich, for which construction began in the fall of 1933. By the late 1930s, the Nazis’ campaign against “degenerate” art was in full swing. Anything not conventionally representational was “modern,” “unfinished,” Jewish, or Marxist, and therefore degenerate. Cubism, expressionism, constructivism, and any sort of abstract art fell under 128

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condemnation. The Nazi art bureaucracy purged the art academies and universities of anyone with “un-German” tendencies. The regime placed its own lackeys as directors of art museums; the new administrators removed all works by blacklisted artists from their exhibition halls.1 Under orders from Minister of Public Enlightenment and Propaganda (Reichsminister für Volksaufklärung und Propaganda) Joseph Goebbels, Nazi officials in July 1937 mounted an Exhibition of Degenerate Art, displaying paintings and sculptures confiscated from the museums. The display, complete with derisive labels and denunciations written on the walls, attracted over two million visitors in its four months in Munich (Wulf 1982, 363), plus another million in its visits to other German and Austrian cities (Barron 1991a, 9; Zuschlag 1991). A simultaneous exhibit of acceptable art in the newly completed Haus der Deutschen Kunst drew barely four hundred thousand in four months (Petropolous 1996, 57). Hitler had more grandiose plans for art in the Reich. In fact, by 1938, Hitler was already planning to assemble the greatest collection of art in the world. An immense museum complex, to be built in Linz, Austria, would house the masterpieces of European painting and sculpture (Plaut October 1946, 73; Roxan and Wanstall 1964, 8–15). As planned, the so-called Führermuseum would have dwarfed the Louvre, with space for about four times as many artworks (Petropolous 1996, 181). The pieces to fill the Linz galleries would be gathered from all the lands that would fall under the rule of the Reich. In Hitler’s ideology, German culture represented the pinnacle of civilization. Greater Germany was therefore the rightful home for the best that artistic genius had created. The Führermuseum in Linz would overshadow Paris, Rome, and Vienna as the capital of European art. If “Aryan” Germany represented the highest development of civilization, it must be the capital of the arts in Europe.

The Nazi plunder machine The confiscation of artworks to fill Hitler’s Linz museum began almost immediately in Austria following the Anschluss. Among the first targets was Austria’s wealthiest citizen and most prominent Jew, Baron Louis von Rothschild. On March 12, 1938—the day Hitler’s army crossed into Austria—Baron Louis was

1

For excellent accounts of Nazi cultural policies, see Brenner (1963), Petropolous (1996), and Barron (1991b).

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blocked at the Vienna airport as he attempted to flee the country (Nicholas 1994, 38). He spent nearly a year in prison; in return for the Baron’s release, the Nazis took possession of his immense art collection. The baron’s artworks, along with thousands of pieces from the private collections of other Austrian Jews, were catalogued and placed in storage in Vienna (Petropolous 1996, 84–85). The art was being “safeguarded,” not for eventual return to its owners but to stock the Linz museums. In fact, Hitler created under his direct command a Sonderauftrag Linz (Special Commission for Linz) to oversee the development of the collections for the planned super-museums. Its first chief was the director of the famous Dresden galleries, Hans Posse (Petropolous 2000b, 52–53). By the time Posse was appointed (June 1939) to direct the collecting for Linz, the storehouses of seized artworks were bulging. It took Posse several weeks to review the vast supplies of plunder (Roxan and Wanstall 1964, 28). The swelling assemblage of loot from within Germany (seized from Jews) and from Austria was rapidly growing and needed a central repository. The basement of the Führerbau in Munich became the warehouse for the thousands of artworks from which the Linz collection would be drawn. The art depots would soon be filled with cultural objects from Poland, Czechoslovakia, and the Soviet Union; the haul from Western Europe would force the Nazis to open new repositories.

Central and Eastern Europe and the USSR The fall of Poland in September 1939 led to a brutal looting of cultural properties. The plundering was merciless because the Nazi goal was the utter annihilation of Poland as a cultural and historic entity (Lukas 1986, 1–13). Immediately upon occupying Poland, German authorities laid out explicit policies for the systematic plundering of cultural objects. Kowalski quotes from an order promulgated by the Haupttreuhandstelle Ost (High Trustee Office—East) in December 1939: “In order to fortify Germanism and defense of the Reich, confiscation is ordered . . . of all objects mentioned in point II of this order.” Point II goes on to list “objects of artistic, cultural and historic value, such as paintings, sculptures, furniture, rugs, crystal pieces, books, etc.,” (1994, 20). Another December 1939 order concluded with the comment that “theoretically the whole of Poland’s artistic, cultural and historic heritage was subject to confiscation to the benefit of the occupant” (21). The SS and the Gestapo accompanied the German troops as they swept through Poland, and both organizations immediately began confiscating the art 130

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collections (along with jewelry, silver, and other valuables) of the wealthy and aristocratic families.2 Churches and public buildings, including palaces, libraries, and museums, were cleared of all items of value. The Germans trucked the plunder to storage sites in Warsaw and Cracow. Hans Frank, governor-general of Poland (i.e., the parts not absorbed directly into the Reich), issued decrees in November and December 1939 ordering the “sequestration” of all valuables, art objects, and collections, public and private, and all church art (Roxan and Wanstall 1964, 48). To oversee the plunder campaign, Goering named Kajetan Mühlmann as “Special Commissioner for the Protection of Works of Art in the Occupied Territories,” with orders to seize all Polish art treasures (Goering 1946a). Frank’s December 16 decree ordered the confiscation of all art objects “in public possession,” and defined “public possession” to include “private art collections” previously seized by the special commissioner and all “ecclesiastical art property” not used in daily liturgies (Frank 1946). On the same date, Heinrich Himmler, head of the secret police (Gestapo) and of the Schutzstaffel (SS), instructed the regional secret police commanders to carry out the seizure of art objects (Himmler 1946). Even Hans Posse, director of the Linz museum project, sought a piece of the action. Traveling to Poland, Posse reserved for Linz the “three most important paintings” (a Raphael, a da Vinci, and a Rembrandt), as well as the “interior decorations of the castle of the Kings in Warsaw,” for a pavilion at the Dresden Museum (Posse 1946). Later, in an affidavit for the Nuremberg Tribunal, Mühlmann testified about his activities: I was the special deputy of the Governor General of Poland, Hans Frank, for the safeguarding of art treasures in the General Government, October 1939 to September 1943. . . . I confirm, that it was the official policy of the Governor General, Hans Frank, to take into custody all important art treasures, which belonged to Polish institutions, private collections, and the Church. I confirm, that the

2

Various branches of the Nazi apparatus often competed with each other for the richest artistic plunder in the conquered lands. The SS, the Gestapo, the Wehrmacht, the Sonderauftrag Linz, the Einsatzstab Reichsleiter Rosenberg, the military governments, economic and currency officials, even the Foreign Ministry’s special brigades—all craved the best share of the loot. For more complete accounts of these rivalries see Petropolous (1996) and Nicholas (1994).

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art treasures mentioned, were actually confiscated, and it is clear to me, that they would not have remained in Poland in case of a German victory, but that they would have been used to complement German artistic property (Mühlmann 1946).

By late 1940, Mühlmann had selected the best pieces, and Frank prepared a bound catalogue of the “major works of art . . . plundered for the benefit of the Reich.” The prosecutors at Nuremberg would later read into the record Frank’s report on the thoroughness of the plunder: “In six months it has been possible to collect almost all the art objects in the country with one exception; a series of Flemish tapestries from the Castle of Cracow. According to latest information, they are now in France, so it may be possible to secure them later” (International Military Tribunal 1946–51: Tuesday, December 18, 1945, vol. 4, 78–80). The Baltic countries—Estonia, Latvia, and Lithuania—were also subjected to extensive Nazi plundering. According to evidence the Soviet prosecutor submitted at Nuremberg, Alfred Rosenberg established an ERR headquarters in Riga (International Military Tribunal 1946–51: Thursday, February 21, 1946, vol. 8, 95).3 Further east, Nazi treatment of cultural heritage was even harsher. The collection of artworks and other cultural valuables in the Soviet Union was entrusted to Rosenberg and his ERR, but the ERR was competing with Himmler’s SS in a race to grab the most valuable loot. On top of that, Hitler authorized Foreign Minister Joachim von Ribbentrop to send his own special battalions, commanded by Baron von Künsberg (also with Paris experience), into the occupied territories to collect the plunder. The looting brigades shipped the best of the takings—about forty to fifty freight cars full each month—to Germany (Roxan and Wanstall 1964, 115). All of the renowned palaces surrounding St. Petersburg—the Catherine Palace, Peterhof, Pavlovsk—were stripped bare by the Nazis. But as the combat in Russia turned against them, retreating German troops defaced, burned, and razed hundreds of churches, libraries, palaces, and museums. The list of major cities that had been thoroughly despoiled included Kharkov, Kiev, Kursk, Minsk, Novgorod, Orel, 3

132

Alfred Rosenberg was a Nazi ideologist who had been promoted to “Reichsleiter” and, earlier in the war, given command of his own task force, the Einsatzstab Reichsleiter Rosenberg (ERR). The special mission of the ERR was to harvest artworks for shipment to Germany (its first operations had been in France).

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Poltava, Smolensk, Stalingrad, Riga, and Tallinn. Russian cultural shrines like the estates of Pushkin and Tolstoy were leveled. The Germans demolished museums dedicated to Chekhov, Rimsky-Korsakov, and Tchaikovsky (Nicholas 1994, 193–94; Roxan and Wanstall 1964, 116). In total, the invaders destroyed some 427 museums across Russia (Roxan and Wanstall 1964, 115).

Western Europe To the Nazis, France represented the richest storehouse of art in Europe (aside from Italy, which was, for the first years of the war anyway, an ally). In fact, the plunder of art in France became a competitive affair, with multiple actors and organizations competing for the best pieces (Petropolous 1996, 126). In the early stages of the occupation, the German embassy emerged as the center of art plunder activities. The new German ambassador in Paris, Otto Abetz, aggressively took the lead, assisted by Künsberg (Simon 1971, 30–32). As Abetz’s teams fanned out, the embassy became the first collecting point for seized artworks.4 However, the major plunderers were agents of the two top Nazis, Hitler himself and Hermann Goering. Hitler had ordered the army to assist Rosenberg and his ERR in the removal of art to Germany. The bulk of the seized artworks were transferred to the (then empty) Louvre. When that site was bulging, the nearby Jeu de Paume became the center for collecting confiscated art. The ERR established its control over the Jeu de Paume and dismissed all of its French professional staff except one.5 Art was accumulating so quickly that the ERR brought in German art historians and curators to deal with it all. But the real power controlling the flow of art through Paris was Reichsmarschall and commander of the Luftwaffe, Hermann Goering. Goering, a narcissist and megalomaniac of the first order, had been voraciously amassing an immense personal art collection beginning with the “degenerate art” seizures in Germany in the 1930s. On his frequent travels through Paris, Goering stopped at the Jeu de Paume to select works for his own collection and for the

4 5

On the activities of the embassy, Goering, and the ERR in France, see Nicholas (1994), Simon (1971), and Roxan and Wanstall (1964). That one was Rose Valland, who had the foresight and courage to keep secret records of the works of art that came into the Jeu de Paume and of their destinations in Germany. She tells her own story in Valland (1961).

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Fuhrer’s Linz museums. His first inspection of the art lasted two full days in early November 1940. On that occasion Goering established the following hierarchy of claims on the artworks: “1. Those art objects about which the Fuehrer has reserved for himself the decision as to their use. “2. Those art objects which serve to the completion of the Reich Marshal’s collection. “3. Those art objects and library stocks the use of which seem useful to the establishing of the higher institutes of learning and which come within the jurisdiction of Reichsleiter Rosenberg. “4. Those art objects that are suited to be sent to German museums . . . “5. Those art objects that are suited to be given to French museums or might be of use for the German-French art trade.” (Goering 1946b) Goering, as commander of the Luftwaffe, could also provide the means for transporting the artworks. Luftwaffe airplanes and trains carried tons of artwork to Germany; crates marked “G” were destined for Goering’s collections; those marked “H” were routed to Hitler’s storehouses (Note from Hermann Goering, as reproduced in Wulf 1982, 442). The German plunder machine in France also acquired artworks through purchases and exchanges that at least presented a semblance of propriety.6 In fact, Hitler, Posse, and Goering all had agents and dealers scouring Western Europe, with nearly unlimited supplies of (unbacked) occupation currencies or German marks to spend. Many of the supposedly legitimate transactions were concluded under the shadow of threats and intimidation, and amounted to forced sales.7 Exchanges worked somewhat differently. Nazi agents traded modern (i.e., degenerate) paintings for pieces by the old masters. One art dealer testified, “During the years 1941 and 1942 I exchanged various old pictures for 80 modern ones,

6 7

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On the activities of the agents and dealers, see Nicholas (1994), Roxan and Wanstall (1964), and Simon (1971). Much of the German art acquisition activity in the Low Countries followed this pattern. See Nicholas (1994) and Roxan and Wanstall (1964).

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delivered by Lohse [Goering’s agent].”8 In an April 1943 report, Rosenberg himself explained: By order of the Reich Marshal a certain number of these works of modern and degenerate French art were favorably bartered with French art dealers for pictures of a recognized artistic value. In this way, 87 works of old Italian, Dutch, and German masters of high and recognized value were acquired on very favorable conditions.9

By means of these sorts of transactions, a group of German, and some French, art dealers managed to enrich themselves while satisfying the Nazi craving for art. The total haul from France was immense. In April 1943, Rosenberg prepared and sent to Hitler an intermediate report on the work of the ERR. From September 17, 1940, to April 7, 1943, “by using all possible ways and means,” Rosenberg boasted, “we discovered and seized all Jewish art collections which were hidden either in Jewish homes in Paris, in castles in the provinces or in warehouses and other storage places.” The artwork had been shipped to Germany in 10 trains with a total of 92 cars; 9,455 items had been inventoried, including 5,255 paintings and 297 sculptures. An additional 400 crates in Paris were ready to ship (Rosenberg 1946). Rosenberg also prepared and sent to Hitler a catalogue that filled 39 leather-bound volumes, with 2,500 photographs (International Military Tribunal 1946–51: Tuesday, December 18, 1945, vol. 4, 87–88; United States Chief Counsel for Prosecution of Axis Criminality 1946, vol. 1, 1106). Over the course of its activities in France, the ERR produced nearly 100 such albums (Plaut 1946, 61). A July 1944 report included the following tally. Between April 1941 and July 1944, the ERR had seized 203 private collections, including those of the most prominent Jewish collectors. The inventory included 21,903 items, among them: 5,281 paintings, pastels, watercolors, and drawings 583 pieces of sculpture, terracottas, medallions, and plaques 583 tapestries, carpets, and embroideries (Scholz 1982 [1944]).

8 9

International Military Tribunal (1946–51): Wednesday, 6 February 1946, Vol. 7, 59. Ibid, 60.

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Transporting the treasure to Germany required 29 trainloads, with 137 cars (Scholz 1982 [1944]). Of the paintings, Goering had selected 700 choice pieces; the rest went into repositories (Plaut 1946, 61). In Italy, at least as long as Italy was an ally, the Nazis could not simply plunder as they did elsewhere. Instead, beginning in 1937, the Nazis spent prodigiously on artworks from Italy. Hans Posse, director of the Linz project, traveled to Italy three times in 1941, where a German aristocrat residing in Italy, Prince Philipp von Hessen, energetically assisted him. This team purchased scores of paintings for Linz, spending millions of reichsmarks (Roxan and Wanstall 1964, 105–107). Goering was also busy in Italy (107). Florence’s art dealers prepared a lavish welcome for Goering in 1942; the Reichsmarschall purchased numerous masterpieces during his stay (Siviero 1950, 15). Nazi art acquisitions so alarmed the Italians that in May 1942, the Minister of National Education issued a new regulation virtually halting art exports (Roxan and Wanstall 1964, 104). Everything changed after the Allied invasion of Italy and the collapse of the Fascist government. The Germans insisted (successfully, of course) that Italian collections be concentrated in two cities, Rome and Florence. Some collections were hidden away in small towns and monasteries north of Rome. Important parts of the magnificent collections of Florence were dispersed to hiding places in the countryside, just as treasures from other parts of Tuscany were being hidden in cellars and tunnels in the city. As the Allies advanced from the south, the Germans removed several important caches from their rural hiding places in Tuscany, and transported them northward in stages (Nicholas 1994, 251–53; Siviero 1950, 16).

Arguments Before turning to the Allied responses to Nazi plundering, we must examine German justifications for their behavior. The Nazis’ perceived need to offer normbased reasons for their conduct is in itself revealing. First, Germany did not assert a victor’s right to spoils. International norms had developed, especially with the 1907 Hague Convention, to the point where the historical right to plunder was irrelevant. It was not available as an argument, and the Germans did not attempt to revive it. Second, the Nazis’ justifications were, in fact, a backhanded recognition of the prevailing norms against looting. Germany explained its conduct as (variously) consistent with international norms, an exception to international norms, or consistent with a separate and overriding rule (attempting to exploit the tensions between norms, as discussed in Chapter 1). The Nazis’ effort to explain 136

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or rationalize their conduct demonstrates that they perceived some value in being seen as complying with international norms. In fact, Nazi justifications for plunder were part of a larger German debate about international law and Germany’s position with respect to it. In the last stages of the war, some German officials raised the possibility of Germany unilaterally denouncing various international treaties on the laws of war so as to be freed from their restrictions (in dealing with prisoners of war, for instance). The International Bureau of the Armed Forces Operational Staff replied to those proposals. In a top secret document of February 1945, later found and catalogued by the Nuremberg prosecutors, the analysis identified the principal international agreements in question. These included the 1907 Hague Convention (with its Laws and Customs of War on Land) and the 1929 Geneva Convention (on improving the lot of the sick and wounded). One conclusion was that certain parts of international law could not simply be jettisoned unilaterally: On the basis of the practice of states in the wars of the last centuries, there exists the “International Law of usage” which can not be done away with unilaterally. It comprises the latest principles of a humane conduct of war; it is not laid down in writing. To respect it is however considered a prerequisite for membership of the community of states. . . . Consequently Germany will by no means free herself from this essential obligation of the laws of war by a denunciation of the conventions on the laws of war (United States Chief Counsel for Prosecution of Axis Criminality 1946, Supp. A, 895).

The International Bureau, in other words, argued for the importance of customary international law, implying that the obligations included in the Hague Conventions and other treaties had become so widely accepted in practice that their norms would be obligatory even if the treaties were abandoned. The Operations Staff of the Wehrmacht prepared a similar memorandum addressing the problem of international law. It weighed the costs and benefits of denouncing various international agreements (including the Hague and Geneva Conventions). The note discussed several advantages that would accrue to the Allies and numerous disadvantages that would fall to Germany, if Germany were to cease its treaty obligations. Among these was the propaganda effect: “If Germany repudiates all obligations of international law, this cannot but prove useful for the enemy propaganda” (United States Chief Counsel for Prosecution of Axis Criminality 1946, 904). How Norms Change

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Nazi justifications The justifications for seizing the cultural properties of other countries and private individuals fell into three categories; the Nazis claimed, variously, to be: (a) reclaiming Germany’s own artistic patrimony, of which it had been despoiled in earlier wars; (b) asserting rightful control over objects produced by Germanic artists or under the influence of German culture; and (c) establishing the Third Reich’s cultural supremacy.

a) Redress for past plundering Already in 1939, the Nazis were crafting plans to repatriate cultural objects taken from Germany to other countries. A pair of art scholars had been commissioned to begin the project after Hitler had reclaimed control of the Rhineland. Their report was titled Memorandum and Lists of Art Looted by the French in the Rhineland in 1794. Obviously, the memory of earlier art plundering was enduring. The following year, Dr. Otto Kümmel, director of the Reich museums in Berlin, and several assistants were quietly sent to Paris. Their charge was to generate a complete list of all German “works of art and valuable objects which since 1500 have been transferred to foreign ownership” (quoted in Nicholas 1994, 121). The phrase “works of art and valuable objects” was broad enough to cover, in addition to paintings and sculptures, books, manuscripts, maps, medieval armor, porcelain, military trophies, silver, and coins (Feliciano 1997, 25; Nicholas 1994, 121). The term German was similarly broad, meaning anything that had at one time resided in Germany (including Austria) or had any connection, however remote, with a Germanic person. Thus Pieter Bruegel’s painting Earthly Paradise, which Napoleon had taken from Milan in 1796, was considered German (Feliciano 1997, 27). The three-volume Kümmel Report, submitted in 1941, listed thousands of items then to be found in various countries (including the United States and the Soviet Union), though France bore the brunt of the document’s indignation. In addition, the Report condemned, and sought redress for, two historic wrongs: first, Napoleon’s plundering in Germany and Austria, and, second, the Versailles Treaty. In fact, a number of paintings taken from Germany during the wars of 1793–1815 still hung in 1940 in museums in Paris and other French cities. Rosenberg himself, during the Nuremberg trial, made reference to German artworks that “had been taken from Germany [and] had not been returned . . . despite the agreement of 1815.” Rosenberg also invoked properties taken from ethnic Germans between 1914 and 1918, supposedly “in agreement with the Hague Convention” 138

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(International Military Tribunal 1946–51:, Tuesday, April 16, 1946, vol. 11, 467–68). Goering also made reference to “cultural goods which were stolen from Germany and which should now be returned” (Roxan and Wanstall 1964, 62). The justification of confiscating art in the name of repatriation was, in short, seized upon at the highest levels of the Nazi hierarchy. It was an argument that reaffirmed international norms against art plunder.

b) Asserting control over “Germanic” heritage In addition to “recovering” artworks removed from Germany at some point in the (frequently distant) past, the Nazis laid claim to items that, though they lacked any historical presence in German territory, possessed a connection to Germanic culture. Anything that could be tied to German artists, or even a “Germanic spirit,” should be reintegrated into the Reich (Petropolous 2000a, 9–10). For instance, after seizing Czechoslovakia in 1938, the Germans picked bare Czech palaces, museums, and libraries. Leopold Ruprecht, charged with assembling the collection of armor for Linz, wrote of the German efforts in Czechoslovakia: “The seizure of the total property of art objects, libraries, etc. . . . is justified by the idea of broadening the cultural basis for the 300,000 Germans in the Protectorate so that the German character of old Reichsland Bohemia will be emphasized and underlined” (quoted in Roxan and Wanstall 1964, 38–39). Similarly, Posse justified the removal of the Hohenfurth altar (a famous masterpiece and Czech national treasure) to the Linz Fuhrermuseum by tying it to broader German culture: “These unique pieces of German painting will be much better cared for in a public museum than in a religious foundation which for a long time has had no importance” (43). During his visit to Poland in November 1939, Posse recommended that architectural elements and fixtures from the Royal Castle in Warsaw—“wainscoting, doors, inlaid floors, sculpture, mirrors, chandeliers, and pieces of furniture”— should be sent to adorn the Zwinger Palace in Dresden (where Posse had served for 25 years as director of the Art Gallery). In justifying this proposal, Posse argued that the pieces of the Warsaw Royal Castle were actually German because the palace had been “completed and furnished by Saxon architects” (Posse 1946; Roxan and Wanstall 1964, 50). The most prominent item to which this logic was applied was the renowned Veit Stoss altar, a masterpiece housed in the Church of Our Lady in Cracow. The King of Poland in 1477 had commissioned the immense, carved wood, polychromed altar from the master carver Veit Stoss. Because Veit Stoss was from Nuremberg, the altar was an exemplar of German How Norms Change

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art, and therefore belonged in Germany. It ended up in Nuremberg. The German claim on Poland’s artistic treasures was expressed with brazen clarity by one of Mühlmann’s assistants: Due to the comprehensive safeguarding of works of art in the Occupied Polish territory, there are today again available to us works which Polish scholars have falsely claimed as the achievements of their own artists. Their place in the true context of the mighty Germanic cultural tradition in the East can now be assured (quoted in Nicholas 1994, 71).

Therefore, cultural property of value in Poland could be seized on the grounds that it was, in any case, Germanic. Similar efforts to bring home cultural items of German origin occurred in the Baltic states (Petropolous 1996, 108–113) and, of course, in art-rich Western Europe. Goebbels himself took control of the Rucksforderung von Kulturgütern von Feindstaten (reclamation of cultural goods from enemy states) in August 1940. His commission had come directly from Hitler and explicitly declared, “For various reasons it is necessary to determine all artworks and historically important objects, which, over the course of time, have found their way into the hands of our present enemy” (Petropolous 1996, 124–25).

c) Establishing the Third Reich’s cultural supremacy Hitler’s notion of Aryan superiority did not limit itself to warfare. In his ideology, the German people represented the highest attainment of civilization. Germany must therefore also be the world’s preeminent center of the arts and culture. The Führermuseum project was the centerpiece of Hitler’s plans; it would be the capital of art for the new Europe. The Fuehrer created a special research section to study Linz in every detail and commissioned complete architectural plans for the museums, the library, the opera house, the new train station, and the other buildings that would rise in the Hitlerzentrum (Plaut October 1946, 73; Roxan and Wanstall 1964, 10–16). In June 1939, Hitler appointed Dr. Hans Posse, Director of the Dresden Art Gallery, “to build up the new art museums for Linz.”10 To assist Posse, the Fuehrer created the “Sonderauftrag Linz” (Linz Special Mission). Though by Hitler’s orders the Sonderauftrag Linz remained relatively inconspicuous,

10

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From Hitler’s order of 26 June 1939, as quoted in Roxan and Wanstall (1964).

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during the war it steadily amassed an immense collection of European masterpieces, stored in out-of-the-way repositories in Germany and Austria.

The opposition to plundering The massive confiscations in France and elsewhere did provoke protests and opposition, from elements within the German army and from French officials. As Nazi power ebbed and retreated, the Allies condemned the Nazi commandeering of Europe’s artistic heritage and planned for its restitution. The Allies thus asserted, and vigorously reinforced, the international norm that had emerged over the previous century and a half: that the rules of war prohibit the plundering of artistic treasures during wartime.

a) Protests from the Wehrmacht Even though the plundering of cultural properties was sponsored and promoted by the highest authorities, including Hitler and Goering, some resistance to plunder emerged within the German apparatus. Shortly after the fall of France, the Wehrmacht established the Kunstschutz (art protection unit), supposedly in accordance within the 1907 Hague Convention. A civilian art historian, Count Franz Wolff Metternich (a descendant of the famous 19th-century diplomat who had played a role in restoring Napoleon’s art plunder to the lands from which it had been taken), was placed in charge of the Kunstschutz, and he reported directly to Army commanders. Wehrmacht regulations incorporated the Hague Convention (1907) rules on the protection of private property and on respect for art objects and monuments (Nicholas 1994, 119). Metternich placed historic buildings off limits to German troops and drew up lists of sites to be protected from military uses. His superior, General Streccius, provided German guards for the chateaux, including Chambord and Cheverny, where artworks from the French national museums were stored (Treue 1961, 242). In June 1940, Hitler had ordered that all works of art in France, especially those owned by Jews, should be “safeguarded” by German officials. Metternich and his superiors in the Wehrmacht took the “safeguarding” language literally—it did not mean removing items to Germany. But Abetz, von Künsberg, and subsequently Goering and the ERR took the order as a veiled justification for taking possession of artworks in France. Metternich, supported by the Wehrmacht command in Berlin, resisted the embassy–based plunderers, who depended entirely on the army to transport the How Norms Change

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works of art. Metternich, and one of his superiors, simply refused to provide the trucks (Treue 1961, 240). But Abetz continued his efforts and, as Lynn Nicholas recounts, Metternich reported that the persistence of Abetz had “damaged the image of the German Army in France” and “provoked reports in the American press referring to ‘German Art Looting’ ” (1994, 124). A similar concern for Germany’s reputation in the world emerged from another source. Dr. Robert Scholz, an ERR official stationed in Berlin, became uncomfortable with the unbridled acquisitiveness of the ERR operatives in Paris. Scholz believed that the actions of the ERR “were detrimental to the reputation of the Nazi party, since the wholesale confiscations had been so disorderly that if final disposition of the works of art was referred to an international commission after the war (and he expected this to happen), German prestige would suffer.” Scholz and another officer proposed that the ERR restrict itself to conservation of artworks, and requested authority to “freeze” in place any cultural properties “in order to stop further misuse of valuable works” (Simon 1971, 55). Metternich and Scholz worried about the damage that art plundering would inflict on Germany’s international reputation and prestige. Such concern is evidence that they, at least, understood that the art confiscations violated international norms. Metternich, in fact, concluded that German art activities in France were incompatible with international law. He wrote of von Künsberg that his “activities were illegal and that he was merely a sort of modern freebooter” (quoted in Treue 1961, 241). As the plundering of Jewish collections accelerated, Metternich denounced the seizures as violations of Article 46 of the Hague Conventions, which shielded private property from confiscation (Nicholas 1994, 125). But Goering and the various looters were not going to let mere legality stand in their way. Dr. Hermann Bunjes, a Kunstschutz official who would later be in Goering’s employ, met in February 1941 with Goering at the Jeu de Paume, where art from Jewish collections had been gathered. Bunjes mentioned to Goering that the French government had objected to the work of the ERR as a violation of the Hague Rules on Land Warfare, and that the Army generals had a different interpretation of “safeguarding.” In Bunjes’ telling, “When I made the objection that the jurists would probably be of a different opinion and that protests would most likely be made by the military commander in France, the Reich Marshal answered, saying verbatim as follows, ‘Dear Bunjes, let me worry about that. I am the highest jurist in the State’ ” (quoted by prosecutors at the Nuremberg trial of Goering, in International Military Tribunal 1946–51, Wednesday, March 20, 1946, vol. 9, 546–47). 142

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Faced with Goering’s determination to make his will superior to the law, in early 1941 the Army submitted memoranda making clear that it was “exempt from any responsibility for contravention of the Hague Convention.” The Wehrmacht command in France emphasized that all responsibility for the art plundering rested with the ERR and with Goering (Nicholas 1994, 132). By July 1942, Metternich had been placed on indefinite leave.

b) Protests from the French In October 1940, the Pétain government objected to the art confiscations then being carried out from the German embassy. Bunjes, in fact, pointed out to Goering during his November 1940 visit to the Jeu de Paume that the French government had submitted a “note of protest” regarding the activities of the ERR, and that the French had invoked both the Hague Convention, which Germany had recognized, and the truce of Compiègne. Goering, of course, dismissed these concerns. And even when the Vichy government did complain, it was sometimes less than honorable: Vichy “did not condemn the confiscations outright, but declared that the takings should be the property of the French, not the Germans” (Nicholas 1994, 126, 130–31) The Vichy claim was, of course, deeply hypocritical, as the government had already declared that Jews who had left the country thereby forfeited their citizenship. Still, as the art shipments to Germany proceeded, French officials, including the Prime Minister and the Commissioner for Jewish Affairs, continued to complain to German Army commanders. Jacques Jaujard and other officials in the National Museums, as well as various (Vichy) French ministries and organizations, peppered German commanders and administrators with letters protesting the art confiscations. In a June 1941 letter, the French Treasury ministry explicitly raised Article 46 of the 1907 Hague Convention, which declared private property inviolable (Simon 1971, 54). Advised by the Kunstschutz, the general in charge of the German Army in France demanded an explanation from the ERR. The November 1941 response, written by Gerhardt Utikal, a young ERR officer, argued that the art confiscations should be considered as “measures of reprisal against the Jews,” which were “justified by international law.” In Utikal’s reasoning, because the Jews had always treated the property of non-Jews as abandoned or “derelict property,” Germany was justified in reprisals “by resorting to the same procedures” (quoted by the prosecutors at Nuremberg, in International Military Tribunal 1946–51, Wednesday, February 6, 1946, vol. 7, 61). As for the Hague Conventions, international law, he argued, did not apply to Jews or their properties How Norms Change

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(Nicholas 1994, 137). In response to other French protests, Hermann Bunjes accused the French of wanting to use the proceeds from sales of “ownerless” art to support the war against Germany and to distract from German claims for restitution of cultural items destroyed by the French at the end of World War I (Kurtz 1985, 26–27). French art officials, like Jacques Jaujard, director of the National Museums, regularly protested the seizure of the private collections and urged the Vichy government to do the same (Nicholas 1994, 130–31). Several museum officials worked with the Resistance to track national art treasures and send information to the Free French government regarding their movements; Jaujard and others were in fact active in the Resistance (Nicholas 1994, 135, 147). Museum personnel resisted German efforts to extract pieces of art from the national collections. The tactics of French museum officials included delays, convoluted reports, foot–dragging, and threats of mass resignations. In some instances, Goering and other Nazi plunderers were thwarted (see Nicholas 1994, 145–47). Unfortunately, in other cases, the efforts of museum personnel were undercut by Vichy officials who were more eager to satisfy Nazi demands than to preserve France’s cultural patrimony (Nicholas 1994, 143–47; Simon 1971, 57–60).

The Allies and International Norms On the illegality of plunder and on the policy of restitution, the Allies were in agreement. These basic norms informed Allied statements and actions, from national governments to the operational level among the armed forces in Europe. In establishing these areas of consensus, the Allies built on existing international norms and invoked precedents. For instance, in September 1944, the British Foreign Office carried out a study of “Restitution after the War of 1914–1918.” The document analyzed the Armistice and Treaty documents and the restitution experience, drawing lessons for the current war (United Kingdom, Foreign Office Research Department 1944). The U.S. government also evaluated past instances of plunder and the development of international law. The eminent international lawyer Charles de Visscher had published in 1935 an article on “International Protection of Works of Art and Historic Monuments.” De Visscher reviewed the development of international law regarding wartime plunder, including assessments of the Napoleonic wars, the Hague Convention, and World War I. The U.S. Department of State reprinted the study after the war as part of its “International Information and Cultural Series” (Visscher 1949).

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The same historical precedents and international legal developments appeared in the work of U.S. officials in postwar Germany. In February 1946, Charles Fahy, Director of the Legal Division of the Office of Military Government for Germany (U.S.) (OMGUS), responded to a query from the Chief of the Restitution Branch, as to “whether works of art come within the terms ‘war booty’ and ‘trophies of war.’ ” Fahy responded, “The answer is in the negative, regardless of where the works of art were captured and whether they were publicly or privately owned.” In support, Fahy quoted from Article 56 of the Hague Convention, noting that it forbids “ ‘all seizure’ of such property.” Fahy further pointed out that restitution of cultural treasures had been a part of the peace settlements both in 1815 and in the Treaty of Versailles (Fahy 1946). The same Legal Division responded to a related question from the Restitution Branch of the Economics Division of OMGUS, as to whether any of the occupying powers could “legally remove from Germany indigenous archives, records, miscellaneous documents, or collections of documents.” Citing the Hague Convention, the reply concluded that removal of archives from Germany by an occupying power would be “a prima facie violation of international law” (Raymond 1947). In the early 1940s, as word of Nazi cultural looting filtered out of Europe, the Allies denounced the Nazis as plunderers and violators of international rules. The criticism had propaganda value, of course, but it was not merely propaganda. The Allies also began at an early stage to prepare for the protection of Europe’s cultural sites during the offensives that would take Allied troops across Europe and into Germany, and to plan for the restitution of cultural goods stolen by the Nazis. In condemning Nazi plundering and in devising restitution policies, the Allies invoked precedents and international norms, including 1815, the Hague Convention, and the Versailles settlement.

Protecting cultural treasures The United States and Britain spearheaded Allied efforts to reclaim and return to their previous owners artworks seized by the Germans, but the restitution story really began in Poland. Barely two months after the invasion, in November 1939, a Polish commission started to document the destruction and removal of cultural objects. The work had to be carried out underground, and the group’s studies were smuggled out of occupied Poland (Kowalski 1994, 15–17). The government in exile had already in early 1940 established a Bureau of Revindication of Cultural Losses. In addition to the reports from Poland, the Bureau collected documents

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in Britain regarding the collections of Polish museums prior to 1939. It also carefully monitored the German press (Kowalski 1994, 17–18). The Poles in exile presented proposals and documentation to Allied civil and military officials, both to influence the eventual peace negotiations and to urge allied leaders to take effective steps toward the restitution of cultural artifacts as soon as the liberation of Europe began. Karol Estreicher, one of the Poles working with the Bureau of Revindication of Cultural Losses, traveled to the United States for a lengthy stay in late 1941 and early 1942. He met with, among others, Francis Henry Taylor, Director of the Metropolitan Museum of Art in New York and president of the American Association of Art Museum Directors (Kowalski 1994, 19; Nicholas 1994, 214). An aide-memoire signed by Estreicher is among the World War II Records of the Chief Curator of the National Gallery in Washington, DC. The aide-memoire reports that after the occupation of Poland, “all museums and collections were systematically explored by specialists sent from Germany and the most valuable objects were sent to unknown destinations”; 95 percent of museums and up to 70 percent of libraries had been pillaged (Estreicher n.d., 3, 4). Estreicher’s mission did bear fruit: in the fall of 1942, Taylor and other prominent art museum leaders met to discuss what might be done to save Europe’s cultural treasures. This group began to develop plans for preserving and returning cultural artifacts, and argued that the U.S. must take an active part. Taylor traveled to Washington to meet with Chief Justice of the Supreme Court Harlan Stone, who was also chairman of the Board of Directors of the National Gallery of Art. Stone agreed to approach the President. Taylor drafted a memorandum that could serve as the basis for a letter to Franklin D. Roosevelt. In it, he points out that “not since the time of Napoleon Bonaparte has there been the wholesale looting and destruction of art property that is going on today in the occupied countries of Europe” (Taylor 1942). Stone sent a letter to Roosevelt in December 1942, asking the President to endorse a policy of preserving fine arts and monuments and to establish a commission for that purpose. Other prominent museum leaders prepared a petition along the same lines. Such a course would “bear witness that these things belong not only to particular peoples but also to the heritage of mankind” (American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas 1946b, 33). Both Secretary of State Cordell Hull and President Roosevelt responded favorably. In a letter to Chief Justice Stone, President Roosevelt reported that Admiral William Leahy, head of the Joint Chiefs of Staff, “expressed agreement” as to the eventual 146

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desirability of such a commission and pledged to instruct US commanders to provide “every practicable assistance that does not interfere with their military operations” (Roosevelt 1943). In June, Hull outlined for President Roosevelt the structure and mission of a proposed American Commission for the Protection and Salvage of Artistic and Historic Monuments in Europe. The President approved Hull’s plan in June, and on August 20, the State Department announced the creation of the Commission. The announcement emphasized that the Commission was “evidence of the Government’s intention that, when military operations have been concluded, there shall be restitution of public property appropriated by the Axis Powers” (United States Department of State 1943). Supreme Court Justice Owen J. Roberts agreed to chair the Commission, which then bore his name. The Commission began meeting within days of the announcement. Two private groups with an interest in protecting cultural monuments had come into being before the Roberts Commission. One, the American Defense Harvard Group, had been formed in June 1940 to gather academics and other civilians who could contribute their expertise to the war effort. In the spring of 1943, the Harvard Group began cooperating with the Provost Marshal General of the Army, which operated a School of Military Government in Charlottesville, Virginia. The Provost Marshal General had become convinced that some civil affairs officers should be trained in the protection of monuments and fine arts. At the request of the Provost Marshal General, a subcommittee of the Harvard Group began compiling lists of cultural sites that would require protection and drafting manuals to guide officers in the field in the technical aspects of art conservation (Kurtz 1985, 65–66). The second private group was formed as a committee of the American Council of Learned Societies (ACLS) in January 1943. At its first meeting, the ACLS committee agreed, among its guiding principles, that “works of architecture, sculpture and painting are not mere material for the art historian, nor merely something to stir the interest and admiration of the tourist. They are an essential part, and the most eloquent part, of the common cultural heritage of the human race” (Committee of the ACLS on Protection of Cultural Treasures in War Areas 1943a, appen. E). Helen Frick turned over for the ACLS committee’s use the Art Reference Library in New York. The committee assembled there a list of cultural monuments, libraries, archives, and collections, and began preparing maps, with cultural sites marked, for the Civil Affairs Division of the War Department. The ACLS also supplied names of military personnel “for possible appointment to service as cultural officers in occupied areas” (Committee of the ACLS on Protection of Cultural How Norms Change

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Treasures in War Areas 1943b). Francis Henry Taylor declared that the formation of the ACLS committee had been “a result very largely” of Estreicher’s visit a year earlier (Kowalski 1994, 19). The American Defense Harvard Group and the ACLS group both produced catalogues and descriptions of museums, collections, libraries, palaces, monasteries, churches, and other historic buildings, in both Europe and Asia. The Harvard Group prepared lists of the most important sites in 23 countries (including, in Asia, Indochina, the Dutch East Indies, China, Japan, Korea, and Thailand). The ACLS Committee, working with the Harvard Group materials and supported by the Frick Art Reference Library and the Metropolitan Museum of Art, produced 786 annotated maps. These covered most of Europe plus Indochina, China, Java, Sumatra, Korea, and the Philippines (American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas 1946b, 34, 35). The maps were intended for use by U.S. ground and air forces; unfortunately, they did not reach the forces in Europe in time (Simon 1971, 156). On the basis of the Harvard Group and ACLS work, the Roberts Commission also produced and supplied to the armed forces more than 700 maps, with accompanying lists (American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas 1946b, 4). Distribution of the lists and maps in the theaters of operation was slow and incomplete (Kurtz 1985, 72). The Allied air forces did produce aerial photographs of areas containing cultural monuments in 79 towns and cities. The photographs, with monuments marked, were distributed down to the group level, and presented pilots and bombardiers with views of areas as they would actually see them (Woolley 1947, 28). The Roberts Commission also lobbied the War Department’s Civil Affairs Division to establish a Monuments, Fine Arts and Archives Branch (MFA&A), which it did in autumn 1943. Among the early MFA&A officers were academics, architects, sculptors, painters, and museum curators (Flanner 1947, 269; Simon 1971, 155). Not surprisingly, qualified personnel for the MFA&A were in chronic short supply; there were seldom more than twelve officers in the field in Europe. Concern over the cultural depredations of the Nazis was also mounting in Britain. In oral answers in the House of Commons on 1 February 1944, the government responded to a question regarding German destruction of Italian works of art. Sir J. Grigg reported that two instances were known, one in which German troops set fire to the Royal Society’s Library in the University of Naples and a second in 148

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which a German squad set fire to a depot of art treasures and historic archives that had been deposited in a villa at Livardi. The questioner then asked for a statement regarding the protection of works of art and historic buildings in territories occupied by British troops. Grigg mentioned measures then being taken in North Africa and Italy, referring to General Eisenhower’s general order (see below). British arts officers had been assigned to the armies in the field, and the government was planning to create a commission for monuments and fine arts within the Allied Control Commission (United Kingdom 1944). In fact, the British created a structure parallel to the American one, for dealing with fine arts and monuments. The impetus in Britain had been a propaganda pamphlet issued by the Italians, accusing British troops of vandalizing and defacing classical ruins in Cyrenaica. The War Office sent orders to British forces in North Africa to “preserve any archaeological monuments which might come into their possession” (Nicholas 1994, 215). Subsequently, the government in October 1943 appointed Sir Leonard Woolley, already serving as a lieutenant colonel in the British Army, Architectural Adviser to the War Office. Woolley became responsible for overseeing the Army’s policies for the protection of cultural treasures; he was in regular contact with the Roberts Commission, primarily through its representative in London (Woolley 1947, 7, 9). Woolley staffed a Monuments and Fine Arts branch and, with the help of outside experts, compiled a list of monuments, collections, and historic sites to be protected in Europe and Asia. Though the MFA&A officers faced their most daunting challenges in Europe, they were also involved in Asia.11 In fact, by early 1944, the Commission had received a request from the U.S. Navy for maps and lists of sensitive cultural areas in Asia, and by 1945 the Commission was in discussions with the State Department on plans for protection and restitution in the Far East. The Roberts Commission had by March 1945 also generated “a roster of military personnel professionally competent to deal with the problems of Far Eastern art.” In the latter half of that year, four MFA&A officers were designated for Japan and Korea (American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas 1946b, 157). By November 1945, two monuments officers were in Japan and one in China. Lt. Commander George Stout reported from Japan that “important shrines are guarded” and that “the outlook is good.”

11

Art plunder in Asia and the Pacific was neither as extensive nor as systematic as it was in Europe; this study accordingly focuses mainly on events in Europe.

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Horace Jayne, Special Adviser to the Division of Cultural Cooperation of the State Department and to the Roberts Commission, arrived in Chungking on September 7th, 1945, and described to Chinese officials the work of the Roberts Commission and the MFA&A officers in Europe (American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas 1945). Jayne traveled throughout China from August to November 1945, investigating, alongside Chinese officials, the status of cultural treasures (American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas 1946b, 3, 7, 16). Though his coverage of China was limited, he reported that the public art collections were generally open and that the Japanese had not stolen artworks from private collections. He had, however, received unconfirmed reports of looting and damage in other parts of the country (158). British MFA&A officers worked to protect artistic and historic monuments in Burma, Sumatra, Java, and Malaya (Woolley 1947, 63–65). Another vital task of the MFA&A officers was to protect cultural sites from damage inflicted by the advancing Allied troops. Following the invasion of Italy, Allied armies took over historic buildings in Naples, including the famous museums and the Royal Palace, for use as headquarters, billets, and officers’ clubs. The damages to these valuable sites provoked an inquiry and led General Eisenhower to promulgate the first General Order regarding the treatment of monuments and fine arts: Today we are fighting a country which has contributed a great deal to our cultural inheritance, a country rich in monuments which by their creation helped and now in their old age illustrate the growth of the civilization which is ours. We are bound to respect those monuments as far as war allows. If we have to choose between destroying a famous building and sacrificing our own men, then our men’s lives count infinitely more and the buildings must go. But the choice is not always so clear cut as that. In many cases the monuments can be spared without any detriment to operational needs. . . . [T]he phrase “military necessity” is sometimes used where it would be more truthful to speak of military convenience or even of personal convenience. I do not want it to cloak slackness or indifference. It is a responsibility of higher commanders to determine through A.M.G. [Allied Military Government] Officers of the locations of historical 150

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monuments whether they be immediately ahead of our front lines or in areas occupied by us. This information passed to lower echelons through normal channels places the responsibility on all Commanders of complying with the spirit of this letter. (Eisenhower 1943)

In a signal of the perceived importance of the monuments and fine arts policy, President Roosevelt publicly released General Eisenhower’s order at a White House press conference on February 15, 1944 (American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas 1946b, 49). The invasion of Normandy and the subsequent push through France posed similar challenges for the skeletal MFA&A branch. The general Allied policy regarding cultural properties was, however, the same. In May 1944, days prior to the Normandy landings, General Eisenhower had issued an order similar to the one that had been sent to commanders in Italy: Shortly we will be fighting our way across the Continent of Europe in battles designed to preserve our civilization. Inevitably, in the path of our advance will be found historical monuments and cultural centers which symbolize to the world all that we are fighting to preserve. It is the responsibility of every commander to protect and respect these symbols whenever possible. . . . So, where military necessity dictates, commanders may order the required action even though it involves destruction to some honored site. But there are many circumstances in which damage and destruction are not necessary and cannot be justified. . . . Civil Affairs Staffs and higher echelons will advise commanders of the locations of historical monuments of this type, both in advance of the front and in occupied areas. . . . (Eisenhower 1944)

An accompanying directive stipulated: “It is the basic policy of the Supreme Commander to take all measures, consistent with military necessity, to avoid damage to all structures, objects or documents of cultural, artistic, archaeological or historical value; and to assist, wherever practicable, in securing them from deterioration consequent upon the process of war.” The directive also placed buildings on the MFA&A list off limits for military uses and emphasized that How Norms Change

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“the prevention of looting, wanton damage, and sacrilege” was the duty of all commanders (Woolley 1947, 44).12

Recovery As Allied armies pushed deeper into Germany, the mission of the MFA&A units changed. The fine arts officers had been receiving information from various sources in France and the Low Countries regarding massive Nazi art shipments. A notable example was Rose Valland, the French employee at the Jeu de Paume who had remained at the museum for the duration of the war. Valland had secretly taken notes and made copies of German photographs of ERR activities; with the help of French guards, packers, and drivers, she kept records of the German shipments that left Paris for Germany and of which consignments went to which destinations. After the liberation of Paris, Valland confided her trove of information to the American MFA&A officer James Rorimer, urging him to travel to Germany to rescue the art before the Germans could destroy it (Rorimer 1950, 108–116; Valland 1961). In addition to local informants, the fine arts officers began to benefit from information gathered by the Office of Strategic Services (OSS). The OSS had been in contact with the Roberts Commission since 1942, and Francis Henry Taylor had urged the OSS to become involved in investigating Nazi art plundering. In November 1944 the agency created the Art Looting Investigation Unit with three officers, each of them an art scholar. As Allied troops advanced across Europe, most of the leading figures in German art plundering fell into Allied hands. The OSS Looting Investigation officers interrogated them and analyzed their records.13 The information gleaned by the OSS team was useful both to the MFA&A officers, in locating hidden repositories and tracing the provenance of specific works and collections, and to the Army Judge Advocate’s office, which was preparing war crimes cases to be brought against high-ranking Nazis. At Nuremberg, evidence of cultural property crimes would be brought against Goering, Keitel, Rosenberg, and Hans Frank.

12

13

152

For excellent first-hand accounts of MFA&A officers, see: Hammond (1988), Rorimer (1950), Howe (1946), Roxan and Wanstall (1964), and Standen (n.d.), as well as the contemporary reporting of Janet Flanner (1947). One of the “Consolidated Interrogation Reports” of the Art Looting Investigation Unit provided much of the material for the Roxan and Wanstall’s The Rape of Art (1964).

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The MFA&A teams, as well as Allied political leaders, began to think more about locating, protecting, and eventually returning looted art. In fact, the monuments officers in Italy, as Allied armies progressed up the peninsula in mid-1944, were able to participate in the emergency salvage operation designed to rescue what was left of the Campo Santo in Pisa, with its famous frescoes. In the spring of 1945, MFA&A personnel took part in the highly publicized return of hundreds of art treasures to Florence (Nicholas 1994, 263–72). Even more dramatic recoveries were taking place in Germany and Austria. Already in 1943, Allied bombers that regularly pounded German cities endangered the huge caches of Nazi plundered art. The caretakers of the various art depots found safer homes for their treasures. Hitler chose a vast salt mine near Alt Aussee in Austria as the main shelter for his Linz collection (Roxan and Wanstall 1964, 146). In the spring of 1945, German and Austrian museums moved their own collections to remote castles, monasteries, and mines (Howe 1946; Roxan and Wanstall 1964, 145–46). Allied armies moving north from Italy and east from France found themselves in control of territories that hid some of the greatest art collections in the world. The MFA&A officers had compiled lists of over a hundred Nazi repositories and showed these to the commanders of front line corps (Nicholas 1994, 328). For instance, Lieutenant George Stout had learned from a German art record in Aachen that the cathedral treasures and other valuable items had been removed to a copper mine in Siegen. U.S. troops located and secured the mine, which, in addition to the Aachen treasures, contained items evacuated from the Rhineland museums: 600 paintings, 100 sculptures, and the manuscript of Beethoven’s Sixth Symphony. The discovery was reported in the New York Times (Flanner 1947, 274–76; Simon 1971, 162–63). Within days, troops under General George Patton stumbled onto a second huge cache secreted in a salt mine near Merkers. This find made an even more spectacular news story: the mine contained the gold reserves from the Reichsbank in Berlin, or at least the largest part of them, as well as gold reserves from Belgium. In addition, the Germans had stored in the mine hundreds of masterpieces from the Berlin museums. Flanner reported that the art treasures were “worth at least twice as much as the Merkers gold” (Flanner 1947, 277–78; Rorimer 1950, 133–34). Patton’s troops were also the first to reach the mother lode of Germany’s art repositories, the salt mines at Alt Aussee in Austria. The MFA&A and OLI officers had gathered enough tidbits of information to convince them that the mines near How Norms Change

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Salzburg were an important cache, and the Third Army pushed with all possible speed to secure them in early May 1945. Alt Aussee held over 100,000 pieces, including the van Eyck altarpiece from Ghent, the Bouts altarpiece from Louvain, and hundreds of masterpieces from Vienna and Paris (Howe 1946; Rorimer 1950, 151–53; Roxan and Wanstall 1964, 154–72; Simon 1971, 170). During the final months of the war in Europe, and for many months afterward, the fine arts officers rushed across Germany and Austria locating stashes of art objects. Documents and files discovered in places like Neuschwanstein, Berchtesgaden, and Alt Aussee contained inventories of the ERR shipments and the locations of additional hiding places. The British and the Americans found repositories in “mines, castles, monasteries, schools, and public and private buildings of every description,” over 1,500 in all (Simon 1971, 171). An undated memorandum from the U.S. Control Group Council noted that “the total value of these art objects cannot be estimated. It is certain to run into hundreds of millions of dollars, and perhaps in excess of one billion dollars. However, beyond the monetary value, the collection contains some of the most famous works of art in the world, with a value from a cultural viewpoint which cannot be measured” (U.S. Control Group Council Headquarters n.d.). It was clear to the MFA&A officers that the first task was to move the artworks from their hiding places. Conditions in many of the repositories were not suitable; moisture and mold could damage paintings and drawings. In addition, securing hundreds of dispersed sites against vandals and looters was a formidable task. The Allies eventually established “collecting points” at Munich, Wiesbaden, and seven other locations (American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas 1946b, 135). The massive Verwaltungsbau in Munich (formerly Nazi party headquarters) was designated as the central collecting point for stolen artworks. MFA&A officers scrambled to repair the building, which had suffered bomb damage, and prepare it to house the art. Truckloads of art from Alt Aussee began arriving in June 1945 (Nicholas 1994, 358–61). All of the plundered art found in the western sectors of occupied Germany flowed to the Central Collecting Point in Munich, where it was registered and catalogued. Specialists from France, Belgium, the Netherlands, and other countries formerly under German control arrived to connect specific pieces to their former owners (Flanner 1947, 282–86). A few high-profile cultural treasures, like the stained glass windows from the Strasbourg cathedral (Standen n.d.) and the van Eyck altarpiece, were sent home almost immediately (summer and autumn of 1945), with considerable ceremony and worldwide press coverage. By October 1945, thirteen thousand items had passed through the doors of the Central Collecting Point. 154

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The Allied restitution effort would continue until 1951, when it was turned over to the Germans (Roxan and Wanstall 1964, 173–74).

Restitution The general policy of restitution was never in question. The strong international consensus on this point reaffirmed and solidified the existing international norm against art plunder, and built on the precedents of restitution in 1815 and 1919. Many details and specific mechanisms, of course, had to be worked out, and there were significant disagreements about whether German artworks could be seized as reparations. Already in 1942, the Allies were planning for the recovery and restitution of cultural properties stolen by the Germans during the war. Early discussions took place in two bodies. The first was a subcommittee of the Comité Interallié pour l’Etude de l’Armistice (the organ of the governments in exile). The Committee of Ministers of Foreign Affairs accepted the Comité’s draft proposals regarding restitution of and compensation for cultural objects in September 1943. The second body was the Conference of Allied Ministers of Education (CAME). The CAME agenda at first concerned only the rebuilding of schools and libraries. Poland proposed the creation of a committee to work specifically on the cultural issues. That body did not come into existence until April 1944, as the Commission for Protection and Restitution of Cultural Material (chaired by Paul Vaucher, and known more commonly as the Vaucher Commission). The Vaucher Commission began to collect data on the losses of cultural properties in the occupied countries (Sutton 1945). The general restitution policy emerged as early as a January 1943 Inter-Allied Declaration Against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control, signed by sixteen governments (including those of Britain, the Soviet Union, and the United States) and the French National Committee. The declaration announced that transfers of ownership of or interest in properties from the occupied lands would be void, even if they took place under apparently legal cover (Kowalski 1998, 40–41; Kurtz 1985, 58). At Dutch and Belgian urging, the Allies created a subcommittee to investigate the confiscation activities of the Axis powers and to consider means of implementing the Allied Declaration. The Polish government-in-exile included in its report an account of Soviet looting in the eastern regions of the country (subsequent to the 1939 German-Soviet Non-Aggression Pact). The furious Soviets demanded that the Polish report be How Norms Change

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excluded from the final document. In the end, other countries preferred that the Soviets sign the agreement, so the final report omitted any reference to eastern Poland or the Polish memorandum (Kurtz 1985, 59–60). The disposition of looted properties also figured in the agenda for the Bretton Woods conference of July 1944. The Bretton Woods Final Act referred to the 1943 Declaration and endorsed the measures taken by the Allies to recover and restore to their owners looted properties, even when found in the territory of neutral countries (Kowalski 1998, 42). When the war ended in Europe, there were differences within the US government over how restitution should be carried out (Kurtz 1985, 54). The State Department and the Roberts Commission wanted the restitution effort to be managed by an international organization. The military did not favor an international body exercising authority within the American occupation zone (Kurtz 1985, 108). Throughout the ensuing international negotiations, divisions within the United States and among the Allies persisted. Three main disagreements split the Allies with respect to restitution of cultural properties. These disagreements dealt with the question of management of restitution by an international agency, the relationship between restitution and reparations, and the problem of restitution in kind. With respect to the first issue, proposals for an international agency for cultural returns came from the Roberts Commission, the U.K.’s MacMillan Commission, and CAME. The French were supportive, the U.S. and British militaries were opposed, and the Soviets rejected the idea outright (Kurtz 1985, 100–101). In the absence of agreement, there was no international agency. On the link between restitution and reparations, the Americans were divided. The Office of the Deputy Military Governor (General Lucius Clay) had prepared a memorandum for the July 1945 Potsdam Conference in which it proposed three categories of cultural goods. The first, looted works of art, would be returned to their rightful owners immediately. A second category included art taken by the Germans but for which they claimed to have paid. Some items in this group would be returned but with their value possibly counting toward the German reparations payments (compensation for losses). The third category covered German art works under U.S. control, which would be shipped to the United States for safekeeping and returned to Germany in due course (U.S. Control Group Council Headquarters n.d.).

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In contrast, a draft from the State Department in June 1945 suggested that the restitution of cultural properties would be separate from, and thus not count toward, reparations payments. At British urging, art was not part of the reparations agenda at the Potsdam summit in July 1945 (Nicholas 1994, 382–84). By January 1946, the French still favored including art in reparations, but the British and the Americans insisted on keeping restitution and reparations separate. The Russians agreed to restitution, as long as it did not interfere with their reparations claims. In the end, the Allies were not able to agree on “how the restitution and reparations efforts were to interact” (Kurtz 1985, 127–29, 143). Lacking consensus, policies devolved upon the military governments of the various occupation zones. Finally, the issue of restitution in kind was bitterly divisive. The French took the hardest line: where looted items could not be located, they should be replaced by equivalent pieces from German collections. Belgium, Luxembourg, and the Netherlands supported the French position (Kurtz 1985, 111–13). It is worth recalling that the Allies, in fact, had in their control virtually all of Germany’s cultural patrimony, much of which they were finding in hidden caches. The Russians favored restitution in kind only for unique cultural treasures, and the Americans and British sided with them on this issue. However, some influential Americans argued in favor of restitution in kind. A 1945 report from the Council on Foreign Relations, an influential private group, recommended: “The Axis nations must likewise restore property of exceptional historical, artistic, or cultural importance or if it has been lost, destroyed, or damaged, substitute equivalent property out of Axis public or private property” (Council on Foreign Relations 1945, 50). The same argument arose within official U.S. circles. A committee advising Edwin Pauley, head of the American delegation to the Allied Reparations Commission, recommended that objects known to be looted by Germany and not found within two years would be replaced by Germany with “comparable objects from German public or private collections.” But replacements made on this basis “shall be so limited as not unreasonably to deprive Germany of artistic or historic materials.” Cultural property could not be used for reparations, aside from replacement in kind (Pauley Reparations Mission 1945). Pauley thought that since the United States was not demanding reparations for industry, it could claim other German assets, like art (Kurtz 1985, 123–29). As of August 1945, key departments of the government in Washington agreed. A letter to General Clay from his political advisor, Robert Murphy, quotes from a State Department message stating that

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“the Department of State . . . is disturbed by the view that Germans should not be required to replace looted art not found or destroyed.” The message also referred to a 5 June 1945 statement, agreed to by a coordinating committee of the Departments of State, War and Navy and the Roberts Commission, that envisioned replacement in kind from German collections for cultural property known to have been looted and not found within two years of Germany’s surrender (Murphy 1945). By July 1946, U.S. officials insisted that only unique objects would be considered for replacement in kind, and only on a case by case basis (not as part of a general mandate). The U.S. proposed five categories of objects eligible for restitution in kind: works of artistic masters; major works of masters of applied art and outstanding examples of national art; historical artifacts; manuscripts and rare books; and objects vital to the history of science. The Russians and British agreed with the American proposal, and the French had to go along. In practice, the Soviets obstructed restitution in kind by refusing to provide inventories of German– owned cultural properties in their zone and by removing large quantities of assets from Germany; the Americans simply declined to take administrative steps to carry out restitution in kind (Kurtz 1985, 132–51).14

The Soviet exception? The Soviet Union’s position on restitution was contradictory. On the one hand, the Soviets supported the return of looted objects and endorsed, in principle, some restitution in kind. On the other hand, the Soviets also engaged in a massive and secretive transfer of cultural properties from Germany to the Soviet Union. The Soviets sometimes described their art confiscations as war trophies, but more commonly as recompense for the immense cultural theft and destruction inflicted by the Nazis in Soviet lands. Already in 1942 the Soviets had established a special commission to calculate the value of art seized from Soviet institutions by the Nazis. The commission quickly

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Some of the postwar peace treaties also contained clauses requiring the restitution of cultural property. For instance, the treaty with Bulgaria required that country to provide cultural objects of similar kind and value to replace items taken by Bulgaria from other states and since lost or destroyed; see Treaty of Peace with Bulgaria, February 10, 1947 (1947). The armistice agreement with Hungary included a similar clause, as did the peace treaty with Romania; see Armistice Agreement with Hungary, January 20, 1945 (1945), Treaty of Peace with Romania, 10 February 1947 (1947).

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settled on the notion that Soviet losses should be compensated by replacements of equivalent value from German museums and collections. Soviet planning developed as a mirror image of much that the Germans had done. For instance, the Soviets considered creating a “supermuseum” in Moscow that would have sole right to artworks received from the defeated Axis countries and that would become the greatest art museum in the world (echoes of Linz; Akinsha and Kozlov 1995, 20, 33). The Soviets were particularly interested in art objects connected to Russian or Slavic culture. As the Nazi idea of Germanness had been elastic, so was the Soviet notion of Russianness. The list of items to be obtained “magically transformed every German scientist and traveler who had visited Russia in the last three centuries into a Russian.” For example, the collection of the Koenig Museum in Bonn “really belonged in Russia, the authors of the list wrote, because the founder of the museum, Alexander Koenig, was ‘one of the former owners of sugar refineries in Ukraine . . . and the museum . . . was founded on money received from this venture’ ” (Akinsha and Kozlov 1995, 36–37). By February 1945, the Soviets’ Special Committee on Germany had overseen the establishment of commissions to be in charge of the “collection of trophies” on every front. Special trophy brigades traveled with the armies, though they regularly encountered museums, manors, and theaters that had already been gutted or razed by Soviet troops. The first trainload of artworks from Germany left for Moscow in March 1945. Subsequent shipments included treasures from Berlin, Potsdam, and the Dresden museums, as well as a major collection of Impressionist and PostImpressionist paintings, which went into a storeroom at the Hermitage. The Hermitage received in total four trainloads of plunder from Germany; the Pushkin Museum in Moscow took in 2,991 crates of art (Akinsha and Kozlov 1995, 142–73). Yet the Soviets recognized that their plundering would not be acceptable to the other countries fighting the Axis. There was also substantial Russian history invested in the rules against plunder. The czarist government had proposed the article included in the Declaration of Brussels of 1874 and in the Hague Conventions of 1899 and 1907 regarding the protection of cultural properties. The Soviets after WWI had prepared treaty articles on the return of cultural properties to their proper owners. Furthermore, the Soviet Union had formally recognized the Russian government’s accession to the 1907 Hague Convention (Akinsha and Kozlov 1995, 101–103). Two aspects of Soviet policy reveal an awareness that other countries would consider Soviet seizures of cultural properties illegitimate: secrecy and justification. How Norms Change

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The Soviets never officially acknowledged the trainloads of art that had headed east from Germany until decades afterward, in fact, until the Soviet Union was on the verge of dissolving. Two art scholars, Konstantin Akinsha and Grigorii Kozlov, had discovered long-buried archives relating to the World War II trophy brigades. In April 1991, they published an article in the prominent international journal ARTnews titled “Spoils of War: The Soviet Union’s Hidden Art Treasures.” At first the Ministry of Culture refused to answer questions about the loot, but with the Soviet museum community in turmoil, the minister, in October 1991, “made the first official admission that the secret depositories filled with looted art existed in Soviet museums and announced that on President Gorbachev’s orders a Commission on Restitution would be established to consider what to do with them.” The Hermitage “trove” of Impressionist and Post-Impressionist art was finally opened to public viewing in 1995 (Akinsha and Kozlov 1995, 234, 239, 257). Had they been confident in the international legitimacy of their actions, the Soviets would have had no need to hide the existence of their huge caches of art brought from Germany. They would have built their monumental “Museum of World Art” and proudly displayed the best of the haul. The secrecy with which the Soviets cloaked their plunder reveals a lack of confidence in its legitimacy, which in turn demonstrates an awareness of transnational norms.15 When the Soviet possession of looted art became public knowledge, some Soviet officials sought to justify retention of the plunder. Justification amounts to an acknowledgment of the rules. The need to justify reveals a consciousness of norms. By arguing that an act complies with, or constitutes an exception to, generally held rules, people explicitly recognize the existence of the rules. When the Soviets finally did reveal the existence of the artworks seized in the war, many Russians argued that Russia should keep the treasures as compensation (restitution in kind) for the hundreds of thousands of cultural objects the Nazis destroyed in the Soviet republics.16 The argument was not that plunder was acceptable, rather that what the Soviets had done was to carry out a form of restitution, to which the Allies had

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The Soviet removals were not entirely unknown to the Allied governments. A March 1948 memorandum from the U.S. Occupation Headquarters in Germany describes the Soviet removals of art and cultural objects that began when Soviet troops entered Berlin. The Soviets attempted to “justify their actions” in terms of the rules of occupation and reprisal, an “outrageous subterfuge” in violation of the Hague Convention (in the view of the memorandum writer). The note even lists the objects taken by the Soviets, adding up to over a million items; Office of Military Government for Germany (U.S.) 1948. Clearly, this information was not exploited by the U.S. government, possibly to avoid a confrontation with the Soviet Union or possibly because the memorandum did not reach the necessary political levels. The debates in Russia, and the Russian-German negotiations, will be described more fully in chapter 9.

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agreed (Akinsha and Kozlov 1995, 235, 253–54).17 In short, though the Soviet Union had kept millions of objects taken from Germany, its efforts to hide that fact and, later, to justify it reveal that the Soviets too were conscious of international norms against plundering.

The 202 Berlin paintings Early in this book I argued that one of the critical tests of normative change would be to observe whether the powers that defeated plunderers engaged in plunder themselves. If the victors, in a position to do as they pleased with the artistic monuments of the vanquished, refrained from taking possession of them, that would be evidence of the strengthening of the international norm. At the conclusion of World War II, with Germany utterly defeated and the Allies in control of Germany’s great museum collections, the Soviet Union took possession of German art treasures, though with a backhanded recognition of international norms. Britain, France, and the United States, however, pursued restitution rather than requisition. In one instance, the United States flirted with the possibility of taking German cultural properties as compensation for war losses. The denouement of that episode strengthened the norms against plunder. The United States Group Control Council for Germany (USGCC)18 had in July 1945 prepared the memo outlining three categories of cultural properties, the last of which (Category C) was eligible to be shipped to the United States. One rationale for such transfers was that the Army lacked suitable storage facilities and trained personnel adequately to care for the masterpieces falling under its responsibility (U.S. Control Group Council Headquarters n.d.). But some American officials contemplated the possibility of the United States claiming German artworks as reparations for war losses. As described above, Edwin Pauley, advisor on reparations to the U.S. military government and U.S. delegate to the Allied Reparations Commission, wanted to use art for reparations and proposed that both restitution and reparations fall under his authority. President Truman gave his approval both to the USGCC memorandum and to Pauley’s request (Kurtz 1985, 126).

17 18

The Soviet government had returned artworks to East Germany (by then, of course, a Soviet satellite) in 1955 and again in 1958–59. But millions of trophy art objects remained in the Soviet Union. The United States Group Control Council (Germany) was the name given to the U.S. military government in Germany when American troops entered Berlin in July 1945. The name was later changed to Office of Military Government for Germany (U.S.), frequently abbreviated as OMGUS. See Ratchford and Ross (1947).

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As word of the proposed policy spread, opposition quickly emerged from among American MFA&A officers in Europe. John N. Brown, OMGUS Advisor on Cultural Matters, sent a letter to General Clay in early August 1945. Brown contradicted the claim that adequate facilities and staff for caring for the art did not exist in the U.S. zone, and pointed out that packing and shipping the artworks across the Atlantic “would entail a grave risk and responsibility in itself.” Brown also made a telling normative argument: The taking of masterpieces of art . . . which have been part of GERMANY’S national cultural heritage for years past . . . seems to the writer, and to his associates in the MFA&A Branch not only immoral but hypocritical. . . . All through the operational phase of the MFA&A it was constantly said by our officers in the field that the US Army had established this service in order to preserve and protect works of art and not for the purpose of carrying them off to the USA, as was often accused by our Allies as well as by enemy propaganda. To have the German propaganda turn out to be true would indeed be humiliating. (1945b)

In a further memorandum to Clay, sent the following day, Brown reiterated, with respect to the prospect of removing German artworks to the United States, the “strong disapproval of this policy by this Branch” (1945c). In a letter to John Walker,19 Brown declared, “There is practically a mutiny in the MFA&A organization” (1945a). The original USGCC memo had suggested that if art items were shipped from Germany to the United States, “an announcement be made to the public, to include the German people, that these works of art will be held in trusteeship for return to the German nation when it has re-earned the right to be considered as a nation” (Pauley and Clayton 1945). The following month, Pauley received a cable from the Secretary of State, James F. Byrnes, approving the USGCC plan to transfer German art treasures to the United States. Byrne’s message also informed Pauley that the president had authorized the proposed statement “making clear the eventual restoration to Germany of such works of art.” Byrne emphasized the

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Chief curator at the National Gallery, Washington, DC, then visiting the U.S. Embassy in London on behalf of the Roberts Commission.

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reasoning behind such a statement, but also left open the door for some sort of restitution in kind: It is strong opinion of Department that assurance that we are not appropriating German art treasures should be given both our own people and the German people. . . . It is important that U.S. set high standard of conduct in this respect and not expose itself to public criticism which, if it appeared that U.S. was indulging in ‘cultural looting’, would be certain to develop in Germany and in Allied countries. It is our opinion that statement should be issued in Germany by General Clay and here by Department clarifying that German art treasures are being sent to U.S. for safekeeping only, and that, except for such levies as may be made upon them to replace looted articles or irreparably destroyed or damaged personal property, they will eventually be returned intact. (Pauley 1945b, emphasis added)

The following day, Pauley cabled a response to the Secretary of State. The cable contained a proposed statement, reviewed and approved by General Clay (Clay 1945): In connection with the movement of certain art objects to the United States from Germany, the United States Government is moving these to the United States for the sole purpose of safeguarding and is holding them only as trustee for the German people and other rightful owners and will keep them in its possession only as long as it is necessary from the standpoint of physical safety or until the rightful owners may be determined. At that time they will be distributed in accordance with determinations made by the appropriate Allied bodies (Pauley 1945a).

In Washington, DC, a plan to bring German art to the United States was quietly moving forward. The plan initially contemplated shipping all of the Germanowned art in U.S. possession, but given the immensity of such a task, shifted to removing only a selection of items. Finally, on September 26, 1945, the State Department and the National Gallery announced that German artworks would be brought to the U.S. “with the sole intention of keeping such treasures safe and in trust for the people of Germany or other rightful owners” (National Gallery 1945). The British and Russian foreign ministers argued vigorously against the removals (Kurtz 1985, 126–27). Even General Eisenhower requested “clarification . . . inasmuch as British and French policy is to reassemble in their

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original form scattered German collections and to reactivate German museums” (Eisenhower 1945). The MFA&A officers in Germany were ordered to select 200 paintings from among those being stored at the Wiesbaden Collecting Point and to begin preparing them for shipment. The order ignited a revolt among the American monuments personnel. Lieutenant Craig H. Smyth, Officer-in-Charge of the Munich Central Collecting Point, wrote to the Chief of the MFA&A unit, Major L. Bancel La Farge, that the plan was “entirely without justification” and would “only weaken our influence for good in Europe” (Smyth 1945). Thirty-two (out of thirty-five) MFA&A officers either signed or endorsed a strongly worded protest, which became known as the Wiesbaden Manifesto. The Manifesto declared that its signers were unanimously agreed that the shipment of German paintings to the United States would be “neither morally tenable nor trustworthy.” It asserted that facilities and personnel for the protection of works of art were open and functioning in Germany. Furthermore, it pointed out, the Allies were preparing to prosecute individuals for the seizure of cultural treasures under the pretext of “protective custody,” and US personnel would be “no less culpable” in carrying out the removal of the Berlin paintings (Wiesbaden Manifesto 1945). The Manifesto was never forwarded to the Army hierarchy (several MFA&A officers had been reminded that they could be court-martialed for refusing to carry out orders; Flanner 1947, 289), but Janet Flanner, a correspondent for The New Yorker, described the plan in the November 17 issue. She reported that the project was “already regarded in liberated Europe as shockingly similar to the practice of the ERR” (quoted in Nicholas 1994, 395). The shipment of paintings was also intensely controversial in the United States. Newspapers published letters of protest; petitions opposing the transfer arrived at the Roberts Commission and government offices. Former MFA&A officers published the text of the Wiesbaden Manifesto in the Magazine of Art and a highly critical article in the College Art Journal. Ninety–five art historians petitioned President Truman himself.20 Rensselaer W. Lee, president of the College Art Association of America, wrote to Secretary of State Byrnes, noting that “the integrity of United States policy

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A few notable figures from the art museum world, like Francis Henry Taylor (the Metropolitan Museum) and John Walker (the National Gallery) supported the presence of the German paintings in the United States and hoped to acquire German–owned pieces for their galleries; Nicholas (1994).

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has been questioned as a result of this action,” and that adequate facilities and personnel then existed in Germany in the U.S. zone to care for the art treasures (1946). On the other side, a letter in response to Lee recognized that some would question “the integrity of United States policy,” but argued that the President’s promise that the artworks would be returned to Germany should satisfy the critics (Riddleberger 1946). The Roberts Commission issued a press release “strongly condemning” Dr. Frederick Clapp (Director of the Frick Collection) and Juliana Force (Director of the Whitney Museum) and others “who have called into question the good faith of the United States Government in bringing to this country some 200 paintings from German museums” (American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas 1946a). Nevertheless, the 202 Berlin paintings arrived in New York harbor on 6 December 1945. The artworks headed immediately for Washington, DC, where they went into storage at the National Gallery. President Truman subsequently (January 1946) issued an executive order formally transferring responsibility for the paintings from the War Department to the National Gallery (President of the United States 1946). In September 1946, the War Department requested General Clay’s views regarding a return of the paintings in the “immediate future” (United States War Department 1946). Clay responded negatively. He pointed out that if the artworks returned to their home in Berlin, the Soviets might seize them as replacements for art seized and lost by the Nazis. Yet he also feared that if the 202 masterpieces were sent to the U.S. facility at Wiesbaden, the Soviets would see it as a “direct challenge to Soviet good faith” (Clay 1946). By early 1948, General Clay, his duty in Europe nearing an end, was recommending that the 202 paintings be returned to Germany. But there were also demands, including by some members of Congress, that the paintings be displayed to the American public before being sent back. The Army acceded to that sentiment, and the show of German paintings opened at the National Gallery. The exhibition proved wildly popular, attracting nearly a million visitors over five weeks in the spring of 1948. The Senate Armed Services Committee took up the question of returning the paintings, and produced a compromise: fifty of the most fragile pieces would return to Germany immediately; the rest would tour the United States, with any income from the exhibitions to go to a fund for German children (Kurtz 1985, 189; Nicholas 1994, 402). The exhibition traveled to New York, Philadelphia, Chicago, Boston, Detroit, Cleveland, Minneapolis, San Francisco, Los Angeles, St. Louis, Pittsburgh, and Toledo. Ten million people saw the paintings. By the spring of 1949, they were back in Germany (Nicholas 1994, 405). How Norms Change

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Conclusions Nazi plundering in World War II triggered a new turn through the cycle of norm change. The norm against plunder was resoundingly reaffirmed. The Allies studied the relevant history, from Napoleon to the Hague Convention to the Versailles settlements. Years before the war ended, the Allies condemned Nazi cultural plundering and announced their intention to carry out a complete restitution. The arguments as the war wound down centered on the type of restitution to be effected. In particular, the Allies debated whether the countries that had been victims of Nazi plundering should be allowed to take cultural objects from German collections as “restitution in kind” for art treasures that had been lost or destroyed during the war. The Allies did not reach consensus on that question, and, in the end, did not carry out a program of restitution in kind. The only exception was the Soviet Union, which seized hundreds of thousands of German cultural properties. The Soviet justification for the transfers was that the German art objects would compensate the Soviet Union for its cultural losses suffered at the hands of the Nazis. That rationale is revealing: the Soviets did not claim a victor’s right to spoils but rather a right to restitution in kind. The Soviet stance thus demonstrates recognition of the norm against plunder. The restitution effort carried out by the Allies reaffirmed, and therefore strengthened, international norms against plunder and for restitution. But the scale and relentlessness of Nazi plundering had so shocked the world that restitution was not seen as enough. Two postwar developments would further solidify and specify international rules against wartime plundering. First, at Nuremberg, Nazi leaders would be held individually accountable for crimes against cultural property. Second, twenty-two countries would in 1954 sign a Convention for the Protection of Cultural Property in the Event of Armed Conflict. The next chapter evaluates both developments.

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CHAPTER 7

Codifying Norms: Nuremberg and the Hague Rules of war might seem unlikely to survive two cataclysmic world wars. The scale and intensity of the destruction unleashed twice in twenty-five years could have obliterated any hope that international norms could set boundaries to conflict. Yet in the wake of World War I, even as the disillusioned dismissed the prewar peace projects as hopelessly naïve, others turned to the task of creating more effective rules and institutions. The Second World War might have vindicated those who were skeptical, or despairing, of international law. Astonishingly, perhaps, the international reaction was not to give up on rules and institutions altogether, but, once again, to try to devise better ones. The United Nations was the ambitious centerpiece of this effort. Protecting the world’s cultural heritage was one of the goals of the quest for better norms. As they were busily reversing the Nazis’ massive plundering of Europe’s artistic patrimony, the victorious Allies concluded that strengthened international rules could help to avoid a repetition of this unfortunate duty. The basic principles already existed, in the Hague Conventions (see chap. 4), the Roerich Pact (chap. 5), and other documents. After the war, efforts turned to solidifying those principles. Indeed, the Allies moved to reinforce international rules against art plunder. The shocking intensity of German art looting convinced the Allies that the international rules had to be shored up, which meant making them more formal, precise, and, if possible, more authoritative. The drive to accomplish that codification found expression in the Nuremberg prosecutions and in the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. This chapter is thus a continuation of the cycle of norm change that began with Nazi looting during World War II; Figure 7.9 depicts the key features of that cycle (as examined in chap. 6), with the addition of further changes in international rules. 167

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I. Norm context: the Hague Convention, the Versailles settlements, the Roerich Pact

II. Action: the organized, systematic plunder of artistic and cultural objects by the Nazis across Europe; the Allied restitution program

IV. Rule change: Nuremberg verdicts on cultural plundering charges; the 1954 Hague Convention

III. Arguments: debates over individual responsibility for violating antiplunder norms; debates over a new international treaty to strengthen the norms

Fig. 7.9. Cycle of change: Nazi plunder and the codification of norms

Nuremberg The rulings of courts and tribunals are highly formalized; they are announced in specific institutional settings, often with elaborate ceremonial procedures. Court decisions further specify the scope and meaning of rules, and they frequently spell out the terms of their enforcement (penalties). The International Military Tribunal (IMT), which sat at Nuremberg and tried twenty-four top-level Nazi officials, was a landmark in the development and codification of international rules. The Charter of the IMT specified crimes under international law for which individual persons could be held legally accountable; the judgments the Tribunal rendered applied those rules to specific defendants. The Tribunal thus contributed to the development of international norms against wartime plunder by defining, for the first time, individual criminal offenses against cultural patrimony. 168

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Allied planning for an eventual trial of Nazi leaders began well before the liberation of Europe. Representatives of nine occupied countries met in London in January 1942, when the extent of German conquest was near its peak, to issue a joint declaration. The Declaration cited the 1907 Hague Convention regarding the laws and customs of land warfare and asserted that one of the principal war aims of the signing states was “the punishment, through the channel of organized justice, of those guilty of or responsible for” violations of the laws of war. Violence against civilians was the principal crime referred to in the Declaration (United Nations Information Organization 1942, 4–5). President Roosevelt, in a declaration of August 21, 1942, stated that the United States had already been gathering information relative to war crimes committed by the Nazis. He further stated that at the conclusion of the war, the perpetrators of such crimes would “have to stand in courts of law” in the countries they had occupied and oppressed (9). Later that fall, with Germany’s first serious reversals (at Stalingrad and in North Africa) yet to occur, British and American officials both addressed the issue of war crimes trials, though with sharply divergent views. On October 7, 1942, in a presidential declaration, Roosevelt affirmed that the United States was “prepared to cooperate with the British and other governments in establishing a United Nations Commission for the Investigation of War Crimes” (United Nations Information Organization 1942, 10). On the same date, in a debate in the House of Lords, the Lord Chancellor, representing the British government, addressed the question of how to mete justice to the Nazi perpetrators of war crimes. The Lord Chancellor noted that military courts had jurisdiction in such cases, and that such courts, convened by the armies and navies in the field, “might very well turn out to be the bodies that would provide very effective and prompt working tribunals for dealing with many of these horrible cases.” However, he continued, “National Courts” would be “equally entitled to exercise whatever criminal jurisdiction would be conceded to them by International Law.” The British government was skeptical of international tribunals, not least because of the procedural difficulties that would arise, given different national practices. “I think that we shall probably be wise to put our main trust, as far as a tribunal goes, in tribunals which do not call themselves international.” Nevertheless, the Lord Chancellor also announced that the British government supported the creation of the United Nations Commission for the Investigation of War Crimes (11–13). Though they disagreed on the judicial mechanism, the United States and Great Britain had announced their intention to create a United Nations War Crimes Commission, whose purpose would be to collect evidence. Various European How Norms Change

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governments in exile, including the French National Committee, endorsed the proposal.1 The Soviet Union did not but instead set up, in November 1942, the Soviet Extraordinary State Commission to Investigate War Crimes (Harris 1954, 4). The following year, in October 1943, Roosevelt, Churchill, and Stalin signed a joint statement in Moscow affirming that German officials would be tried individually and that some would be “punished by joint decision of the governments of the Allies” (Moscow Conference 1943). In the U.S., the War Department established a War Crimes Office to gather and assess evidence. In each theater of operations, army headquarters created a War Crimes Branch to carry out this mandate. The War Crimes investigators collected much of the documentary evidence later used in the Nuremberg prosecutions (Harris 1954, 8–9). Though the Allies seemed to agree that Nazi leaders would be tried and punished, the mechanisms for doing so were still undefined, in part because national governments had not reached internal agreement. For example, the U.S. government was divided on the issue of punishment for Nazi leaders. During the war, Secretary of State Cordell Hull argued that “the instigators of the war . . . should be promptly hanged,” without a “fancy” or “formal” trial. Secretary of the Treasury Henry Morgenthau, Jr., in a September 1944 letter to President Roosevelt, urged that the allies prepare a list of “the arch criminals of this war,” and that those on the list “be put to death forthwith by firing squads of the United Nations” (quoted in Sprecher 1999, 29–30). Roosevelt was to take Morgenthau’s ideas with him to a conference in Quebec on how to treat Germany after the war. Secretary of War Henry L. Stimson, however, was dismayed by the Morgenthau plan. In a September 9 response to the Morgenthau letter, Stimson wrote: “The method of dealing with these and other criminals requires careful thought and a well-defined procedure. Such procedure must embody, in my judgment, at least the rudimentary aspects of the Bill of Rights.” He argued that the “punishment of these men in a dignified manner consistent with the advance of civilization, will have all the greater effect upon posterity. Furthermore, it will afford the most effective way of making a record of the Nazi system of terrorism and of the effort of the Allies to terminate the system and prevent its recurrence.” These were key elements in Stimson’s case that the United States “should participate in an international tribunal constituted to try” the leading Nazis (Stimson and Bundy 1948, 584). 1

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The Commission met for the first time in London on October 26, 1943, though its official activities did not begin until January 18, 1944. By January 1945, the Commission had registered some 1,000 cases. However, it had also “been widely and publicly criticized for the paucity of the results of its work.” In fact, its British chairman and the Norwegian representative had both quit; United States (1945).

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Stimson was clearly aware of the advantage of establishing rules through formal processes and of the value of creating powerful precedent. An additional memorandum to President Roosevelt, this one signed by Stimson, Edward R. Stettinius, Jr. (then secretary of state), and Francis Biddle (attorney general) outlined the reasons for preferring the “judicial method.” Their reasoning reveals a concern for establishing durable precedent: “Condemnation of these criminals after a trial, moreover, would command maximum public support in our own times and receive the respect of history. The use of the judicial method will, in addition, make available for all mankind to study in future years an authentic record of Nazi crimes and criminality” (Stimson, Stettinius, and Biddle 1945). In other words, American leaders explicitly addressed the establishment of useable precedent. The Stimson-Stettinius-Biddle memorandum informed subsequent U.S. proposals for the IMT (Harris 1954, 10). Stimson organized a war crimes task force within the War Department and chose his assistant secretary, John J. McCloy, to lead it. Judge Samuel I. Rosenman, the president’s personal legal advisor, and Justice Felix Frankfurter, a personal friend of Roosevelt’s, supported Stimson’s case for a tribunal (Sprecher 1999, 31–32). Roosevelt dispatched Judge Rosenman to London in April 1945 to persuade the British to support international trials for Nazi leaders. The British government, however, replied that “execution without trial is the preferable course” (Jackson 1949 [1945]). President Roosevelt died on April 12, 1945, and President Harry Truman pressed forward the case for an international tribunal. He dispatched Rosenman to San Francisco where delegates were meeting to establish a United Nations organization. Rosenman delivered to the British, French, and Soviet representatives a substantial memorandum, laying out the arguments for an international trial as well as basic principles and procedures (United States 1949 [1945]). Truman appointed Supreme Court Justice Robert H. Jackson as the U.S. Chief of Counsel for prosecuting war crimes even before the other great powers had signaled agreement with the proposal. Justice Jackson immediately flew to Europe to confer with the Allies and to discuss with U.S. military commanders some of the practical issues connected to preparing the cases. Upon his return to the United States, Justice Jackson reported to Truman that the British were in accord with the American plan, that the French accepted it in principle, and that though the Soviet Union had not yet made known its position, “there is no reason to How Norms Change

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doubt that it will unite in the prosecution” (Jackson 1945). In fact, the British offered to host a conference of the four major Allied powers (Sprecher 1999, 41), and Justice Jackson represented the United States at the meetings. At the Potsdam Conference (August 1945), the Big Three (Britain, the U.S., and the Soviet Union), referring to the ongoing tribunal discussions, expressed the “hope that the negotiations in London will result in speedy agreement being reached for this purpose, and they regard it as a matter of great importance that the trial of these major criminals should begin at the earliest possible date. The first list of defendants will be published before 1st September” (The Berlin Conference of the Three Heads of Government of the U. S. S. R., U.S.A., and U.K., 1945). Within days (on August 8, 1945), Britain, France, the United States, and the Soviet Union had signed the London Agreement, with its annexed Charter of the International Military Tribunal. The Agreement stipulated that “any Government of the United Nations may adhere to this Agreement,” and nineteen additional countries did (Brownlie 1966, 455; International Conference on Military Trials 1945). Each of the four major powers appointed a judge, an alternate judge, and a prosecution team. The four prosecution staffs divided among themselves the work of preparing indictments against twenty-four Nazi officials and seven Nazi organizations. The indictment (English version) signed by the four lead prosecutors on October 6, 1945, ran to 65 pages (Sprecher 1999, 104). The trial opened at Nuremberg’s Palace of Justice, repaired and modified for the occasion, on November 20, 1945.

The Charter and the indictment The Charter agreed to by the four major powers in London, in August 1945, specified in Article 6 the crimes over which the IMT held jurisdiction. The acts for which individuals could be held individually responsible fell under three headings: crimes against the peace, war crimes, and crimes against humanity. “War crimes” referred to “violations of the laws or customs of war,” and included “plunder of public or private property” (International Conference on Military Trials 1945, Art. 6[b]). The indictment first described all of the charges and later specified which defendants were being accused under which counts. Under Count Three, War Crimes, the “Statement of the Offence” included “(E) Plunder of Public and Private Property.” A list of general categories of crimes included: “8. In further development of their plan of criminal exploitation, they destroyed industrial cities, cultural monuments, scientific institutions, and property of all types in the occupied territories.” The indictment specified the bases in law for the accusations, 172

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namely, that the acts named “were contrary to international conventions, particularly Articles 46 to 56 inclusive of the Hague Regulations, 1907, the laws and customs of war, the general principles of criminal law as derived from the criminal laws of all civilized nations, the internal penal laws of the countries in which such crimes were committed and to Article 6 (b) of the Charter” (International Military Tribunal 1947–1949).2 The document then provided details of the spoliation (“without prejudice to the production of evidence of other cases”). It declared: “There was plundered from the Western Countries, from 1940 to 1944, works of art, artistic objects, pictures, plastics, furniture, textiles, antique pieces, and similar articles of enormous value to the number of 21,903.” Under the heading “Looting and Destruction of Works of Art,” the indictment mentioned thefts from the museums of Nantes, Nancy, and Marseilles. “Private collections of great value were stolen. In this way Raphaels, Vermeers, Van Dycks, and works of Rubens, Holbein, Rembrandt, Watteau, Boucher disappeared. Germany compelled France to deliver up ‘The Mystic Lamb’ by Van Eyck, which Belgium had entrusted to her.” The section dealing with the “Eastern Countries” was somewhat more detailed. “The Germans destroyed 427 museums, among them the wealthy museums of Leningrad, Smolensk, Stalingrad, Novgorod, Poltava, and others.” The indictment mentioned the seizure of cultural objects from Kiev and Riga, as well as Estonia and Czechoslovakia. It accused the Germans of approaching “monuments of culture, dear to the Soviet people, with special hatred,” citing the damage inflicted on the estates and museums of Pushkin, Tolstoy, and Tchaikovsky (International Military Tribunal 1947–1949). In short, the indictment devoted significant attention to crimes against cultural property. Appendix A of the indictment contained a “Statement of Individual Responsibility” for the crimes described in the four counts. Twenty of the twenty-four individual defendants were charged with offenses under Count Three (War Crimes). Appendix B listed six criminal groups and organizations accused of responsibility for various Nazi crimes; membership in any of these six organizations was also sufficient to trigger individual guilt. All six groups were accused of crimes under Count Three. 2

The version cited here is the web-based copy of the Trial of the Major War Criminals, produced by the Avalon Project at the Yale Law School. Citations will include the volume number and, when they are included in the web-based documents, page numbers (corresponding to page numbers in the printed volumes).

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The prosecution’s case In their oral presentations before the court, the prosecutors fleshed out the accusations with details and evidence. Arguments regarding the plundering of cultural treasures appeared during several phases of the trial, but they were first introduced by the American prosecutors. Drexel Sprecher, an assistant trial counsel for the United States, later reported that Nazi plunder of art works had been “a central concern of the American Prosecution from the time of the discovery of the documents of the Defendant Alfred Rosenberg in July 1945.” In fact, the U.S. prosecution staff drafted a brief on “The Plunder of Art Treasures” before the issuance of the indictment (Sprecher 1999, 403). In advance of the trial, the prosecutors had agreed on a division of labor, in which the American team would take the lead in presenting the Allied case on Count One, the “Common Plan or Conspiracy.” Colonel Robert G. Storey, in midDecember 1945, was offering evidence against the Leadership Corps of the Nazi Party. As part of that case, Storey argued that “it is another evidence of crime that the Leadership Corps of the NSDAP was responsible for the plundering of art treasures by the defendant Reichsleiter Rosenberg’s ‘Einsatzstab Rosenberg.’” He told the court that detailed evidence of Nazi plundering would be presented in subsequent portions of the trial and that he would demonstrate that the plunder of public and private property was part of the Nazi plan: “I would bring to the attention of the Tribunal and of the world the defendants’ vast, organized, systematic program for the cultural impoverishment of virtually every community of Europe and for the enrichment of Germany thereby” (International Military Tribunal 1946–51a, vol. 4, 77–78). Storey began by presenting evidence regarding Nazi plundering of cultural objects in occupied Poland. That portion of his case occupies about four pages of the transcript of the trial proceedings. Colonel Storey then shifted to the Einsatzstab Rosenberg (ERR). He introduced his presentation by comparing Europe to a “treasure-house” containing “the artistic and literary product of two thousand years of Western civilization.” He invited the court to “envision the forcing of this treasure-house by a horde of vandals bent on systematically removing to the Reich these treasures, which are, in a sense, the heritage of all of us, to keep them there for the enjoyment and enlightenment of Germans alone” (International Military Tribunal 1946–51a, vol. 4, 81, my emphasis). Storey thus echoed the argument that emerged in earlier episodes, namely, that cultural monuments were not just the property of the country where they were owned, but constituted a common 174

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heritage of all people. The presentation of evidence regarding the ERR—which included the projection of photographs of thirteen artistic treasures looted by the Nazis—fills approximately eleven pages of the trial transcript. Storey several times referred the judges to their copies of a volume of captured German documents, collected by the U.S. team. The French prosecution team, according to the division agreed before trial, was in charge of Counts Three and Four (War Crimes and Crimes Against Humanity), with respect to Western Europe. On the fifty-second day of the trial, in early February 1946, French assistant prosecutor Charles Gerthoffer began to present the case concerning the pillage of art works. Though Gerthoffer included evidence of Nazi art plundering in Belgium, Luxembourg, and the Netherlands, his primary focus was, of course, France. His presentation covers over twenty pages of the trial proceedings (International Military Tribunal 1946–51a, vol. 7, 51–71). Gerthoffer argued that the many collections the Nazis seized from Jewish families were private property and that they “always remained guaranteed by the clauses of the Hague Convention and especially by Article 46” (70), thus reinforcing the Hague conventions as an expression of international rules. Prosecutor Pierre Mounier returned to the case on art plunder the following day for the purpose of establishing the individual guilt of Rosenberg and Goering (80–84, 94–95). The Soviet delegation shouldered the task of presenting the counterpart to the French case, that is, War Crimes and Crimes Against Humanity that occurred in Eastern Europe. General R. A. Rudenko, the Soviet Chief Prosecutor, in his opening statement on February 8, 1946, quoted from the Hague Convention, Article 56, which prohibits seizure, damage, or destruction of institutions dedicated to “religion, charity and education, the arts, and sciences,” as well as to “historic monuments” and “works of art and science.” Rudenko presented details of German seizure and destruction of cultural monuments, and pinned responsibility for these crimes on Goering, Ribbentrop, and Rosenberg (International Military Tribunal 1946–51a, vol. 7, 187–88). L. R. Shenin (on February 20, 1946) addressed cultural properties in his account of Nazi crimes in Czechoslovakia. He included a brief, but revealing, anecdote from the German invasion. Hitler himself had entered Czechoslovakia on the day that German troops crossed the border. Rudenko read from an official report prepared by the Czechoslovak Government: “Hitler entered Prague at nightfall on 15 March 1939, and spent the night there in the famous Hradschin castle. How Norms Change

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He left on the following day, taking with him a number of valuable tapestries. We mention this robbery not because of the value of the stolen objects, but as an example set by the head of the Party and of the German State on the very first day of invasion.” And further: “Valuable objects of art and furniture disappeared from public buildings, without even an attempt at any legal justification of such robbery; pictures, statues, tapestries were taken to Germany. The Czech National Museum, the Modern Art Gallery, and public and private collections were plundered” (International Military Tribunal 1946–51a, vol. 8, n.p.). M. Y. Raginsky further developed the case regarding cultural properties. He began by emphasizing the seriousness of crimes regarding cultural properties: “May it please Your Honors, among the numerous and grievous war crimes committed by the Hitlerite conspirators—crimes enumerated in detail in Count Three of the Indictment—crimes against culture occupy a definite place of their own. These crimes expressed all the abomination and vandalism of German fascism.” Raginsky argued that the Nazi assault on cultural objects and institutions was not merely impulsive vandalism, but rather that “the destruction of the national culture of the peoples in the occupied territories was a fundamental part of the general plan for world domination established by Hitler’s conspirators.” Article 56 of the Hague Convention was once again cited as the relevant rule. Raginsky’s presentation lasted the full day of February 21, 1946, as he detailed Nazi cultural depredations in Russia, Ukraine, Byelorussia, Poland, Latvia, Lithuania, and Estonia (International Military Tribunal 1946–51a, vol. 8). In sum, the American, French, and Soviet prosecutors all devoted substantial attention to Nazi crimes against cultural property. The plundering and destruction of museums, collections, libraries, and archives was, according to the accusers at Nuremberg, part of the Nazi plan to enhance the superiority of Germany by diminishing, if not annihilating, the cultural heritage of its victims. It was also, the Allied counsel argued, a punishable violation of the Hague Convention.

The judgment Closing arguments by the prosecutors concluded on August 30, 1946. The following day the defendants, as provided in the Charter, were given a chance to make final statements before the Tribunal. Twenty-one defendants were present at the trial, and each of them elected to address the court. When the accused had spoken, the Tribunal adjourned for one month, while the judges considered their verdicts. 176

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On September 30, 1946, a packed courtroom listened as the members of the Tribunal began to read out their judgment. The reading lasted through that day and the next. The judgment first addressed the general counts in the indictment. Under the heading “Pillage of Public and Private Property” it cited the Hague Convention and quoted Article 56 in its entirety (International Military Tribunal 1946–51a, vol. 22, 481). The judgment declared that “in addition to the seizure of raw materials and manufactured articles, a wholesale seizure was made of art treasures, furniture, textiles, and similar articles in all the invaded countries.” The Einsatzstab Rosenberg “conducted its operations on a very great scale. Originally designed for the establishment of a research library, it developed into, a project for the seizure of cultural treasures” (484). Various German organizations, including Rosenberg’s ERR and Ribbentrop’s “special battalion,” systematically pillaged cultural objects in the occupied countries and sent them by the trainload to Germany (485). Following the general decisions, the judges read out the individual verdicts. Goering, the first named in the indictment, was convicted of war crimes and crimes against humanity. He was guilty as “the active authority in the spoliation of conquered territory.” Though Goering had been at the center of Nazi art plundering networks in France and elsewhere, the Nuremberg judgment mentions only industrial and agricultural looting (International Military Tribunal 1946–51b, Judgement, Goering). Keitel too was judged guilty of war crimes and crimes against humanity. Among them, he “directed the military authorities to cooperate with the Einsatzstab Rosenberg in looting cultural property in occupied territories” (Judgement, Keitel). Rosenberg himself, of course, was also convicted: “Rosenberg is responsible for a system of organized plunder of both public and private property throughout the invaded countries of Europe . . . . [H]e organized and directed the ‘Einsatzstab Rosenberg,’ which plundered museums and libraries, confiscated art treasures and collections, and pillaged private houses” (Judgment, Rosenberg).

The significance of Nuremberg The Nuremberg effects are still visible, rippling through the pool of international norms.3 The Charter and the Judgment affirmed existing international rules, espe-

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The Allies had near the end of the war sent Monuments and Fine Arts officers into the field to investigate Japanese plundering and destruction of cultural treasures, and the Indictment for the Trial of Japanese

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cially with respect to the laws of war. More important, the IMT gave those rules concrete application, to specific individuals, for the first time in an international court. Nuremberg was also a crucial impetus to the further development of international law. Two months after the conclusion of the Nuremberg trial of the major war criminals, the United Nations General Assembly unanimously approved a resolution affirming “the principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal” (United Nations General Assembly 1946). General Assembly resolutions do not create international law. However, when General Assembly resolutions declare general principles of law or specific rules, they are frequently regarded—by scholars, courts, and governments—as evidence of customary international law or of a general principle of law (common to all or most countries). This is especially the case when a resolution passes without opposition, as the Nuremberg affirmation did (Damrosch, et al. 2001, 145–46). The following year, the General Assembly asked the International Law Commission (ILC) to enumerate the international rules that, in its judgment, had been established or confirmed by the IMT Charter and the work of the Tribunal. The General Assembly had established the ILC as a body of legal experts (not representing national governments) and charged it with the “promotion of the progressive development of international law and its codification” (United Nations General Assembly 2005 [1947]: Art. 1[1]). The reports and draft conventions submitted by the ILC to the General Assembly are widely regarded as significant distillations of existing international law and credible indicators of the direction of its “progressive development” (Schachter 1991, 66–70). Pursuant to the General Assembly request, the ILC submitted in 1950 its “Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal.” The document, under “B. The Crimes,” listed “plunder of public or private property” under the “war crimes” heading (Spiropoulos 1950, 195). The Commission’s assessment also became the basis for its 1951 Draft Code of Offenses against the Peace and Security of Mankind (Harris 1954, 564).4

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War Criminals did include “plundering of public and private property” and “Destruction of Enemy Property, without military justification or necessity, and Pillage”; United States Department of State (1946). Still, crimes against cultural objects did not figure in the Tokyo trials themselves. For accounts of those trials, see Brackman (1987) and Röling (1993). Nuremberg inspired the further development of international norms in multiple other ways. The Nuremberg Tribunal was a precursor of the General Assembly’s resolution on genocide (Resolution 96[I],

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Perhaps even more important, the Nuremberg trials established a model for more recent international tribunals, which also possess jurisdiction over cultural property crimes. For instance, the the U.N. Security Council in May 1993 created the International Criminal Tribunal for the Former Yugoslavia (United Nations Security Council 1993). Its jurisdiction covers grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war, genocide, and crimes against humanity. The list of violations of the laws of war includes crimes against cultural property, in language echoing both the 1907 Hague Convention and the Nuremberg Charter: “(d) seizure of, destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science; “(e) plunder of public or private property.” (United Nations 2006: Art. 3)

Finally, the Nuremberg Tribunal is in a real sense a progenitor of the International Criminal Court. The UN General Assembly, in its 1948 resolution on genocide, had asked the ILC to study the possibility of a permanent international criminal tribunal. The project lay dormant from 1953 until 1989 when the General Assembly asked the ILC to revisit the idea. The ILC presented a draft statute in 1994. The Statute for the International Criminal Court (ICC) was signed by 120 countries at a conference in Rome in July 1998 and came into force with the sixtieth ratification on July 1, 2002. The Statute established the ICC’s jurisdiction over the crime of genocide, crimes against humanity, and war crimes. War crimes include, following the Hague Convention, “intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, [and] historic monuments”; “destroying or seizing the enemy’s property”; and “pillaging a town or place” (United Nations 2003).5

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December 11, 1946), the Genocide Convention, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity” (1970, United Nations Treaty Series, No. 10823, vol. 754, 73), and the General Assembly resolution on “Principles of International Co–operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity” (Resolution 3074, December 3, 1973). The Nuremberg trials were also an important impetus to the further development of the Geneva Conventions (four conventions signed in August 1949) and the Additional Protocol of 1977. This provision covers both international conflicts (Art. 8.2[b][ix, xiii, xvi]) and internal wars (Art. 8.2[e][iv, v, xii]).

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In short, the legacy of Nuremberg has been far-reaching, both in the substance of international law and in the creation of international courts. Three defendants at Nuremberg were convicted of plundering the artistic and cultural treasures of occupied countries. The statutes of the ICTY and of the ICC explicitly reaffirm norms against the seizure or destruction of cultural properties. But the most comprehensive protection given to the world’s cultural heritage in wartime is the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict.6

The 1954 Hague Convention During the Second World War major portions of the cultural heritage of numerous countries had suffered damage, destruction, and dislocation. When the fighting ended, the extent of the losses to artistic and historic monuments could be contemplated, and attention turned once again to reinforcing international rules. By 1954, a new treaty, devoted specifically to preserving artistic treasures from the ravages of war, was in place. The first steps toward the 1954 Convention actually were taken before the war was over. Beginning in 1942, representatives of European governments allied against Nazi Germany met in the Conference of Allied Ministers of Education (CAME). The CAME began meeting in 1942 and in April 1944 had established the Vaucher Commission, charged with gathering information on losses of cultural properties in the occupied countries (see chap. 6). Another CAME initiative was the proposal for a United Nations Conference for the creation of an educational and cultural organization. At the conclusion of that conference, on November 16, 1945, thirtyseven countries signed the Constitution of the United Nations Educational, Scientific and Cultural Organization (UNESCO). UNESCO came into being about one year later, upon ratification by twenty states (UNESCO 2004). It became one of the major UN specialized agencies, with its own secretariat and General Conference. At the fourth session of the UNESCO General Conference, in 1949, the Dutch delegation proposed that the organization pay special attention to “the defense of all properties of cultural value, notably those that are preserved in museums, libraries, and archives, against the foreseeable dangers of armed conflicts”

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More briefly, the 1954 Hague Convention.

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(Conférence Intergouvernementale sur la Protection des Biens Culturels en cas de Conflit Armé 1961, 102). The Conference instructed the Secretary General to report on measures for protecting cultural monuments, and directed that “particular attention . . . be given to arrangements for the protection of all objects of cultural value . . . against the probable consequences of armed conflict” (UNESCO 1950b, 1). The Secretariat commissioned a study, which reviewed the World War I experience, the cultural property provisions of Versailles, the draft treaty on aerial warfare (1923), and the International Museums Office draft treaty for the protection of monuments and works of art in war. The study also recommended specific provisions that should be included in any new convention on the subject (UNESCO 1950a). Italy subsequently prepared and submitted to the General Conference in 1950 a draft treaty, which served as the basis for international discussions (UNESCO 1950a). A Committee of Government Experts further developed the early Italian paper in 1952, and a working group commissioned by the General Conference prepared the draft convention circulated among the governments for comment in 1953 (Conférence Intergouvernementale sur la Protection des Biens Culturels en cas de Conflit Armé 1961, 102; Toman 1996, 21–23). A conference for agreeing upon a final text opened at the Peace Palace at the Hague on 21 April 1954. Fifty-six countries sent representatives. Several of the delegates to the 1954 Hague conference had worked during and after the war directly on the protection and recuperation of artistic treasures. Carl W. A. Schurmann, of the Netherlands, elected president of the conference, had been military commissioner for Limbourg in 1944, when the Rijksmuseum treasures were stored in that area. He had also dealt with protection of art works as military commissioner for Northern Netherlands and as a member of the Dutch military mission in Germany, in 1946, which was in charge of recovering art works taken from the Netherlands during the occupation (Conférence Intergouvernementale sur la Protection des Biens Culturels en cas de Conflit Armé 1961, 103). Sumner McKnight Crosby (USA), vice chairman of the U.S. delegation, had been a member of the Roberts Commission and represented it in Europe, working with the Army command and the MFA&A staff. Rose Valland (France) had worked courageously to gather and pass on to the Resistance information concerning shipments of confiscated art to Germany (see chap. 6). The single most troublesome substantive issue at the conference was the notion of “military necessity.” The draft convention proposed to the Conference by UNESCO expressed, in Article 4, the general obligation to respect cultural properties, both within a country’s own territory and within that of another contracting state. How Norms Change

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The Draft Convention also included language creating an exception for “imperative military necessity” (Conférence Intergouvernementale sur la Protection des Biens Culturels en cas de Conflit Armé 1961, 385; Toman 1996, 77). One view held that explicit mention of the military necessity exception would weaken the rules obligating parties to refrain from military actions that might expose cultural property to damage or destruction. The opposing perspective argued that the military necessity clause merely recognized practical realities, and that it would allow more countries to ratify the treaty and would prevent military commanders from dismissing the rules as impractical and unusable. Ecuador, Greece, and the Soviet Union proposed eliminating the words “military necessity” from Article 4. San Marino offered an even more radical amendment, which would have established the obligation to respect cultural property “however important military necessity may be” (Conférence Intergouvernementale sur la Protection des Biens Culturels en cas de Conflit Armé 1961, 386). Proponents of both views cited earlier documents expressing international norms regarding cultural properties. Colonel Perlham, speaking for the United States, referred to the Lieber Code, issued to the Union Armies in 1863, and the Nuremberg Tribunal in arguing that without the military necessity clauses, the Convention would be militarily inapplicable (Conférence Intergouvernementale sur la Protection des Biens Culturels en cas de Conflit Armé 1961, 142–43). The Greek delegate recognized that the Lieber Code had been the basis for all subsequent texts, but also pointed out that the relevant articles of the Hague Convention did not make their prohibitions conditional on military necessity (Conférence Intergouvernementale sur la Protection des Biens Culturels en cas de Conflit Armé 1961, 143). The Soviet delegate remarked that the 1949 Geneva Convention did not contain any exception for military necessity (in Arts. 19 and 22, on the protection of hospitals and medical facilities and ships), and argued that the Geneva Convention was of “sufficient weight” to be a point of reference (Conférence Intergouvernementale sur la Protection des Biens Culturels en cas de Conflit Armé 1961, 143–44). The representative from Cuba responded that even the Geneva Conventions (I, Art. 50, and common to the other three 1949 Conventions) did allow for the destruction of otherwise protected goods and facilities in case of military necessity (Conférence Intergouvernementale sur la Protection des Biens Culturels en cas de Conflit Armé 1961, 153). During the debates, Byelorussia, Greece, Hungary, Poland, Romania, the Soviet Union, and Ukraine spoke in favor of eliminating the military necessity clause. In fact, the Greek and Romanian delegates argued that including the exception 182

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for military necessity would amount to a step backward in international law (Conférence Intergouvernementale sur la Protection des Biens Culturels en cas de Conflit Armé 1961, 143, 147). Turkey, the Netherlands, Britain, Switzerland, Australia, Belgium, Ireland, Spain, Israel, and Cuba endorsed the U.S. point of view. Among their arguments was the point that without the military necessity clause, the Convention would be impossible to apply and would therefore provide less protection to artistic treasures. Some states (Australia, Israel, Switzerland) also contended that if military necessity were removed from the treaty, many states would be unable to ratify it (Conférence Intergouvernementale sur la Protection des Biens Culturels en cas de Conflit Armé 1961, 118, 124, 149).7 In the end, the radical San Marino amendment (to exclude military necessity as permitting any exceptions to the general protections in Art. 4) was rejected, with twentytwo votes against, six in favor, ten abstentions, and eight absent. The motion to delete any mention of military necessity from Article 4 also lost by twenty-two votes against to eight in favor. By a similar tally, the delegates voted to retain the military necessity clause in Article 11 (which dealt with special protections for cultural properties of very high importance). The Conference did vote to omit from the preamble any reference to military necessity (by 26 votes to 4, with 7 abstentions and 6 absent); the preamble was intended to express the essential principles of the convention, and military necessity was therefore not an essential principle of the convention (Conférence Intergouvernementale sur la Protection des Biens Culturels en cas de Conflit Armé 1961, 156–57, 212–13, 204–205). The final text of the Convention, ready for signing on May 14, 1954, declared in its preamble that “damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind.”8 “Cultural property” for purposes of the treaty covered movable and immovable property “of great importance to the cultural heritage of every people,” as well as buildings housing such objects and areas containing a concentration of cultural monuments or buildings. Parties to the Convention committed themselves to prepare in peacetime for the protection of their own cultural treasures in the event of war (Art. 3). During hostilities, state parties to the Convention were obligated to “refrain from

7 8

The Israeli and Swiss arguments were delivered during the discussion of the Preamble (not Art. 4) but referred to the possibility of removing all mention of military necessity from the Convention. The texts of the Convention, the Regulations for the Execution of the Convention, and the First Protocol are available online at the UNESCO website, at http://portal.unesco.org/en/ev.php-URL_ID=13637& URL_DO=DO_TOPIC&URL_SECTION=201.html. They are also reproduced in Toman (1996), in Annexes III–IV.

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any act of hostility, directed against such property” and to refrain from using any cultural site or its surroundings “for purposes which are likely to expose it to destruction or damage in the event of armed conflict,” whether in their own territory or in the territory of another party (Art. 4[1]). The parties also undertook “to prohibit, prevent, and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property” (Art. 4[3]). They were also forbidden from seizing cultural property in the territory of another state party (Art. 4[3]). The Convention included a “distinctive emblem” that states could use to mark cultural property sites. Parties to the Convention should also include in their military regulations provisions that would “ensure observance of the present Convention,” and train special personnel “whose purpose will be to secure respect for cultural property” (Arts. 6, 7). States could also place under “special protection a limited number of refuges intended to shelter movable cultural property” and “centres containing monuments and other immovable cultural property of very great importance.” Such refuges and centers must be entered in an International Register (Art. 8). The 1954 conference also produced a Protocol for the Protection of Cultural Property in the Event of Armed Conflict. The purpose of the Protocol was to prohibit the exportation of cultural objects from occupied territories. State parties to the Protocol must also take custody of cultural property imported, directly or indirectly, into their territory from an occupied country. At the end of hostilities, states must return to the authorities of the territory previously occupied any cultural properties that had been illegally exported from that territory. A state that failed to prevent the exportation of a cultural object must pay an indemnity to the most recent “holders in good faith” of that object after it had been returned. The Protocol was a response to the widespread forced sales and extortions of paintings and other cultural properties that occurred during World War II. Many such objects were subsequently sold and resold under a veneer of legality, and ended up in museums or private collections around the world, including in the United States. In fact, such artworks have been the object of litigation in U.S. courts (to be discussed in chap. 9). Some states at the conference wanted the Protocol’s rules on restitution to be included in the Convention itself; others proposed that the Protocol require private parties to return illegally exported artworks. Neither suggestion survived the conference. The Protocol is therefore public law only, creating obligations for states (Toman 1996, 339–44). When the Hague conference concluded on May 14, 1954, representatives of thirtyseven states signed the Convention for the Protection of Cultural Property in the 184

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Event of Armed Conflict, along with the Regulations for its Execution. Delegates from twenty-two countries signed the Protocol (Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict 1961, 83–85). Both the Convention and the Protocol entered into force in August 1956. The United States signed the Convention in May 1954 but did not ratify it. The U.S. Army Chief of Staff at the time approved of the Convention, but the other Chiefs of Staff did not, and the government decided not to pursue ratification. Canada and the United Kingdom, at the urging of the United States, also declined to ratify (Boylan 1993, 103–104). As of mid–2006, 115 countries had either ratified or acceded to the Convention (including Canada in 1998)(UNESCO 2006a) and 93 states had adhered to the Protocol (UNESCO 2006b). However, neither in 1954, nor at any time since, did the United States express objections to the substantive provisions of the Convention. Its reticence about ratification had other grounds, related to the Cold War. In 1972, Anne Coffin Hanson, president of the College Art Association of America, transmitted to President Richard Nixon the Association’s resolution urging the U.S. government to submit the 1954 Hague Convention for ratification. The resolution asked for “a full and public explanation of the military and security considerations which have caused the Secretary of Defence [sic] to oppose its ratification.” A reply came from Ronald J. Bettauer, a State Department attorney. Bettauer wrote, “The major difficulty is that adherence to the Convention would seriously limit the options of the United States in the event of nuclear war or even in some cases of conventional bombardment” (both letters are reproduced in Merryman and Elsen 1998, 56–57). Apparently, the Department of Defense was concerned “that the Kremlin would be designated for special protection to make it immune from attack” (Eirinberg 1994, 27–28). The Kremlin never did receive that designation. In fact, special protection for the Kremlin was ruled out by Chapter II of the Convention (see also Merryman and Elsen 1998, 52; UNESCO 1954). The Bettauer letter also stated that the United States complied in practice with the Convention’s requirements. In other words, the United States did not object to the requirements of the treaty as such, but only to the possibility that becoming a party might later inhibit the U.S. ability to conduct nuclear war against the Soviet Union. Of course, the United States would, presumably, only undertake nuclear war in a case of imperative military necessity, and the military necessity clause was already written into the accord. Furthermore, in the event of nuclear war, the destruction of cultural treasures would probably be far down the world’s list of concerns. How Norms Change

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In the early 1990s, the U.S. government again contemplated ratification of the 1954 Hague Convention. Several changes in the international context led up to the U.S. reconsideration of the treaty: 1. The reduced threat of nuclear war following the collapse of the Soviet Union; 2. Technological developments improving the accuracy of U.S. weapons (laser guided bombs and other “precision” munitions) and reducing the danger of collateral damage; 3. The desire to hold perpetrators accountable for offenses against cultural property in the wars in the ex-Yugoslavia and the Persian Gulf (Eirinberg 1994, 28). More immediately, the Senate Appropriations Committee in mid–1991 considered reports of damage that American bombing may have inflicted on historic and archaeological sites in Iraq during that year’s Persian Gulf War. In its September 1991 Report, attached to the Defense Appropriation Bill for 1992, the Committee asked the Departments of Defense and State jointly to review policies and international treaties relating to the protection of natural and cultural heritage during war. The following January, a Defense-State panel submitted the requested report and informed Congress that the government was reconsidering ratification of the 1954 Hague Convention (Eirinberg 1994, 28). President William Clinton transmitted the 1954 Convention to the Senate, for its advice and consent, on January 6, 1999 (along with the 1954 Hague Protocol and the 1977 Protocol II Additional to the Geneva Conventions). The Department of State and the Department of Defense both recommended ratification (United States Senate 1999). Before the treaty could come before the Senate for ratification, it had to pass through the Committee on Foreign Relations; that committee, however, has so far declined to act on the treaty. In short, as of 1999, the White House and the Departments of State and Defense had concluded that nothing in the 1954 Convention posed an obstacle to U.S. ratification.

Related developments in international law During the 1970s, several new conventions and protocols included provisions relevant to the protection of cultural objects in wartime. One set of developments 186

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took place under the auspices of UNESCO and dealt with broad issues related to preserving the artistic and cultural patrimony of countries. The second set occurred within the Geneva process of building rules of international humanitarian law.

The UNESCO Conventions UNESCO decided in the 1970s to confront two major challenges. One concerned the removal, often clandestine, of archaeological and ethnological artifacts or of important artworks from their countries of origin in order to sell them to museums or collectors. The other challenge focused on the preservation of immovable cultural property, that is, buildings, complexes and sites of significant artistic or cultural value. New conventions dealt with both problems. The UNESCO General Assembly in November 1970 adopted the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property. The purpose of the treaty is to curtail trafficking in cultural artifacts that countries regard as part of their cultural patrimony. Under the 1970 Convention, “illicit” imports, exports, and transfers of ownership are those that occur in violation of any applicable national laws. However, the 1970 Convention also contains one provision relevant to the aims of the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. Article 11 provides prohibits forced transfers pursuant to war and occupation: “The export and transfer of ownership of cultural property under compulsion arising directly or indirectly from the occupation of a country by a foreign power shall be regarded as illicit” (also reproduced in Toman 1996, 453–85; UNESCO 1970). By mid-2004, 104 states were parties to the 1970 Convention (UNESCO 1970: “States parties”). Two years later, the UNESCO General Conference adopted another convention with relevance to cultural property. The 1972 Convention for the Protection of the World Cultural and Natural Heritage differed from existing accords in two major respects. First, it only covered cultural objects with a fixed location (immovable property), like monuments, buildings, complexes, and sites. Second, it also aimed to protect natural sites of outstanding importance. The mechanisms for enhancing protection for cultural and natural sites are the World Heritage List and the List of World Heritage in Danger. Primary responsibility for the preservation of sites on the World Heritage List rests with national governments, but sites on the danger list can be eligible for assistance from the World Heritage Fund, How Norms Change

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also established by the 1972 Convention (also reproduced in Toman 1996, 469–85; UNESCO 1972). As of mid-2004, 178 states were party to the Convention (UNESCO 1972: “States parties”). The World Heritage List included some 788 sites (611 of them deemed “cultural”); examples of places on the register include Angkor in Cambodia, the Summer Palace in Beijing, the Grand Place in Brussels, Aksum in Ethiopia, the Great Barrier Reef, Venice and its lagoon, and Yosemite National Park. The World Heritage Committee in July 2004 had thirty-five sites on the Danger List, among them Timbuktu, the city of Bam in Iran, and Everglades National Park (U.S.; UNESCO 2006c).

The Geneva Protocols An international conference at Geneva in 1977 produced two Additional Protocols to the 1949 Geneva Conventions. Both included provisions directly relating to the treatment of cultural property during war. The First Additional Protocol relates to international wars. In Article 53, it prohibits “any acts of hostility directed against the historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples,” the use of “such objects in support of the military effort,” and making “such objects the object of reprisals” (International Committee of the Red Cross 1977b). The Second Additional Protocol focuses on protections for the victims of noninternational armed conflicts. Article 16 of the Second Additional Protocol parallels Article 53 of the First, with identical prohibitions (except that on reprisals) (International Committee of the Red Cross 1977a). In contrast with the 1954 Convention, the two Additional Protocols to the Geneva Conventions make no mention of exceptions justified by military necessity. The 1977 conference also approved a resolution urging “States which have not yet done so to become Parties” to the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. The two Additional Protocols entered into force in December 1978. As of mid-2006, 165 countries were parties to Protocol I (International Committee of the Red Cross 2006b) and 161 were parties to Protocol II (International Committee of the Red Cross 2006a), compared with 193 states parties to the 1949 Geneva Conventions. The United States signed both Additional Protocols, but has ratified neither. The diplomatic conference that produced the Additional Protocols to the 1949 Geneva Conventions also considered, in an ad hoc committee, restrictions on the use of some conventional weapons. When the ad hoc committee was unable to agree on a proposal, the conference adopted a resolution calling for a new conference devoted to conventional weapons, to be held by 1979. The United Nations 188

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Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons (CCW) opened in September 1979, with a second session following a year later. Participating states reached agreement on a convention and three protocols, which were opened for signature in April 1981. The Convention on CCW entered into force in December 1983 (Roberts and Guelff 1989, 471–72); it currently has one hundred state parties (International Committee of the Red Cross 2006c). Protocol II to the Convention on CCW includes in Article 6 a prohibition relevant to cultural property. It reads in part: “It is prohibited in all circumstances to use . . . (b) booby-traps which are in any way attached to or associated with . . . (ix) historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples” (International Committee of the Red Cross 1980; Roberts and Guelff 1989, 473–89). Though the Convention and its Protocols originally applied only to international conflicts, an amendment of December 2001 extended their coverage to noninternational wars as well (International Committee of the Red Cross 2006d).

Conclusions The 1954 Convention was the first broadly international treaty specifically dedicated to the protection of cultural objects during wartime (the earlier Roerich Pact included only a small number of western hemisphere countries). As preceding chapters have shown, the basic norms articulated in the Convention were not new. Vattel and other writers argued in the 1700s that cultural and artistic treasures deserved privileged status, different from ordinary property. That idea evolved into an international norm via a dialectic process driven by events and responses to them. French art looting during the Napoleonic Wars led to intense debates about the legitimacy of such seizures; the European powers agreed (largely, though not unanimously) that the stolen artworks had to be returned. The destruction of important monuments during World War I motivated new efforts to strengthen international norms protecting cultural treasures during war. The upshot was the Roerich Pact and a treaty project sponsored by the League of Nations. As this chapter, and the preceding one, have shown, the massive Nazi looting of art during the Second World War convinced many that the international rules needed to be fortified. The Allies carried out an extensive restitution program, and the Nuremberg Tribunal held Nazi leaders accountable for crimes against cultural heritage. The 1954 Hague Convention was the capstone of postwar efforts to solidify international antiplunder norms. How Norms Change

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The 1954 Convention also brought into formal international law the notion that the masterpieces of artistic creation are a common heritage of humanity. Vattel had intimated such a conception: “For whatever cause a country could be devastated, those buildings should be spared which are an honor to the human race and which do not add to the strength of the enemy, such as temples, public buildings, and all the edifices of remarkable beauty . . . . It is the act of a declared enemy of the human race thus wantonly to deprive men of these monuments of art and models of architecture” (Vattel 1916 [1758], 293). The same notion repeatedly appeared in subsequent periods. The preamble to the 1954 Convention, in contemporary language and in the context of an international treaty, asserted the same idea: “The High Contracting Parties . . . being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world”. The conventions and protocols signed in the 1970s and since have created a normative web tying the 1954 Convention on the Protection of Cultural Property in the Event of Armed Conflict to other areas of international law. The protection of cultural and artistic treasures in wartime is now linked to broader norms regarding the transfer of moveable cultural objects (the 1970 UNESCO Convention), the preservation of immovable cultural property (the 1972 UNESCO Convention), the protections attached to civilians in international conflicts (Additional Protocol I to the 1949 Geneva Conventions) and internal wars (Additional Protocol II), and to prohibitions on specific conventional weapons (1980 Convention on CCW). This network of rules may raise technical legal questions because there are differences across the treaties in the definition of key terms, in the nature of the obligations established, and in the states participating. But the connections across international agreements also reinforce, for a broader set of states in an expanded range of contexts, the fundamental norm that cultural objects are to be immune from seizure, damage, and destruction in times of war.

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CHAPTER 8

War in the 1990s: Crimes against Cultural Heritage A constant, ubiquitous feature of every normative system is the tension between rules that are necessarily general and situations that are, by definition, specific and unique. The collision of specific acts with general rules triggers disputes, which are arguments about the meaning and applicability of the rules to the events in question. I have argued that the dialectic cycle among rules, acts, and disputes is an important motor of normative change in international relations as it is in domestic law. In this chapter, I examine recent developments that have contributed to the ongoing cycle of normative evolution. Two wars in the 1990s propelled the protection of cultural treasures back into international consciousness. During the Persian Gulf war of 1990–91, Iraqi troops plundered the Kuwaiti National Museum. The subsequent American-led military campaign to drive Iraqi forces out of Kuwait also raised serious questions for the coalition about targeting bombs and missiles in a country abounding in important historical and archaeological sites. More shocking still were the cultural crimes that formed part of the ethnic cleansing in the former Yugoslavia in the 1990s. The latter conflict provoked further developments in international rules,in both treaty law and jurisprudence. The Yugoslav wars triggered an effort to improve, via an additional protocol, the 1954 Hague Convention. Events in Bosnia and Croatia also led to indictments and convictions for crimes against cultural property at the International Criminal Tribunal for Yugoslavia (ICTY). As in the episodes analyzed in previous chapters, events triggered debates, which in turn led to changes in international norms. Figure 8.10 summarizes this cycle of norm change.

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I. Norm context: previous cycles, culminating in the Nuremberg Tribunal and the 1954 Hague Convention

II. Action: Iraqi plundering of the Kuwaiti National Museum and coalition targeting dilemmas in the ensuing Persian Gulf War; destruction of cultural sites as part of ethnic cleansing in the former Yugoslavia

IV. Rule change: restitution in Kuwait; coalition targeting policy in Persian Gulf War; International Criminal Tribunal for Yugoslavia; additional Protocol to the 1954 Convention

III. Arguments: debates over restitution of Kuwait's cultural treasures; debates over accountability for cultural crimes in Croatia and Bosnia

Fig. 8.10. Cycle of change: Wars of the 1990s

The First Persian Gulf War When Saddam Hussein sent Iraqi troops across the border into Kuwait on August 2, 1990, his apparent goals were to control its sizable oil reserves and to eliminate Iraq’s significant debt to the small Persian Gulf emirate. But having seized Kuwait, the Iraqis could not resist the allure of immediate, and more tangible, fruits of conquest. The most publicized act of plunder was the Iraqi emptying of the Kuwait National Museum, whose treasures rumbled off to Baghdad in Iraqi trucks. The seizure of Kuwaiti cultural treasures was added to Saddam Hussein’s list of offenses against the international community. As a multinational military coalition prepared to eject the Iraqis from Kuwait, the concern for cultural artifacts shifted. Iraq was the Mesopotamian home of 192

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multiple early civilizations, including those of the Sumerians, Akkadians, Chaldeans, and Assyrians. The country was an immense archaeological trove; among its thousands of sites were the ruins of such renowned ancient cities as Ur, Babylon, Nineveh, and Nimrud. Coalition bombing would almost inevitably harm archaeological sites or important museums and collections. The sacking of the Kuwait National Museum and the effort to shield Iraqi sites from war damage returned international attention to the norms designed to protect cultural property in wartime.

Kuwait Within weeks of the August 1990 Iraqi occupation of Kuwait, people fleeing the country brought reports of extensive looting. One Kuwaiti who escaped in early September 1990 declared that the Iraqis were taking “everything, right down to our lampposts, our traffic lights, even the seats from our football stadiums” (Davidson 1990). More shocking was the emptying of the Kuwait National Museum under the supervision of Iraqi military personnel. According to the news accounts, the museum housed “one of the world’s greatest collections of Islamic art . . . including priceless manuscripts, jewellery [sic], carpets and other artefacts” (Berger 1990). Reports stated that 7,000 items, covering 1,200 years of Islamic art from various parts of the world, had been removed (Blonston 1990). Moreover, the plunder of the museum appeared to be “methodical” and “planned from Baghdad” (Gamerman 1990). In addition to looting the National Museum, the Iraqis destroyed the nearly 100–year–old Sief Palace, burned galleries in the museum of Islamic art, torched the building of the National Assembly, “wrecked parts of Kuwait University and blew up one of the five gates of the Old City Wall.” As one Kuwaiti put it, “The Iraqis wanted to destroy the history of Kuwait. . . . They tried to wipe out the identity of Kuwait, as if Kuwait did not exist” (Blonston 1990). Indeed, as the Washington Post reported, “Amid the vast ruin wrought by the Iraqis, what many Kuwaitis seem to find most sinister of all was Saddam’s attempt to wipe out their cultural heritage, their identity as a people” (Branigan 1991). As argued repeatedly in this book, that is indeed one of the primary purposes of cultural plunder. After the expulsion of Iraqi forces from Kuwait, international attention turned to securing the return of the treasures from the Kuwait National Museum. The United Nations Security Council demanded the return of the museum collections from Baghdad. In a letter to the Secretary General, the Iraqi government listed the How Norms Change

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objects taken from Kuwaiti museums, stated that the treasures had been safely stored during the fighting, and promised to return them all (Drozdiak 1991). The United Nations supervised the ensuing airlift, which, in late 1991, transported the art treasures and antiquities back to Kuwait (Keys 1991).

Iraq In response to the Iraqi invasion, the Security Council authorized the formation of a coalition to expel Iraqi troops from Kuwait. As the coalition gathered its forces in the Persian Gulf region in late 1990, concerns arose as to the rich cultural and archaeological heritage of Iraq. The leading members of the coalition—the United States, Britain, and France—were planning an intensive bombing campaign prior to the initiation of the ground war. As the likely scale of the air assault became clear, concerns arose for the fate of Iraq’s unmatched archaeological and historical riches. Urban civilization, including writing, emerged in Mesopotamia, the region in Iraq between the Tigris and Euphrates Rivers. The fertile valley had produced a series of early empires, including those of the Sumerians, Akkadians, Babylonians, and Assyrians. The physical traces of those peoples, and their cities, were scattered across Iraq. As Robert Adams, secretary of the Smithsonian Institution in Washington, D.C., put it, “You couldn’t drop a bomb and not hit an archaeological site. There is almost a continuous array of ancient ruins across whole regions of southern Iraq” (Honey 1991). Shortly after the Iraqi invasion, a group of archaeology experts wrote to U.S. President George H. W. Bush, as well as members of Congress, appealing to them to avoid a war that would endanger invaluable sites (Honan 1991a). Once the bombardment commenced, archaeologists and historians publicly pleaded for restraint and care on the part of the coalition forces (Honan 1991b; Honey 1991). For its part, the U.S. military declared that coalition forces would not target cultural and religious sites, and that precision-guided weapons would minimize collateral damage when such sites were located near legitimate military objectives. Chairman of the Joint Chiefs of Staff Colin Powell publicly offered such assurances (Haberstroh 1991; Tye 1991). According to W. Hays Parks,1 the U.S. military considered the 1954 Hague Convention applicable to the Persian Gulf War. Parks noted that though the Convention was legally binding on only

1

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Then Chief of the International Law Branch of the International and Operational Law Division and Special Assistant for Law of War Matters, Office of the Judge Advocate General of the Army.

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some parties to the conflict (including Iraq, Kuwait, Egypt, Saudi Arabia, and France), “the treaty has been fully implemented by U.S. military forces for more than three decades, and Canadian, British, and U.S. military personnel receive training on its provisions.” Furthermore, he declared afterward, “the treaty was followed by all coalition forces throughout the Gulf War” (1992, 413). In its final report to Congress on the Persian Gulf War, the Department of Defense reviewed the laws of war it considered applicable to that conflict; the 1954 Hague Convention was among the treaties listed (United States Department of Defense 1992, 605–606). The report noted that Canada, the United Kingdom, and the United States were not parties to the convention but also declared that “the armed forces of each receive training on its provisions, and the treaty was followed by all Coalition forces in the Persian Gulf War” (606). Indeed, “US and Coalition operations in Iraq were carefully attuned to the fact those operations were being conducted in an area encompassing ‘the cradle of civilization,’ near many archaeological sites of great cultural significance” (610). According to the report, U.S. military planners weighed laws of war requirements in making targeting decisions: “[s]ome targets were specifically avoided because the value of destruction of each target was outweighed by the potential risk to nearby civilians or, as in the case of certain archaeological and religious sites, to civilian objects” (United States Department of Defense 1992, 611–12). The Department of Defense report also referred to a widely reported instance in which Iraq had parked two MiG fighter aircraft close to the ancient temple of Ur, apparently in an effort to protect them from attack. The report declared: While the law of war permits the attack of the two fighter aircraft, with Iraq bearing responsibility for any damage to the temple, Commander-in-Chief, Central Command (CINCCENT) elected not to attack the aircraft on the basis of respect for cultural property and the belief that positioning of the aircraft adjacent to Ur (without servicing equipment or a runway nearby) effectively had placed each out of action, thereby limiting the value of their destruction by Coalition air forces when weighed against the risk of damage to the temple. Other cultural property similarly remained on the Coalition no-attack list, despite Iraqi placement of valuable military equipment in or near those sites. (615)

In summary, the report declared: “[s]ince US military doctrine is prepared consistent with US law of war obligations and policies, the provisions of Hague IV, How Norms Change

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GC [Geneva Conventions], and the 1954 Hague Convention did not have any significant adverse effect on planning or executing military operations” (United States Department of Defense 1992, 611). In contrast, the U.S. accused Iraq of committing various war crimes during its 1990 invasion of Kuwait. Among the war crimes referred to was the “looting of cultural property, in violation of the 1954 Hague Cultural Property Convention” (621). The enforced repatriation of treasures from the Kuwait National Museum, and the avowed policy of the United Nations coalition forces not to target significant cultural and historic sites, reaffirm and thus strengthen international norms for protecting cultural properties. The solid international consensus behind these actions is further evidence of reinforced status of the norms.

Cultural Atrocities in Former Yugoslavia Appalling scenes emerged from the disintegrating Yugoslavia in the early 1990s. A war in Europe was in itself shocking, but this war took on an added dimension of horror, that of genocide. Though all sides in the conflict committed brutal crimes, it was the campaign carried out by Bosnian Serbs, with support from Serbia, to carve out an ethnically “pure” Republika Srpska that produced the most viciously systematic abuses: concentration camps, widespread rape, torture, expulsions, and mass killings. The human toll, in dislocation, suffering, and lost lives, jarred the world. The Serb effort included at times an additional dimension, namely, the destruction of buildings and monuments of cultural significance to Croats and Bosnians. Assaults on churches, mosques, museums, and historic sites were meant not just to demoralize the “enemy” peoples but to eliminate tangible symbols of their existence. Ethnic cleansing, therefore, implied not just removing people but erasing the visible expressions of their culture. Though the effects of such destruction are psychic or emotional pain rather than physical, they are no less real. A people’s sense of heritage and identity is often tied to cultural objects, whose destruction therefore produces a genuine feeling of loss and diminishment. Such considerations undergird the international rules that have developed over the past two hundred years, for the protection of cultural treasures during wartime. Thus, though the world’s attention focused first, and rightly, on the victims of the wars in ex-Yugoslavia, the losses to cultural monuments clearly added to the tragedy. Indeed, a number of assaults on Croatian and Bosnian cultural sites did receive worldwide press coverage and provoke widespread outrage. Among these were the destruction of the historic bridge and town 196

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center of Mostar, the damage inflicted on Vukovar and the transfer of its museum collections to Serbia, and the bombardment of the old city in Dubrovnik. In addition to these high-profile incidents, the fighting forces of the various sides damaged or destroyed mosques, churches, and locally significant buildings in hundreds of towns and villages in Croatia and, especially, Bosnia-Herzegovina. As a report to the Parliamentary Assembly of the Council of Europe put it: The wars in Croatia and Bosnia-Herzegovina are a tragedy for the peoples of these countries and for all Europe. They have led to a major cultural catastrophe for all the communities of the war zone—whether Croat, Bosnian or Serb—and also for our European heritage, which will emerge from the war singularly amputated. . . . The word ethnic cleansing is now in fashion, but it goes hand in hand with another kind of cleansing—cultural cleansing. (Council of Europe Parliamentary Assembly 1993)

My purpose in this section is not to catalogue the damage done to cultural property during the Yugoslav wars, but rather to summarize international reactions to crimes against cultural heritage. As I have argued before, the responses of other international actors, in words and in deeds, to violations of international rules reveal a great deal about the current status and ongoing development of those rules.

Dubrovnik Dubrovnik is a small port city on the Adriatic coast in Dalmatia. As of 1991, its population was 82.4 percent Croatian, 6.8 percent Serb, and 4 percent Muslim (United Nations Security Council 1994b). The Old Town of Dubrovnik, including the fort and city walls, has been a UNESCO World Heritage site since 1979. In addition to the Old Town itself and its historic buildings, Dubrovnik is home to culturally significant collections. These include the collection of paintings by regional masters at the Dominican monastery, the monastery libraries, the Museum of the History of Dubrovnik, the Icon Museum, and the archives of Ragusa, which extend back to the thirteenth century and constitute an unmatched source for Mediterranean history. Following the June 1991 declarations of independence by Slovenia and Croatia, Serbian paramilitary forces, backed by the Yugoslav Army (JNA), mounted assaults in Croatia. In October of the same year, the JNA invaded the District of Dubrovnik and the Yugoslav Navy imposed a blockade. From October to How Norms Change

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December 1991, Dubrovnik suffered periodic bombardment by Yugoslav land, sea, and air forces. Representatives of various international organizations and nongovernmental organizations—including the International Committee of the Red Cross, UNICEF, UNESCO, and a European Community Monitoring Mission— were present in Dubrovnik during this period, and documented the Serb attacks (United Nations Security Council 1994b). On October 23, shells and rockets landed for the first time in the Old Town; the historic section suffered its most intense bombardment in early December 1991. The December 6 attack lasted for hours, with hundreds of projectiles hitting the Old Town. At the time, JNA forces occupied the hills around Dubrovnik and there was no Croatian military presence in Old Town. In response, Federic Mayor (Director-General of UNESCO), Cyrus Vance (chief UN negotiator for the crisis in Yugoslavia), and the European Community Monitoring Mission (in Zagreb) vigorously protested (United Nations Security Council 1994b). In succeeding months, the Croatian military presence in Dubrovnik expanded, but never into the Old Town. Still, the JNA targeted the Old Town in a new round of bombardment in May – July 1992. In the course of the attacks, the Old Town suffered damage to Baroque-period buildings and palaces, the cathedral, the convents, and the historic main avenue. The damage inflicted on Dubrovnik’s Old Town became an international cause. International organizations dispatched various teams and commissions to the region to investigate allegations of crimes against cultural property. For instance, the European Community Monitoring Mission attempted to verify and catalogue the toll on cultural sites in Dubrovnik, as part of its broader effort to do the same for the parts of Croatia and Bosnia-Herzegovina affected by the wars. As mentioned earlier, a UNESCO observer mission was present in the city in November and December 1991; that mission prepared the way for the subsequent development of a UNESCO Action Plan for the Old Town of Dubrovnik, which was finalized in February 1993. The Council of Europe (specifically, the Parliamentary Assembly) in mid-1992 dispatched a delegation to “investigate the situation of the cultural heritage” in the former Yugoslavia; its experts submitted a series of reports based on fact-finding and observation missions.2 The United Nations also created a Commission of Experts Established Pursuant to Security Council

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The Committee on Culture and Education sponsored the Council of Europe missions and, from February 1993 to January 1997, submitted a series of at least ten reports on “War Damage to the Cultural Heritage in Croatia and Bosnia-Herzegovina.” The reports are Parliamentary Assembly Council of Europe (PACE) Document Numbers 6756, 6869, 6904, 6999, 7070, 7133, 7308, 7341, 7464, and 7740. Online versions are available at http://assembly.coe.int/Main.asp?Link=/asp/doc/DocMenu(SQL).asp?Language=E.

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Resolution 780 (1992), to investigate “evidence of grave breaches of the Geneva Conventions and other violations of international humanitarian law committed in the territory of the former Yugoslavia” (United Nations Security Council 1992). The Commission of Experts sent a team, including an art historian (Colin Kaiser, who had also served as an expert with the Council of Europe missions) and experts in the law of armed conflict, to Dubrovnik in May 1993. The UN mission gathered evidence from all available sources, “with a view to identifying what would be relevant and useful for the purposes of future war crimes prosecutions before the International Criminal Tribunal for the former Yugoslavia” (United Nations Security Council 1994b). In its final “Destruction of Cultural Property Report,” the Commission of Experts did not attempt to report on all grave breaches of international humanitarian law, but rather concentrated on two key sites: the bridge at Mostar and Dubrovnik. With respect to Dubrovnik, the Commission concluded: “Thus, with respect to the Statute of the International Tribunal, the offences in Dubrovnik can be said to concern extensive destruction and appropriation of property not justified by military necessity and seizure, and destruction of and damage to religious institutions dedicated to charity, education, the arts and sciences, as well as historic monuments and artistic and scientific works” (1994a). Finally, the team sent to Dubrovnik recommended that Yugoslav army (JNA) officers be prosecuted at the ICTY.

Vukovar Vukovar, in eastern Croatia on the Danube River, was a city of beautiful baroque buildings and churches. At the end of a three-month siege, the city fell to Serb forces in November 1991. Heavy bombardment had damaged most of the city’s buildings. The April 1994 Council of Europe report describes the polemics surrounding damage to cultural property in Vukovar during the fighting. Whereas the Croatians claimed that Serb shelling destroyed the historic Eltz Castle (1749), a cultural monument marked with the Hague Convention banner, the Serbs argued that Croat forces had used the site during the battle. The Council of Europe representative, Colin Kaiser, found that the castle had been badly damaged but not destroyed and that some of its historical collections had also suffered serious damage. He could not verify the Serb claim that the Croats had used the castle for military purposes. In addition, the important collection of the Ruzicka Museum, as well as that of the Labour History Museum, was a complete loss. The art museum collections also suffered damage and some destruction (Council of Europe Parliamentary Assembly 1994a). How Norms Change

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More controversially, Serb forces removed Vukovar’s museum collections (including those of the Bauer Collection of paintings, the Municipal Museum, and the Fine Arts Gallery) to Novi Sad in Serbia in December 1990–January 1991. The Croats labeled the evacuations a gross act of cultural plunder; the Serbs depicted them as necessary to ensure the safety of the collections at a time when Vukovar lacked local authorities who could safeguard them (Council of Europe Parliamentary Assembly 1994a).

Mostar The bridge across the Neretva River in Mostar, Bosnia was, like Dubrovnik’s Old City, a cherished cultural symbol and historic site. The famous bridge, or Stari Most, commissioned by the Ottoman ruler Suleiman the Magnificent, had stood since 1566 and served as a physical link between the region’s Croatian Catholic and Bosnian Muslim populations. Its destruction at the hands of Croatian forces in November 1993 triggered worldwide outrage. Prior to that notorious event, the European Community Monitoring Mission and various Council of Europe teams had visited parts of Croatia and BosniaHerzegovina in order to document crimes against the cultural heritage. In a January 1994 report, the Council of Europe listed widespread damage to and destruction of religious buildings (primarily but not exclusively Muslim and Catholic), libraries, museums, and other historic buildings and urban centers across Bosnia. One of the most shocking of these casualties was the National Library of Bosnia-Herzegovina, which was burned out in August 1992 in a fire caused by Serb shelling (Council of Europe Parliamentary Assembly 1994b). Mostar suffered heavily from the cultural cleansing. Colin Kaiser (former Director of the International Council on Monuments and Sites, a professional NGO) had participated in the fact-finding missions sponsored by the Council of Europe. Following a late 1992 visit to Mostar, Kaiser reported that the city had suffered intense bombardment, first by Serb forces and, after the spring of 1992, by Croatian units. Serb shelling in the spring had damaged the bridge and its towers and had destroyed numerous mosques and historic buildings (Council of Europe Parliamentary Assembly 1993). After a March 1994 visit, Kaiser reported that “the historic town and monuments outside this zone [had] been very badly damaged, and some historic buildings have been destroyed. . . . Old Dubrovnik with its handful of burned out buildings is the object of a UNESCO campaign; much worse damage in Mostar deserves no less” (1994a). 200

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On November 8, 1993, Croatian tanks fired at the bridge; the following day, additional shelling caused the structure to collapse into the river below (Council of Europe Parliamentary Assembly 1994b; see also “Fallen Mostar Bridge Marks Bitter Divide” 1993). News services around the world reported the destruction, which triggered international shock and dismay. The Director-General of UNESCO, Federico Mayor, declared: I cannot remain silent at the wilful destruction, on 9 November 1993, of the Stari Most Bridge at Mostar. . . . By destroying it, the perpetrators of this disgraceful act are trying to eradicate the history of a country and its people. . . . It is an attack against the values cherished by the international community and dear to the lovers of freedom. The destruction of the Stari Most Bridge has robbed all the communities of Bosnia and Herzegovina of a symbol of hope, ruptured their links with a time of peace and struck at the very roots of their cultural heritage (Council of Europe Parliamentary Assembly 1994b).

Vaclav Havel visited the ruins of the bridge two years later and lamented its loss (Edinger 1995). The campaign to rebuild Stari Most was also international. The reconstruction effort is evidence of the seriousness with which at least some international actors viewed the destruction of cultural monuments. Hungarian divers began in the fall of 1997 to lift from the river bottom stone pieces of the bridge (Dervisbegovic 1997). The following year, UNESCO and the World Bank joined forces to raise funds for the reconstruction (Associated Press 1998). The World Bank supplied a $4 million loan, with additional funds from the Aga Khan Foundation, as well as Italy, France, Turkey, the Netherlands, and Croatia (HINA News Agency 2000). Workers placed the final stone in the central arch in August 2003 (Behram 2003).

Enhancing International Rules: The Second Protocol The Persian Gulf War and the cultural atrocities committed in the Balkans in the early 1990s provoked demands for examining, and strengthening, international rules with respect to the protection of cultural property during wars. UNESCO and the Dutch government, responding to international concerns, in 1992 commissioned and funded a study of the status of the 1954 Hague Convention (Boylan 1995). Patrick J. Boylan carried out the assessment, submitting a Review of the How Norms Change

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Convention for the Protection of Cultural Property in the Event of Armed Conflict to UNESCO in 1993. Boylan reviewed the definitions and obligations contained in the 1954 Convention, as well as its application by national governments in peacetime and in recent conflicts. The Review mentioned U.S. efforts, in advance of the air campaign against Iraq in 1991, to prepare targeting guidelines that would protect the numerous important archaeological and cultural sites in that country (Boylan 1993, 105). The report also made reference to the destruction inflicted on the historic town of Dubrovnik, and reproduced (in an appendix) extensive extracts from a 1993 Council of Europe report on war-related destruction of the cultural heritage of Bosnia and Croatia (225–34). With regard to the ex-Yugoslavia, Boylan urged the United Nations to submit to the proposed international criminal tribunal (the future ICTY) “test cases” regarding “war crimes against cultural property” (12, 135). The Review concluded that the 1954 Convention (as well as its Regulations and the First Protocol) were “still entirely valid and realistic as international law”; the main problem was “failure in the application” of the treaty (Boylan 1993, 7). Nevertheless, Boylan did offer suggestions as to possible future modifications to the Convention, in particular to 1. clarify the definition of “cultural property” and make it consistent with more recent treaties, including the 1970 and 1972 UNESCO conventions; 2. include mechanisms for resolving disputes between states over application of the Convention and prosecuting “cultural war crimes”; 3. remove the exception for military necessity; and 4. make special protection status available to important museums, libraries, archives and repositories. (143) With the Review in hand, the UNESCO Secretariat convened a group of experts— in cultural, legal, and military affairs—to evaluate possible changes to the 1954 Hague Convention (Desch 1999). At its second meeting, at Lauswolt in the Netherlands, a subgroup drafted a text for an agreement to supplement, not modify, the 1954 Convention (UNESCO 1994b). The UNESCO Secretariat, after studying the work of the committee of experts as well as the 1993 Review, made

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recommendations of its own for strengthening the rules protecting cultural property. The Secretariat supported the experts’ proposal, contained in the Lauswolt document, to ban the export of cultural goods from war–troubled or occupied territories. To underline the importance of such a provision, the Secretariat referred to “the multitude of cases of exportation of cultural property that have occurred during recent conflicts,” specifically mentioning Iraq and Kuwait and the former Yugoslavia (UNESCO 1994a). The Secretariat also concurred with the committee of experts in recommending that any changes to the 1954 Convention include provisions establishing individual responsibility for violations. Persons accused of violating the protections for cultural property could be tried by states or by an international tribunal (1994a). The experts agreed that “military necessity could not justify serious violations of norms of humanitarian law,” though they held differing views as to how, or if, the 1954 Convention should be modified in that respect. The experts did share a belief that the Convention needed “much broader provisions” obligating state parties to apprehend and bring to trial violators, and to impose punishments (UNESCO 1994c). For the assessment, and possible modification, of international rules on wartime protections for cultural property to move forward, it had to include not just experts gathered by UNESCO but also governments. In November 1995, UNESCO sponsored a meeting of the state parties to the 1954 Convention; representatives of sixty-nine countries took part. This was only the second such gathering, the first having occurred in 1962. At the opening of the meeting, a UNESCO official noted that the Iran-Iraq war, the Persian Gulf War, and the conflict in the former Yugoslavia had demonstrated the limitations of the 1954 treaty. Delegates agreed that the war in Yugoslavia in particular illustrated the necessity of improving implementation of the 1954 Convention (UNESCO 1995). The final resolution called for a meeting of experts from governments and other bodies to prepare proposals for improving the treaty. Following the 1995 meeting of state parties, the Secretariat received written comments from nine states, suggesting changes to the Convention. Croatia and Slovenia both recommended the removal of the clause relating to military necessity; Kuwait proposed reconsidering the concept of military necessity in order to expand protections for cultural heritage (UNESCO 1996). The same three states (and others) urged strengthening the sanctions attached to the purposeful destruction of cultural property. Croatia proposed that grave violations be subject to universal jurisdiction, including international tribunals. Slovenia sought to solidify

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individual responsibility for serious violations. Kuwait (along with Poland) suggested that any crime against valuable cultural property be considered a war crime (1997). A third meeting of the state parties at Paris in November 1997 requested that a meeting of governmental experts take place in 1998 to prepare for a diplomatic conference on the revision of the Convention; that conference would convene in the first half of 1999. The preparatory meeting occurred in Vienna in May 1998. Fifty-seven states party to the 1954 Convention sent representatives; representatives of a further 24 states nonparty to the Convention also attended. A majority of delegations present agreed that an optional protocol (as opposed to a new treaty replacing the 1954 Convention or an amendment to that agreement) would be best (UNESCO 1998). The 1954 Convention was already widely regarded as the foundation in international law for the protection of cultural treasures during armed conflict; it should, the majority of states agreed, be retained. Amending the 1954 Convention would present procedural risks and challenges. According to Article 39 of the Convention, amendments would have to be approved unanimously. A single state party could therefore block modifications that the vast majority of state parties agreed upon. But with an optional protocol, those states that agreed on changes in the law could bring them into effect, at least among themselves. The key issues to be addressed in an optional protocol had to do with streamlining the mechanism for granting special protection, modifying the military necessity concept, and establishing individual criminal responsibility. Participants generally agreed on a principle of “either punish or extradite.” At the end of the meeting, the Dutch representative announced her government’s intention to host a diplomatic conference at the Hague in March 1999 (UNESCO 1998). The UNESCO Secretariat and the government of the Netherlands produced in October 1998 a draft Second Protocol to the 1954 Convention (Hladík 1999). Their point of departure was a document that had emerged from the meetings of experts, as well as comments received from various states, both parties and nonparties to the 1954 Convention.3 A final draft (UNESCO 1999b) was completed in February 1999 and circulated prior to the diplomatic conference, which opened at The Hague on March 15, 1999. Delegations representing seventy-four States

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Summaries of the comments submitted by governments are available in UNESCO (1997), UNESCO (1999a).

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Parties to the 1954 Convention participated. In addition, nineteen countries not party to the 1954 agreement attended the conference, including the United Kingdom and the United States (1999c). The Second Protocol (Second Protocol to the 1954 Hague Convention 1999) embodied several notable developments: 1. A clearer definition of military necessity, following the example of Additional Protocol I to the Geneva Conventions, designed to delimit the conditions under which military necessity could be invoked (Art. 6). 2. A new category of “enhanced protection” for cultural property of exceptional value to humanity, and procedures for registering sites under this rubric (Arts. 10–14). 3. A set of provisions establishing conditions for individual criminal responsibility and sanctions, along with obligations to prosecute (Arts. 15–21). 4. Creation of a new Intergovernmental Committee to oversee implementation of the Protocol (Arts. 24–28; see also Hladík (1999)). Thirty-nine states signed the Second Protocol during the period it was open for signature (UNESCO 2005). The twentieth instrument of accession was deposited with UNESCO in December 2003, and the Second Protocol entered into force three months later (March 9, 2004). To date (summer 2006), forty countries have ratified or acceded (UNESCO 2006c). Among the major countries that have neither signed nor acceded to the Second Protocol are China, France, Japan, Russia, the United Kingdom, and the United States.

Enforcing International Rules: The ICTY Norms change not just in their substantive content, but also in their specificity, formality, and strength. Recent developments in international criminal law have modified the norms for protecting cultural property by providing mechanisms for punishing their violation. Under the statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Court (ICC), individual persons are legally liable for offenses committed in wartime against cultural objects. The ICTY and the ICC thus follow the precedent established by the Nuremberg Tribunal, which convicted top-level Nazi officials of looting artistic and cultural treasures in lands occupied by Germany. How Norms Change

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The U.N. Security Council established the ICTY in 1993, with a mandate to prosecute those responsible for the torture, mass expulsions, massacres, and other war crimes and crimes against humanity that occurred in the former Yugoslavia in the wars of the early 1990s. Among the crimes falling within the jurisdiction of the ICTY are “seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science” (United Nations Security Council 1993a, Art. 39[d]). The Tribunal has prosecuted a number of persons for crimes against cultural property, the most famous of its indictees being former Serbian president Slobodan Milosevic.4 The indictment entered against Milosevic with respect to Croatia alleges that he was responsible, with others, for “intentional and wanton destruction and plunder [which] included the plunder and destruction of homes and religious and cultural buildings” (International Criminal Tribunal for the Former Yugoslavia 2004a, ¶ 71). Count 19 of the indictment thus charges Milosevic with “destruction or wilful damage done to institutions dedicated to education or religion,” in violation of the laws or customs of war and punishable under Article 3(d) of the Tribunal’s statute (¶ 72). Count 30 of the indictment charges Milosevic with “destruction or wilful damage done to historic monuments and institutions dedicated to education or religion” during the bombardment of the Old Town of Dubrovnik, and mentions the status of that part of the city as a UNESCO World Cultural Heritage Site (International Criminal Tribunal for the Former Yugoslavia 2004a, ¶¶ 77–83). The indictment regarding Bosnia accuses Milosevic of “the intentional and wanton destruction of religious and cultural buildings of the Bosnian Muslim and Bosnian Croat communities including, but not limited to, mosques, churches, libraries, educational buildings and cultural centres” (2004d, ¶ 42). Count 21 again references Article 3(d) of the ICTY Statute. During his trial, Milosevic, acting as his own counsel, offered arguments that reveal the extent to which the protection of cultural sites in wartime has become a global norm. Milosevic attempted to draw a distinction between religious heritage and cultural heritage. During his questioning of an expert witness called by the prosecutor, Milosevic argued that all sides had leveled the religious buildings of the others during the wars, on a retaliatory basis, and this “reciprocal destruction

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For a broad assessment of the practice and jurisprudence of the ICTY with respect to crimes against cultural property, see Abtahi (2001).

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of religious structures is the religious component of a civil war” (International Criminal Tribunal for the Former Yugoslavia 2003a, ¶¶ 23838, 23852). In contrast, noted Milosevic, the “destruction of monuments of culture would be tantamount to genocide” (¶ 23839). Thus even Milosevic acknowledged the gravity of crimes against cultural property. Later in the same session, Milosevic suggested that many of the cultural sites destroyed by Serb forces had been used for military purposes—as “firing positions”—by Bosnian or Croat forces (International Criminal Tribunal for the Former Yugoslavia 2003a, ¶¶ 23871–72). Any military use of a cultural property would, of course, terminate its protected status and justify attacks against it. Milosevic made specific reference to the Oriental Institute and the National Library, both located in Sarajevo and both destroyed with their collections by Serb artillery fire. The witness, whom Milosevic was examining, replied that there had been no evidence whatsoever that the two structures had been utilized by military forces. But the significant point is that invoking an exception to a rule affirms the validity of the rule. Milosevic’s attempt to depict the shelling of the Oriental Institute and the Bosnian National Library as justified exceptions in fact relegitimates the general rule. Milosevic’s death on March 11, 2006 prevented the tribunal from reaching a verdict on the charges against him. However, a handful of other prosecutions have resulted in convictions under Article 3(d) of the ICTY Statute. Bosnian Croat officers Tihomir Blaskic and Dario Kordic were convicted and sentenced for charges that included plunder of public or private property and destruction or willful damage to institutions dedicated to religion or education, with respect to events in the Lasva Valley in Bosnia.5 Six Bosnian Croat officers have been indicted under Article 39(d) with, among other acts, the deliberate damage to or destruction of a number of mosques in Mostar, plus the demolition of the famous Stari Most bridge in the same city (International Criminal Tribunal for the Former Yugoslavia 2004b). Serbian officers Pavle Strugar, former lieutenantgeneral in the Yugoslav Army (JNA), and Miodrag Jokic, former admiral in the Yugoslav Navy, were both tried for their roles in the bombardment of Dubrovnik’s

5

Blaskic was convicted on Count 14 under Art. 3(d) (and other counts) and initially sentenced to 45 years in prison; International Criminal Tribunal for the Former Yugoslavia (2000). The Art. 3(d) conviction was upheld on appeal, though the verdicts on other counts were reversed and the sentence reduced to nine years; International Criminal Tribunal for the Former Yugoslavia (2004c).

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historic Old City.6 Strugar’s trial centered on the attacks carried out by the JNA in and around Dubrovnik, focusing especially on the bombardment of the Old Town on December 6, 1991. The Trial Chamber found Strugar guilty on Count 6 of the indictment against him: “[d]estruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science, a violation of the laws or customs of war, punishable under Articles 3(d) and 7(1) and 7(3) of the Statute (2003b, ¶¶ 23–25). Strugar received a sentence of eight years in prison (2005a, ¶¶ 478, 481). Jokic reached a plea agreement with the prosecutor. The agreement included six counts, the last of which covered “destruction or wilful damage done to institutions dedicated to religion, charity, and education, the arts and sciences, historic monuments and works of art and science” (International Criminal Tribunal for the Former Yugoslavia 2004e, ¶¶ 8, 9). In its sentencing judgment, the Trial Chamber declared: Since it is a serious violation of international humanitarian law to attack civilian buildings, it is a crime of even greater seriousness to direct an attack on an especially protected site, such as the Old Town . . . .Damage was caused to more than 100 buildings, including various segments of the Old Town’s walls, ranging from complete destruction to damage to non-structural parts. The unlawful attack on the Old Town must therefore be viewed as especially wrongful conduct. (¶ 53)

Jokic’s plea agreement was largely upheld on appeal, and he was sentenced to seven years in prison (International Criminal Tribunal for the Former Yugoslavia 2005b). Through its jurisprudence, the ICTY has also strengthened the 1954 Hague Convention. ICTY decisions recognize the 1954 Convention as customary international law, binding not just on those states that are parties to the treaty but on all states. The Appeals Chamber, ruling on a defense appeal in the Tadic case regarding the Tribunal’s jurisdiction, addressed the question of subject matter jurisdiction. In assessing the customary rules of international humanitarian law governing both international and internal armed conflicts, the panel of judges

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Vladimir Kovacevic, former captain in the JNA, was indicted along with Strugar; as of mid-2005, the proceedings against Kovacevic were in the pre-trial stage.

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declared that customary law and treaty law “mutually support and supplement each other” and that “some treaty rules have gradually become part of customary law” (International Criminal Tribunal for the Former Yugoslavia 1995, ¶ 98). The judges included Article 19 of the 1954 Hague Convention among the treaty rules that have attained the status of customary law. Article 19 states that in the event of an armed conflict occurring within the territory of one of the parties, “each party to the conflict shall be bound to apply, as a minimum, the provisions of the present Convention which relate to respect for cultural property” (UNESCO 1954, Art. 19). Those provisions are found in Article 4 of the Convention, which is titled “Respect for Cultural Property.” The ICTY Trial Chamber, in its judgment in the Strugar case, cited the Appeals Chamber decision in the Tadic case, which “explicitly referred to Article 19 of the Hague Convention of 1954 as a treaty rule which formed part of customary international law” (International Criminal Tribunal for the Former Yugoslavia 2005a, ¶¶ 478, 481). In other words, in ICTY jurisprudence, the key provisions of the 1954 Hague Convention are legal rules for all countries. Following the model established by the Yugoslav Tribunal, the International Criminal Court (ICC) also has jurisdiction over crimes against cultural property. Article 8(2)(b)(ix) of the Statute of the ICC makes subject to prosecution intentional “attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, provided they are not military objectives” (United Nations 1998). As of May 2006, one hundred countries had ratified the Rome Statute of the International Criminal Court, indicating broad international acceptance of the notion that international norms protect cultural sites during wartime.

Conclusion In the development of international cultural property rules during the 1990s, we observe the key features of the cycle proposed in the theoretical argument. Events—the Persian Gulf War and especially the wars in the former Yugoslavia— clearly triggered international concern and normative discussion. Outrage over the Iraqi plundering of the Kuwait National Museum contributed to the broad consensus in favor of the use of force against Iraq. In the ensuing Persian Gulf War, the United States, not a party to the 1954 Hague Convention, nevertheless behaved as if it were. The U.S. military’s targeting instructions took account of important cultural and historical sites in Iraq and sought to avoid damage to them from coalition bombs and missiles. How Norms Change

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The wars in the former Yugoslavia elicited similar international reactions. Under the auspices of UNESCO, states debated various means of strengthening the 1954 Hague Convention rules. The resulting Second Protocol shifted the norms, modestly clarifying and specifying the responsibilities of states. The Yugoslav war crimes tribunal altered the rules more decisively by enforcing them against individual violators. The verdicts handed down by the ICTY on cultural property charges signaled that specific persons could be held accountable for specific violations of the international rules; in doing so, they strengthened the rules and clarified the scope of their application. The statute of the International Criminal Court, now ratified by one hundred states, expands that same principle to much of the world.

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CHAPTER 9

Repercussions of Nazi Plunder: Internalizing International Norms The depredations inflicted on the world’s cultural heritage in the wars of the 1990s in Kuwait and in Yugoslavia pulled the world’s attention back to the problem of wartime protection of such treasures. A separate set of developments in that decade had a similar effect. On both sides of the Atlantic, injustices from World War II resurfaced and seemed to demand resolution. News reports described Nazi gold seized from victims of the Holocaust. Equally outrageous were Swiss banks that after the war took over the dormant accounts of Holocaust victims after ignoring, or creating bureaucratic obstacles to, the efforts of survivors and heirs to collect their deposits. Insurance companies had refused to pay out on the policies of those who died in the death camps. And the employment of slave labor during the war by some of today’s German industrial icons—Siemens, BMW, Volkswagen, Daimler-Benz—received widespread scrutiny for the first time. A combination of litigation and negotiation produced agreements to compensate the victims of Nazism for their lost Holocaust-era assets.1 Restitution of Nazi-plundered art emerged as an important part of the compensation movement. Well before the end of World War II, the Allies agreed on a policy of restitution: the artworks and other cultural properties looted by the Nazis should return to their rightful owners. The Allies mounted a massive effort to collect, inventory, and identify prewar owners of hundreds of thousands of objects (see chap. 6). Despite the restitution project, thousands of artworks inevitably remained

1

For an excellent account of the movement to win compensation for Holocaust-era assets, see Bazyler (2003).

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unclaimed, their owners having perished or been displaced. In addition, unknown quantities of looted art passed through Nazi hands to dealers and then into international art markets. Decades later, they still show up in auctions, exhibitions, and collections. Disputes over works of art and other cultural properties plundered during World War II are currently driving the elaboration of rules in national arenas and in the private sphere. That is, because of Holocaust art cases, international norms against wartime art plunder are being translated into government policies, domestic case law, and rules governing the world of art dealers, collectors, and museums.2 These developments are subcycles of the main helix of international rule development. Occasionally, the reappearance of World War II–era looted art provokes disputes between states; the ongoing German-Russian controversy stands out in this regard. Private efforts to reclaim Nazi-plundered art frequently lead to litigation and sometimes also induce governments to change their policies. Museums have scrambled to define norms for dealing with looted art in their collections. This chapter presents important instances of each category of dispute; the account is illustrative, not exhaustive.

Nazi plunder in state-to-state relations The disposition of artworks looted during World War II has at times been the subject of negotiations between national governments; Figure 9.11 illustrates the cycle of normative change as governments have adapted their policies to international norms. In some cases, those discussions have led to amicable settlements. For instance, in 1985, the Museum für Vor-und Frühgeschichte in Berlin bought a set of eighty art objects dating from the neolithic to the medieval periods. Investigations later showed that the collection had been seized by Nazi troops from the Kherson Museum in Ukraine in 1943 or 1944 and had joined Heinrich Himmler’s collection of plundered art. In March 1994, the German museum decided to return the artifacts to the Ukrainian Academy of Sciences (HenryKünzel and Decker 1994). In 1997, pursuant to a bilateral agreement, Georgia returned to Germany 100,000 books removed from German libraries during the war. The previous year, Ukraine and Germany had carried out a treaty-based mutual exchange (Siehr 1997).

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On the “internalization” or “domestication” of international norms, see Cortell and Davis (1996, 2000), Koh (1996, 1998).

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Repercussions of Nazi Plunder

I. Norm context: Allied restitution, Nuremberg, 1954 Hague Convention

IV. Rule change: state-to-state agreements; new national restitution policies and agencies; case law

II. Action: 1990s claims for the return of artworks seized in World War II

III. Arguments: inter– state negotiations; internal (national) debates over restitution policies; litigation

Fig. 9.11. Cycle of change: Governments adapt to international norms In other instances, governments arrived at restitution only after extended negotiations and delays. Germany, in a 1999 ceremony at the Pergamon Museum in Berlin, turned over to Italian officials three statues acquired by Hermann Goering during World War II. One of the statues, the Venus of Leptis Magna, had been a gift from the Italian governor of Libya, Italo Balbo; Goering had purchased the other two in Florence. The Italian government had been trying since the end of the war to recover the three statues and thousands of other cultural items (Willan 1999). Another long-running dispute involving a famous collection pitted the Netherlands against Russia. Franz Koenigs, a German banker living in the Netherlands since 1922, owned a collection of 2,671 old master drawings. Koenigs deposited the collection with an Amsterdam bank as collateral for a loan. As Hitler’s war on Europe progressed, the Jewish owners of the bank decided to ship the Koenigs collection to its New York office. A Dutch museum director, with the approval of Koenigs, instead persuaded a Dutch collector, van Beuningen, to buy the collection How Norms Change

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and thus keep it in the Netherlands. After the Nazi victory and occupation, Hans Posse, in charge of Hitler’s planned supermuseum in Linz, arranged for Germany to purchase 526 of the drawings. By May 1941, the drawings were in Dresden. Some time in May 1945, the drawings vanished from the castle outside Dresden where they had been stored. Rumors held that the drawings had been destroyed in the fighting or that the Soviets had carried them away to Moscow. The Dutch government, beginning in 1945–46, fruitlessly sought information from the Soviet Union. The only trace of the collection was thirty-two drawings found in the Dresden Gallery and handed over by the German Democratic Republic to the Netherlands. Then, in October 1992, the Russian Minister of Culture, Yevgeny Sidorov, revealed that part of the Koenigs collection had been found in the Pushkin Museum in Moscow. In fact, the Pushkin had possessed 307 of the drawings since World War II (United Press International 2004). The Russians, however, argued that the German purchase of the drawings had been valid. Therefore, as German property, the Soviets could legitimately seize the drawings as cultural reparations. Property confiscated from Germany or other aggressor states became Russian property (Gattini 1997). In September 2004, Acting Dutch Prime Minister Gerrit Zalm met with Russian Prime Minister Mikhail Fradkov and asked him to look personally into resolving the issue of the Koenigs collection (Kravchenko 2004). Russian officials agreed to evaluate the Dutch claim to the collection but reportedly pointed out that when the Soviet troops took them, the drawings were the property of Nazi Germany (Agence France-Presse 2004). As of early 2006, Russia continued to hold on to the collection (Flamini 2006). Russia was also the recipient of a claim from the government of Hungary. Both the Nazis and the Soviets seized artworks in Hungary, and much of the art ended up after the war in the Soviet Union. Hungary estimated that it had lost one million cultural objects during the war—80 percent of its total “artistic patrimony.” In 1999, the Hungarian government was reported to be considering a lawsuit against Russia in an international tribunal (Eakin 1999). In 2005, responding to continued pressure from Hungary, and following the recommendation of a government advisory body, the Russian Duma (the lower house of parliament) agreed to return a collection of 134 religious books seized during the war (Kishkovsky 2005), leaving unresolved the fate of an unknown number of other works. The United States also consented to pay compensation for Hungarian art objects that had been confiscated by American army officers who intercepted the 214

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so-called “Gold Train” in the closing months of the war. The twenty-nine freight cars on the train contained the valuables—gold, gems, silverware, porcelain, artworks—of hundreds of Hungarian Jewish families who were forced to surrender their properties to the Nazis (Usborne 2005). Rumors about what happened to the Gold Train were finally confirmed by the Presidential Advisory Commission on Holocaust Assets, created by U.S. president Bill Clinton in 1999. The Commission examined documents in the United States and Hungary and concluded that some of the treasure had been taken by U.S. officers, some handed over to Austria, some sold in the U.S. Army Exchange, and some auctioned in New York. None of it was returned to those families that did not die in the concentration camps (Briscoe 1999). Hungarian Holocaust survivors brought suit in the United States, and Hungary and the United States agreed in December 2004 to settle. The U.S. government announced in March 2005 that it would pay $25.5 million to the 62,000 survivors around the world (“$25.5-million Settles WWII ‘Gold Train’ Looting Case” 2005; Usborne 2005). By far the most troublesome state-to-state dispute over World War II–era plunder has pitted Germany against Russia. Each had inflicted heavy damage to the other’s cultural heritage during the war. Germany had looted or destroyed hundreds of cultural sites in Eastern Europe and the Soviet Union, and at the end of the war Soviet “trophy brigades” had shipped cultural properties by the trainload from Germany to the U.S.S.R. (see chap. 6). The presence in Russia of hundreds of thousands of artworks taken from Germany remained a secret until the story broke in early 1991. The collapse of the Soviet Union made possible the revelation of Moscow’s art trove and seemed to open a door toward the resolution of RussianGerman cultural property grievances. Indeed, Russia’s turn toward the West made rapprochement with Germany—a central player in the European Union and a major potential investor—particularly desirable. The two countries signed a pair of treaties in the early 1990s. The first, the Treaty on Good-Neighborliness, Partnership and Cooperation (November 1990), in fact stipulated that Germany and the Soviet Union agreed “that lost or unlawfully transferred art treasures which are located in their territory will be returned to their owners or their successors” (“Treaty Between the Federal Republic of Germany and the Union of Soviet Socialist Republics on Good-Neighborliness, Partnership and Cooperation, Bonn, 9 November 1990,” Art. 16). A second agreement, this time between Germany and the new Russian Federation, reaffirmed that commitment (“Agreement Between the Government of the Federal Republic of Germany and the Government of the Russian Federation on Cultural Cooperation, Moscow, 16 December 1992,” Art. 15). How Norms Change

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Negotiations between Russia and Germany began in 1993 in Dresden. The Dresden meeting produced a joint commission that met in Moscow in March 1994 and in Bonn about a year later. A joint expert group on legal questions also met twice. But the talks seemed to be leading nowhere, and the German side complained that the Russians were marking time. In fact, Russia was inhibited by a widely, and sometimes passionately, held belief that the trophy art rightfully belonged to Russia and that no return to Germany could be contemplated. For instance, Irina Antonova, director of the Pushkin Museum and a member of the staff there when the trophy art was unloaded in 1945, opposed any restitution to Germany and argued for legislation to convert into Russian property all artworks taken from Germany (Akinsha and Kozlov 1994). In the early 1990s, news accounts reported that President Boris Yeltsin was prepared to return a set of 362 drawings and two paintings that had been removed from the cellar of Karnzow castle, north of Berlin, at the end of the war. The artworks belonged to the Bremen Kunsthalle, which had sent them out of the city for safekeeping. A Soviet officer, Viktor Baldin, had found them and taken them back to Moscow. Baldin subsequently attempted to return the Bremen art, writing “to every Soviet ruler from Brezhnev to Gorbachev about the collection,” without receiving any reply (Akinsha and Kozlov 1995, 243–46). Finally, in 1990, Boris Yeltsin agreed with Baldin. When news accounts reported Yeltsin’s plan to take the artworks back to Germany, Culture Minister Nikolai Gubenko, backed by KGB officers, seized the drawings and stashed them at the Hermitage (Akinsha and Kozlov 1995, 243–46). Nationalist sentiment has fueled the opposition to relinquishing art seized in World War II. Russian nationalists consider the artworks taken from Germany to be “the last fruits of victory—the only ones the nation hasn’t yet lost” (Akinsha and Kozlov 1994). Each time Russia appears to be on the verge of handing over a collection of cultural objects, nationalist resistance flares. For instance, President Boris Yeltsin’s May 1994 visit to Germany offered a chance for restitution. According to reports, Yeltsin was prepared to return to Germany 4,200 volumes (including many rare editions) taken from the library of Gotha in 1946. A group of “right-wing academics and well-known scholars” published a letter in Pravda opposing any surrender of the Gotha books, claiming that they had become part of the “national heritage.” The books were boxed for the journey, but pressure from nationalists, predominantly on the political right wing, caused the Ministry of Culture to change its mind (Akinsha and Kozlov 1994). The following month, as the upper house of parliament held hearings on restitution policy, a crowd of nationalists protested the work of the Russian Restitution Commission, and

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the possibility of returning artworks to Germany, by burning an effigy of Russian Minister of Culture Evgeny Sidorov (Akinsha and Kozlov 1994). The stagnating negotiations revealed divergent understandings of international norms. In the Russian view, German removals of cultural property from the Soviet Union and Soviet transfers from Germany represented two different legal conditions. Germany had a duty to return all cultural items taken from the Soviet Union during the war, but Soviet art confiscations were lawful. In fact, the Institute of State and Law of the Academy of Sciences concluded that the Soviet removal of cultural properties from Germany was legal. The Institute argued that the Allied Control Council, which administered Germany after the capitulation, had endorsed the “compensation principle of restitution,” which held that the Allies could take enemy property as compensation for losses suffered. But, as Akinsha and Kozlov point out, the Control Council did not reach a final agreement on such a policy, in part because the Soviets would not provide an inventory of the cultural items they had already removed (1995, 253– 54). In the negotiations with the Germans, the Russians also argued that when an object taken from the Soviet Union had been lost or destroyed, Russia was entitled to replace it with an item, similar in kind and value, taken from Germany. Restitution by substitution had, argued the Russians, been part of the Versailles Treaty, as well as the 1947 peace treaties with Italy, Hungary, and Bulgaria (Boguslavsky 1997, 188). For its part, Germany did not deny the massive looting and destruction of cultural sites inflicted by the Nazis on Russia and other Soviet republics. Indeed, Germany stood ready to return any cultural objects found in Germany to their rightful owners. Of course, the Allies had already recovered most of the Nazi loot from Russia and Eastern Europe; anything the Soviet troops found on their march to Berlin had been sent to Moscow. The only sizeable caches of art treasures “lost or unlawfully transferred” during the war were therefore to be found in Russia. The German delegation to the joint commission estimated that Russia held some two million books and more than one million German artworks, of which some two hundred thousand were significant for museum collections (Germany 1994, ¶¶ 9–12; Ritter 1998, 447). The Germans also countered the Russian justifications for retaining the trophy art. International law, in particular the 1907 Hague Convention, clearly prohibited art seizures and recognized no “right of the victor” to take booty. The Soviet art seizures were thus unlawful (Germany 1994, ¶ 24). Furthermore, the Soviet Union referred to the art objects it returned to the German Democratic Republic in the 1950s as having been located “for temporary

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preservation in the USSR,” indicating that the Soviets did not claim title to the art (Boguslavsky 1997, 189; Germany 1994, ¶ 25). Germans argued that the Allied Control Council did not authorize the removal of cultural property from Germany (Fiedler 1997, 177–78). Germany also offered to refer the dispute to the International Court of Justice or to arbitration (Germany 1994, ¶ 35). But the negotiations were stuck, and Germany began to express some exasperation. In a 1995 newspaper interview, German Foreign Minister Klaus Kinkel declared that the return to Germany of World War II–era artworks and rare books was “not a peripheral issue, but rather a test of the new quality of German-Russian relations.” Kinkel cited Russia’s obligations under the 1990 Treaty of Friendship and the 1992 cultural agreement, and lamented a recent “hardening of the Russian position.” The German government had been “alarmed” by a Russian assertion earlier in the year that the Soviet art seizures in Germany had been legal (Mangasarian 1995). On the other side, Russian Culture Minister Yevgeny Sidorov criticized Germany for “failing to make a single serious proposal” (Eudes 1997). Given the chasm between the Russian and German positions, any incident involving World War II–era art assets evoked passions on both sides. One example centered on the so-called Trojan Gold. In 1873, Heinrich Schliemann discovered a trove of gold, silver, and bronze treasures that he believed came from the ancient city of Troy. He brought the treasure back to Berlin; up to World War II, the Schliemann gold was part of the collection of the Museum of Pre- and Early History. Sometime during the war, the Germans moved the treasure to a massive flak tower, from which Soviet trophy brigades removed it in 1945. For nearly fifty years the Trojan gold remained hidden in Moscow’s Pushkin Museum, until the existence of the massive repositories of art taken from Germany by the Soviet Union was revealed in the early 1990s. In the spring of 1996, the Pushkin opened an exhibition of the Trojan gold, much to the chagrin of Germany. The German ambassador in Moscow stated that his government objected to the exhibition and called, again, on the Russian government to return the Trojan gold to Germany, in accordance with the restitution agreements. At the same time, some leading candidates for the Russian presidency, including the Communist Party’s Gennady Zyuganov and the ultranationalist Vladimir Zhirinovsky, asserted that Russia would never return any artworks to Germany (Hochfield 1996). Shortly afterward, in May 1997, with Yeltsin continuing to push for returns, the State Duma (the lower house of parliament) took legislative action. It passed a law designating as property of the Russian Federation any cultural objects brought to 218

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the USSR pursuant to its right to “compensatory restitution” as ordered by Soviet authorities at the time. However, Russia would not take title to cultural goods that had been the property of the former Soviet republics of Belorussia, Ukraine, or Moldova, or of the Baltic states. Also subject to restitution were objects taken from religious or charitable organizations in any country and cultural properties seized from individual victims of the Nazis (Fiedler 1998). The vote was 291 in favor and one against. The Duma declared that the cultural goods were “compensation for the damage inflicted on the [Soviet Union’s] cultural heritage” by the Germans. In addition, for objects subject to restitution, Germany would have to show that it had requested their return before February 1950 (Eudes 1997). Russian president Boris Yeltsin vetoed the legislation, but the parliament quickly (in June 1997) overrode the veto with a two-thirds majority in both houses. Yeltsin then asked the Russian Constitutional Court to determine whether the law conformed with the constitution. The Court ruled in April 1998 that the law was constitutional and that Yeltsin therefore was obligated to sign it (Fiedler 1998). Yeltsin signed the trophy art law, which came into force in April 1998. But President Yeltsin again challenged it in the Constitutional Court. Yeltsin argued that the statute was unconstitutional because it violated international law, namely, treaties to which Russia was a party, including the 1907 Hague Convention and the Russian-German friendship treaties of the early 1990s (Akinsha and Kozlov 1998). The Court again upheld the law, including the notion that Russia’s trophy art was compensation for its own cultural losses. Still, the Court did compel important changes in some parts of the statute. For instance, the Court ruled that objects seized by private persons were illegally taken and could not be nationalized. The Court also ordered that the Russian government publicize a list of all “ownerless” artworks in Russia, and allow the owners or heirs to file claims (Hochfield 1999). A small breakthrough occurred in April 2000. Russian president-elect Vladimir Putin, in a ceremony at a palace near St. Petersburg, accepted from German Culture Minister Michael Naumann two items from the famous Amber Room, which Nazi troops had dismantled and removed during World War II. The Amber Room was originally a gift from King Friedrich Wilhelm I of Prussia to Peter the Great of Russia in 1716. Six tons of amber, carved and shaped, covered the ceiling, walls, and floors. After their removal by German forces in 1941, the pieces of the Amber Room were stored in Koenigsberg, then evacuated in 1944. They were never seen again and were presumed to have been destroyed in the chaotic fighting of the war’s final months. The items returned to Russia were a marble How Norms Change

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mosaic and a lacquered chest, both found in the late 1990s (Hochfield 2000a; Reynolds 2000). For its part, Russia turned over to the Germans 101 drawings from the Bremen Kunsthalle. A Soviet officer had carried the drawings home in 1945. The former officer did not want his identity known, so through a friend he contacted Konstantin Akinsha and Grigorii Kozlov, who had broken the story of the World War II art troves in Russia. Akinsha and Kozlov met with the soldier’s art historian friend, who produced a portfolio with drawings by Dürer, Rembrandt, Watteau, Rubens, Veronese, Tintoretto, Manet, and others. The friend had approached various Russian museums that made clear their lack of interest. Akinsha and Kozlov agreed to help him place the drawings directly in German hands. The transfer took place at the German embassy in Moscow in March 1993. However, the Russian government refused to grant an export permit, and the collection remained in the German embassy until the transfer in April 2000 (Akinsha and Kozlov 1995, 247–50). Even then, Nikolai Gubenko, chairman of the Duma culture committee and a communist party member, reportedly urged Putin not to proceed with handing over the 101 Bremen Kunsthalle drawings (Hochfield 2000a, 2000b). The returns, though welcome, did not resolve the ongoing disagreement between Russia and Germany. Popular opinion in Russia still favored retention of the trophy art as restitution in kind. Just the week before the exchange, the Russian parliament had passed the legislation making the trophy art the property of the Russian state. A member of the Russian commission on art restitution, Emina Kuzmina, explicitly cautioned that the Amber Room exchange “should not be seen as a gesture . . . as to the revision of our legislation on displaced art. Nothing of the kind will happen.” Culture Minister Mikhail Y. Shvydkoi also emphasized that the Amber Room development was not in fact an exchange and did not signal a change in Russian policy (Reynolds 2000). The Russian government explained that the return of the 101 Bremen drawings was an exception because they had not been acquired by the Soviet Union’s official “trophy brigades,” but rather by an individual person (Traynor 2000). Significantly, none of the items handed over, by either Russia or Germany, came from a state institution; all had been in private hands since the war (Reynolds 2000). The new Russian president, Vladimir Putin, supported continuation of the restitution process. In accordance with Putin’s desire, in 2000 the Duma modified Russia’s restitution law. Under the revised rules, restitution could not take place to 220

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countries that were among the “aggressor states” (the Axis). The restriction meant that items looted by the Nazis then subsequently taken by Soviet forces would qualify for restitution, but pieces previously owned by Germans and seized by the Soviets would not (Traynor 2000). The following year, immediately after a visit to Moscow by German Chancellor Gerhard Schroeder, Putin declared that Russia would seek “insistently and patiently” to settle the issue of looted art taken from Germany at the close of World War II. Putin made clear his strong desire to conclude what newspaper accounts labeled “Moscow’s longest-running quarrel with Germany.” On the German side, cultural affairs officials declared that experts in both countries had for months been compiling lists of missing artworks, and that the negotiations were at a “delicate stage” (Whittell 2001). Some art transfers did take place. In May 2002, Germany handed over seven paintings to Russia, among them portraits of the families of the czars. The pictures had been taken from castles near Leningrad during World War II. German officials found them in the course of searches in Berlin and Darmstadt in the early 1990s (“Germany Returns Stolen Art to Russia” 2002). The following month, Russia returned to St. Mary’s Cathedral in Frankfurt an der Oder 111 panels of stained glass windows from the fourteenth century (Kishkovsky 2003; “Russia Returns Looted Art” 2002). Still, Russia remains internally divided over what to do with the art treasures the Soviets seized in World War II. The 362 Bremen Kunsthalle drawings that Viktor Baldin brought back to Moscow continue to spark controversy. Russian Deputy Culture Minister Pavel Khoroshilov and Wolfgang Eichwede, director of a research center at Bremen, worked out an agreement, whereby Russian would turn over the 362 drawings and two paintings, and Germany would give nineteen drawings and one of the paintings (a Goya) to Russia. The deal was, explicitly, not an exchange. But after the Culture Minister, Mikhail Shvydkoi, mentioned the plan in an interview in early 2003, the Russian parliament objected and asked for an investigation by the state prosecutor. Former culture minister Nikolai Gubenko, then chair of the Duma’s Committee for Culture and Tourism led the opposition. President Putin did not intervene, but asked the Russian prosecutor general to clarify the law. The prosecutor ordered that the drawings not leave Russia until the Bremen Kunsthalle could prove ownership. The prosecutor did, however, rule that because a person acting on his own (not acting under Soviet authority) took the drawings to Russia, the transfer was not, in principle, illegal (Gambrell 2003; Hochfield 2003). Two years later, Russian officials announced that they were preparing to return artworks to eight European countries that had submitted claims, including Germany, which would receive an extremely rare and valuable Gutenberg Bible. The Russian daily Trud (Labor) reportedly responded, “It’s strange How Norms Change

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to see such enthusiasm . . . [for] stripping Russia’s museums. It’s estimated that during the war, the Hitlerites destroyed and looted 427 museums in the USSR” (Osborn 2005). Renewed questions regarding the handling of Nazi-looted art produced additional effects at the level of state-to-state relations. Representatives of forty-four governments, plus a dozen private groups, discussed standards for the return of Nazi-looted art (and other assets) at a 1998 conference sponsored by the United States Department of State. The Washington Conference on Holocaust-Era Assets examined various national efforts to restore plundered items to their owners, and agreed on a set of nonbinding principles to guide restitution efforts (Raschèr 1999). Russian delegates presented to the conference chair, Under Secretary of State Stuart Eizenstat, three documents from Soviet archives. The documents detailed some of the Nazi art seizures carried out against Jews in Austria, and could prove useful to the heirs and descendants of the victims of the confiscations (Dobrzynski 1998f). More recently, in early 2003, the European Union initiated an effort to produce harmonized legal standards on cultural property looted during World War II, including rules for determining origins, establishing jurisdiction, resolving statute of limitations issues, and setting standards for “good faith” purchases. An additional objective was to establish a Europe-wide system for settling claims. Three EU members—Austria, France, and the United Kingdom—already had in place advisory panels to facilitate the resolution of Holocaust art claims. Approximately 170 claims were then before courts in EU countries and Russia (Henry 2003b). Nazi looting in World War II led to substantial changes in international antiplunder norms—making them stronger, more specific, and more formal. Even so, the legacy of Nazi plundering continues to have repercussions at the level of interstate relations, triggering smaller and more specific turns through the norm cycle. National governments have frequently been able to reach agreement with respect to artworks or collections whose ownership remained ambiguous or contested decades after the war. The German-Russian dispute over the large caches of art seized by the Soviets in Germany, and remaining in Russia, is the major unresolved argument. But even the issue of the Russian trophy art reinforces the basic international norms, while also indicating their limitations. The Russian claim to the artworks is not based on a right of conquest, but on a right to compensation— restitution in kind—for cultural losses suffered at the hands of the Nazis. 222

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Restitution of plundered cultural property is clearly an international norm. Restitution in kind, however, is an unresolved question.

Private claims, national responses A large, and growing, number of disputes over World War II–era plundering has involved private claims by the descendants or heirs of people whose art objects were stolen, or extorted, by the Nazis. In many cases, Nazi-looted art has turned up in the holdings of museums or private collectors (about which more in the next section). In other instances, governments have come under pressure to play a more active role in helping families recover their stolen property. This section briefly discusses a few examples of changing national restitution policies. The episodes described are subcycles of normative development occurring at the national level. The study has focused on the evolution of international norms; this section explores ways in which international norms are domesticated, that is, translated into domestic rules and policies. Austria was the first country where Hitler’s art procurers were set loose. The policies of “Aryanization” allowed Nazi officials to take possession of the art collections of Jewish families. In 1955, the Allies signed the State Treaty that restored Austrian sovereignty. One of the treaty’s provisions required Austria to return artworks looted during the war to their rightful owners. Over a period of eleven years, only 71 objects and groups of objects were returned, out of a total of 1,231 that had been claimed. The state then took possession of the thousands of remaining artworks. Some of these went on display in government offices and museums, and the rest were stored in a former monastery at Mauerbach, outside Vienna. After the journalist Hubertus Czernin revealed in 1984 the government’s acquisition of unclaimed Holocaust art, the Austrian state agreed to relaunch the restitution program, which it did in 1986. In the first stage, which covered items with only a single petitioner, 15 paintings out of 173 claims were returned. In the second stage, which handled objects for which there were multiple claims, as of mid-1993 there were 525 claims filed for 315 items, with only a single judge assigned to resolve the cases (Decker 1993, 1996). By 1996, out of 8,000 items identified as having been seized by the Nazis, the government had returned 400 for which it had received valid claims (Crocker 1996). The Austrian government deemed the remaining items from the Mauerbach repository “heirless” and gave them in 1996 to the Jewish Community of Vienna, which auctioned them for $14.57 million. The president of Austria, Thomas How Norms Change

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Klestil, described the auction as the “culmination of efforts by the Austrian government over many years” to restore plundered art to its Jewish owners. Yet as it turned out, even after 1996, thousands of artworks looted by the Nazis remained in the collections of Austrian museums. For instance, the Austrian Gallery had received forty-five items from Mauerbach and the Kunsthistorisches Museum held eighty-two. Paintings owned by Martin Bormann (Hitler’s personal secretary) were deemed property of Austria after the war, even though there was a good chance that Bormann’s collection had its origins in plunder (Czernin 1998). Another mechanism that resulted in the acquisition of looted artworks by Austrian museums was the “art tax.” “When the survivors of Nazism tried to export their recovered artworks to their new homelands, Austria demanded a share in the name of preserving national heritage” (Czernin 1998, 114). The basis for the requirement was a 1918 Export Prohibition Law for Art (Brower 2005). For instance, when the Rothschild family returned to Vienna after the war to recuperate artworks left behind in 1938, Austria required that, in return for permission to export its collections, the family donate a portion of them to Austrian museums. Some 230 items entered state collections in this way (Hochfield 1998). The heirs of Ferdinand Bloch–Bauer (who would later be at the heart of a crucial litigation over a set of Klimt paintings) made a similar deal (Crocker 1996). Demands from the descendants of Holocaust victims, including the Rothschilds, compelled Austria once again to revisit its restitution policies. The Austrian government created a commission of experts in the late 1990s to investigate the histories of all artworks acquired by the major Austrian museums between 1938 and 1960. A second commission was created to evaluate specific claims, beginning with that of the Rothschilds. The government also had to propose legislation that would make the resulting returns legal. Under existing rules, the burden of proof for establishing claims was extremely rigorous, and rested on those filing the requests. As a result, “thousands of artworks stolen from Jews and held by Austrian officials were tied up because the required standard of proof made it almost impossible for petitioners to reclaim them.” In 1998, Austria restored to the Rothschilds the art objects the family had been forced to “donate” (Hochfield 1998; Vogel 1999). The restitution commission did not produce a similarly satisfying outcome for the Bloch-Bauer heirs. The commission came in for intense criticism after it decided against the family of Ferdinand Bloch-Bauer, which had been pursuing art claims for several decades. The works in question, including six paintings by 224

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Gustav Klimt, were in the collections of the Austrian Gallery, the Albertina, and the Museum of Applied Arts. The restitution commission decided to turn over to the Bloch-Bauer heirs only a small number of less important pieces. Political and cultural leaders roundly, and publicly, condemned the outcome and the process. Critics blasted Culture Minister Elisabeth Gehrer over the composition of the commission (all civil servants) and over its failure to hear directly from the claimants and to evaluate the documentation. In addition, the commission chair had neglected to bring to the commission’s attention two legal assessments that favored the Bloch-Bauer petition (Eakin 1999). The Bloch-Bauer Klimts became the subject of one of the most famous Holocaust art lawsuits. Even the Czech Republic, which had been one of the first victims of Nazi aggression, found itself in the position of responding to claims for Nazi-looted art. Jindrich Waldes collected nearly 300 works by his friend, the Czech abstract artist Frantisek Kupka, between 1919 and 1939. In that year, the Nazis arrested Waldes and seized his art collection. After the communist takeover in 1948, the new government placed the paintings in the permanent collection of the National Gallery, declaring them national property. After the democratic revolution of 1989, Waldes’s son Jiri was able to regain much of his father’s collection, except for twenty of the most important paintings in the National Gallery. Over the years, Kupka had come to be regarded as one of the most significant Czech artists of the twentieth century, and his paintings in the National Gallery as “national treasures.” Finally, in 1997, the museum agreed to hand over the paintings to the Waldes family; it was then able to purchase them on the art market. Reflecting growing attention to the problem of Nazi-looted art, the National Gallery announced that it would publish the ownership histories of all artworks in its collection, to help in identifying items stolen by the Nazis (Rigney 2000). The Czechs’ neighbor, Hungary, likewise has faced recent demands regarding Holocaust-era loot. Baron Maurice Herzog had assembled in Budapest the second largest art collection in Hungary, one that included paintings by Courbet, Cranach, El Greco, and van Dyck. In 1944, when the Nazis invaded Hungary, most of the Herzog family escaped to Portugal. SS leader Adolf Eichmann directed that the Herzog collection be seized, and the most valuable items were shipped to Germany. U.S. troops found part of the collection near the end of the war, and returned it to Hungary. An agent of the family succeeded in spiriting some of the paintings out of the country, but the communist government reacted by nationalizing those left, including ten that ended up in the Budapest Museum of Fine Arts and the National Gallery of Hungary (Thorpe 2000). In 1996, Martha Nierenberg, How Norms Change

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granddaughter of Baron Herzog, asked the Hungarian government to return the ten paintings. Nierenberg received no response, though the Hungarian government and the national museums were reportedly under criticism for their inaction with respect to plundered art. In 1998 the National Gallery had even published a catalog of artworks looted between 1938 and 1949 in Hungary (Princz 2001). After receiving no response, Nierenberg sued in 1999. The Budapest Municipal Court ruled in her favor in October 2000, but the government of Hungary appealed (Gittrich 2000). Hungary did turn over one of the paintings, which, the government acknowledged, had never formally been nationalized (Princz 2000). By mid-1994, the remaining nine paintings were still in Hungarian museums (Siemaszko 2004). France undertook to return plundered artworks to their owners immediately after World War II, but in the late 1990s, faced criticism for not doing enough. Jacques Jaujard, Directeur des Musées Nationaux under the German occupation, established in 1944 a commission to investigate the cultural heritage removed from France during the war. The commission produced a fourteen-volume catalogue of looted artworks, identifying 61,233 pieces. After five years, approximately 45,000 of those had been returned to their owners. The commission was folded up in December 1949. Of the 15,000 unclaimed artworks, the French museums sold the majority. The remainder, just over 2,000 major pieces, passed into the hands of a branch of the Ministry of Foreign Affairs and the Direction des Musées de France (DMF). The 2,000 items were collectively labeled “Musées Nationaux Récupérations,” or MNR. The MNR paintings were on display for four years, 1950–1954, at the Château de Compiègne (Bergazov and Hochfield 1997). They were then distributed to various national and local museums that were to act as caretakers. That is, the state never assumed legal title to the unclaimed artworks. Public attention turned again toward the unclaimed World War II-era artworks in the mid-1990s. In 1995, Hector Feliciano published a book, Musée disparu, that detailed the seizure of art collections owned by prominent French Jewish families, like the Rothschilds and the Rosenbergs. The book reported that many of the looted artworks had made their way into international art markets and suggested that the effort to return MNR items to their owners had been half- hearted, or worse. That same year, the government commissioned a study, led by Jean Matteoli, of the art return effort. The 1995 Matteoli report identified in French museums the nearly 2,000 artworks that had belonged to Jewish families; the plundered art included pieces by Cézanne, Courbet, Gaugin, Monet, Rodin, Renoir, and Picasso. It declared that the French museums had not publicized the plundered art nor 226

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sought seriously to locate the owners or their heirs (Hochfield 1997). In the wake of the commission’s report, beginning in 1996, the MNR catalogue was displayed on the Internet, to make it easier for owners or their descendants to identify missing items (Parisot 1997).3 And in the spring of 1997, France put on display at the Musée d’Orsay 900 of the MNR paintings (Bergazov and Hochfield 1997). Whereas in France outright confiscations were commonplace, in the Netherlands, the Nazis frequently purchased major collections. The Nazis could deploy almost unlimited cash, not to mention highly believable threats and intimidation. Jacques Goudstikker was a prominent Dutch Jewish art dealer and collector. With the Germans advancing across the Low Countries, Goudstikker left Amsterdam in May 1940, taking with him a list of his 1,113 artworks. That collection included pieces by van Gogh, Rembrandt, Steen, van Dyck, Velazquez, Goya, Rubens, Titian, and Tintoretto. Hermann Goering and his dealer, Alois Miedl, acquired the collection in July 1940, and Miedl purchased the Goudstikker gallery. The Dutch government after the war deemed the sale voluntary, in part because Goudstikker’s mother, Emily Goudstikker, and two of his employees, had approved it. But Emily Goudstikker apparently consented to the sale in order to gain protection from anti-Jewish policies. Furthermore, Goudstikker’s widow, then living in America, opposed the transaction (Riding 2006). With the peace, 335 of Goudstikker’s paintings went back to the Netherlands, the rest having vanished into private or museum collections. Of the 335, 267 entered the Dutch National Collection. Goudstikker’s widow, Desiree, repurchased 165 paintings owned by the Goudstikker gallery at the end of the war and in 1952 signed an agreement with the Dutch government in which she abandoned any claim to the items purchased by Miedl, actions that would later complicate the effort to recover the art for the family. In 1998, the widow of Jacques and Desiree Goudstikker’s son Edward, Marei von Saher, asked the Dutch government to return the artworks. The government declined, and opposed the request on the grounds that Desiree Goudstikker had renounced her claim to the paintings. A Dutch court in 1999 ruled in favor of the government (Riding 2006). In response to the criticism it received over the Goudstikker case, the Dutch government in 2002 established a commission to provide advice on claims; the commission created a Restitution Committee to evaluate specific cases. Marei von

3

The online MNR catalogue is available at http://www.culture.gouv.fr/documentation/mnr/pres.htm.

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Saher submitted her case to the Restitution Committee in 2004. The Committee announced its conclusions in February 2006. It determined that the sales to Goering and Miedl were involuntary, and that, though Desiree Goudstikker had given up her claim to the artworks sold to Miedl, she had not done so with respect to the items purchased by Goering. The Committee therefore recommended (it had no power to issue commands) that 202 paintings be returned to Mrs. Von Saher. The Dutch cabinet had to approve the Committee’s plan, and did so in February 2006. Under the decision, prominent Dutch museums had to surrender paintings; the Rijksmuseum gave up 15. The Justice Minister was concerned that the committee did not have the authority to reverse the 1999 decision of the Dutch court. But the deputy culture minister explained that the government had agreed to the return on moral and ethical grounds (Flamini 2006; Riding 2006). In a case related to the Koenigs collection (see above), the outcome of the Restitution Committee process was not so favorable to the claimant. Christine Koenigs, granddaughter of the collector Franz Koenigs, after having her claim rejected by the Dutch culture ministry in 1997, had petitioned the Committee for the return of 34 paintings and 37 drawings. In 2004, the Committee concluded that the Koenigs collection had been sold for economic reasons, not lost to Nazi looting or a coerced sale (Metz 2004). The United Kingdom, though never a direct victim of Nazi plundering, also faced restitution demands. In February 2000, in the wake of prominent Nazi looting cases in Europe and the United States, the United Kingdom established a Spoliation Advisory Panel, whose purpose would be to facilitate the resolution of claims related to Nazi-looted art (United Kingdom 2001). One purpose of the panel was to resolve claims without long and costly court battles. The Panel would have the power to recommend restitution or compensation, though its findings would have no binding legal force (BBC News 2000). In its first report, the Spoliation Advisory Panel recommended that the government pay compensation for a painting that a family had been forced to sell during the war. The painting by Jan Griffier the Elder had been on display in the Tate Gallery since 1961, and was the first Nazi plunder-related case involving a public collection in Great Britain. The British government announced in January 2001 that it would pay 125,000 pounds in compensation (Eakin 1999; United Kingdom 2001). Elsewhere in the United Kingdom, the National Galleries of Scotland undertook an investigation into the provenance of nearly 50,000 items, pursuant to requests from the Scottish National Party that the museums draw up a list of artworks with possible connections to Nazi looting (Eakin 1999). 228

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Following the 1998 Washington Conference, the United States created a Presidential Advisory Commission to assess and report on Holocaust victims’ assets that may have been in U.S. government custody after the war. The Commission’s report, submitted in December 2000, offered a variety of recommendations, including several on how the United States could facilitate the identification and return of plundered artworks (Presidential Advisory Commission on Holocaust Assets in the United States 2000). The report identified flaws in the United States’s postwar art restitution effort. For instance, the United States had returned artworks to governments and organizations rather than to individuals, whose claims were sometimes not properly addressed. In some cases, political calculations got in the way of restitution (Henry 2003a). Finally, even though the negotiations between Russia and Germany were slow and only minimally productive, both countries did develop mechanisms for returning plundered art to its prewar owners. For instance, the German government in 1998 asked all German museums to examine their holdings for art that may have belonged to Jewish families before the Nazi era. The directive applied mainly to East German institutions, as the communist government of the former German Democratic Republic had prevented the identification, much less the restitution, of Nazi-looted art. In 1999, the Foundation for the Prussian State Collections (the association of Berlin-area museums) altered its procedures for dealing with art restitution claims. The new process was designed to accelerate the handling of claims and to allow museums to return artworks even when filing deadlines had passed. Under the new rules, the foundation president could negotiate directly with petitioners, avoiding long legal maneuvers. “L’ Olivette,” a van Gogh painting, was the first to be returned after the change in procedures. The painting was restored to Greta Silberberg of Leicester, England, heir of Max Silberberg, a Jewish industrialist in Poland. Silberberg had been forced to sell more than 100 paintings at a “Jewish Auction” in the 1930s; he later died in the Holocaust. The picture had been in the collection of the National Gallery in Berlin (BBC News 1999; Eakin 1999). Germany also turned to the Internet to assist in returning artworks displaced in World War II to their owners, setting up the Lost Art Internet Database in 2000.4 The website contains information on cultural objects that were “removed or relocated, stored or seized from their owners,” through “Nazi persecution or the

4

The database is available in German, English, and Russian at http://www.lostart.de/.

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direct consequences of the Second World War” (Germany 2006). The Koordinierungsstelle für Kulturgutverluste (Coordinating Office for Lost Cultural Objects, with participation by both the federal government and the Länder) oversees the site, which lists items both lost and found. For instance, the database includes objects taken by the Soviets from German museums, and the artworks plundered by the Nazis and destined for Hitler’s Linz supermuseum (Kishkovsky 2003). Russia announced in mid-2005 that it would return artworks seized by Soviet forces during World War II to eight countries, including Austria, Belgium, Hungary, Germany, Greece, Luxembourg, the Netherlands, and Ukraine (Osborn 2005). In early 2003, Russia launched its own web site for “displaced cultural treasures.”5 The site lists some of the estimated two million works that the Nazis removed from Soviet museums and other institutions and also catalogs art objects taken by Soviet forces and held in Russia. Initially, some nineteen institutions in Russia, including the Pushkin Museum, posted lists. Parties wishing to reclaim a piece of art from the Russian repositories would have eighteen months from the date the item was posted on the web site to submit a claim. Items not claimed before the deadline would become the property of Russia. One limitation of the site was that it existed only Russian; another was that, though parties could peruse the lists of trophy art posted by Russian museums, they could not search for specific works or artists (Kishkovsky 2003).

Museums and Holocaust plunder claims Not surprisingly, thousands of cultural objects of all kinds—paintings, sculptures, rugs, jewelry, books, coin collections, antiquities, furniture—made their way during and after the war into the art markets. The buying and selling of such items, with little or no attention to their trail of ownership during the war, meant that plundered art objects ended up in museums and private collections around the world. With the revival of interest in the restitution of Holocaust-era assets in the 1990s, the heirs and descendants of those whose cultural properties had been stolen during the war were sometimes emboldened to resume the search for looted artworks (Bazyler 2003: chap. 5). And museums were often found to be exhibiting paintings that had been plundered by the Nazis five decades earlier. The resolution of claims for Nazi-looted artworks sometimes involved negotiation,

5

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The website initially had two addresses: www.lostart.ru and www.restitution.ru/.

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and frequently required litigation. These disputes represent the translation of broad international norms into rules applicable in national law, and into norms for the conduct of museums and collectors. In other words, the private claims examined in this section are subcycles of normative change occurring at the level of domestic law and private practice. Figure 9.12 depicts these cycles in schematic form.

I. Norm context: Allied restitution, Nuremberg, 1954 Hague Convention

IV. Rule change: new norms for museums; development of case law for restituting looted art

II. Action: 1990s claims for the return of artworks seized in World War II

III. Arguments: museums debate ownership, and lending, of artworks looted in WW II; litigation in national courts

Fig. 9.12. Cycle of change: Museums adapt to international norms The number of Nazi-looted paintings in museum collections, and the strength of the movement to return them, appears to have taken the museum community by surprise. But during and after the war, with so many high-quality pieces entering the art market, museums frequently were content to remain ignorant of, or to avoid looking into, the wartime histories of specific pieces. In fact, according to Jonathan Petropoulos, both the Roberts Commission and the U.S. Department of State “warned American museums and art dealers about the problem of How Norms Change

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looted works. . . . There is compelling evidence that museums, which were dependent on contributions from donors, as a rule did not ask questions about the origins of the objects they received” (quoted in Bazyler 2003, 206–207). Museums around the world have been forced to confront the problem of Nazi plunder. Jen Lissitzky had searched for years for a Paul Klee painting, Deserted Square of an Exotic Town, that had belonged to his mother and been seized during the war. Upon hearing of the quest, the Kiyomizu Museum in Kyoto, Japan, voluntarily returned the painting (Bazyler 2003, 205– 206). The government of Brazil in 1998 created a commission to investigate Nazi loot in that country; among the objects of its inquiries were twenty-five paintings at the Rio Grande do Sul Museum of Art in Porto Alegre (Hinchberger 1998). Even Israel was the site of a museum restitution. In 1997, donors presented to the Israel Museum in Jerusalem an important painting by Camille Pisarro. As it turned out, the picture had belonged to Max Silberberg, a German Jewish businessman. In 1999, the museum returned the Pisarro to Silberman’s lone heir (Hinchberger 1998, 205). As mentioned earlier, France has dealt with some controversy over its handling of Holocaust-era art objects. In June 1999, the Court of Appeals in Paris ordered the Louvre to return five paintings to the family of Federico Gentili di Giuseppe, who had lived in Paris for thirty years and amassed a significant art collection. Gentili di Giuseppe died in April 1940, and his family fled Paris when Nazi Germany defeated France. The family estate was sold at auction in 1941, and Herman Goering bought five of the family’s paintings. After the war, the Allies returned these five paintings to the Louvre, which would hold them until they could be restored to their owners. When Federico’s daughter, Adriana, attempted to recover the paintings in 1950, the Louvre rejected her claim, informing her that a court would have to rule invalid the 1941 auction. That requirement seemed impossible to fulfill, and Adriana gave up. By the late 1990s, the climate in France had changed. The Mattéoli commission had completed its inquiry into France’s mistreatment of Jews in World War II, and the Louvre itself had sponsored a major conference on art plunder and restitution in France. The Gentili di Giuseppe heirs decided to revive their claim, and the Paris court in the end ruled in their favor (Parisot 2001). Not all claims against museums end in restitution. The Boymans-van Beuningen Foundation in Rotterdam has declined to return a Nazi-seized drawing to the heir of its original owners. The drawing is Trust in God (Godsvertrouwen) by Jan Toorop; Ernst and Gertrud Flersheim, prominent collectors in Frankfurt who 232

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fled to the Netherlands in 1937, owned it. The Nazis appropriated their art collection and sold it off. The Flersheims died at Bergen-Belsen in 1944. That same year, two Rotterdam businessmen donated the Toorop drawing to the Boymans–van Beuningen Foundation, having purchased it from a Dutch dealer, who had acquired it from a German. During the 1950s, the Flersheim heirs tried for several years to regain Trust in God and actually gained a favorable ruling from a court in Frankfurt. But the Dutch foundation refused to comply, and the family eventually gave up. In 1998, the Flersheims’s grandson, Walter Eberstadt, learned of the drawing and decided to try again, given the renewed attention in the Netherlands, and worldwide, to restituting Holocaust-era assets. Eberstadt sent his claim to the Boymans–van Beuningen Foundation. The U. S. government, the World Jewish Congress, and the Ekkart Commission (the Dutch entity that advises the government on World War II art claims) all urged the Foundation to return the drawing. But the foundation refused, arguing that the piece had been purchased in good faith, that the statute of limitations for such claims had expired, and that, as a private institution, it was not obligated to follow the government’s recommendation (Hennink 2001; Heyting 2000). Nazi looting affected Canadian museums as well. In 1996, the Art Gallery of Toronto returned five drawings to the Berlin Museum, without controversy (MacLeod 2000). But controversy emerged in 1998, when Hungary claimed a painting in the collection of the Montreal Museum of Fine Arts. According to Hungarian officials, The Marriage Feast of Cana, by Giorgio Vasari, had been listed as a war loss ever since World War II. The Montreal museum responded that it had checked into the provenance of the painting as best it could and noted that information from Hungary had been scarce during the Cold War years when Hungary was a Soviet satellite. Furthermore, the museum acquired the Vasari from a private collector, who had bought it in 1961 from a state-run Hungarian art dealer (Eichler 1998). In response, Hungary started to block art loans to exhibitions at museums in Canada. Finally, the Canadian federal government purchased the painting and, in November 1999, presented it to Hungarian Prime Minister Viktor Orban when he arrived in Ottawa for an official visit (Gessell 2001). In the fall of 2000, guidelines established by the Canadian Art Museum Directors Organization obligated major museums and galleries to create web sites listing the World War II ownership histories of artworks in their collections. In preparing the information for its web site, the National Gallery in Ottawa identified some one hundred works whose wartime provenance included gaps. Posting images How Norms Change

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and provenance data on the web site would enable the families of looting victims to identify their lost items (MacLeod 2000). Given the large number of art museums in the United States, it is not surprising that U.S. museums have been involved in a number of restitution cases. The first American museum to settle a Nazi looting claim was the Art Institute of Chicago. The heirs of Friedrich and Louise Gutmann claimed that a Degas painting, Landscape with Smokestacks, had been seized by the Nazis in Paris during the war. The Gutmanns, part of a German banking family, lived in the Netherlands. Around 1939, Friedrich Gutmann sent the Degas painting, along with other artworks, to Paris for safekeeping. After the Nazi victory in France, agents of the ERR (Rosenberg’s art confiscation group) found the painting in a Paris warehouse and appropriated it. The Gutmanns subsequently died in the extermination camps. After the war, the painting passed through several hands, before Daniel C. Searle purchased it for $850,000 in 1987. The Gutmann heirs sued Searle, who had apparently bought the painting in good faith, not knowing its background (Blumenthal 2003; Tully 1998). The Gutmanns’ daughter Lili and their grandsons Simon and Nick Goodman filed suit in federal court in Manhattan to recover the picture from Daniel Searle. After a series of legal maneuvers, including a move to federal court in Chicago, and just before the case would have gone to trial, Searle and the Gutmanns settled. In the 1998 settlement, Searle and the Gutmanns each received half ownership of the painting. Searle donated his share to the Art Institute of Chicago, which then purchased the Gutmanns’ half (Bazyler 2003, 215–21). Other American museums soon found themselves facing similar claims. The first court case involving a U.S. museum centered on a painting by Henri Matisse, Odalisque. The Bloedel family had donated the painting to the Seattle Art Museum, unaware of the piece’s tainted World War II provenance. By sheer chance, a Bloedel grandson happened to see a photograph of Odalisque in Hector Feliciano’s The Lost Museum, which he found on a coffee table at a party he was attending. The painting had belonged to Paul Rosenberg, a well-known Jewish art dealer who left his art holdings behind when he fled from Paris to the United States in 1941 (Bazyler 2003, 222–26). The Seattle Art Museum reportedly all but asked the Rosenberg family to sue, so that the museum could in turn file suit against the New York art dealer Knoedler & Company, from which the Bloedels had purchased the painting in 1954 (Dobrzynski 1998g). The museum sought the help of the Holocaust Art Restitution Project, which, after more than a year of difficult research, established that the painting was the Odalisque seized by the Nazis with 234

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Rosenberg’s collection and that Rosenberg had never sold the painting (Bazyler 2003, 224). The museum’s board of trustees then voted unanimously to return the painting to the Rosenberg heirs (Lee 1999).6 United States courts have been particularly active sites of art plunder litigation, perhaps because of the size of the American art market, the large number of art museums, and American laws that can be relatively receptive to claims involving non-U.S. acts and actors. The two most prominent cases to reach American courts involved Austrian museums. The first centered on a portrait by Egon Schiele, the second on a group of paintings by Gustav Klimt. As a special exhibition of paintings by Egon Schiele at New York’s Museum of Modern Art (MOMA) neared its closing in January 1998, the museum received requests that two of the paintings in the show not be returned to the lender, the Leopold Foundation in Austria. The descendants of Lea Bondi Jaray asked that MOMA detain Portrait of Wally, which, they claimed, had been illegally taken when Bondi, a Jewish art dealer, left Vienna for London in 1938. The heirs of Fritz Grunbaum, who died at Dachau in 1940, appealed to the museum to hold onto Dead City. Both families sought to have the artworks held in New York until their ownership claims could be resolved. The museum declined, citing its contractual obligation with the Leopold Foundation to ship the paintings to their next destination (an exhibition in Barcelona; Bazyler 2003, 226–38; Dobrzynski 1998e). In the case of the Portrait of Wally, a Nazi art dealer, Friedrich Welz, compelled Lea Bondi Jaray to give him the painting as she prepared to leave Vienna; at the end of the war, U.S. troops arrested Welz and seized his collection. After a series of errors, Wally ended up in the Austrian National Gallery. Dr. Rudolf Leopold acquired the work in 1954 in an exchange with the National Gallery. In 1994, Leopold sold his sizeable collection to the Austrian government, which established the state-financed Leopold Foundation and promised to build a museum for the collection (Bazyler 2003). With respect to Dead City, Kathleen E. Reif and Rita Reif wrote to MOMA, “This painting was taken from Mr. Grunbaum’s collection without his consent by Nazi agents or collaborators, after his arrest in Vienna following the Nazi annexation of Austria in March 1938. Mr. Grunbaum died in the Dachau concentration camp. At no time have the surviving heirs of

6

The Seattle Art Museum agreed in late 2000 to an out-of-court settlement of its lawsuit against Knoedler and Company; see Rubinstein (2000).

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Mr. Grunbaum ever consented to any sale or transfer of the painting” (Dobrzynski 1998d). After MOMA declined to detain the paintings, Manhattan District Attorney Robert M. Morgenthau subpoenaed the artworks, announcing that they would be evidence in a criminal investigation that he was opening. The subpoena rattled the art world; both MOMA and the Leopold Foundation argued that the action would have a chilling effect on the lending of artworks for traveling exhibitions and special shows in other countries (Bazyler 2003, 230; Dobrzynski 1998c). Works of art are normally immune from legal actions such as Morgenthau’s, both under federal law and New York state law. But the federal protection was inoperative because MOMA had not registered the paintings with the U.S. government, and Morgenthau argued that the New York law applied to civil but not criminal matters (Bazyler 2003, 231–32; Dobrzynski 1998a). The New York Court of Appeals (the highest court in the state) voided Morgenthau’s subpoena, finding that New York law prohibited the government from seizing artworks, even in criminal cases. Immediately after the ruling, Dead City was shipped back to the Leopold Museum in Austria. But U.S. Attorney for Manhattan Mary Jo White quickly filed a federal case under the National Stolen Property Act, arguing that Wally had been illegally brought into the country (Bohlen 2002). MOMA and the Leopold Foundation opposed the federal claim, supported by amicus briefs from other U.S. museums, including the Brooklyn Museum of Art, the Metropolitan Museum of Art, and the Museum Association of New York (Eakin 1999). Chief Judge Michael B. Mukasey, of the U.S. District Court in Manhattan, ruled in July 2001 that Wally could not be classified as stolen. But in April 2002 he reversed that decision, explaining that, though U.S. forces had found Wally after the end of the war, they were not responsible for returning the painting to its previous owner. The 2002 judgment allowed the case to proceed toward a determination as to whether the Leopold Foundation would have to forfeit title to the painting (Bazyler 2003, 232–36). Wally thus remained in the hands of the U.S. Customs Service, pending a final decision in the case. The Nazi-plunder cases, especially the Wally case, shook up the U.S. museum community. MOMA’s ordeal with Wally seemed to jeopardize the ability of American museums to borrow artworks from abroad for special shows and exhibitions; foreign art owners would decline to send art to America for fear it would be tied up in litigation or handed over to a claimant. The Association of American Art Museum Directors announced that its member institutions would examine 236

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their collections for works of art seized by the Nazis. The association’s membership includes the 170 largest North American art museums, some of which had been accused of neglecting to investigate pieces with questionable World War II backgrounds. The museums also promised to evaluate more carefully the provenance of proposed acquisitions and loans (Dobrzynski 1998b). In November 1999, the American Association of Museums (AAM), in conjunction with the U.S. National Committee of the International Council of Museums (ICOM), approved a set of guidelines for museums in dealing with objects in their collections that were illegally appropriated during the Nazi era (1933–45). The guidelines instruct museums to establish carefully the Nazi-era ownership histories of all objects before acquiring them, accepting them as donations, or receiving them as loans. In addition, museums should examine their existing collections to identify items with potential provenance problems during the World War II period (American Association of Museums 2000). Various museums put into effect the AAM guidelines. The National Gallery of Art in Washington, DC, took the lead in publicizing on the Internet its efforts to assess the possibility that some pieces in its collection might be linked to Nazi looting. In fact, in 1999, its web site helped link a family to a painting that had been confiscated by the Nazis in Paris. The National Gallery agreed to return the painting (MacLeod 2000). Other museums have followed suit, with varying approaches. The Museum of Fine Arts in Boston identified those works in its collection with known connections to Nazi Germany, and supplied provenance details on seven of them. Some institutions made public extensive lists of artworks with provenance gaps, without providing details. For instance, the Metropolitan Museum of Art (New York) listed 393 such paintings, the Art Institute of Chicago named 548 paintings and sculptures, and the Cleveland Museum of Art identified 370 paintings. The Museum of Modern Art in New York released a summary of its findings for 15 paintings with potential World War II–era provenance questions (Eakin 2000). The North Carolina Museum of Art, when presented with evidence that a painting by Lucas Cranach the Elder had been seized by the Nazis from a Jewish family in Vienna, agreed to restore the painting to the family’s heirs. The heirs then sold the picture back to the museum at a price below its estimated market value (“Museum that Returned Nazi Loot Gets it Back” 2000; Yellin 2000). In the wake of the high-profile Nazi plunder cases, and the AAM guidelines, the Los Angeles County Museum of Art (LACMA) launched an examination of its collections. Museum president and director Andrea Rich mentioned the questions that other How Norms Change

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major institutions had confronted, including the Metropolitan Museum of Art and the Museum of Modern Art. “LACMA,” she wrote, “has not been excluded from this questioning.” To address the concerns, LACMA “hired a full-time research specialist to examine all the files in [its] possession for works created before 1945 that changed hands between 1933 and 1953” (Rich 2000). The most famous of the restitution cases may well be that of Maria Altmann. Maria Altmann’s claim contained a number of elements that made it a hot media story: an aging World War II survivor (Altmann was 90 years old when her claim was finally resolved); a prominent Austrian museum; litigation that reached the U.S. Supreme Court; and, at the heart of the story, five luscious, gilded paintings by Austria’s twentieth-century master, Gustav Klimt. Indeed, Altmann’s aunt, Adele Bloch-Bauer, was the subject of two of the contested pictures, portraits entitled Adele Bloch-Bauer I and Adele Bloch-Bauer II. Adele’s husband, Ferdinand Bloch-Bauer, made his fortune in sugar before World War II. A Czech Jew, BlochBauer resided in Vienna, where he was an art collector. Adele was a patron of Gustav Klimt. The Blochs owned six Klimt paintings, including the two portraits of Adele, which they had commissioned. Adele Bloch-Bauer died in 1925. In her will, Adele asked that Ferdinand, upon his death, bequest the paintings to the Austrian Gallery. Ferdinand did donate one of the six Klimts to the National Gallery in 1936 (Bazyler 2003, 241). He might have been inclined to respect her wish with regard to the other five but for the catastrophe that began in 1938 with Hitler’s annexation of Austria. Following the Anschluss, Ferdinand left Austria for Zurich, leaving behind his collection of art. The Nazi regime then “Aryanized” Bloch-Bauer’s properties, and five of the Klimts ended up in the possession of the Nazi lawyer who oversaw the dismantling of the estate. The five paintings eventually arrived at the Austrian Gallery. Ferdinand Bloch-Bauer died in 1945, leaving everything to his niece Maria Altmann and her brother and sister (Brower 2005; Wissbroecker 2004). Maria Altmann had also fled Austria, eventually settling with her husband in southern California and becoming a United States citizen in 1945. After the war, efforts to reclaim the Klimt paintings were fruitless; the Austrian Gallery cited Adele’s will as granting ownership to the museum. Austria also subsequently imposed the “art tax.” In order to take the rest of the Bloch-Bauer collection out of the country, Austria required Altmann’s attorney to sign papers affirming that Ferdinand Bloch-Bauer had intended to donate the Klimts to the Austrian Gallery, as requested by his wife (Brower 2005; Wissbroecker 2004). Since then, the Klimt

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paintings have been among the treasured pictures in Austrian Gallery (at the Belvedere Palace). Klimt is, perhaps, the most famous Austrian twentieth-century painter. His sensuous pictures represent a glorious high point in Vienna’s artistic history. Indeed, the government of Austria described the five contested paintings as “national treasures and part of the cultural heritage of the Republic” (quoted in Bazyler 2003, 241). At the time the case was unfolding, the most famous of the Bloch-Bauer Klimts, Portrait of Adele Bloch-Bauer I (valued at $50–$60 million), appeared on the cover of the gallery’s guidebook (Bazyler 2003, 241). In 1999, Altmann petitioned the new Advisory Board, created by Austria the previous year to restitute artworks acquired by Austria via the export license process, to return the Klimt paintings. The Board returned certain items that had belonged to the Bloch-Bauer family, but not the paintings. Inspired by the case of the Schiele paintings at the Museum of Modern Art, Altmann began the process of filing suit for the paintings in Austria but was deterred by the substantial filing fee. Even the reduced filing fee conceded by the Austrian courts would have amounted to between $135,000 and $350,000 dollars (see Brower 2005, fn. 19). As an alternative, Altmann brought a suit against Austria and the Austrian Gallery in federal district court in central California. The district court rejected Austria’s motion to dismiss the case (Vogt 2002). Austria appealed first to the Circuit Court and then to the U.S. Supreme Court, on the grounds that as a sovereign state, it was immune from legal action in U.S. courts (Wissbroecker 2004). The U.S. Department of Justice entered the argument on Austria’s side (Weinstein 2004), as did the governments of Japan and France, which both faced lawsuits in U.S. courts over World War II-era events (Lane 2004). The Supreme Court in 2004 held that the Foreign Sovereign Immunities Act (FSIA) did not rule out Altmann’s suit against Austria and held that the FSIA does apply to claims regarding conduct that occurred prior to its creation (in 1976; Brower 2005). By a 6–3 vote, the Supreme Court ordered that the case proceed to trial in the District Court (Weinstein 2004). After the U.S. Supreme Court decision, Altmann and the Austrian government agreed to submit the dispute to binding arbitration. Altmann finally prevailed when an Austrian arbitration court decided in her favor in January 2006 (Haithman and Reynolds 2006). Austria returned the five Klimt paintings. Ms. Altmann, a resident of Los Angeles, promptly lent the paintings to the Los Angeles County Museum of Art; a temporary show of the Klimts opened in April 2006 (Knight 2006; Muchnic 2006).

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Conclusion As I argued at the beginning of this book, a great deal of rule development occurs at the intersection of general norms and specific situations. At the conclusion of World War II, the Allies reinforced the norm that plundered artworks should be returned to their rightful owners. The MFA&A officers and the collecting points for looted art objects were part of a large-scale effort to return cultural properties to the countries from which they had been looted. Both the Nuremberg trials and the 1954 Hague Convention further clarified, specified, and strengthened international norms protecting artworks during wartime. The basic rules are quite clear: in armed conflicts, cultural properties should be shielded from destruction or looting. But more than 50 years later, those rules continue to evolve, as they bump up against particular cases, and specific claims. This chapter has examined a variety of instances in which the general norms have been applied to specific problems. I have described these cases as subcycles of normative development. These subcycles have occurred at the level of state-to-state relations and private claims. The efforts of the heirs of plunder victims to recover cultural properties have sometimes induced governments to adjust national policies (as in Austria, France, Germany, the Netherlands, Russia, and the United States), in ways large and small. Museums have been compelled to reexamine their collections, as well as their procedures for buying, borrowing, or accepting donated works of art. Litigation has led to changes in domestic laws on restitution of Holocaust-era assets. In a sense, then, this chapter has been about the ways in which international norms have been translated into domestic laws and policies, or private practices. Such “internalization” (Koh 1998) of international rules also contributes to their strengthening and development.

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CHAPTER 10

Baghdad and Beyond In March 2003, U.S. troops surged into Iraq, on a declared mission to eradicate Saddam Hussein’s programs to develop weapons of mass destruction. The weapons of mass destruction were a delusion, but the war was all too real. Within its first few weeks, the conflict produced an incident that vaulted the wartime fate of cultural property back to the forefront of international awareness. As U.S. forces reached Baghdad in April 2003, looters and vandals stepped into the void created by the sudden collapse of all local authority. Baghdad residents stripped anything of value from government offices, schools, hospitals, police stations, and other unprotected sites. Among the buildings thus struck was the Iraqi National Museum. Thousands of items from the museum’s collections, some of them from the world’s earliest civilizations, disappeared. The international outcry was immediate and harsh: the United States should have secured the museum and prevented the looting. The question arose: Did international norms that prohibited attacking or seizing the cultural treasures of a defeated enemy also imply a positive duty to protect those treasures from the depredations of others? The looting of the Iraqi National Museum in Baghdad triggered another cycle of norm development. The nearly universal condemnation heaped upon the United States for its failure to secure the museum suggests that the international community may now recognize an obligation not just to refrain from plundering or destroying cultural treasures but to prevent others from carrying out such assaults on cultural patrimony. At a minimum, the American (in)action, and the resulting controversy, will shape the context for any similar set of events that might occur in the future. As I argue, in some future conflict, the memory of Baghdad in April 2003 will almost certainly generate an expectation that the victor has the duty to protect the cultural patrimony of the defeated.1 Figure 10.13 depicts this most recent norm cycle.

1

The argument presented in this chapter initially appeared in Sandholtz (2005).

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I. Norm context: 1907 Hague Convention, Nuremberg Tribunal, 1954 Second Protocol, ICTY jurisprudence

IV. Rule change: potential new norm establishing a general obligation to protect important cultural sites from depredations by other parties

II. Action: US failure to prevent the looting of the Iraqi National Museum

III. Arguments: intense international criticism of the United States; debate over whether there was an obligation to secure the museum

Fig. 10.13. Cycle of change: The Iraqi National Museum

Baghdad, April 2003 On March 20, 2003, following months of military buildup in the region and intense allied aerial bombardment the previous day, U.S. and British troops surged from Kuwait across the Iraqi border (Tyler 2003). American forces reached Baghdad on April 5. Over the next few days, American Army and Marine units surrounded Baghdad and seized presidential palaces within the city. By April 10, U.S. troops reached the center of Baghdad, though fighting continued in some suburbs. On April 12, looters pillaged the National Archaeological Museum in Baghdad (the Iraqi National Museum). The looting of the Iraqi National Museum captured front-page headlines on major newspapers around the world. The incident was, by all accounts, a cultural disaster of the highest magnitude. The museum’s collection of antiquities was one of the 242

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finest in the world; it was the premier collection of Mesopotamian artifacts, including those of major early civilizations like Sumer and Assyria. The museum housed treasures from Ninevah, Babylon, Nimrud, and Ur (Polk and Schuster 2005). The first accounts of the looting of the Iraqi National Museum portrayed a building in shambles, with its collections essentially gone. The Süddeutsche Zeitung reported the disaster under the headline “Barbarians in Baghdad” (Mazzoni 2003). According to museum officials quoted in the press, the looters had stolen or destroyed 170,000 pieces (“Antiquitäten waren Milliarden wert” 2003; Brooks and Calvert 2003). A museum archaeologist asserted that “about 80 percent of the collection had been stolen” (Slackman 2003); another employee declared that “nothing remained . . . . at least nothing of real value” (Burns 2003). Iraqi witnesses reported mobs of looters leaving the museum with artifacts stuffed into pockets, boxes, carts, and wheelbarrows (Burns 2003). But museum staff also declared that at least some of the plundering had been more organized, as thieves had broken into remote and locked storage rooms and seized the most valuable pieces (Witt 2003). The news accounts also described the anger of the Iraqi museum officials toward the American troops who had ignored pleas to protect the museum. The Sunday Times reported that a museum guard saw American troops near the museum and asked them to protect it, but to no avail (Brooks and Calvert 2003). The museum’s deputy director, Amin, told journalists, “[i]f they [the Americans] had just one tank and two soldiers nothing like this would have happened. I hold them responsible.” An Iraqi archaeologist described finding an American tank at a square about three-hundred yards from the museum. Five Marines accompanied him to the museum and dispersed the mob of looters by firing into the air. “I asked them to bring their tank inside the museum grounds . . . but they refused.” After thirty minutes the Marines left, and the vandals returned. A deputy curator said he had walked to the Palestine Hotel on April 12th and asked American commanders to send troops to protect what was left in the museum but received no commitment. The archaeologist expressed anger toward President Bush: “[i]f a country’s civilization is looted, as ours has been here, its history ends. Please tell this to President Bush. Please remind him that he promised to liberate the Iraqi people, but that this is not a liberation, this is a humiliation” (Burns 2003).

International reactions Governments around the world lamented the cultural catastrophe and laid moral, if not legal, blame on the United States. The government of Jordan asked the How Norms Change

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United Nations to take charge of safeguarding Iraq’s historic sites, which it described as “a national treasure for the Iraqi people and an invaluable heritage to the Arab and Islamic worlds” (Slackman 2003). Pakistan stated that it was “deeply concerned” about the plundering of the National Museum. “International law and accepted standards,” the Pakistani Foreign Ministry declared, “demand protection be given to such treasures that are a common heritage of mankind” (“Pakistan Shocked at Burning of Koran Library in Baghdad” 2003). In a telephone conversation with U.S. Secretary of State Colin Powell, Greek Foreign Minister George Papandreou, reacting to the reports of looting at the National Museum, urged protection for Iraq’s cultural heritage (“Papandreou, Powell Hold Telephone Conversation on Middle East, Iraq” 2003). Russian Culture Minister Mikhail Shvydkoi was more blunt, blaming American forces for permitting the plundering (“Russian Minister Blames US for Baghdad Museum Looting” 2003). British cabinet member Clare Short broke with Prime Minister Blair and other cabinet members by calling for a “massively bigger effort” by coalition forces to stop the looting that had ravaged the Iraq Museum in Baghdad in addition to other offices and hospitals. More surprisingly, Short even suggested that by failing to prevent the looting in Baghdad, U.S. troops had violated the 1907 Hague and 1949 Geneva Conventions that require occupiers to maintain civil order (White 2003). Australia, another coalition member, was forced to respond to questions, even though only U.S. troops had been involved in the assault on Baghdad. At a news briefing, the head of Australian Defense Forces, General Peter Cosgrove “rejected suggestions that Australia, as an invading and occupying force with international legal responsibilities for protecting Iraq’s heritage, should share the blame for the loss of artefacts” ("Fed: Artefact Looting not our Fault: Cosgrove" 2003). International press reactions were equally blistering. An editorial in New Delhi’s Pioneer proclaimed: The sacking of the Baghdad archaeological museum—now home to smashed glass cases, broken pottery, torn books and mutilated statues—will forever remain a scathing indictment of this inexcusable and manifest indifference towards the very people the coalition claims to have liberated. . . . The theft of irreplaceable antiquities, some going back over 7,000 years, represents a loss that cannot be calculated in material terms; it is an assault on collective historical consciousness and, hence, a spiritual dispossession and desecration of identity (Editorial 2003).

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Su Donghai, identified as a Chinese specialist on cultural relics, described the looting as “a catastrophe to human civilization.” Donghai declared that “the US forces should be held accountable as they should take the responsibility, in compliance with international laws, to protect Iraq’s historic, cultural and religious legacies from being destroyed or looted” (“Looting Iraq National Museum: Catastrophe to Human Civilization” 2003). An article in the Korea Herald summarized the events in Baghdad and concluded: American and British forces, their commanders and ultimately George W. Bush and Tony Blair, cannot avoid the blame for their negligence in protecting cultural assets of the nation they invaded. If some of the effort that they expended in winning control of Iraq’s many oil fields had been allocated to protecting cultural assets, they would have successfully guarded the precious contents of the Baghdad museum. ("Vandalism at Baghdad Museum" 2003)

ITAR-Tass, the Russian news agency, reported that museum experts meeting in Lyon, France in May 2003 considered the looting “the greatest cultural disaster of the current century.” The agency criticized President George W. Bush, who described the looting as “horrible,” yet failed to acknowledge “the complete passivity of American soldiers who did not prevent those ‘horrors.’ ” The report also noted that several delegates to the meeting asserted that international conventions required the United States and the United Kingdom to “guarantee the safety of Iraq’s national treasures” (“Interpol: Looting of Iraq Museums—A Huge Cultural Disaster” 2003). An opinion column in Edinburgh’s Evening News argued that “the loss of Iraq’s cultural heritage will go down in history—like the burning of the Library at Alexandria—and Britain and the US will be to blame” (Watkins 2003). Lord Renfrew of Kaimsthorn, an archaeologist and Conservative peer, had warned the British government about the need to protect Iraq’s historical and cultural sites. The Sunday Herald quoted Lord Renfrew as saying, with regard to the museum looting, “What has been allowed to happen has been nothing short of disgraceful. The invading country had a responsibility to look after its cultural heritage. It was foreseeable and preventable” (Mcdougall 2003). International organizations also reacted to the looting, less to condemn the U.S. failure to prevent it than to reiterate the relevant international norms and devise means for recovering the missing items. Antiquities experts convened by UNESCO within days after the incident urged “coalition forces to observe the

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principles of the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and its two Protocols.” The UNESCO meeting also went further, calling on states that had not ratified the 1954 Hague Convention to do so immediately and, prior to ratification, to comply with its provisions, “especially with a view to ensuring return of cultural property already illicitly removed and/or exported from Iraq” (UNESCO 2003). Later that month (April 2003), the British Museum and UNESCO jointly sponsored a meeting of experts, who called on the United States “to urgently secure the borders of Iraq to stop the export of antiquities” (de Lestrac 2003). At about the same time, the UNESCO Director-General, Koichiro Matsuura, meeting with Secretary General Kofi Annan, urged the United Nations Security Council to adopt a resolution that would prohibit the importation of items stolen from the Iraqi National Museum. The ninety-five states that were parties to the 1970 UNESCO convention banning the importation of stolen cultural properties were already obligated to prevent the cross-border transfer of Iraqi artifacts, but a Security Council resolution would bind additional countries not party to the convention (Aita 2003). A week later, Interpol hosted an “International Conference on Cultural Property Stolen in Iraq,” that experts from the art markets, museums, and law enforcement agencies attended. The purpose of the meeting was to begin preparing joint strategies for recovering the items looted from the Iraqi National Museum (Interpol 2003). Finally, on May 22, 2003, the Security Council did pass Resolution 1483, which Spain, the United Kingdom, and the United States sponsored. The Resolution stressed “the need for respect for the archaeological, historical, cultural, and religious heritage of Iraq, and for the continued protection of archaeological, historical, cultural, and religious sites, museums, libraries, and monuments.” The Security Council, acting under Chapter VII authority, further decided “that all Member States shall take appropriate steps to facilitate the safe return to Iraqi institutions of Iraqi cultural property and other items of archaeological, historical, cultural, rare scientific, and religious importance illegally removed from the Iraq National Museum, the National Library, and other locations in Iraq” (United Nations Security Council 2003).

U.S. responses Reactions within American society were just as vehement as those expressed abroad. Editorial writers, archaeologists, and archaeological associations expressed dismay at the museum losses and blamed, to varying degrees, American authorities. A commentator in the San Francisco Chronicle was relatively mild in writing, 246

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“We have to wonder how the Pentagon and the State Department could fail to see the cultural calamity coming, such a predictable consequence of urban war chaos,” especially since groups of experts had explicitly warned of the dangers war would pose to Iraq’s important cultural sites and collections (Baker 2003). An editorial in the Pittsburgh Post-Gazette called the looting a “cultural tragedy,” and pointedly remarked: “Mr. Rumsfeld ridiculed news reports of the looting, saying that film clips appeared to show ‘the same guy with the same vase’ time after time. What had actually taken place was a cultural crime, the loss of an irreplaceable history of the region long referred to as the Cradle of Civilization” (“Editorial: War Reparation: A Global Effort to Restore Iraq’s Lost Artifacts” 2004). Much of the public outrage over the looting was a rebuke to the inept early response of some U.S. officials, particularly Defense Secretary Donald Rumsfeld. At a press conference on April 11th, Rumsfeld responded to reporters’ questions about the looting: The images you are seeing on television you are seeing over, and over, and over, and it’s the same picture of some person walking out of some building with a vase, and you see it 20 times, and you think, “My goodness, were there that many vases?” (Laughter.) “Is it possible that there were that many vases in the whole country?” ... Stuff happens! But in terms of what’s going on in that country, it is a fundamental misunderstanding to see those images over, and over, and over again of some boy walking out with a vase and say, “Oh, my goodness, you didn’t have a plan.” That’s nonsense. They know what they’re doing, and they’re doing a terrific job. And it’s untidy, and freedom’s untidy, and free people are free to make mistakes and commit crimes and do bad things. (United States Department of Defense 2003a)

Both Secretary Rumsfeld and General Myers offered the primary American defense against charges that the U.S. had failed to meet its ethical or legal obligations: American forces were engaged in combat in Baghdad, and combat had to take priority over protecting the museum (United States Department of Defense 2003a). This justification was, in fact, offered by the U.S. Central Command itself, when Brigadier-General Vincent Brooks stated that as U.S. troops moved deeper into Baghdad, the demands of combat made it impossible to stop the looting of How Norms Change

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the museum (“US Rejects Charges Military to Blame for Looting at Baghdad Museum” 2003). U.S. officers in Iraq made similar claims; as the New York Times reported, “American commanders have said they lack the troops to curb the looting while their focus remains on the battles across Baghdad that are necessary to mop up pockets of resistance from paramilitary forces loyal to Mr. Hussein” (Burns 2003). The Associated Press reported that the “United States [had] said it was surprised by the rampage and said its troops were too occupied by combat to intervene when they reached Baghdad” (Lawless 2003). American officials also asserted, incorrectly, that U.S. officials had not been forewarned about the need to protect Iraq’s rich cultural heritage. For instance, at an April 15th press briefing, Secretary Rumsfeld denied having received any warnings, but was corrected by General Myers: Q: But weren’t you urged specifically by scholars and others about the danger to that museum? And weren’t you urged to provide a greater level of protection and security in the initial phases of the operation? Sec. Rumsfeld: Not to my knowledge. ... Gen. Meyers: [W]e did get advice on archaeological sites around Baghdad and in fact I think it was the Archaeological—American Archaeological Association—I believe that’s the correct title—wrote the Secretary of some concerns (United States Department of Defense 2003a).

Myers was correct. For instance, weeks before the invasion, the Archaeological Institute of America published in its newsletter an “Open Declaration on Cultural Heritage at Risk in Iraq.” Signed by thirteen organizations and more than two hundred individuals from around the world, the letter declared: The extraordinary global significance of the monuments, museums, and archaeological sites of Iraq (ancient Mesopotamia) imposes an obligation on all peoples and governments to protect them. In any military conflict that heritage is put at risk, and it appears now to be in grave danger. Should war take place, we call upon all governments to respect the terms of the 1954 Hague Convention for the Protection of Cultural Property in 248

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the Event of Armed Conflict, and its First Protocol (Archaeological Institute of America 2003).

Ashton Hawkins, president of the non-profit American Council for Cultural Policy, wrote to Secretary Rumsfeld, Secretary Powell, National Security Advisor Condoleezza Rice, and officials in other agencies in mid-October 2002. Hawkins asked what measures the U.S. invading forces would take to protect Iraq’s antiquities from damage or destruction. He received no response (Witt 2003). Together with Maxwell L. Anderson, president of the American Association of Museum Art Directors and director of the Whitney Museum of American Art in New York, Hawkins wrote the following in an opinion piece published in the November 29, 2002, issue of the Washington Post: In the event of hostilities, we urge that steps be taken to protect Iraq’s heritage, in which we have a shared interest. Our military and civilian leaderships should be aware of the location of Iraq’s most significant cultural and religious sites and monuments. To this end, we urge the administration to consider the creation now (and not later) of a planning mechanism specifically charged with ensuring that Iraq’s material culture is protected. . . . At the conclusion of hostilities, should they occur, the United States and its coalition partners will become heirs to responsibilities that include, in addition to the welfare of Iraq’s people, the task of protecting Iraq’s holy cities and ancient sites. Measures should be taken to ensure absolute respect for the integrity of Iraq’s sites and monuments, and to prevent looting of any kind (Hawkins and Anderson 2002).

The piece also included a prescient warning: “Ultimately we may well be judged by how we behave toward Iraq’s patrimony in the course of any military action and occupation we may undertake” (Hawkins and Anderson 2002). No one in the government responded until Joseph Collins, Deputy Assistant Secretary of Defense, proposed meeting with Hawkins and others to plan for the protection of Iraq’s cultural treasures. The meeting took place on January 24, 2003; in attendance were Collins and four other Pentagon officials plus Hawkins and a number of civilian experts, archaeologists, and curators. McGuire Gibson, an archaeologist at the University of Chicago, provided a list of five thousand important cultural and historic sites in Iraq; the National Museum headed the list. Collins reportedly provided informal assurances that the U.S. forces would How Norms Change

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be appropriately instructed. In March 2003, just before the invasion of Iraq, a larger group of specialists met with Deputy Assistant Secretary of the Bureau of Near Eastern Affairs (State Department) Ryan Crocker to discuss protections for key sites in Iraq; the war started before substantive follow-up could occur (Witt 2003). More significantly, the U.S. Army’s own civilian advisors had forewarned of the dangers that combat would pose to the museum. A memorandum from the Army’s Office of Reconstruction and Humanitarian Assistance (ORHA) reportedly identified the Iraqi National Museum as a “prime target for looters” and named the museum as a top priority for protection by coalition forces, second only to the national bank. Plundering would entail “irreparable loss of cultural treasures of enormous importance to all humanity.” The chief of the ORHA, General Jay Garner, was described as “livid” after the lootings (Martin, Vulliamy, and Hinsliff 2003). The issue of warning and foreseeable risk to the museum assumes critical importance with respect to U.S. claims that the demands of combat precluded protection for the museum. U.S. military planners clearly foresaw potential dangers to other sites in Baghdad, notably the Oil Ministry, and implemented a plan to establish immediate control over those facilities. The American claim that U.S. forces could not worry about the museum because they were still engaged in combat thus loses much of its force. If the war planners could prepare for securing the Oil Ministry even as combat continued, they could have done the same for the Iraqi National Museum (Fisk 2003; Wilson 2003). Other officials within the U.S. government understood better than Secretary Rumsfeld the seriousness of the condemnation that the museum plundering had brought upon the United States. Three members of the White House Cultural Property Advisory Committee resigned over the incident (Hartman 2003; Riding 2003). In his letter of resignation, committee chairman Martin Sullivan lamented, “The tragedy was not prevented, due to our nation’s inaction.” He asserted that the President was under “a compelling moral obligation” to prevent looting (Hartman 2003). In a subsequent interview Sullivan asserted that protection of the museum was “the kind of thing you should have planned for” in a preemptive war (quoted in Mcdougall 2003). The Department of State also responded to the worldwide outrage. On April 14, 2003, Secretary Colin Powell released a statement on the museum, which included 250

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the following: The people of the United States value the archaeological and cultural heritage of Iraq that documents over 10,000 years of the development of civilization. In recent days, the National Museums in Baghdad and Mosul have been looted, as well as other cultural institutions and archaeological sites. Such looting causes irretrievable loss to the understanding of history and the efforts of Iraqi and international scholars to study and gain new insight into our past. Objects and documents taken from museums and sites are the property of the Iraqi nation under Iraqi and international law. They are therefore stolen property, whether found in Iraq or other nations. Anyone knowingly possessing or dealing in such objects is committing a crime. . . . In addition to the well-reported efforts made to protect cultural, religious and historic sites in Iraq, CENTCOM has issued instructions to all troops inside Iraq to protect museums and antiquities throughout Iraq. (United States Department of State 2003)

Secretary Powell also announced that the United States was cooperating with Interpol’s effort to recover items taken from the museum, and with UNESCO to safeguard Iraq’s antiquities (United States Department of State 2003). In fact, FBI personnel, and Attorney General John Ashcroft himself, attended the meeting hosted by Interpol at Lyon on May 5–6, 2003 (Interpol 2003). Even before that, FBI Director Robert Mueller had announced that the FBI was monitoring antiquities markets and that some twenty-four FBI agents would be assigned to work with Interpol on recuperating pieces stolen from Iraq. “We recognize their importance not only to Iraqis but to the world,” Mueller commented (Mcdougall 2003). The United States also committed two million dollars to protect Iraqi museums and archaeological sites and to restore those that had suffered damage (“US to Provide Two Million Dollars to Restore, Protect Iraq’s Museums” 2003). Finally, the Department of Defense moved quickly to initiate an investigation of the ransacking of the Iraqi National Museum. Less than two weeks after the looting, a thirteen-member U.S. investigative team headed by Marine Colonel Matthew Bogdanos (a New York prosecutor before being recalled to active duty) arrived in Baghdad (United States Department of Defense 2003b). The purpose of the investigation was to identify what precisely had been stolen and how, and How Norms Change

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to support international recovery efforts. The investigation lasted several months, with Bogdanos submitting a final report in September 2003 (Bogdanos 2003). The United States has fully supported subsequent efforts to recuperate antiquities removed from Iraq (Atwood 2004; Cornwell 2003; Gottlieb 2003; Lee 2003). Early news accounts quoted museum officials as stating that 170,000 items were missing from the National Museum (see above). As a more accurate picture of the museum’s fate emerged, it became apparent that the initial reports had grossly exaggerated the losses. Donny George, director general of research and study of the Iraqi State Board of Antiquities, who had been the quoted source for the 170,000 figure, later stated that it represented the museum’s total catalogued collection. In fact, the most valuable items (except larger, immovable pieces) had been removed from the museum by its forward–looking staff (Booth and Gugliotta 2003). Some treasures had been placed in a vault beneath the Iraq Central Bank; others were hidden in a secret site (Spillius 2003). The discrepancies provoked a backlash, directed against what some saw as deliberate misleading on the part of Iraqi museum officials and gullible reporting (Cruikshank 2003; Joffe 2004; Lawler 2003).2 The Bogdanos investigation, working with Iraqi antiquities officials and experts from the British Museum, began to compile a systematic register of the museum’s holdings and of the items that were missing. By mid-June 2003, news reports on the investigation of the looting of the museum quoted U.S. and Iraqi officials as estimating the number of stolen pieces at 3,000. That number increased to 6,000 a week later, and was expected to continue rising (Gugliotta 2003). The final report submitted by Colonel Bogdanos on September 8, 2003, listed 40 major pieces taken from the public galleries; 3,138 items taken from storage rooms on the first and second floors; and 10,337 pieces taken from the basement storage room, for a total of about 13,500 items. To that date, 3,411 artifacts had been recovered or returned, including ten of the major items (Bogdanos 2003). Even with the modified numbers, the quantity of objects stolen was substantial.

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However, it must be noted that some of the early accounts did temper the sensational estimates by reporting the substantial uncertainty surrounding the numbers. The Los Angeles Times piece remarked that “the specifics of the losses may not be known for some time”; Slackman (2003). The New York Times cautioned that “what officials told journalists today may have to be adjusted as a fuller picture comes to light,” and that it was “unclear whether some of the museum’s priceless gold, silver and copper antiquities, some of its ancient stone and ceramics and perhaps some of its fabled bronzes and gold-overlaid ivory, had been locked away for safekeeping elsewhere”; Burns (2003).

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Was the United States under a normative obligation to protect the museum from the looters in the first place?

A duty to protect? The Iraqi National Museum incident, in fact, raised two questions. First, Do the international rules designed to protect cultural treasures in wartime require states not just to refrain from looting and destruction, but also to prevent such depredations by other parties? And second, Have those rules become so widely recognized and accepted that they apply even to states that are not parties to the 1954 Hague Convention? That is, has that Convention attained the status of customary international law? On the first question, the language of the 1954 Hague Convention is clear: The parties “undertake to prohibit, prevent and, if necessary, put a stop to any form of theft, pillage or misappropriation of, and any acts of vandalism directed against, cultural property” (Art. 4[3]). The language of this clause, repeating the word “any,” indicates a duty to prevent or put a stop to the prohibited acts, regardless of who is committing them. Commanders of military forces thus have an obligation to prevent looting of cultural property by their own soldiers as well as by the civilian population. Indeed, in his analysis of the 1954 Convention, Chamberlain declares: This obligation extends not just to prohibiting and preventing theft, pillage etc. on the part of forces under the command of a party to the conflict but to acts of theft, pillage, etc. committed by the civilian population, for example, where there is a breakdown in law and order in the territory occupied by a party to the conflict. (2004, 39)

Chamberlain further notes that this provision accords with the 1907 Hague Regulations, Article 43, which requires occupying powers to maintain law and order in occupied territories (39).3

3

For a contrary interpretation, see Paroff (2004), arguing that Article 4(3) does not impose on states an obligation to prevent theft, pillaging, or vandalism carried out by private actors (civilians). Yet, as noted above, the language of the 1954 Hague Convention suggests no such distinction. Furthermore, the records of the 1954 Conference at the Hague provide no indication that the states negotiating the treaty intended Article 4(3) to apply only to state actors; see Intergovernmental Conference on the Protection of Cultural Property in the Event of Armed Conflict (1961). Indeed, the overarching purpose of the

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The United States is not a party to the 1954 Hague Convention. The United States has, nevertheless, on repeated occasions acknowledged the normative force of the Convention and committed itself to adhere to the Convention’s prescriptions. The U.S. position vis-à-vis the 1954 Convention thus merits closer analysis. Though the United States has not ratified the 1954 Hague Convention, neither has it criticized or objected to any specific provisions. In fact, the reason for the lack of U.S. ratification is instructive. The American delegation played an active role in the diplomatic conference that produced the treaty, and obtained important concessions from other governments. The primary point of contention during the conference was whether or not to include language creating an exception for “military necessity.” The United States argued forcefully in favor of retaining such a clause, without which, the Americans argued, the treaty would be impossible to apply in practice (Conférence Intergouvernementale sur la Protection des Biens Culturels en cas de Conflit Armé 1961, 141–57).4 The conference voted to include the military necessity exception, recognizing that the United States and other countries would not sign the treaty, much less ratify it, without the exception. Thus Article 4, defining the duty to respect cultural property, states that the “obligations mentioned in paragraph 1 of the present Article may be waived only in cases where military necessity imperatively requires such a waiver.” Therefore, the military necessity clause explicitly refers to paragraph 1 of Article 4, which prohibits the military use of, or attacks directed against, cultural property. The military necessity exception clause therefore does not apply to the duty to prevent or halt looting and vandalism, which follows in paragraph 3. The United States apparently did not insist on qualifying the Article 4(3) requirement. In fact, the United States signed the 1954 Hague Convention at the conclusion of the conference on May 14, 1954. The United States has not, at the conference or since, expressed objections to the substantive provisions of the Convention. Its reticence about ratification had other grounds, related to the Cold War. Some U.S. military planners feared that the 1954 Convention would inhibit the UNITED STATES in the event of a war with the SOVIET UNION (see Chap. 7 above).

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Convention—to protect cultural property during wartime—would not be served if occupying powers were required to prevent looting and vandalism by their own soldiers but not to prevent the same conduct by private actors. Australia, Ireland, Israel, the Netherlands, Spain, Switzerland, Turkey, and the United Kingdom also spoke in favor of the military necessity clause.

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After the end of the Cold war, the context had changed, and President Bill Clinton transmitted the 1954 Convention to the Senate for its advice and consent on January 6, 1999 (along with the 1954 Hague Protocol and the 1977 Protocol II Additional to the Geneva Conventions). The Department of State and the Department of Defense both recommended ratification (United States Senate 1999, x). Before the treaty could come before the Senate for ratification, it had to pass through the Committee on Foreign Relations; that committee, however, has so far declined to act. Still, as of 1999, the White House and the Departments of State and Defense had concluded that nothing in the 1954 Hague Convention posed an obstacle to U.S. ratification. Not only has the United States not objected to the provisions of the 1954 Hague Convention, it has repeatedly affirmed that U.S. armed forces comply with the treaty’s requirements both in military policy and in practice. Indeed, the United States has consistently promoted international norms protecting cultural property in wartime. It was the first country to establish protections for cultural institutions in its own military regulations, with the Lieber Code. The United States ratified the 1907 Hague Conventions, as well as the Roerich Pact. During World War II, American forces took active measures to protect culturally significant sites in Europe from unnecessary damage, and led the effort to recover artworks plundered by the Nazis and to restore them to their prewar owners. The U.S. famously refrained from bombing Kyoto precisely because of its cultural and artistic significance.5 Official U.S. statements have affirmed that the United States considers itself legally obliged to conform with the 1954 Hague Convention, and has done so in situations of armed conflict. The 1972 letter from State Department attorney Robert Bettauer, explaining the government’s reasons for declining to submit the 1954 Convention for ratification, also stated that the United States did, in practice, conform to the Convention’s requirements: “The United States Government has, by its actions, shown itself ready to take all possible measures to provide protection to important cultural property. . . . Our military instructions are clear in this regard” (Merryman and Elsen 1998, 56–57).

5

The United States and the United Kingdom did, of course, bomb the historic and cultural centers of numerous German cities, including, most notoriously, Dresden.

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With respect to military instructions, the Army Field Manual on the law of land warfare notes that, in addition to treaties binding on the United States, “the customary law of war is part of the law of the United States” (United States Department of the Army 1956, 178, para. 57). Evidence of custom “may be found in judicial decisions, the writings of jurists, diplomatic correspondence, and other documentary material concerning the practice of States” (para. 6–7). The Manual cites the Hague IV protection of buildings dedicated to “religion, art, science, or charitable purposes, historical monuments,” and other locales, and its prohibition of pillage (para. 45, 47). The Manual also mentions the Roerich Pact protections for cultural institutions, but notes that only the United States and some other American countries are parties to it (para. 57, and chap. 1, sect. 1[5], Lawmaking Treaties). In his letter transmitting the 1954 Convention to the Senate, President Clinton declared that U.S. “military policy and the conduct of operations are entirely consistent with the Convention’s provisions” (United States Senate 1999, iv). The State Department letter accompanying President Clinton’s message also noted that “U.S. military forces have not only followed but exceeded [the Convention’s] terms in the conduct of military operations.” The State Department pointed out that the United States had long “recognized special protection for cultural property in armed conflict,” mentioning the Lieber Code (vii). And, in the major war prior to the 2003 invasion of Iraq, the Persian Gulf War of 1991, the U.S. military considered the 1954 Hague Convention applicable. U.S. military planners and forces in the field took specific measures to avoid damage to Iraqi cultural and historical sites (see chap. 8). As a matter of both policy and practice, then, the United States has consistently trumpeted its acceptance of, and compliance with, the 1954 Hague Convention. Indeed, according to one assessment, “While the United States has not legally bound itself to the Hague Convention, it regards its principles as part of customary international law and claims to have incorporated the treaty into its field manuals and general approach to warfare” (Colwell-Chanthaphonh and Piper 2001, 228). And a research note published in the journal Army Lawyer, discussing the 1954 Convention, declares that “the duty of armed forces to protect cultural property applies to both international and internal armed conflicts” and adds, “This universal application, during both types of armed conflict, supports the development of the principle as a fundamental principle of the law of war” (Younger 1999, 25–26).

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In essence, then, the United States has accepted as binding the core norms of the 1954 Hague Convention, which include the obligation to halt or prevent looting carried out by other actors. Those norms have, arguably, achieved the status of customary international law. For instance, Joshua Kastenberg concludes that the 1954 Convention is “binding law in most of its provisions” (1997, 277, 302). Though he does not specify which provisions have become norms of customary law, they would reasonably include the treaty’s main, general requirements, which are set forth in Article 4. Victoria Birov similarly argues that “[m]any of the provisions of the 1954 Hague Convention . . . are rapidly achieving the universally binding standard of customary international law” (Birov 1998). Other scholars offer even more decisive assessments. For instance, Adam Roberts and Richard Guelff, in their compilation of documents relating to the laws of war, conclude that given the “long-established and general acceptance of the principle of special protection of cultural property . . . this special protection may be viewed as part of customary international law” (Roberts and Guelff 1989). Howard Levie’s Code of International Armed Conflict is an attempt to compile “all of those specific items of the law of war which have some international basis and as to which there are valid reasons for believing that they are (or may be) binding rules which are applicable . . . in all international armed conflicts.” Levie incorporates in his compilation the main provisions of the 1954 Hague Convention, including Article 4(3) (1986, vol. 1, xxi, and vol. 2, 554–56). David Meyer also argues that the basic principles of the 1954 Convention have attained the status of customary international law: “The absence of significant reservations to the 1954 Convention supports its status as customary international law” (1993, 356, see also 349, 387). Developments in international criminal law also support the conclusion that the core of 1954 Hague Convention has achieved customary international law status. The statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) includes in the court’s subject matter jurisdiction crimes against cultural property. Both the Trial Chamber and the Appeals Chamber of the ICTY have referred to the 1954 Convention as part of customary international law. The International Criminal Court also has jurisdiction over crimes against cultural property (see chap. 8).

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The Iraqi National Museum and the future Though the 1954 Convention may now be seen as expressing general international law, binding on all states, its provision regarding the obligation to halt or prevent looting of cultural treasures had not been tested before April 2003. The pillaging of the Iraqi National Museum by residents of Baghdad raised, in that sense, a new question with regard to applying international norms. By neglecting to secure the museum, did the United States violate an international norm? The looting thus triggered a new cycle of normative development. International reactions were uniformly critical of the United States. American officials sought to defend themselves against the criticisms, claiming that under combat conditions, fighting their way to the center of Baghdad, U.S. troops could not be expected to defend the National Museum from looters. That argument carried little weight, as the critics pointed out that during the same period and under the same conditions, the United States had been able to secure the Oil Ministry. Though Defense Secretary Rumsfeld’s clumsy attempts to shrug off the looting as a normal consequence of freedom simply fueled the outrage, other American officials, including Secretary of State Powell and Attorney General Ashcroft, recognized the degree to which international opinion held the United States responsible for what most of the world saw as a catastrophe. Clearly, international opinion converged on the verdict that the United States’ failure to protect the Iraqi National Museum transgressed international norms. Some commentators and governments even asserted that the United States had failed to meet a legal duty to secure the museum. An obligation to prevent the looting would be consistent with the development of international norms over the past two hundred years. As a result of multiple turns through the cycle of normative development, beginning with the Napoleonic Wars, international norms against plundering or destroying cultural treasures have become clearer, more specific, and more binding, to the point that individual violators are being convicted in international courts for war crimes against cultural property. A positive duty to prevent or halt the looting of cultural treasures by other actors fits this pattern of development, and is consistent with the stream of values that produced it. Artistic and cultural monuments are, in today’s constellation of values, akin to temples. Humanity’s heritage is, in some sense, sacred, and therefore warrants protection. The outrage over the ransacking of the Iraqi National Museum revealed, in a fashion that caught some U.S. officials by surprise, the strength of the

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international norm of protection and the breadth of the international consensus that the United States should have secured the museum. If a cultural treasure like the Iraqi National Museum stands vulnerable to looting in some future war, the experience of April 2003 will shape both policymaking and discourse. The plundering of the museum in Baghdad has shifted the normative context. In future conflicts, parties may be quicker to recognize the responsibility to protect.

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CHAPTER 11

Dynamics of International Norm Change The story of art and war, plunder and restitution, has carried us to the present. The narrative structure of the book, largely chronological, has lent the account a linear character. But the geometry of norm development is more complex than a line. I have called it a cycle, or loop, yet that depiction fits only a single episode in a larger pattern of change. Norm change is a cycle, but it is a moving cycle; one turn through the loop takes us not to where we started, but to a new place, where the structure of rules has been modified. An episode of norm change thus brings us back to the same phase on the loop—the normative context—but a different location in normative space. The linear element of time combines with the cyclic nature of norm change to generate a spiral, or helix. The rules will continue to evolve, though we cannot see where future turns through the spiral will lead.

Patterns of norm change At the beginning of this book, I argued that normative structures (sets of connected rules) generate a dynamic of continual development and adaptation, driven primarily by the inevitable tension between general rules and specific events. Rules link categories of actors and situations to categories of behavior. But life is infinitely varied. Disputes arise because general rules cannot map perfectly onto the “relentless particularity of experience” (Eckstein 1988, 795). Put differently, general rules cannot foresee, and prescribe appropriate behavior for, every possible event or circumstance. The gap between general rules and specific actions inevitably generates disputes. Two kinds of disputes are especially common. In the first, an action falls within the band of uncertainty that surrounds every rule. Rules apply most clearly to events that are closest to the situations the rule was designed to address. But some situations will resemble the rule’s “ideal type” only partially, or in some respects 261

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but not others. In such circumstances, actors contest the application of the rule; a dispute arises. Even rules whose core seems incontestable—like laws against murder—have a penumbra of uncertainty where the application of the rule is not straightforward. Was a particular death the result of homicide, plain and simple, or of self-defense? The region of uncertainty necessarily produces disputes. In the second category of disputes are those actions that fall between two rules whose demands are at least partially contradictory. Is an offensive slogan, shouted in public, an incitement to violence, or constitutionally protected political speech? Again, such situations generate disputes, as they can only be resolved through arguments about the rules and their application. Because all systems of rules, including international norms, inevitably produce both kinds of situations (actions in the band of uncertainty, and actions that evoke contradictory norms), they continually cast up disputes. One party argues for one interpretation and application of the norms, and other parties advocate different understandings. The objectives of the disputants may be entirely self-interested, but in rule-structured settings (i.e., all social contexts) an assertion of self-interest is not a convincing argument. Actors therefore invoke rules and cite precedents as they attempt to persuade others. Such arguments are motors of normative change. Whatever the outcome of the dispute, it modifies the existing constellation of norms. If a consensus emerges, the rule in question is altered. If no consensus emerges, the rule is also altered, even if made weaker or more ambiguous. Rules change even when their substantive content does not shift. As a result of dispute and argument, a rule can become stronger, more salient, clearer, more specific, or more authoritative. It can also become weaker, or less salient, less clear, less specific, or less authoritative. Norms can thus change in a variety of ways without fundamentally altering their purpose or content. The account in this book offers examples of substantive rule change as well as shifts toward greater formality, specificity, and authoritativeness. For centuries, the international norm had been “to the victor go the spoils.” The conqueror was entitled to seize the cultural treasures of the defeated. In 1815, the victorious powers enunciated a contrary principle. The English, Russians, Austrians, and Prussians did not help themselves to France’s rich artistic patrimony, as would have been their prerogative under the traditional norms. Instead, they refrained from looting and compelled France to return the treasures seized during the Napoleonic wars. The arguments were intense, and agreement was not complete, but in the end the victors introduced a substantive change in international rules. 262

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Subsequent turns through the cycle of normative change modified international rules in other ways. That is, later events triggered new disputes and arguments, which in turn modified the norm against plunder. The basic rule—the seizure or destruction of cultural objects during wartime was prohibited— remained unchanged. But the rule evolved by becoming more formal, more specific, and more authoritative. The Hague Conventions formalized the prohibition on plunder by codifying it in an international treaty. The restitution carried out after World War I strengthened the rule by reaffirming and applying it. The massive Nazi plundering of Europe led to a restitution effort that further strengthened the norm. World War II triggered additional developments: Nuremberg increased the authoritativeness of the rule by holding individual leaders responsible for crimes against cultural property, and the 1954 Hague Convention specified clearer and more detailed obligations. Conflicts in the 1990s generated further efforts to improve the rules (Protocol II to the 1954 Convention) and to punish violators (at the ICTY). The most recent event, the looting of the Iraqi National Museum in April 2003, triggered another round of arguments, this time as to whether the United States failed in its obligation to secure and protect the museum. Though U.S. officials denied responsibility, international opinion was nearly unanimous in concluding that the United States fell short of an ethical, and possibly a legal, duty. The Iraqi National Museum case thus represents another turn through the cycle of normative change. The Baghdad episode altered the normative context by revealing substantial international consensus that the obligation to prevent, or halt, the looting of important cultural sites is a general one. The theory of norm change offered here is compatible with constructivist accounts that emphasize transnational activist networks and argumentation, but it moves beyond them in several important respects. First, I suggest that, frequently, episodes of transnational activism and norm cascades cannot be understood without seeing them as embedded within cycles that are in turn parts of longer historical processes. Episodes of norm change are linked forward and backward, drawing on previous cycles and shaping the normative context for subsequent events and disputes. The long historical view is indispensable. Second, my approach seeks to bridge norms and instrumental rationality. The self-regarding rational maximizer is irretrievably enmeshed in webs of norms and must rely on normative reasoning and suasion. In the historical account, even states pursuing the most cynical selfinterests engaged in normative arguments and persuasion. Third, my framework recognizes more explicitly than constructivist approaches usually do the role of power in altering norms. I distinguish between breaking rules and making rules; the power to “get away with” the former is not the same as the capacity to achieve How Norms Change

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the latter. In other words, a single great power cannot dictate norms, but agreement among the major states is usually a prerequisite for norm change. In the next few pages, I briefly revisit some of these themes.

The long view The cyclic dynamic explored in this book may not be the only mechanism of norm change, but it is an important and ubiquitous one. It is ubiquitous because the features that propel it are inherent in all systems of rules: the inevitable gap between general rules and specific actions, a gap that necessarily and continually generates disputes, which in turn modify the rules. Taking the long historical view of norm dynamics, as this book does, allows us to view events not as individual cases but as episodes in a larger process. We could assess the Napoleonic era as a free-standing case study of norm change; we could do the same for World War I, World War II, and so on. But each case study would be a snapshot, when the process of norm change is a motion picture. The cases are linked forward and backward: each episode takes place in a context shaped by previous disputes, and each dispute modifies the normative context for subsequent controversies. The historical view helps us to see the connections between episodes, as disputants in one period invoke norms and precedents from prior disputes. At the end of World War I, the powers recalled 1815 and invoked the Hague Convention. Confronted by Nazi plundering, the Allies studied the history of antiplunder norms and the restitutions carried out at Versailles. In the 1990s, as they reevaluated the 1954 Hague Convention, states reviewed again the (by then) long line of precedents that affirmed international protection for cultural monuments during wartime. The long view is thus indispensable for explaining why norms evolve the way they do. Viewing each episode as a discrete event predisposes us to see norms simply as bargained or coerced outcomes. In 1945, for example, the Allies imposed their preferences on a defeated Germany. Seen as a detached case, the World War II experience might appear simply as an instance of the winners dictating to the losers. But the snapshot approach fails to notice, much less explain, key features of the process of norm change. Why did the Allies not simply seize German collections as trophies of war or even as reparations? Had Britain and the United States wished to confiscate Germany’s cultural patrimony, the Germans could have done nothing to stop them. Why did the Allies invest significant resources in returning Nazi-looted artworks to the countries from which they had been taken?

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The long view provides answers. The Allies were aware of, and actively studied, the roots of international norms against plunder. They invoked the past— Napoleon, the Hague rules, World War I—and affirmed a commitment to antiplunder rules. One could discount such talk as propaganda, a self-interested tactic to further discredit the Nazis. But normative assertions become part of the dynamic of norm development. In the end, the Allies constrained themselves; restitution was the policy consistent with the rules they had invoked. The Soviet seizures of German cultural property even paid backhanded tribute to the rules. First, the Soviets kept the removals secret because they knew the other Allies would view them as illegitimate. Second, when the Soviets did acknowledge the art confiscations, they justified them not as trophies of victory but rather as compensation or restitution in kind. The uproar over the U.S. plan to bring German masterpieces to the United States demonstrates even more decisively how a great power can be constrained by the web of norms. Some U.S. officials argued in favor of taking possession of German art as a form of reparations. That proposal ignited such vehement counterarguments that the idea was abandoned. Even the temporary movement of 202 paintings to the United States provoked a storm of protest, first within the military’s own monuments and fine arts branch and, later, in public discourse in the United States. The argument against the plan was that the United States must not be seen as compromising the very norms it had invoked against the Nazis. That argument was persuasive, and the U.S. government was compelled to offer repeated reassurances that the 202 paintings were on a temporary visit and would be returned to Germany as soon as practicable. The long view also allows us to see how normative material from one period is picked up later, adapted, and used. In the case of the Lieber Code, the borrowing and reuse of norms and ideas was self-conscious and purposeful. The law activists (chap. 4) of the late 1800s seized upon Lieber’s rules for the conduct of the Union armies as the foundation for broader, international rules. Their goal was to codify rules of war, including protections for cultural goods, in international treaties. Because these norm entrepreneurs were also, in many cases, government insiders (diplomats, foreign ministry officials, legal advisers), they participated in a series of law-making projects. The Lieber Code became the basis for the 1874 Brussels Declaration, which informed the 1880 Oxford Manual. Each of these documents provided material for the Hague Conventions of 1899 and 1907, which included explicit rules protecting cultural treasures in wartime.

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Similarly, the 1923 draft Rules of Aerial Warfare drew directly upon a 1918 Dutch study responding to the destruction of monuments during World War I, as well as on the Hague Conventions. The 1938 Draft Convention prepared by the International Museums Office borrowed from the 1923 draft Rules of Aerial Warfare as well as the 1935 Roerich Pact. That 1938 Draft Convention, as well as the 1923 aerial warfare draft and the Versailles settlement, were studied as part of the preparatory work for the 1954 Hague Convention.

Power and norms The American dilemma over the 202 German paintings at the end of World War illustrates another advantage of the cycle theory of norm change. The United States emerged from the war preeminent; its power resources—industrial, technological, financial, and military—far outstripped those of the other major states. The United States, as discussed above, could have done whatever it wished with the cultural properties that came under its control at the end of the war. Not only did the United States decline to seize them for itself, it found itself constrained by the web of norms even with respect to the temporary shipment of 202 German paintings. More generally, as this book has demonstrated, the relationship between power and norms is not simply one of cause and effect. On the one hand, of course power is a prerequisite for the emergence of norms. I have characterized the dynamic of norm change as one in which events trigger arguments, with actors (primarily states) attempting to persuade each other regarding their preferred interpretation and application of the rules. I argued that, though great powers can impose specific practical outcomes on others, they cannot impose norms. Great powers can seize territory, cut off trade, and win wars. In that sense, they can force specific outcomes. Great powers can (like the rich and powerful in any society) frequently “get away” with violating rules. But the power to break rules is not the same as the power to make rules. More generally, specific outcomes—an embargo, an invasion, a conquest—are not international norms. Norms are social, which implies broad acceptance within the relevant community. Norms require assent, which means that even great powers cannot escape the process of argument and persuasion. Naturally, with respect to smaller states, the powers have resources, both “carrots” and “sticks,” with which to persuade. With respect to other major powers, however, the carrots and sticks are more costly and, therefore, less useable. In today’s world, the United States is again preeminent, but it repeatedly finds itself seeking to persuade other 266

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major states (France, Russia, China, Japan, Germany). When it comes to rounding up consensus even on fundamental security issues—terrorism, nuclear proliferation—the United States finds that its immense arsenal, its technological wizardry, and its economic clout are not enough to bring other major powers into line. The superpower must also persuade. The major powers in any epoch thus play a crucial role in the development of norms. Put negatively, no potential rule can survive without support from most of the world’s major powers (though unanimity is not required). Put positively, when most of the major states agree on an international rule, that rule is likely to be established. What this implies is that the game of argument and persuasion is most crucial among the leading states. Thus, in the episodes examined in this book, the norm-making arguments were those that took place among the victorious powers. After the Napoleonic Wars, England, Austria, Prussia, and Russia had to decide what to do about France’s staggering lode of plunder (even the defeated France was allowed to participate in those discussions). In 1814, the powers were not able to agree on restitution. In 1815, they reached substantial agreement, though Russia did not fully concur. After World War I, the victorious allies determined the mechanisms by which Germany would atone for its destruction of important cultural sites. When World War II came to an end, again it was up to the Allied powers to reach agreement on restitution and to prosecute Nazi leaders at Nuremberg. The establishment of the ICTY in the 1990s required the assent of the five major powers holding permanent seats in the Security Council. In each case, arguments among the leading powers were decisive. That said, it is possible to establish an international norm without the support of some of the major states. Naturally, the refusal of a preeminent power to endorse a new rule weakens that rule, and leaves room for questions regarding its viability. To take a contemporary example, the withdrawal of the United States from the Kyoto Protocol raises doubts as to the agreement’s effectiveness. Yet lack of assent from a major power does not necessarily doom a nascent international norm to irrelevance. For instance, the 1997 Mine Ban Treaty, with 154 state parties, has done much to reduce the menace posed by landmines, even though China, Russia, and the United States have so far declined to join the agreement. In my account of antiplunder norms, the incident at the Iraqi National Museum offers a similar lesson. Though the United States refused to accept responsibility for failing to secure the museum, the argument offered by U.S. officials (that U.S. troops were tied up in combat at the time) was not persuasive to most of the world. International reactions held that the United States had fallen short of its obligation to protect a How Norms Change

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cultural site of such importance. If, in some future conflict, a similar situation arises, the precedent of Baghdad in 2003 will almost certainly create a general expectation of a duty to protect. Similarly, though the United States has yet to ratify the 1954 Hague Conventions, its central provisions are widely regarded as expressing general obligations on all states; the International Criminal Tribunal for the former Yugoslavia has in fact declared that the 1954 treaty has attained customary international law status. Furthermore, the United States has in recent conflicts proclaimed its adherence to the requirements of the 1954 Convention, both in the training of its armed forces and in the conduct of military operations.

Applying the theory My account of the development of anti-plunder norms has served as an extended plausibility probe of the theoretical argument offered in the first chapter of the book. The episodes in the 200-year story of norm change offer clear examples of the cycle of norm change, in which actions collide with existing norms, triggering disputes. Actors argue about how the rules should be understood and applied. The outcomes of those arguments inevitably modify the rules. The empirical accounts are intended to show that the cycle presented in the theory effectively captures a central mechanism of norm change. The cycle theory argues, and the episodes show, how systems of rules are inherently dynamic, and how disputation is at the core of norm change. In addition, the long historical view was necessary in order to reveal how each episode is a segment of a larger process. Each episode is linked to prior ones that serve as sources of norms and precedents; each episode reshapes the rules and adds to the pool of precedents for subsequent cycles. The model captures important features of the development of anti-plunder norms; if the process is a general one, the model should be useful in explaining norm change in other domains as well. For instance, the evolution of international rules regarding humanitarian intervention appears to display the same cyclic dynamic. With humanitarian intervention, two fundamental bodies of international norms are in tension. On the one hand, traditional sovereignty norms would seem to prohibit intervention in the internal affairs of any state. On the other hand, international human rights norms have become progressively more specific and formalized since World War II. Intervention to stop grave human rights abuses would cut against traditional sovereignty norms. As I argued in chapter one, events that invoke contradictory norms generate disputes, in which actors must collectively figure out, through 268

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argumentation, what the norms should mean. The outcomes of those arguments inevitably modify the rules, whether by making them stronger or weaker, clearer or more ambiguous, more specific or less. In recent decades, a series of humanitarian crises has challenged the international community. Each crisis raised the question, Under what circumstances can states use military force to halt massive abuses of basic human rights? Each crisis provoked arguments among states as to whether, or under what conditions, states might be justified in using force within the territory of a sovereign country. Each crisis thus triggered a turn through the cycle of norm change: Uganda, Liberia, Iraq, ex-Yugoslavia, Somalia, Rwanda, Haiti, Sierra Leone, Sudan. The outcome of each cycle further defined, or refined, norms of justifiable humanitarian intervention (Sandholtz 2002). International norms on terrorism appear to have developed via a similar dynamic. Two bodies of norms were in tension: norms governing national security, and rules on self-determination. Beginning in the 1960s, most international agreements for dealing with terrorism recognized political justifications for some terrorist acts; in particular, norms recognized a right of anticolonial or national liberation movements to use force. Since the mid-1990s, the emphasis has changed in response to successive waves of terrorist actions. Each set of attacks triggered new disputes and raised new arguments. At the urging of Western powers, emerging rules tend to prohibit all forms of violence targeting noncombatants, emphasizing national security over political justifications (Stiles 2006). International norms for dealing with refugees and asylum appear also to have followed the cyclic pattern. Sovereignty norms traditionally recognized each state’s sole authority to regulate its own territory and population—who could enter and reside, with what rights and protections. A series of international upheavals created massive population movements, forcing governments to deal with the problem of stateless persons. Emerging human rights norms provided a foundation for efforts to ensure that the basic rights of refugees and stateless persons were safeguarded. Norms regulating the treatment of refugees emerged through a series of cycles. World War I and the Bolshevik revolution in Russia triggered the first main cycle of norm change. The ensuing debates led to the first international rules in this domain, overseen by the Office of the High Commissioner for Refugees in the League of Nations. The massive displacements of World War II launched a second cycle of norm development, this one culminating in the creation of the United Nations Office of the High Commissioner for Refugees How Norms Change

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(UNHCR) and the 1951 Convention Relating to the Status of Refugees, later modified by a 1967 Protocol (Chiu 2006). Disputed events are not, however, the only trigger of cycles of norm change. Other kinds of events—new technological advances, new scientific knowledge—can also generate norm cycles. For instance, the progress of rocket technology made it possible to place objects in earth orbit and even to visit the moon and other planets. Opening this new technological frontier also opened frightening new possibilities, in particular, the militarization of space. That prospect triggered a cycle of norm development that produced the Treaty of Principles Governing the Activities of States in the Exploration of Outer Space (Outer Space Treaty, 1967). Even new areas of international norm development, however, display the key features of the norm cycle. For instance, though the militarization of space was a new problem, it did not take place in a normative vacuum. Basic international legal principles, including res communis (belonging to all) and res nullius (belonging to none), undergirded the arguments. Furthermore, in the end, the Outer Space Treaty incorporated rules derived, by analogy, from the rules of the high seas (open to all, owned by none; Cheng 1997). Though this book has focused on cycles that strengthened and elaborated international rules, cycles of norm change can also weaken international norms or leave them more ambiguous. For instance, during the mid-1800s, the Western powers had established a system of extraterritorial jurisdiction in China. Western legal jurisdiction within China was part of the broader web of “unequal treaties” that conferred upon the Western countries extensive commercial, legal, and diplomatic rights. Under the rules of that system, Western nationals could not be tried, in either civil or criminal proceedings, before Chinese courts. Instead, Westerners were tried before national courts of their home country operating and applying home country law within China. Over a period of several decades, involving several cycles of disputation, the norms of extraterritorial jurisdiction were weakened and finally abandoned after World War II (Chen 2006). Finally, the cycles of norm change assessed throughout the book, including those mentioned in this chapter, are interconnected. They are parts of the broader, longterm pattern of norm change. The laws of war, antiplunder rules, and norms of humanitarian intervention, asylum and refuge, and self-determination—all are linked to the emergence of the liberal world. Liberal values and norms undergird social, political, and economic life for much of the globe. Liberal political forms— democracy and republican government—are taken for granted in virtually all of 270

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the world’s leading powers and are established, in form if not in practice, almost everywhere else. Market economies are the embodiment of liberal norms. The vast complex of human rights principles, now enshrined in both international law and national constitutions (though too often honored in the breach), is thoroughly liberal. This liberal world has emerged through interconnected cycles of norm change.1 Though this book has focused on linking cycles of norm change across time, we should be equally conscious of the dense linkages across normative domains. Thus the development of political rights and freedoms is connected to the emergence of norms of democracy and self-determination, which are also connected to antislavery norms and decolonization, rules against racial and gender discrimination, and so on. Or, to employ a different imagery, sets of international rules are now nested within more overarching norms, which are in turn nested into larger complexes. The rules against plunder, for instance, are nested within the rules of war, which in turn are nested in the framework of modern international law. Indeed, it is now possible to speak of a liberal international constitution, centered in the United Nations Charter, within which are nested the myriad rules and regimes of modern international relations.2 Liberal values have spread across the world, but unevenly and incompletely. They will continue to clash with differing traditions and ways of organizing social life, whether those alternatives are based on culture, religion, or ideology. The collision between liberal norms and the alternatives will generate disputes, which will produce yet more cycles of normative change, perhaps on both sides of the divides. Moreover, the liberal world contains internal fault lines that also generate cycles of norm change. For instance, liberal rules constituting international society sometimes clash with liberal rules for domestic society. Ironically, the two sets of rules are analogous: the domestic order is based on the autonomy and legal equality of persons, and the international order is built on the autonomy and legal equality of states. International norms of state independence and sovereignty have their counterparts in individual freedom and human rights. The tension between the two has sometimes been a productive source of international norm change. Indeed, states can no longer claim that sovereignty shields them

1

2

On the emergence of the liberal world, see Onuf and Onuf (1993, 2006). The “world society” approach in sociology focuses, in essence, on the modern liberal world and its effects on states and other institutions; see Thomas, et al. (1987), Boli and Thomas (1998), and other works by the same authors. In international law, the liberal world is a central concern in some of Anne-Marie Slaughter’s work; see for example Burley (1992). On an international constitution, see Stone (1994), Onuf (1998), and Fassbender (1998).

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from international intervention over the (mis)treatment of their own citizens. Normative tensions within the liberal world thus lead to cycles that, in turn, modify liberal norms. The cyclic dynamic may not be the only mechanism of norm development, but it is an important and ubiquitous one. Cycles tie rules to actions, actions to disputes, disputes to arguments, and arguments to norm change. Those cycles, linked forward and backward in time, and connected across rule domains, drive the never-ending dynamic of international norm change.

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Index A Aachen (Aix-la-Chapelle), 50, 60, 153 Abetz, Otto, 133, 141, 142 Adams, Robert, 194 Adolphus, Gustavus, 1 advisory rules, 8 aerial warfare, 118–20 “Agreement Between the Government of the Federal Republic of Germany and the Government of the Russian Federation on Cultural Cooperation, Moscow, 16 December 1992”, 215 Aix-la-Chapelle (Aachen), 50, 60, 153 Akinsha, Konstantin, 160, 220 Alexander II (Russia), 58, 68, 84, 87–88, 96 Allied Control Council, 217, 218 Altmann, Maria, 238–39 Amber Room, 219, 220 American Association of Museum Art Directors, 249 American Association of Museums (AAM), 237 American Commission for the Protection and Salvage of Artistic and Historic Monuments in Europe, 147 American Council for Cultural Policy, 249 American Council of Learned Societies (ACLS), 147–48 American Defense Harvard Group, 147, 148 analogy, reasoning by, 13 Anderson, Maxwell L., 249 Annan, Kofi, 18, 246 antiplunder norm development, 26; characteristic of country involved in, 26; schematic depiction of, 27–29, 28 (fig). see also cycle of normative change Antonova, Irina, 216 Archaeological Institute of America, 248–49 arguments, 14–20; consistency/analogy/precedent, 15–17; power/norms/international relations, 17–20

art, veneration of: during Enlightenment, 36–37; during Renaissance, 35–36 Art Gallery of Toronto, 233 Art Institute of Chicago, 234, 237 artists, veneration of, 35–37 Art Looting Investigation Unit, 152 art tax, 224 Ashcroft, John, 251, 258 Asia, cultural plundering, 148, 149–50 Asser, T. M. C., 99 Association of American Art Museum Directors, 236–37 Augustus III (Saxony), 37 Australia, 183, 244, 254n4 Austria: hiding places for plunder in, 153–54; private claims and, 223–25, 230; reparations and, 115, 116; restitution and, 59–60, 61, 62, 63, 65, 66–67, 68 Austria-Hungary, 94, 100, 115 Austrian National Gallery, 235, 238–39 authoritative rules, 8

B Baldin, Viktor, 216, 221 Baltic States, 219 Banner of Peace, 122 Banner of Peace Committee, 122 Bartholdt, Richard, 93, 94, 97–98 Becker, Gary, 12n10 Beernaert, Auguste, 99 Belgium: at Hague Conference of 1954, 182; military necessity clause and, 183; Nazi restitution and, 157; plundering by French, 49–50; private claims and, 230; restitution and, 62, 66, 67, 113, 114–16, 117; World War I plunder in, 103–04, 105–06, 108 Belorussia, 219

327

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Index

Bettauer, Robert, 255 Biddle, Francis, 171 Big Three, 172 Blaskic, Tihomir, 207 Bloch–Bauer, Ferdinand, 224–25, 238–39 Bloedel family, 234–35 Blücher, Gebhard Leberecht von, 60, 66 Bluntschli, Johan-Kaspar, 83–84, 86, 87, 90, 102 Bode, Wilhelm von, 107 Bogdanos, Matthew, 251–53 Bouts altarpiece, 114, 115, 117, 154 Boylan, Patrick J., 201–02 Boymans-van Beuningen Foundation, 232–33 Brazil, 96, 232 Bremen Kunsthalle, 220, 221 Bretton Woods Final Act, 156 Britain: at Hague Conference of 1954, 182; military neccesity clause and, 183, 254n4; Nazi plunder and, 148–49; Nazi restitution and, 157, 158; on plan to bring German artwork to US, 163; private claims and, 228; prosecution of war criminals and, 169, 171, 172 (see also Nuremberg); reaction to destruction of Iraqi National Museum, 245; reaction to Iraqi National Museum looting, 244; restitution and, 110, 113, 114, 144, 145–46; Second Protocol and, 206; stance on restitution, 57, 58, 63–66, 68, 71 British Museum, 246, 252 bronze horse of Lysippus, 33 Brooks, Vincent, 247–48 Brown, John N., 162 Brussels, and Dutch initiative, 118 Brussels Declaration of 1874, 85, 88, 95, 96, 159, 265; vs. Hague Convention of 1899, 96–97; compared with Instructions, 88–89, 91–92; vs. Oxford Manual, 91–92 Bunjes, Hermann, 142, 143, 144 Bureau of Revindication of Cultural Losses, 145–46 Bush, George H. W., 194 Bush, George W., 245 Byelorussia, 182 Bynkershoek, Cornelius van, 42, 79, 80 Byrne, James F., 162–63, 164

C Canada, 185, 233–34 Canadian Art Museum Directors Organization, 233–34

328

canon law, on rules of war, 40, 41 Canova, Antonio, 61–62, 66 Carnegie, Andrew, 94, 97 Castlereagh (Robert Stewart), 58, 62, 63, 64, 65, 66, 67, 69n14 Catharine incident, 41–42 Chamberlain, Neville, 253 Charles V (Holy Roman Emperor), 35 Charles VIII (France), 34 Charter of the International Military Tribunal, 172 China, 149–50, 205, 245, 270 chivalric code, 40–41 Chklaver, Georges, 121–22 Christian just war, 41 Circular program, of Hague Peace Conference (1899), 94 Clapp, Frederick, 165 Clay, Lucius, 156, 157–58, 162, 163, 165 Clemen, Paul, 106 Clemenceau, Georges, 115 Cleveland Museum of Art, 237 Clinton, William, 186, 215, 255, 256 Code of International Armed Conflict (Levie), 257 codification of norms, and Nazi plunder, 167–68 (fig) Collins, Joseph, 249–50 Comité Interallié pour l’Etude de l’Armistice, 155 Commentary on the Law of Prize and Booty (Grotius), 41–42 Commission for Protection and Restitution of Cultural Material (Vaucher Commission), 155 Commission of Experts Established Pursuant to Security Council Resolution 780 (UN), 198–99 Commission of Jurists, 118 Commission of Public Instruction (France), 49 Commission of Trade and Supply (France), 49 Commission on Reparation of Damage, 109–11 Committee of Government Experts, 181 Committee of Public Safety (France), 49 “common heritage of mankind”, 44 compulsory rules, 8 Conference of Allied Ministers of Education (CAME), 155, 156, 180 Constantinople, sack of, 33 Constitution of the United Nations Educational, Scientific and Cultural Organization (UNESCO), 180–81 constructivism, 5–6, 263 continuum of rule properties, 8, 9 (fig)

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Index

Convention for the Protection of Cultural Property in the Event of Armed Conflict. see Hague Convention of 1954 Convention for the Protection of the World Cultural and Natural Heritage, 187 Convention of Paris, 64, 69 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, 187 Convention Relating to the Status of Refugees, 270 Coordinating Office for Lost Cultural Objects (Koordinierungsstelle für Kulturgutverluste), 230 Correggio, 51 Council of Europe, 198, 200 Crocker, Ryan, 250 Crosby, Sumner McKnight, 181 Cuba, 182, 183 cultural properties protection, principle of, 34 cultural treasures, as spoils of war, 34 customary international law (CIL), 8 Cycle of change schematic: governments adapt to international norms, 213 (fig); Great War and protection of art, 102 (fig); Iraqi National Museum, 242 (fig); museums adapt to international norms, 231 (fig); Napoleon and the emergence of norms, 47 (fig); Nazi plunder and codification of norms, 168 (fig); Wars of the 1990s, 192 (fig) cycle of normative change, 5–6, 10–26, 263–64; applying, 23–25; applying theory of norm change, 268–72; contradictory rules and, 262; historical view on, 264–66; humanitarian interventions and, 268–69; interconnection among cycles, 270–73; long view of, 264–66; patterns of, 261–64; Phase I, rules and context of choice, 11–13; Phase II, all normative structures generate disputes, 13–14; Phase III, arguments, 14–20; Phase IV, rule change, 20–23; power and norms, 266–68; refugees and asylum and, 269–70; technology and, 270; terrorism and, 269; uncertainty in rules and, 261–62; weakening of international norms and, 270 Czechoslovakia: Nazi plunder of, 139; Nuremberg and, 175–76; reparations and, 110, 115 Czech Republic, and private claims, 225

D Dana, Richard Henry, 74 Declaration of Paris (1856), 84

How Norms Change

Declaration of St. Petersburg (1868), 84–85 degenerate art, 128–29, 133, 134, 135 Denon, Dominique Vivant, 51–52, 54, 55, 59, 60, 61–62, 63 “Destruction of Cultural Property Report,” 199 De Treuga et Pace (Of Truces and Peace), 40 domestic law, normative change and, 9–10, 29, 231, 240 Douai, Merlin de, 53–54 Draft Code of Offenses against the Peace and Security of Mankind, 178 Draft Convention (1938), 124–25 Draft Declaration Concerning the Protection of Historic Buildings and Works of Art in Time of War, 125 Dresden, 37, 51, 76, 130, 139, 159, 214, 255n5 Dresden Art Gallery, 140, 214 Dresden Museum, 131 Dulles, John Foster, 113, 115 Dunant, Henri, 84 Dürer, Albrecht, 35 Düsseldorf, 37 Dutch East Indies, 148 Dutch East Indies Company, 41–42 Dutch National Collection, 227

E Eberstadt, Walter, 233 economic model, of crime and punishment, 12n10 Ecuador, 182 Eichmann, Adolf, 225 Eichwede, Wolfgang, 221 Einsatzstab Rosenberg (ERR), 132, 133, 135, 141, 143, 154, 174, 177 Eisenhower, Dwight D., 150–51, 163–64 Eizenstat, Stuart, 222 Ekkart Commission, 233 Elements of International Law (Wheaton), 74 enforced restitution, 26 England. see Britain Enlightenment, 32, 34, 36–37, 40, 43, 44, 45, 73 equality, as foundational metanorm, 22 Estreicher, Karol, 146, 148 European Community Monitoring Mission, 198, 200 European Union, 9, 215, 222 exploding projectiles, proposed ban against, 84–85 Export Prohibition Law for Art, 224

329

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Index

extraterritorial jurisdiction norms, 270 Eysinga, Jonkheer W. J. M., 117, 118

F Fahy, Charles, 145 Federal Bureau of Investigation (FBI), 251 Feliciano, Hector, 226 Field Manual (U.S. Army), on law of land warfare, 256 First Additional Protocol, to Geneva Conventions, 188 First Persian Gulf War. see Iraq, First Persian Gulf War and First Protocol, to Hague Convention of 1954, 202, 249 Flersheim, Ernst, 232–33 Flersheim, Gertrud, 232–33 Florence: Dutch initiative and, 118 Foreign Sovereign Immunities Act (FSIA), 239 formal rules, 7–8 foundational metanorms, 21–22 Foundation for the Prussian State Collections, 229 Fradkov, Mikhail, 214 France: Nazi plunder of, 133–36, 141, 142, 143–44; Nazi restitution and, 157, 158; private claims and, 226–27; reaction to Iraqi National Museum looting, 245; Second Protocol and, 206; stance on restitution, 58, 68, 69, 239; war criminal prosecution and, 171, 172 (see also Nuremberg); World War I destruction of, 103, 104–05, 108, 110; World War I reparations and, 111, 113–14. see also Napoleonic plunder Francis II (Austria), 59–60 Franco-Prussian War, 85–86 Frank, Hans, 131, 132, 152 Frankfurter, Felix, 171 Frederick William III, 59 Frick, Helen, 147 Frick Art Reference Library (New York), 147–48

G Gehrer, Elisabeth, 225 General Orders No. 100, 79, 82, 83 General Report on the Revision of the Rules of Warfare, 120 Geneva Convention (1864), 84, 95 Geneva Convention (1929), 137 Geneva Convention (1949), 179 genocide, 179, 196 Gentili di Giuseppe, Federico, 232 George, Donny, 252

330

Georgia, 212 Germany: attempts to jettison international law during WWII, 137; collection points for stolen artwork, 154–55; dispute with USSR over plunder, 215–21; officer’s manual on plunder, 102–03; private claims and, 229–30; restitution and, 59, 68, 155–58. see also Nazi plunder Gerthoffer, Charles, 175 Goebbels, Joseph, 129, 140 Goering, Hermann, 131, 133–34, 135, 139, 142–43, 144, 152, 177, 213, 227, 228 Goethe, Johann Wolfgang von, 38 Gold Train, 215 Gotha, library at, 216 Goudstikker, Desiree, 227, 228 Goudstikker, Jacques, 227 Grand Tour, 36–39 Greece, 33, 54–55, 76, 125, 182–83, 230, 244 Gregory XV (pope), 34 Grigg, J., 148–49 Grotius, Hugo, 41–42, 42n5 Grunbaum, Fritz, 235–36 Gubenko, Nikolai, 216, 220, 221 Gustavus, Charles, 1, 34 Gustavus, Christina, 1, 34 Gutenberg Bible, 221 Gutmann, Friedrich, 234 Gutmann, Louise, 234

H Hague Convention of 1899, 27, 88, 95–97, 159; vs. Brussels Declaration of 1974, 96–97 Hague Convention of 1907, 27, 88, 136, 137, 141, 143, 159, 219, 253 Article 4, Hague Conventions, 254 Article 24, 118 Article 25, 119 Article 26, 119–20 Article 39, 204 Article 43, 253 Article 56, 143, 145, 175, 176, 177 Hague Convention of 1954, 180–86, 263; application to Gulf War, 194–95; background to, 180–81; First Protocol to, 202, 249; influence on ICTY, 208; Iraqi National Museum and, 246, 248–49, 253–54; military necessity notion, 181–84, 254; Protocol for the Protection of Cultural Property in the Event of Armed Conflict, 184–85; Second Protocol to, 204–05, 263; supplement to, 201– 04; United States recognition of, 254–57, 268

Prohibiting Plunder

9/21/07 3:33:50 PM

Index

Hague Convention on Naval Bombardment, 119 Hague Conventions, 88, 263. see also individual convention Hague Court (Permanent Court of Arbitration), 97, 99 Hague Peace Conference (1899), 93–97; Circular program, 94; commissions created at, 95–97; Rescript program, 93–94 Hague Peace Conference (1907), 98–100 Hague Rules on Land Warfare, 142 Halleck, Henry Wager, 74, 77, 78 Havel, Vaclav, 201 Hawkins, Ashton, 249 Hay, John, 98 Heffter, August W., 83 Hejaz, and reparations, 113, 114 Hermitage, 159, 160, 216 Herzog, Maurice, 225–26 Hessen, Phillip von, 136 Himmler, Heinrich, 131, 132, 212 Hitler, Adolph, 133, 134, 140–41, 153, 175–76 Holbein, 51 Holocaust Art Restitution Project, 234–35 Hoover, Herbert, 121 Hull, Cordell, 146, 147, 170 humanism, 35 humanitarian interventions, 268–69 Hungary, 115, 182, 214–15; private claims and, 225–26, 230, 233

I importation of stolen items, prohibition on, 187, 246 individual dignity, as foundational metanorm, 22 individualism, 36 Indochina, 148 informal rules, 8, 9, 10 Institute of International Law, 85, 86–87, 89–90, 95. see also Oxford Manual Institute on Intellectual Cooperation (IIIC), 123–24 Instructions. see Instructions for the Government of Armies of the United States in the Field Instructions for the Government of Armies of the United States in the Field (Lieber): on capitulations, 81; influence of, 82–93, 96, 182, 256; permissiveness of, 81; on private vs. public property, 81; vs. Brussels Declaration of 1874, 88–89, 91–92; vs. Oxford Manual, 91–92 Inter-Allied Declaration Against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control, 155

How Norms Change

International Bureau, 137 International Committee of the Red Cross, 84, 86, 198 International Conference on Cultural Property Stolen in Iraq, 246 International Council of Museums (ICOM), 237 International Criminal Court (ICC), 179, 180, 205, 209 International Criminal Tribunal for the Former Yugoslavia (ICTY), 2, 179, 180, 191, 199, 257, 263, 267, 268 “International Information and Cultural Series” (U.S. Dept. of State), 144 international law, traditional, 10 international law activists, 27 international law activists, role in norm development: Bluntschili, 1, 83–84, 86, 87, 90, 102; Hague Peace Conferences and, 93–100; law publicists and Napoleonic Wars, 73–93; Martens, G. F. von, 73–74; Moynier, 86, 87, 90, 102; Rolin, 85–86, 87; schematic of, 72 (fig); Westlake, 87, 99; Wheaton, 74. see also Lieber, Francis International Law Commission (ILC), 178 International Law (Halleck), 74 International Military Tribunal (IMT), 168, 171, 172, 178 International Museums Office (IMO), 123–25, 266 international norms, internalizing. see Nazi plunder, repercussions of “International Protection of Works of Art and Historic Monuments” (de Visscher), 144 international relations (IR), role of norms in, 2–3 Internet, assistance in returning artworks, 229–30, 233–34 Interparliamentary Union, 93, 94, 97–98 Interpol, 246, 251 Iraq, First Persian Gulf War and, 18, 19, 194–96 Iraq, Second Persian Gulf War and, 242–57; duty to protect, 253–57, 263, 267–68; international reactions, 243–46; U.S. responses, 246–53 Iraqi National Museum, 241; collections of, 242–43; looting of, 241, 242–43; missing items, 252; plundering influence on future, 258–59; requests for American protection, ignored, 243 Ireland, 183, 254n4 Israel, 183, 183n7, 232, 254n4 Italy: aerial warfare proposal by, 118; Nazi plunder of, 136; restitution and, 61–62, 66, 68, 110–11, 115, 153; at UNESCO conference, 180–81; World War I plunder of, 108

331

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Index

J Jackson, Robert H., 171–72 Japan, 74, 97, 98, 148, 149; aerial warfare and, 118; compensation for U.S. invasion Iraq, 18; plundering by, 177n3–178n3; restitution and, 239; Second Protocol and, 205; voluntary restitution by, 232 Jaray, Lea Bondi, 235 Jaujard, Jacques, 143, 144, 226 Jayne, Horace, 150 Jeu de Paume, 133, 133n5, 134, 142, 143, 152 Jokic, Miodrag, 207–08 Jordan, 243–44 Julius II (pope), 35 jus ad bellum (rules on just causes), 40, 41 jus in bello (rules of warfare), 40, 41

K Kaiser, Colin, 199, 200 Keitel, Wilhelm, 152, 177 Khoroshilov, Pavel, 221 Kinkel, Klaus, 218 Klestil, Thomas, 223–24 Koenig Museum, 159 Koenigs, Christine, 228 Koenigs, Franz, 213–14 Koenigs collection, 213–14, 228 Kordic, Dario, 207 Korea, 148, 149, 245 Kosovo: NATO intervention in, 15–16 Kozlov, Grigorii, 160, 220 Kümmel, Otto, 138 Künsberg, Baron von, 132, 133, 141, 142 Kunsthistorisches Museum, 224 Kunstschutz (art protection unit), 141, 142, 143 Kupka, Frantisek, 225 Kuropatkin, Alexei, 94 Kuwait, 18, 191, 192, 193–94 Kuwait National Museum, 192, 193 Kuzmina, Emina, 220 Kyoto Protocol, 267

L La Farge, Bancel, 164 The Law of Nations, or the Principles of Natural Law (Vattel), 43–44 The Laws of War on Land. see Oxford Manual League of Nations, 101, 117, 123, 269

332

Leahy, William, 146–47 Lee, Rensselaer W., 164–65 Legal Division of the Office of Military Government for Germany (OMGUS), 145 legalization, at international level, 5 legal norms, 9 legal rules (laws), 8 Leopold, Rudolph, 235 Leopold Foundation, 235, 236 Levie, Howard, 257 liberal norms, 270–73 Library of Louvain, 122 Lieber, Francis: admiration of art, 76; on art plunder, 81–82; Civil War codification of rules of war, 77–79; on constraint in war, 79–81; creation of Institute of International Law and, 86; death of, 86; influence of, 82–93, 90, 95; influences of early life, 75–76; life in America, 76–77. see also Instructions for the Government of Armies of the United States in the Field Lieber Code, 90, 119, 182, 255, 256, 265, 266 Lincoln, Abraham, 96 Linz collection, 129–30, 136, 139, 153 Lissitzky, Jen, 232 List of World Heritage in Danger, 187 Liverpool (Robert Jenkinson), 63 London Agreement, 172 Los Angeles County Museum of Art (LACMA), 237–38, 239 Lost Art Internet Database, 229–30 Louis XII (France), 34 Louis XVIII (France), 55, 58, 59, 62, 64, 65, 67 Louvain, damage to, 103–04 Louvre, 47, 50, 51, 55, 56, 58, 60–61, 63, 65, 66, 69, 74, 129, 133, 232 Luxembourg, 157, 175, 230

M MacMillan Commission, 156 Martens, Fyodor de, 90, 90n18, 95–96, 99 Martens, Georg Friedrich von, 73–74 Matsuura, Koichiro, 246 Matteoli, Jean, 226 Matteoli report, 226–27 Mauerbach, 223, 224 Maximilian (emperor), 35 Mayor, Federic, 198, 201 McCloy, John J., 171

Prohibiting Plunder

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Index

Memorandum and Lists of Art Looted by the French in the Rhineland in 1794, 138 Metropolitan Museum of Art (New York), 148, 237, 238 Metternich, Franz Wolff, 141–42, 143 Metternich, Klemens von, 59–60, 61, 63, 65 Michelangelo, 35 Miedl, Alois, 227, 228 Milosevic, Slobodan, 206–07 Mine Ban Treaty, 267 Moldova, 219 Montaigne, Michel de, 38 Montesquieu, Charles de Secondat, 38 Montreal Museum of Fine Arts, 233 Monuments, Fine Arts and Archives Branch (MFA&A), 148, 149, 150, 151–55, 162 Morgenthau, Jr., Henry, 170 Morgenthau, Robert M., 236 Morveau, Guyton de, 49, 53 Mounier, Pierre, 175 Moynier, Gustave, 86, 87, 90, 102 Mueller, Robert, 251 Müffling, Karl Freiherr von, 57–58, 60, 66–67 Mühlmann, Kajetan, 131–32, 140 Muraviev, Mikhail, 94–95 Murphy, Robert, 157–58 Musée d’Orsay, 227 Musées Nationaux Récupérations (MNR), 226–27 Museum of Fine Arts (Boston), 237 Museum of Modern Art (MOMA; New York), 235–36, 237, 238 museums, restitution by, 230–39; in Australia, 238–39; in Brazil, 232; in Canada, 233–34; in France, 232; in Israel, 232; in Japan, 232; in Netherlands, 232–33; in United States, 234–38 Myers, Richard, 247, 248

N Napoleonic plunder, 31–32, 48–70; of Austria, 52; of Belgium, 49–50, 53; French opposition to, 56–57; of Germany, 51, 52, 55; incomplete consensus on, 67–68; of Italy, 50–51, 52, 54, 55; official justification for, 53–55; precedent and, 54–55; restitution debates, 1814, 57–60, 267; restitution debates, 1815, 60–67, 267; of Rhine cities, 50; rule change and, 69–70, 262–63; of Spain, 52, 55 National Galleries of Scotland, 228 National Gallery in Ottawa, 233

How Norms Change

National Gallery of Art (Washington, DC), 237 National Library (Iraq), 246 National Museum (Baghdad): looting of, 1 National Stolen Property Act (U.S.), 236 Naumann, Michael, 219 Nazi plunder: in Austria, 129–30; in Central Europe, 130–32; degenerate art, 128–29, 133, 134, 135; in Eastern Europe, 132–33; exchanges, 134–35; planning for cultural supremacy, 127–29; plunder machine, 129–36; public architecture and, 128; purchases, 134, 227; unclaimed artworks and, 211–12; Western Europe and, 133–36. see also Nazi plunder, Allies and international norms; Nazi plunder, arguments concerning; Nazi plunder, repercussions of; Nuremberg Nazi plunder, Allies and international norms, 144–65; protecting cultural treasures, 145–52; recovery, 152–55; restitution, 155–58, 211–12; restitution vs. reparations, 156–57; Soviet exception, 158–61; 202 Berlin paintings, 161–65, 266 Nazi plunder, and codification of norms, 167–68 (fig); Geneva protocols, 188–89; related developments in international law, 186–89; UNESCO conventions, 187–88. see also Hague Convention of 1954; Nuremberg Nazi plunder, arguments concerning, 136–44; asserting control over “Germanic” heritage, 139–40; establishing Third Reich’s cultural supremacy, 140–41; Nazi justifications, 136– 37, 138–40; opposition to plundering, 141–44; protests from French, 143–44; protests from Wehrmacht, 141–43; redress for past plundering, 138–39 Nazi plunder, repercussions of, 211–40; museums and Holocaust plunder claims, 230–39; Nazi plunder in state-to-state relations, 212–23; private claims/national responses, 223–30; Washington Conference on Holocaust-Era Assets, 222 neoliberal institutionalism, 4 Netherlands: at Hague Conference of 1954, 182; military necessity clause and, 183, 254n4; Nazi restitution and, 157; private claims and, 227–28, 230; restitution and, 62–63, 66, 214; at UNESCO conference, 180–81 Netherlands Archaeological Society, 117–18 New Delhi, 244

333

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Index

Nicaragua, 19 Nicholas II (Russia), 93, 94 Nierenberg, Martha, 225–26 1990s, crimes against cultural heritage, 191–10; enforcing international rules ICTY, 205–09. see also Kuwait; Yugoslavia, former nongovernmental organizations (NGOs), 5 norm acceptance, spiral of, 5–6, 27, 261 normative change, identifying, 25–26 normative reasoning, 12–13 normative structures, 261 norm cascade theory, 5–6 norm development. see international law activists, role in norm development; norm development, World War I and norm development, World War I and, 116–25; aerial warfare proposed rules, 118–20; Dutch initiative, 117–18; International Museums Office draft treaty, 123–25; restitution in kind, 116–17; Roerich Pact and Inter-American Convention, 120–23 norm entrepreneurs, 5 North Carolina Museum of Art, 237 Nuremberg, 137, 168–80, 267; background to, 168–72; charter and indictment, 172–73; contribution to development of international norms, 168; Count Four, War Crimes and Crimes Against Humanity, 175; Count One, Common Plan or Conspiracy, 174; Count Three, War Crimes, 172–73, 175; Dutch initiative and, 118; judgment, 176–77; prosecution’s case, 174–76; significance of, 177–80, 263; “Statement of Individual Responsibility,” 173 Nuremberg Tribunal, 2, 176–77, 178, 179, 182, 189, 205

O Office of Reconstruction and Humanitarian Assistance (ORHA; U.S. Army), 250 Office of Strategic Services (OSS), 152 “Open Declaration on Cultural Heritage at Risk in Iraq,” 248–49 Order of the Golden Fleece, 115, 116 organizational support, of rules, 8, 8n4 outcomes, international rules as, 6 Oxford, and Dutch initiative, 118 Oxford Manual (1880), 85, 87, 88, 90–93, 265; vs. Instructions and Brussels Declaration, 91–92

334

P pacifist movements, 101 Pakistan, 244 Palatina (library of Frederick V), 34 Pan-American Union, 122–23 Paris: Dutch initiative and, 118 Paris Peace Conference, 108–09 Parks, W. Hays, 194–95 Patton, George, 153 Pauley, Edwin, 157, 161 Paul III (pope), 35 Permanent Court of Arbitration (Hague Court), 97, 99 Persian Gulf War. See Kuwait; Iraq, First Persian Gulf War and; Iraq, Second Persian Gulf War and Pius VII (pope), 55, 61, 62 Pius VI (pope), 50, 62 plunder: aerial warfare and, 118–20; in ancient Rome, 33, 47; art preservation as reason for, 39; during Fourth Crusade, 33; pre-1800, 32 (fig), 33–34; seagoing, 41–42, 83, 84; as symbolic dimension of war, 32–33; traditional norm on, 1, 24, 70, 116, 262. see also Nazi plunder Poland: Hague Conference of 1954 and, 182; Nazi plunder of, 130–32, 139–40, 145–46; plundering of, 65; reparations and, 115; Soviet looting in, 155–56 Political Ethics (Lieber), 81–82 positivism, 8 Posse, Hans, 130, 131, 134, 136, 139, 140, 214 Potsdam Conference, 156, 157, 172 Powell, Colin, 194–95, 244, 249, 250–51, 258 precedents, 20–21, 262; closeness in time, 23; number of, 22–23 Précis du Droit Moderne de l’Europe (Martens), 73 Preliminary Draft International Convention for the Protection of Historic Buildings and Works of Art in Time of War, 124 Presidential Advisory Commission on Holocaust Assets (U.S.), 215, 229 “Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal”, 178 Protocol for the Protection of Cultural Property in the Event of Armed Conflict, 184–85 Prussia, and restitution, 58, 59, 60, 65, 68

Prohibiting Plunder

9/21/07 3:33:50 PM

Index

Pushkin Museum, 159, 214, 216, 218, 230 Putin, Vladimir, 219, 220–21

Q Quatremère de Quincy, Antoine C., 39, 55–56

R Raginsky, M. Y., 176 rational actor (utility maximizer), 6 rational maximizer, 11–12 reasoning by analogy, 13 Red Crescent, 84 Red Cross, 84, 95 refugees and asylum, 269–70 regime theory, 4 reparations: Austria and, 115, 116; Czechoslovakia and, 110, 115; France and, 111, 113–14; Hejaz and, 113, 114; Poland and, 115; vs. restitution, 156–57 Rescript program, Hague Peace Conference of 1899, 93–94 Resolution 1483, 246 restitution: Austria and, 59–60, 61, 62, 63, 65, 66–67, 68; Belgium and, 62, 66, 67, 113, 114–16, 117, 157; Britain and, 57, 58, 63–66, 68, 71, 110, 113, 114, 144, 145–46, 157, 158; debates at Versailles, 108–16; enforced, 26; France and, 58, 68, 69, 157, 158, 239; Germany and, 59, 68, 155–58; as international norm, 222–23; Italy and, 61–62, 66, 68, 110–11, 115, 153; Japan and, 232, 239; by museums, 230–39; Napoleonic plunder and, 57–67, 267; Nazi plunder and, 155–61, 211–12; Netherlands and, 68; Prussia and, 58, 59, 60, 65, 68; Spain, 59, 68; United States and, 156–58, 161–65; USSR and, 158–61, 214; Vatican and, 61, 66; vs. reparations, 156–57; vs. requisition, 161–65 “Restitution after the War of 1914–918”, 144 Restitution Committee (Netherlands), 227–28 restitution in kind, 110, 116–17, 163, 223 Review of the Convention for the Protection of Cultural Property in the Event of Armed Conflict, 202 Rheims cathedral, damage to, 103, 104–05, 122 Ribbentrop, Joachim von, 60, 132, 177 Rice, Condoleezza, 249 Rich, Andrea, 237–38 right of conquest, 67–68 The Rights of War and Peace (Grotius), 42 Roberts, Owen J., 147

How Norms Change

Roberts Commission, 147, 148, 149, 150, 152, 156, 158, 164, 165, 231–32 Roerich, Nicholas, 120–21 Roerich Pact, 122–23, 256, 266 Rolin, Albéric, 85–86, 87 Rolin-Jaequemyns, Gustaaf, 78, 82, 83, 85, 86–87, 89–90, 99, 102 Romania, 108–09, 158n14, 182–83 Rome: as center of culture, 37; Dutch initiative and, 118; plunder by, 1–2, 33; plunder of, 34, 39, 56–57, 136; right to plunder and, 56 Roosevelt, Franklin D., 123, 146–47, 151, 170, 171 Roosevelt, Theodore, 98 Rorimer, James, 152 Rosenberg, Alfred, 132, 135, 138–39, 152, 174, 177 Rosenberg family, 226, 234–35 Rosenman, Samuel I., 171 Rothenburg, and Dutch initiative, 118 Rothschild, Louis von, 129–30 Rothschild family, 224, 226 Rousseau, Jean-Jacques, 38 Rudenko, R. A., 175–76 rule change, 20–23; foundational metanorms and, 21–22; Napoleonic plunder and, 69–70, 262–63; power and, 21; precedent and, 22–23 rule of moderation, 42 rules: advisory, 8; authoritative, 8, 10; compulsory, 8; continuum of properties, 8, 9 (fig); definition of, 7, 7n3; formal, 7–8, 10; informal, 8, 9, 10; in international relations, 4–6; norms vs., 3n2; social life and, 7–9; specificity of, 8, 10 Rules of Aerial Warfare, 120, 266 rule structures: incompleteness as cause of disputes, 13; internal contradictions as cause of disputes, 13–14 Rumsfeld, Donald, 247, 248, 249, 250, 258 Ruprecht, Leopold, 139 Russia: private claims and, 230; reaction to Iraqi National Museum looting, 244; Second Protocol and, 206. see also USSR Russian Restitution Commission, 216 Russo-Japanese War, 97, 98

S Saher, Marei von, 227–28 San Marino amendment, 183 Saudi Arabia, 18 Schliemann, Heinrich, 218 Scholz, Robert, 142 Schroeder, Gerhard, 221

335

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Index

Schurmann, Carl W. A., 181 Schwarzenberg, Karl, 66 Scotland, 228, 245 seagoing plunder, 41–42, 83, 84 Searle, Daniel, 234 Seattle Art Museum, 234–35 Second Additional Protocol, to Geneva Conventions, 188 Second Persian War. see Iraq, Second Persian Gulf War and Second Protocol, to Hague Convention of 1954, 204–05, 263 Second Protocol and, 201–05 Serbia, 108, 110. see also Yugoslavia, former Seventh International Conference of American States, 122–23 Seven Years’ War, 65 Shenin, L. R., 176 Shvydkoi, Mikhail Y., 220, 221 Sidorov, Yevgeny [Evgeny on page 217], 214, 217, 218 Silberberg, Greta, 229 Smyth, Craig H., 164 Sonderauftrag Linz (Linz Special Mission), 140–41 Soviet Extraordinary State Commission to Investigate War Crimes, 170 Soviet Union. see USSR Spain: at Hague Conference of 1954, 182; looting of Iraqi National Museum and, 246; military necessity clause and, 183, 254n4; plunder of, 123; restitution and, 59, 68 Spanish Civil War, 125 Special Committee on Germany (USSR), 159 spiral, of norm acceptance, 5–6, 27, 261 Spoliation Advisory Panel (UK), 228 Sprecher, Drexel, 174 St. Louis Declaration, 98 stare decisis (binding precedent), 15 state-to-state relations, Nazi plunder and, 212–23 Stettinius, Jr., Edward R., 171 Stimson, Henry L., 170, 171 Stimson-Stettinius-Biddle memorandum, 171 Stone, Harlan, 146 Stone Sweet, Alec, 9n6, 11n8 Storey, Robert G., 174–75 Stout, George, 149, 153 Strasbourg cathedral and library, 86, 154 Strugar, Pavel, 207–08 Su Donghai, 245

336

Sullivan, Martin, 250 Sweden, art plunder by, 1, 34 Switzerland, 117; at Hague Conference of 1954, 182; military necessity clause and, 183, 254n4

T Talleyrand, Charles Maurice de, 59, 60, 62, 64, 65, 67, 69 Taylor, Francis Henry, 146, 148, 152 Temporary Art Commission (France), 49 terrorism, 269 Thailand, 148 Thirty Years’ War, 1, 34 Tinet, Jacques-Pierre, 50 tipping points, 5 “to victor go the spoils”, 1, 24, 70, 116, 262 Toynbee, Arnold, 104 Treaty of Paris, 60, 64, 68, 69 Treaty of Principles Governing the Activities of States in the Exploration of Outer Space (Outer Space Treaty), 270 Treaty of Saint-Germain, 115 Treaty of Tolentino, 50, 61–62 Treaty on Good-Neighborliness, Partnership and Cooperation, 215 Treaty on the Protection of Artistic and Scientific Institutions and Historic Monuments. see Roerich Pact Trojan Gold, 218 trophy art, 161n17, 216, 217–20, 220, 222, 230 trophy brigades, 159–60, 215, 218, 220 Truman, Harry, 161, 164, 165, 171 Turkey, 76, 183, 201, 254n4

U Ukraine, 159, 176, 182, 212, 219, 230 UN Security Council, 179, 206, 246 UNESCO, 198, 200, 201–03, 245–46 UN General Assembly, 178 UNICEF, 198 United Kingdom. see Britain United Nations, and looting of Iraqi National Museum, 244 United Nations Commission for the Investigation of War Crimes, 169 United Nations Conference on Prohibitions or Restrictions of Use of Certain Conventional Weapons (CCW), 188–89 United Nations Office of the High Commissioner for Refugees (UNHCR), 269–70

Prohibiting Plunder

9/21/07 3:33:50 PM

Index

United Nations Security Council, and First Persian Gulf War, 193–94 United States: Allied damage to cultural sites and, 150–52; compensation to Hungary, 214–15; Hague Conference of 1954 and, 185–86, 254–57, 268; Nazi plunder and, 144–45, 146–48, 149–50; Nazi restitution and, 156–58; private claims and, 229–30; prosecution of war criminals and, 169–72 (see also Nuremberg); restitution vs. requisition and, 161–65; Second Protocol and, 206; 202 German paintings and, 161–65, 266 United States Group Control Council for Germany (USGCC), 161, 162–63 universality, as foundational metanorm, 22 Universal Peace Conference (1889), 93 U.S. Department of Defense, 186; Gulf War and, 195–96; Hague Convention of 1954 and, 255; looting of Iraqi National Museum and, 251–52 U.S. Department of State, 186, 231–32; Hague Convention of 1954 and, 255, 256; looting of Iraqi National Museum and, 250–51 U.S. National Committee of the International Council of Museums (ICOM), 237 Usages of War on Land (Kriegsbrauch in Landkrieg), 102–03 USSR: at Hague Conference of 1954, 182; looted artworks in, 159–61, 215, 265; Nazi plundering of, 132–33; Nazi restitution and, 158–61; on plan to bring German artwork to US, 163; prosecution of war criminals and, 170, 171, 172 (see also Nuremberg); restitution by, 214; trophy art, 161n17, 216, 217–20, 220, 222, 230; trophy brigades, 159–60, 215, 218, 220 utility maximizing, 11n9, 13

V Valland, Rose, 133n5, 152, 181 Vance, Cyrus, 198 van Eyck altarpiece, 114, 115, 117, 154 Vatican: Palatina library, 34; plunder of, 50; restitution and, 61, 66 Vattel, Emmerich de, 43–44, 79, 80, 81 Vaucher, Paul, 155 Venetian Horses, 66–67 Venice, 33, 37, 50, 61, 66, 118, 119 Versailles restitution debates, 108–16; Article 247, 113, 114; Council of Four and, 112, 113; lists of damage categories, 110; payments in kind, 110; “Preliminary Treaty Text”, 113–14

How Norms Change

Vetter, Fernand, 117 Vichy government, 143, 144 Victoria, Francisco de, 41 Visscher, Charles de, 123, 144 Voltaire, François-Marie Arouet, 38 von Falke, Otto, 106, 107

W Waldes, Jindrich, 225 war, rules of, 39–45; during Enlightenment, 40, 43, 44; during Middle Ages, 40–41; from 1500-1700s, 41–44 War Conference for the Safeguarding of Monuments, 106 War Responsibility and Sanctions committee, 108–19 Washington Conference on Holocaust-Era Assets, 222 Washington Conference on naval armaments, 117, 118 Wellington (Arthur Wellesley), 52n5, 60, 64–65, 64n12, 66, 69n14, 71 Welz, Friedrich, 235 Westlake, John, 87, 99 Wheaton, Henry, 74 White House Cultural Property Advisory Committee, 250 Wicar, Jean-Baptiste, 49 Wiesbaden Manifesto, 164 Witte, Sergei, 94 Woolley, Leonard, 149 World Bank, 201 World Cultural Heritage Site, 197, 206 World Heritage Fund, 187–88 World Heritage List, 187, 188 World Heritage site, 197 World Jewish Congress, 233 World Trade Organization (WTO), 9 World War I, and norms: aerial warfare proposed rules, 118–20; cultural property destruction during, 102–07; Dutch initiative, 117–18; German response to accusations, 104–07; International Museums Office draft treaty, 123–25; norm development, 116–25; restitution debates at Versailles, 108–16; restitution in kind, 110, 116–17; Roerich Pact and Inter-American Convention, 120–23

337

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Index

Y

Z

Yeltsin, Boris, 216, 218, 219 Yugoslavia, former, 196–01; Dubrovnik, 197–99, 206, 208; Mostar, 197, 200–01, 207; Vukovar, 197, 199–00

Zalm, Gerrit, 214 Zhirinovsky, Vladimir, 218 Zyuganov, Gennady, 218

338

Prohibiting Plunder

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