840.403/10–3044

The Acting Secretary of State to the Chairman of the Roberts Commission 2

My Dear Mr. Roberts: This letter refers to certain previous correspondence and specifically answers your letter dated October 30, 1944.3

A. Summary of certain previous correspondence regarding restitution plans:

1. Letter from Justice Roberts to the Secretary of State, July 27, 1944.4 Quotes the Secretary’s letter to the President (June 21, 19435) outlining the functions of the Commission. States that the Commission’s functions “During the War” are being performed, and that it stands ready to perform the functions indicated for it “At the Time of the Armistice”; asks to be advised of any directives being considered by the State Department “for incorporation in the armistice terms insofar as these affect works of art or historic monuments”.

2. Letter from the Secretary of State (Hull) to Justice Roberts, September 2, 1944:6 “The Department of State has not considered any specific directives on the restoration of works of art and historic monuments to be included in the Armistice terms, but it has formulated certain statements of policy with respect to reparation, restitution, and property rights vis-à-vis Germany which are applicable in part [Page 934]to works of art and historic monuments.” These statements of policy were attached in a memorandum. The Secretary asked for an expression from the Commission “with regard to the application of the principles set out in the … memorandum to the restoration of looted artistic and cultural objects”.

3. Letter from Justice Roberts to the Secretary of State, October 30, 1944. Enclosed a document entitled “Principles for the Restitution of Works of Art, Books, Archives, and Other Cultural Property”, dated October 11,1944,7 as the Commission’s recommended principles.

Urged consideration of 1) the military directives issued by SHAEF,8 and 2) draft directive prepared by American Delegation to EAC,9 to be issued to the Commander in Chief of the Forces of Occupation, and stated that these need clarification and broadening in scope.

Enclosed also the recommendations of the Macmillan (British) Committee, dated September 20, 1944.10 The Roberts Commission agreed therewith, but with two reservations regarding the proposed International Commission viz., 1) if such an International Commission is formed it should not only be advisory to the Commander of the Occupation Forces, “but should be the international agency to exercise the trusteeship of the cultural materials in Germany referred to in the 12th principle suggested by this (Roberts) Commission, and 2) any such international agency should be a United Nations organization”.

4. Justice Roberts to Mr. MacLeish, February 3, 1945,11 answering Mr. MacLeish’s request to Mr. Crosby, January 18, 1945,11 for the Roberts Commission’s recommendations concerning the formation of a Restitution Commission on Art and Cultural Objects, and whether it should have advisory or adjudicatory powers. The Roberts Commission was of the opinions: a) that an overall Restitution Commission should be formed, with a branch on art and cultural property; b) that the latter should be advisory, the adjudicatory powers being lodged in another branch of the overall Restitution Commission; and c) it is premature for the Roberts Commission to state whether the so-called Vaucher Commission12 could be the advisory branch until the [Page 935]State Department has defined the constitution and functions of the overall Restitution Commission.

5. Letter from Mr. MacLeish to Justice Roberts, February 7, 1945,12a acknowledges receipt of Justice Roberts’ letter of February 3, 1945, and promises early answer.

B. Questions in the above correspondence to which the present letter is an answer:

1. Does the Department of State approve the twelve principles submitted by the Roberts Commission on October 30, 1944? 2. What is the position of the Department on the three “matters not covered”, (A), (B), and (C), mentioned in the same document? 3. Has the Department defined its own position on the structure of the overall Restitution Commission, and on the sub-commission, or sub-commissions, which will deal with the restitution of art and cultural objects?

C. With respect to the twelve (12) principles recommended by the Roberts Commission in the document entitled “Principles for the Restitution of Works of Art, Books, Archives and Other Cultural Property”, dated October 11, 1944, and submitted with Justice Roberts’ letter to the Secretary of State, dated October 30, 1944, I have the honor to inform you as follows. I shall repeat the recommendations seriatim:

1. There should be an unlimited obligation on Germany to restore identifiable looted works of art, books, archives, and other cultural treasures.

Approved.

2. Restitution should be restricted to identifiable property in existence prior to German occupation.

Approved, with the modification that the words “of cultural objects” be inserted after the word “Restitution”.

3. Looted property should be restored to the existing governments of the territories where the property had its situs and not to former owners individually.

Approved.

4. Looted property should be returned in the condition in which it is found.

Approved.

5. The return of such property should not count as a credit against Germany’s other reparation obligations unless those obligations are expressly based on the removal of the property.

Approved, with the modifications that the word “other” be stricken, a period inserted after the word “obligations”, and the rest of the sentence be stricken.

6. In any case where damage to property is caused by a bona fide effort by the Germans to save the property, reparation may not be charged.

Not approved, on the ground that a general, not a specific, question of reparations accounting is involved.

7. All property removed to Germany during the period of German occupation (except for current output as contemplated under paragraph 2 above) shall be presumed to have been transferred under duress and accordingly treated as looted property.

Approved.

8. If identifiable looted works of art, books, archives, and other cultural treasures cannot be found, there should be an obligation on Germany to replace such articles by a comparable work of art of cultural treasure from their own public or private collections.

Approved.

9. There should be established by all European countries, neutrals as well as belligerents, a freezing control on the exportation and importation of works of art, books, archives, and other cultural property.

Approved.

10. The destruction of identifiable looted property by Allied bombing or other military action should not relieve Germany of the obligation to make reparation or to replace that property with other equivalent art.

Approved.

11. In the application of the principle of replacement, such replacement should be so limited as not altogether to deprive Germany of access to cultural materials.

Approved.

12. To carry out effectively the policies above set forth, consideration should be given to the creation of a United Nations committee, empowered to hold in trust and to administer the cultural resources of Germany, in order to repair, so far as possible, the injury done to communities and peoples deprived of access to art galleries, libraries, scientific museums, and cultural materials generally.

Approved in part. The general plan in Section (E) of this letter provides for a special section of the Restitution Commission to deal with the restitution of art and cultural objects. In addition, it is suggested that there be set up an International Advisory Art Commission, possibly composed of representatives of the national commissions of the interested governments.

The Department has not formulated a policy on the suggestion that the cultural resources in Germany be held in trust and administered in a manner to make them most available to the people of the devastated countries. It is noted that such a plan would be a substitution, [Page 937]at least in part, of the principle of replacement referred to in Item no. 11. A program of this type would necessarily require agreement on the part of the governments concerned. The Department feels, however, in view of the fact that the United States was fortunate enough not to have any of its cultural treasures looted or destroyed, that it would be difficult politically for this Government to advance such a proposal.

D. With respect to the three “matters not covered”, viz. (A), (B), and (C), mentioned in the same document, the position of the Department of State is as follows:

(a) Property appropriated by Germany from her own nationals.

The Department has under serious consideration the difficult legal, political, and economic questions involved in the restitution of property appropriated by Germany from her own nationals, but conclusions with respect to this question cannot as yet be stated.

(b) Cultural property which was formerly in an Allied country found in another Allied country, as, for example, paintings from a French Museum found in Holland.

(See comment under (c))

(c) Allied art property found in neutral countries.

With respect to these two points, the Department has already taken steps to obtain application of the principles enunciated in Bretton Woods Resolution VI.13 A detailed explanation of the steps taken is attached as Annex A, entitled “Memorandum on Endorsement of Bretton Woods Resolution VI”.14

E. Machinery for Restitution of Art and Cultural Objects

The Department regards the problem of implementing the restitution and replacement of cultural objects as part of the broader problem of providing machinery for carrying out the policy of the Allies with regard to restitution in general. The nature of that problem will be different after the establishment of the Allied control machinery in Germany from what it will be in the preceding (or “SHAEF”) period. This reference to the desirability of dealing with all questions of restitution under a single Restitution Commission does not indicate that the same policies will necessarily be followed in the restitution of all kinds of property. The handling of the more permanent cultural [Page 938]objects may present special problems and needs and hence may call for different procedures.

In the proposals of the European Advisory Commission regarding the control machinery for Germany15 there appear two provisions which have a very important bearing on the present subject matter. The first is the proposed creation of a control organ called “Division of Reparation, Deliveries, and Restitution”, which would be an integral part of the general control machinery. The second is a clause which expressly states that United Nations organizations which may be admitted by the control authorities to operate in Germany will, in respect of their activities in Germany, be subordinate to the Allied control machinery and answerable to it.

Present thinking in both the United States and British Governments favors the early establishment of a Restitution Commission, composed of representatives of the U.S., U.K., U.S.S.R. and the interested European Allies, which would be charged with the execution of Allied policy relating to the restitution and replacement of all kinds of looted property. It is likely that such a Commission will be a subordinate organ of the Reparation Commission, but in any event it will, almost unquestionably, be subordinate to the Allied control machinery in Germany.

The Department believes that such a Commission should be guided by the principle of returning looted property to the government having jurisdiction over the situs from which the property was taken. It is felt that if the Commission were to go further and attempt to adjudicate disputes with respect to ownership, liens, etc., it would soon become a center of controversy. Such disputes should be settled as nearly as possible in the circumstances which obtained before the looting took place, and this can best be accomplished in the manner indicated.

The nature of the responsibilities of a Restitution Commission will probably necessitate its being organized by sections, each section to be composed of experts in a given field. One of such sections would probably be a Division on cultural objects, works of art, etc., made up of representatives of all the countries represented on the Restitution Commission. To this section would fall the duty, within the limits of the policies laid down by the Restitution Commission (and ultimately by the Allied Control Authorities), of locating, identifying, safeguarding, restoring or replacing all types of cultural objects.

It is felt in the Department that if restitution machinery of the type sketched above is agreed to by the major Allies and established, it may well be supplemented by an international advisory art commission, composed perhaps of representatives from the various national commissions. Such an advisory commission should, in the opinion of the Department, be established at the earliest possible moment in order that it may advise the military authorities during the SHAEF period. Such a body should have no adjudicatory function, but should be purely advisory.

Sincerely yours,