Alexander PHILIPPOVYKH
Culturologist

Every year, as 22 June - the start of German aggression against the USSR - is getting closer, it brings an aggravation of the displaced cultural valuables problem. This problem has long ago gone beyond the scope of narrow professional discussions of art experts, archive and library specialists, lawyers, becoming a subject of sharp political controversy. At the same time, the essence of the problem is, as a rule, not fully known to the majority of those drawn into the orbit of the "restitution phenomenon", or, in simpler terms, the return of displaced valuables.

For the Russian side, the "moment of truth" in the legal settlement of the problem came with the passing on 15 April, 1998 of the Federal Law "On cultural valuables, displaced to the Union of SSR as a result of the World War II and located in the territory of the

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Russian Federation". Under the Law, cultural valuables, displaced after the World War II and remaining in this country, constitute its national patrimony - in other words, they are now legally considered to belong to us forever. The Constitutional Court of the Russian Federation on 20 July, 1999 confirmed lawfulness of the Federal Law's provisions and recognized displacement of cultural valuables by way of ordinary and compensatory restitution as lawful. This, however, did not eliminate the very problem of displaced cultural valuables. It only passed from the international legal field to the socio-cultural and ethical sphere.

Events of the past, separated from our times by six decades, conceal problems that are currently of concern for not only Russians or Germans but also for the entire world community.

What we are dealing with is an attempt at revision of the WWII results. Misrepresentation of the recent past is already yielding monstrous fruit. Thus, for instance, it appears that the Red Army and its trophy teams "have inflicted an enormous damage to German cultural heritage, because a bigger portion of what has been brought out represented scrupulously selected collections or individual items possessing a high value... We need to find ways and means of returning valuables to their lawful owners". This is a quote from an address by Osnabrueck University (FRG) professor Klaus Garber. It would be worthwhile to ask who, indeed, was the aggressor in the WWII and the Great Patriotic War - was it Germany or Russia? And, accordingly, who was the victim of the aggression?

The legal definitions used by both proponents and opponents of the return of displaced valuables have an absolutely unambiguous interpretation.

Restitution is a form of material international legal liability of the

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state that has committed an act of aggression or another international unlawful act, which represents an obligation of this state to make good or reduce the material damage inflicted to another state by restoring it, in particular, by returning the property that has been looted and illegally taken out of the territory of this other state, occupied by its troops;

Compensatory restitution is a form of material international legal liability of the aggressor state that is applied in the event that realization of its liability in the form of ordinary restitution is deemed impossible, which represents an obligation of this state to compensate for the material damage inflicted to another state by handing over to the wronged state (or by the wronged state's seizure for its own benefit) of objects of the same kind that have been looted and illegally brought out by the aggressor state from the territory of the wronged state;

Displaced cultural valuables are cultural valuables displaced in implementation of compensatory restitution from territories of Germany and its former military allies - Bulgaria, Hungary, Italy, Romania and Finland - to the territory of the Union of SSR in accordance with orders of the military command of the Soviet Army, the Soviet military administration in Germany, orders of other competent bodies of the Union of SSR, and currently located in the territory of the Russian Federation.

Everything is utterly clear. But why then is the former aggressor - Germany - so insistent in its attempts to revise evident things?

Displaced cultural valuables: retrospect

Representatives of German science and culture justly note that, in the process of studying the historical and cultural past of their

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country, the Germans are forming their national historical consciousness. This assertion is indisputable - not only for the Germans but also for the Russians. National historical consciousness provides for self-preservation of the nation. The past never disappears - being preserved in the present, it is heading for the future.

It suffices to discredit your past to cast doubt upon your present.

With the start of the WWII, Nazis set up special organizations to discover and seize cultural valuables in occupied territories. SS Reichfuehrer Heinrich Himmler directed operations of the organization "Ahnenerbe" ("Ancestral Heritage", the full name - "German Society for Research into the Ancient German History and Ancestral Heritage"), set up in 1933 and integrated within the SS in 1937. "Ahnenerbe" had the task of "studying the spread, spirit, influence and heritage of the Nordic Indo-German race" - in addition, in the course of the war, this organization engaged in scientific research, which ended, in the long run, in experiments over concentration camp prisoners and looting artistic objects from occupied countries. A secretariat of the General Mediator was set up as a branch of "Ahnenerbe" to register German cultural valuables in associated Eastern territories. It also had another designation, "General intermediary "East"".

Foreign Minister Joachim von Ribbentrop had at his disposal a special battalion (Sonderkommando) commanded by SS Sturmbannfuehrer baron von Kuensberg, which consisted of cultural and art experts. Three (of the four) companies of the battalion were dispatched to the occupied Soviet territory.

However, the biggest and all-embracing organization engaged in search for and confiscation of cultural assets in occupied territories

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was the Einsatzstab headed by Reichsleiter Alfred Rosenberg, which had subordinated to it a special "Graphic arts" commando force with a staff of 350 art experts. In addition to the existing organizations, on 12 June, 1942 Alfred Rosenberg set up a "Central Office for the seizure and safekeeping of cultural goods in the occupied Eastern territories". It was headed by Stabsfuehrer Gerhard Utikal.

Separate operations were also conducted by the "Kunstkomission" commando, specializing in palace arts.

The results of these organizations' activities, considering German pedantry and organization of labor, were fairly satisfactory. According to some estimates, the total cost of only cultural valuables lost by our country may exceed $230 billion (at the current rate of exchange). Yet how can one evaluate or compensate for the ruined famous English Palace in Old Petrodvorets, built by architect Quarenghi on the orders of Catherine the Great, or the Church of the Transfiguration of our Lord in Novgorod, famed for its frescoes painted by the great Theophanes the Greek, the Church of the Transfiguration of our Lord on Nereditsa in Novgorod - a unique 12^th century relic of Byzantine and Russian painting, or the Resurrection monastery in New Jerusalem - one of masterpieces of the 17^th century Russian architecture?

In 1945, the moral and cultural foundations for an equivalent compensation of damage by the aggressor state raised no doubts at all. Moreover, by the decision of the occupation authorities, Germany was bound to restore looted valuables with its cultural patrimony. These decisions were agreed on the level of the Allied Control Authority in Germany, which in the first post-war years represented the sole lawful authority in the country, under the Act of complete and unconditional surrender of the aggressor. For

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Germany as a whole, this authority was exercised through the Control Council and its bodies - the Coordinating Committee and Directorates - and in each zone of occupation, by the respective military administration.

Laws and directives of the Control Council, orders of the Soviet military administration in Germany, decrees of the State Defense Committee and the Council of People's Commissars of the USSR on displacement of cultural valuables from the territory of Germany specified the just compensation of damage by the aggressor state. Thus on 21 January, 1946 the Control Council issued a directive on the definition of the term "restitution", setting forth its general principles; on 17 April, 1946, it approved the document "Quadripartite Procedurs for Restitution", specifying its methods and mechanism of realization. These documents said, "Only those states have the right to restitution, whose territory was fully or partially occupied by the armed forces of Germany or the forces of its allies.

If restitution of the object cannot be accomplished, the right of the claiming side to restitution is satisfied by way of compensation with equivalent objects in possession of Germany. All matters related to restitutions shall be settled by the Control Council with the government of the state from which the property was looted.

Special instructions will be set up for the property of unique character, restitution of which is not possible".

In June 1946, these instructions were approved by the Coordinating Committee. They specified that the claim for replacement could only be made with respect to articles of unique nature - works of art, works of applied art, historical relics, rare manuscripts and books or objects of high scientific and historical value. It was also specified that "replacement shall be made out of all

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property... in possession of Germany, be it German official agencies, public or private legal persons... Appropriate objects shall be in the first place selected (if possible) out of property of former members of the Nazi party. The commander of each zone may himself make a selection out of objects in museums, picture galleries, libraries, archives and other collections located in his zone on the termination of military operations".

Moreover, the bodies of the Allied Control Authority in the same coordinated manner engaged in confiscation of property of Nazi and war criminals. Allied Control Council Directive ?38 "On the arrest and punishment of war criminals, Nazis and Militarists and the internment, control and surveillance of potentially dangerous Germans" of 12 October, 1946 classified war criminals and potentially dangerous persons into five categories - major offenders; offenders; lesser offenders; followers; exonerated persons. According to the Directive, the category of offenders included, in particular, "anyone who in the service of national socialism ridiculed, damaged or destroyed values of art or science".

It can thus be stated that cultural assets, which have been removed from Germany, in accordance with acts of the Allied Control Authority and military administrations of occupation zones, are lawfully displaced and are not subject to return.

At the same time, lessons should be drawn from the past for the sake of the present and future. Our outstanding scientist and patriot Dmitry Lihachev wrote, "The present is a result, an outcome of the past. This is why an evil past can never lead to a good present, if... we fail to awake to faults of the past".

So what are the faults of our recent past, and what lessons should be drawn from it?

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Firstly, the fate of the cultural assets displaced from Germany to this country has been tragic. This cultural property has not done any good to Russia as material compensation for the damage inflicted by German aggressors. It has never even been exhibited in museums.

Instead of openly legalizing these assets, replenishing collections of our national museums and libraries and in this way reintroducing masterpieces of world art in the global cultural use, instead of providing access for researchers to work with archive and archeological collections, Soviet leaders have locked up the cultural treasures displaced from Germany in museum vaults, thus giving rise to speculations, suspicions and doubts as to the lawfulness of their staying in this country.

Secondly, over a long period of time, our national cultural treasures that had been displaced to the West in the wake of the German aggression against the USSR were only recalled at conferences or in preparing printed publications devoted to Nazi occupation policies in the Soviet territory. It was believed that it was extremely difficult to even locate national cultural assets brought out by Nazis, to say nothing of returning them here, because most of the plundered works of art are currently kept in private collections. Besides, the occupants seized or destroyed practically all inventories of cultural objects kept in museums, picture galleries, culture and arts establishments, institutes and universities in the Soviet territories occupied by the enemy. Due to this, except for a very narrow group of art experts, the staff of libraries and archives, there have been almost no Soviet people aware of "displaced cultural values" and their post-war fate. So when the problem of displaced values emerged, shifting from the scientific and cultural field to the sphere of big politics, Russian public opinion was not prepared to discuss it.

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In Germany, on the contrary, starting from its occupation by allied forces to the present moment, no effort has been spared by government officials, the scientific community, workers of culture and arts to locate displaced German cultural valuables. Moreover, wide groups of German public are actively backing the idea of returning them to Germany.

And, finally, there is a third lesson. Henry Picker in his book "The Table Talk of Hitler" (Hitlers Tischgesprache im Fuhrerhauptquartier) quotes the following instructive discourse of the Third Reich Fuehrer. "If we teach Russians, Ukrainians and Kirghiz to read and write, - said he in reference to the Nazi occupation policy, - this will afterwards turn against ourselves. Education will give those of them who are the brightest a chance to study history, assimilate historical experience, hence develop political ideas that cannot not help being detrimental to our interests". Hitler was absolutely right.

German scientific and cultural workers are three times right when they are forming national historical consciousness of German public. So why should we, citizens of Russia, should always be oblivious of our history and traditions? Why should we, Russians, behave like citizens of a country that either has no past or has a past one should be ashamed of?

One should distinctly understand that the problem of displaced valuables, the way it is raised by the German side, is a challenge to our present from the past, meant for the Russian people's forgetfulness, for our national historical degeneration.

Displaced cultural valuables: actualization

Sixty years have passed since the end of the Great Patriotic War. Almost fifteen years have passed since the USSR, the former powerful

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victor state, disappeared from the political map of the world - at the same time, for already a decade and a half, the reunified Germany has been a universally recognized European leader in addressing numerous political, economic and social problems. Russia and the Federal Republic of Germany are today friendly states, understanding each other very well. However, the problem of displaced cultural valuables is like an ominous shade of the past, emerging every time that the two states come closer together. Today, this subject is brought up at practically every Russian-German summit. It is done on the insistence of the German side. Diplomatically, yet rather insistently, our German counterparts remind the Russian side that the USSR has allegedly unlawfully taken possession of numerous cultural assets that formerly belonged to Germany, its citizens and organizations, so that Russia is now bound to return what has been displaced to its territory after the Great Patriotic War.

German politicians and diplomats are actively helped by German press. Removal of cultural valuables is more often than not presented in German media as purposed activities of Soviet trophy teams that literally bled white East German museums and ancient castles, picture galleries and libraries, seizing all that they believed to represent whatever value. In other words, they engaged in plundering Germany's national heritage, covering up their abominable actions with the term "compensatory restitution".

Not so long ago, on 4 May 2005, on the eve of the Victory Day celebration in our country, the German "Der Tagesspiegel" published an article by Jens Mueling, "A new Russian-German conflict over displaced valuables". The article says, "Over a long time, the German side has shown patience in its negotiations with Russia. Today, however, there are signs of changes in this course. In late

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April, heads of major FRG museums declared the failure of the previous political approaches at negotiations dealing with the return of cultural valuables. Some days later, German culture minister Christina Weiss for the first time sharply assailed Russian leaders. "I certainly feel regret and shame recalling the grievous losses inflicted by Nazi barbarians to the cultural patrimony of Russia, - Mrs Weiss said. - But should present-day Germany, which maintains close friendly ties with Russia, reconcile itself to the loss of its own national cultural heritage, only because of its historical guilt?... This position of the Russian side is deplorable, especially as the German side has repeatedly demonstrated its preparedness for cultural cooperation". Mrs Weiss referred to Germany's aid in restoring the "ruined" Amber Room (which was actually looted by German occupants), rebuilding the church in Volotovo (a masterpiece of Russian architecture of the 14^th century - the Assumption Church in Volotovo Field, Novgorod, that was turned by German artillery into a heap of debris), and restoring the organ at the St.Petersburg Philharmonic Hall as a gift of the German side for the city's 300^th anniversary.

"Just a week ago, - Mrs Weiss continues, - the Prussian cultural heritage foundation returned Russia a painting of the French school, identified only four months before"".

One may be pretty sure that, besides this painting, there are still numerous other cultural valuables in the present-day FRG, seized by Nazis from looted Orthodox Christian churches, libraries and museums of the Soviet Union. One may refer, for instance, to certain articles from the Amber Room, discovered there several years ago, or seven portraits from the Pavlovsky Palace - Museum, also discovered in German museums.

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According to the logic of the German side, the Russian side, in return, should also give back some German artistic treasures. Mrs Weiss, however, was not too correct in her address. The thing is that, in restoring a copy of the masterpiece, rebuilding a church anew or returning a work of art, the German side makes it out to be an "act of good will". Yet we may not see it in any other way than what is due to us for all crimes against the Russian people and Russian culture perpetrated by German forces that launched an aggression against our country.

And, once even the German culture minister calls for "not reconciling ourselves to the loss of our own national cultural heritage", how can one be uncharitable to German experts who are a bit too free with facts and somewhat "incorrect" in their interpretation of political documents? Thus, for instance, German experts declared in 1994 that Russia was willing to reconsider the legal status of cultural valuables displaced from Germany to the USSR by way of "compensatory restitution". They drew this conclusion, based on bilateral treaties the USSR (Russia) signed with Germany following its reunification - the Treaty on neighborliness, partnership and cooperation of 9 November, 1990 between the USSR and FRG, and the Agreement on cultural cooperation of 16 December, 1992 between the Governments of Russia and FRG. Article 16 of the Treaty specifies that the sides "agree that lost or unlawfully displaced cultural valuables... should be returned to owners or their heirs". The word "unlawfully" is the key term in this article.

It should once again be pointed out that the Constitutional Court of the Russian Federation confirmed the lawfulness of the Soviet Union's displacement of cultural valuables from Germany in the

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years 1945 - 1949. Some years before, the federal Constitutional Court of the FRG specified in its judgment of 18 April, 1996 that recognition of lawfulness and legitimacy of property seizures conducted in the course of the World War II, their irreversability, and inadmissibility of their revision or review by German courts or other state bodies - hence, inadmissibility of revision of restitution - had been a requirement of the FRG, a condition for the Soviet Union's consent to the reunification of Germany and the signing of the Treaty of 12 September, 1990. This condition is binding on both Germany and the Russian Federation as the legal successor to the USSR.

But the German side believes that what cannot be attained on the government level may well be realized on the inter-departmental level. Thus the minutes of the first meeting of the joint Russian-German commission set up pursuant to Article 19 of the Treaty say that the commission shall deal with "cultural valuables displaced in the course of the World War II and as a result of its consequences". The way some German and, to our shame, Russian experts and journalists interpreted this clause, the commission was supposed to provide for return of German cultural assets to Germany. Notably, there was not a single reference to the return of treasures looted from Soviet museums, picture galleries, libraries, archives, churches, catherals, monasteries and removed from the USSR in the course of the World War II, even though there are numerous such assets remaining in the territory of Germany. It should be noted that Article 19 of the Treaty on neighborliness, partnership and cooperation of 9 November, 1990 between the USSR and FRG says not a word on unilateral return of displaced valuables. It only refers to mutual agreements on exchange of masterpieces.

By the way, German leaders ignored the initiative of the former

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Russian culture minister Yevgeny Sidorov, who several years ago in an interview to German weekly Stern proposed to buy out Russian cultural objects, plundered by occupants during the war, from their current owners in Germany. This might probably be the only way of realizing the agreement on exchange of masterpieces.

Though why should one buy anything out when one can try and get it without giving anything in exchange, simply by referring to rules of international law? Thus German experts time and again referred in their dealings with Russian counterparts to an alleged violation by our country of rules of international law in the field of protection of cultural objects - in saying this, they referred to provisions of the 1907 Hague Convention. It was the first international agreement banning destruction of cultural relics and establishments and their seizure as an object of reparations. It is known, however, that this ban has failed to protect cultural valuables from destruction and plunder, as it was violated by the German side in the course of both world wars.

The Versailles (1919) and St.Germain (1919) Treaties that terminated the First World War contained a provision that the aggressor should compensate for the damage inflicted to the victim of aggression with its own property. Thus Germany was bound to compensate, within three months, for the damage inflicted to Belgium, in particular for the burned-down library of the University of Louven. In particular, Article 247 of the Versaiiles Treaty bound Germany to supply to the University of Louven manuscripts, incunabula, printed books, maps and collection items that would correspond in number and value to similar items destroyed when Germany burned down the University library. Germany also delivered to Belgium two Ghent Altar panels, the work of the Van

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Eyck brothers, from the Berlin Museum collection, and Louven diptych panels, the work of Dierik Bouts, from the collection of Old Pinacotheca in Munich.

Even German law experts realize the weakness of the appeal to provisions of the 1907 Hague Convention. Doctor of the Law Karl Reuter cites a very important, to our mind, fact. He writes that the Soviet Union in its diplomatic note of 14 July, 1941 declared preparedness to observe this convention with respect to Germany on a reciprocal basis. This proposal, however, was declined on 25 August, 1941. Karl Reuter concludes in this relation, "Therefore, the systematic violation of the provisions of the Hague Convention should be regarded as Germany's refusal to observe it, which denies the present German government the opportunity to refer to provisions of this Convention".

Concluding consideration of the problem of displaced valuables from the present-day perspective, it would seem worthwhile to refer to another important fact. At present, it is actually Germany that may be criticized of non-compliance with rules of international law, because it is German legislation that lets German citizens become legal owners of stolen cultural objects after keeping them for ten years.

Displaced cultural valuables: prospects

For the post-war generation of Russians, as for many other nations, World War II, Nazism, the plundering and extermination of European peoples constitutes a black page of world history, which Soviet soldiers and their allies turned over in 1945. Yet though it has been turned over, it has not been forgotten. Historical memory will never let us forget dozens of millions of victims, burned-down

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villages and towns, destroyed monuments of architecture and plundered museums. But memory is given to us to not only remember but also to avoid repeating past errors.

The problem of displaced valuables is clear for the Russian side. What is in our possession belongs to us under the law. As for Russian assets outside of Russia, we should search for them and, whenever possible, bring them back - if needed, exchanging them for equivalent masterpieces of culture and arts. At the same time, we should avoid handsome gestures in the form of presents "from the president's table", because cultural valuables cannot act as presents for the negotiating table.

As for political speculations on the problem of restitution, these do not have any prospects. Both Germany and Russia are going to gain a lot if they shift this problem over to the cultural sphere. Good examples of how this can be done are near at hand. For instance, German writer Guenter Grass suggested that a common museum be built on a border island for the archive that has turned into a matter of controversy between the Germans and Poles. We have no common border with the FRG for such a project, and Russia would no more than other European nations be willing to return to the European borders of 1939. But other cultural cooperation options might be suggested, too. Joint projects in exposition of displaced valuables, study and preservation of world masterpieces - this may be a field for fruitful activities of interested organizations and citizens of our two states.

By the way, projects of this nature may be a subject for a Russian-Ukrainian dialogue on cultural valuables. It would be a more productive sphere of inter-state cooperation than the one proposed by Aleksandr Fedoruk, head of the Ukrainian State service for

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control over transfer of cultural valuables across the state border, head of the National council for return of cultural valuables, corresponding member of the Ukrainian Academy of Arts, Doctor of Art history.

Not so long ago, Aleksandr Fedoruk placed an article in Internet, titled "Restitution as a sample of integral analysis of national culture", in which he said the following, "Numerous cultural valuables have been displaced from the then Ukrainian periphery to the Russian metropolis - enormous aggregates of our relics, including archeological heritage, artistic, ethnographic, folklore relics, ancient manuscripts and books, weapons, archives.

Removal of cultural valuables, obtained as a result of archeological expeditions (prospecting, excavations), as well as archeological and ethnographic research (including collection from private persons by going around private homesteads), were conducted in violation of Ukrainian law... According to S. Belyayeva, head of department of the Archeology institute of the Ukrainian National Academy of Science, the inventory of collections brought out to Russia consists of 750 items, a total of 400 pages of typewritten text.

One of the channels used for removal of cultural valuables to Moscow out of the Ukraine was seizure of treasure-troves and valuable confiscated assets, as well as property whose owner was not known, for transfer to the State Depository of the USSR Finance Ministry. These seizures were conducted in accordance with regulations of the USSR Finance Ministry. The last document of this kind, approved under the USSR, was "Instructions on procedures for registration, evaluation and realization of confiscated, ownerless property, transferred to state ownership by right of inheritance, and

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treasure-troves" ? 185 of 19 December, 1984. The instructions were developed as a follow-up document to a "Regulation" under a similar title, approved by a resolution of the USSR Council of Ministers of 29 June, 1984". The author goes on to cite instances of "realization of these discriminatory documents", ending the inventory of criminal activities of Soviet central authorities, directed against (again) Soviet Ukraine, with a following conclusion, "The Ukraine has objective conditions for civilized activities in the field of restitution of cultural valuables.

Restitution of heritage created in the territory of Ukraine is a complex yet unavoidable process".

Without getting into discussion on prospects of Ukrainian - Russian relations in the field of cultural valuables with the state official of such a high rank, I would like, however, to ask him a single question: if Russia in Soviet times was Ukraine's metropolis (meaning that Ukraine was Russia's colony), I would like to know at least a single instance from world history when a master would donate to his slave a substantial - and the best - chunk of his property?

And yet another question - if, according to the high-ranking Ukrainian state official, resolutions of the highest state authorities of the USSR were discriminatory and illegal, what would be his view of the Decree of the Presidium of the USSR Supreme Soviet "On transfer of the Crimean Oblast from the RSFSR to the Ukrainian SSR" of 19 February, 1954? It is known that it has never been published and has not been approved by the Supreme Soviets of the two republics. Moreover, under the RSFSR Constitution, even the RSFSR Supreme Soviet was not authorized to give away a piece of Russian territory.

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On learning of Napoleon Bonaparte's invasion in Russia, Alexander I dispatched to him Adjutant-General Alexander Balashov for peace negotiations - on condition that the French forces leave the territory of the Russian Empire. Napoleon refused to conduct negotiations and asked Balashov to show him a direct route to Moscow. Balashov gave him a deserving answer, "Carl XII took the route via Poltava"... It is not in Ukrainian interests to develop relations with Moscow along the route that would take supporters of Mr Fedoruk to Russian museums and archives via Crimea. He has actually managed to find a correct vector for development of Russian - Ukrainian relations in the field of culture, stating in one of his interviews that "the work of the National commission with its Russian counterparts is of strategic significance, viewed from the perspective of both history and future prospects. It should be conducted in a calm, unhasty, tolerant and systematic manner".

Some of our currently independent neighbors may still be attracted by post-1991 attempts to once again "partition the culture" of the former great country among former "brothers forever" (naturally, meaning to take cultural valuables away from Russia rather than return them to it). It is, however, a very troublesome business - that lacks all prospects, anyway.

RA

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