The Harvard Law School Symposium, “Spoils of War v. Cultural Heritage: The Russian Cultural Property Law in Historical Context,” was convened in February 2008 to bring together legal, historical, and other academic experts who might shed some light on the issues raised by Russia's 1998 law that essentially nationalized and declared Russian ownership of the great many works of art, books, and archives that were taken under orders by the Red Army to the Soviet Union at the end of World War II. The symposium was jointly sponsored by the Commission for Art Recovery, the Foundation for International Cultural Diplomacy, the Harvard Law School Arts and Literature Law Society, the Harvard Law School European Law Research Center, and the Davis Center for Russian and Eurasian Studies of Harvard University.

World War II was the occasion of the greatest theft, seizure, loss, and displacement of art treasures, books, and archives (“cultural items”) in history. Since then, governments and others have attempted to justify either their right to keep or to claim the return of the cultural items displaced as a result of the war and its aftermath. Such issues have intensified on the Eastern Front since the collapse of he Soviet Union and the opening of the Soviet secret depositories of long-hidden cultural items brought to Soviet territories at the end of the war. The principal protagonists in the public arena have been the Federal Republic of Germany (Germany), the Republic of Poland, and the Republic of Hungary, each claiming that the Russian Federation (Russia) has refused to negotiate adequately the return of cultural items displaced during and after the war that are now located in its territory.

The Russian Federal Law on Cultural Valuables Displacedto the USSR as a Result of the Second World War and Located on the Territoryof the Russian Federation purports to establish the legal basisfor the Russian state to hold permanent title to the vast majority of thecultural valuables removed from Germany to the Soviet Union at the end of WorldWar II. Russia claims that the cultural objects seized by the Soviet Unionconstitute “compensatory restitution” for the hundreds ofthousands of cultural and artistic valuables seized or destroyed by the Nazisduring the war. This article assesses the compatibility of the Russian claimwith relevant international law. It does so by tracing the development of theinternational antiplunder legal regime. It then assesses the Russian claim withrespect to three categories of cultural valuables, based on prewar ownership:property belonging to private persons and organizations, property belonging tononenemy states, and property belonging to enemy states (Axis powers).“Compensatory restitution” does not exist as a category orprinciple in international law, so the analysis focuses on the legal conceptthat is most similar and therefore of potential relevance, restitution in kind.If restitution in kind is impermissible under international law, then thebroader “compensatory restitution” is, with even greaterforce, also impermissible. The key finding is that international law does notpermit “compensatory restitution,” nor does it permitunilateral seizures of cultural objects under some broader notion ofcompensation.

This article discusses the Allied diplomatic and political impasse over restitution during and after World War II. The focus is on cultural restitution—the return of art, archives, and libraries looted by the Nazis. Serious Allied disagreements on general postwar policy for Germany inhibited the development of a coherent approach to the restitution of cultural property. Cultural restitution became lost in the maze of other greater political, economic, and ideological conflicts. Ultimately, the impasse was also fueled by the very complex issues involving cultural restitution itself. Issues including the scope of the entire effort, restitution in kind, returning property to refugees, and the fate of heirless Jewish property were intractable. The problems with cultural restitution reflected the clash of interests and ideologies. As a result, the four occupying powers had distinct approaches with radically differing results.

The article is dedicated to the official decrees issued by Joseph Stalin in 1945 ordering the Soviet removal of cultural property from Eastern European and German territories occupied by the Red Army. As opposed to popular belief dominant today in Russia, such decrees were few. Preparation for the removal of cultural property from enemy countries had started before the fate of the war was decided. In 1943 on the request of academician Igor Grabar, the Bureau of Experts was established with the task of composing lists of so-called “eventual equivalents,” which Soviet officials wanted to receive after the war as “restitution in kind,” to compensate for the cultural losses of the USSR. The listed equivalents included art works from museums and private collections in the Axis countries. However, the projected provisions for “restitution in kind” were never approved by the Allies, in large part because during the last months of the war and immediately thereafter, the Soviet Union had already begun massive removal of cultural property from territories occupied by the Red Army. Different trophy brigades sent to the front lines were authorized or ordered to send back home whole collections of German museums and libraries. Only rarely were any of the ‘trophies’ labeled “compensation.”

This article analyses the historical and political background of the Russian law on cultural property displaced to the Soviet Union at the end of the Second World War (April 1998, with amendments in 2000). Following the 1990–1991 revelations about the extensive cultural treasures captured by Soviet authorities at the end of the Second World War, there was hope abroad for restitution, with a series of bilateral agreements with the countries of origin, but in spring 1994 the Duma blocked further restitution. We follow the fierce debates, the Constitutional Court ruling (1999), the amended law (July 2000), and its implementation under the Ministry of Culture.

We show the wide-scale Russian support of the law, with its concept of “compensatory restitution” that virtually nationalizes the spoils of war, with only scant provisions for restitution to those who fought against the Nazi regime and those victimized by it. What explanation emerges involves the manipulation of historical memory by the Stalinist regime, as the cultural trophies assume symbolic importance in the “myth and memory” of “victory” in the Great Patriotic War. Restitution to legal owners is to be considered only in exchange for equally substantial compensation for wartime loss and suffering of the population at large.

This article is dedicated to the collection from the Bremen Kunsthalle, comprising 1715 drawings, 50 paintings, and about 3000 prints found by Soviet troops in castle of Karnzow near Berlin in May 1945. The collection was not seized by Soviet trophy brigades but was looted by soldiers and officers of the 38th Field Engineers' Brigade of the Red Army.

After their return to the USSR and demobilization, some of the officers donated their loot to different museums around the Soviet Union. One of the most important parts of the collection, with 362 drawings and two paintings—among them works of Dürer, Rembrandt, Goya, and Van Gogh, was appropriated by Captain Viktor Baldin. In 1948 Baldin deposited his loot in the A. V. Shchusev State Research Museum of Architecture in Moscow. Later Baldin became the director of the museum and advocated return of the art to its rightful owners.

Since the days of Gorbachev's perestroika, these art works have frequently attracted public attention and provoked fierce debates. The Federal Law on Cultural Valuables adopted in 1998 did not cover art works looted by private individuals. Rather, such conflicts have to be solved within the framework of Russian criminal law.

In contrast, other works of art from the same Bremen Kunsthalle collection were restituted from the United States, Ukraine, and Estonia. Another 101 drawings and prints of the collection, seized by another member of Baldin's brigade, were returned from Russia to Bremen in 2000, but that was in “exchange” for an original mosaic from the legendary Amber Chamber. However, despite more than 20 years of efforts by German officials and endless negotiations, the Baldin Collection remains in the Russian Federation. The return of those stolen drawings any time soon now looks highly improbable. The case of the Baldin Collection became the most striking example of the Russian nonrestitution of cultural property looted during World War II.

The return of captured French archives—not art—ignited debate in the Russian Duma in the spring of 1994, leading to the passage of the 1998 Federal Law “On Cultural Valuables Displaced to the USSR as a Result of the Second World War and Located on the Territory of the Russian Federation.” Yet, a decade since the law was signed, there have been five cases of captured archives from the Second World War returned to Western European countries, as explained in the recent book, Returned from Russia. The aim of this article is to examine major factors involved in the restitution of archives from Russia, and why amid the politics of restitution the return of archives has been more successful than art.

The article first successively examines the major factors involved, namely, foreign political pressure; the underlying support of international law, both in specific instruments and historical archival practice; the circumstances and Soviet aims of archival plunder; the present contrast with Soviet political ideology and alignments; the fact that Russian archivists were more willing to return their loot than museum directors; and that archival returns were easier to conform to the 1998 law, because the receiving countries were willing to offer the “compensation” Russian archivists were demanding. Country by country, first in Western Europe starting with France and now Austria and Greece, archives have been going home, but so far only a few symbolic files from Germany have been returned. A final section of the article briefly singles out the captured records from several other countries remaining in Moscow, including many Jewish records, even some representing Holocaust losses.

Some countries' laws favoring good-faith purchasers over the victims of theft make it difficult to recover stolen artworks. Nonetheless, the loan of such artworks for exhibition abroad may create opportunities to utilize the host country's legal system for recovery. This article examines representative cases illustrating legal options available to plaintiffs in the United States and the United Kingdom. In the United States, laws at the federal and state level may prevent the seizure of artworks loaned for temporary exhibition, but recent cases show that immunity is not absolute and that such artworks may be subject to suit in the United States. The United Kingdom recently enacted a similar law. That law, however, has been criticized, and future interpretations by U.K. courts will be needed before its true affect can be seen. The article also discusses the backgrounds against which the U.S. and U.K. laws were enacted, illustrating the link between the laws and Russian concerns about protecting cultural artifacts that were nationalized after the Russian Revolution or taken by Soviet troops during World War II.

Displaced and nationalized cultural property remains hidden in the vast holdings of museums, libraries, and archives around the world. Some governments holding these “trophies” of war and conquest refuse to return such cultural treasures to their rightful owners even when their provenance has been identified. They assert that the collections were obtained through expropriation and nationalization, and that divestiture of a museum, library, or archive would jeopardize the existence of these institutions and cause societal discord.

This article discusses the struggle of an orthodox Jewish organization to recover from the Russian Federation a collection of sacred, irreplaceable books and manuscripts seized in the aftermath of the Bolshevik Revolution and during World War II. The story of Agudas Chasidei Chabad's efforts to recover these core religious texts of its spiritual leaders has involved appeals by U.S. presidents, congress, and the U.S. Helsinki Commission, as well as lawsuits in the Soviet Union/Russia and United States.

After prolonged litigation in the United States, a federal court of appeals in Washington DC ruled in 2008 that American courts have jurisdiction over Chabad's suit against the Russian Federation to recover its religious texts. This ruling may pave the way for the resolution of this dispute and also lead to the filing of other suits in American courts seeking to recover looted cultural property, even if that property is located outside U.S. borders.

This article provides brief coverage of the Russian-German dialogue since 1991 and the search for solutions about looted art of German ownership seized at the end of the Second World War and still held in Russia. So far, while Russia and Germany regard themselves as partners and friends in political and economic realms, they have been unable to find agreement about the looted art. Germany seems no longer to retain Russian cultural goods plundered during the war, whereas Russia still possesses a significant amount of German cultural assets. On the basis of existing treaties and international law, Germany demands its restitution. Russia, on the other hand, has nationalized the confiscated goods in 1998 as compensation for its own war losses. Nevertheless, not a few citizens of both countries have been returning artworks and books privately, in some cases supported by the governments. A convincing solution for the general problem can only be found if the treasures, which in the past have been understood as trophies, could be transformed into cultural ambassadors, while dialogue and the search for new ways continue within the framework of a policy of reconciliation. This approach also includes further research and analysis of the Russian cultural losses resulting from the war, a project undertaken in the 1990s at the Forschungsstelle Osteuropa (Research Center for Eastern Europe) of the University of Bremen, as briefly described in an appendix to the article.

The following list is limited narrowly to post-1991 Russian legal instruments relating to cultural valuables of foreign provenance seized and transported to the Soviet Union from Germany and Eastern Europe at the end of the Second World War, or in the immediate postwar period. Widely known in Russia as the “trophy” valuables, officially those cultural objects (art, books, and archives) are usually referred to in Russia more euphemistically as “cultural valuables displaced [or relocated] to the USSR,” although most frequently translated in a European context as “displaced cultural valuables.” The term “displaced” is used here, and may include some cultural property and archives that came to the USSR during the war itself, as well as those removed from Germany and Eastern Europe by Soviet authorities at the end of or immediately after the war. Many items involved were actually twice captured, or “twice saved,” as the saying goes in Russia, having been first captured by the Nazis, mostly from “enemies of the regime,” and then captured a second time and “safeguarded” by the Soviets.