Practice Relating to Rule 41. Export and Return of Cultural Property in Occupied Territory
Section B. Return of cultural property exported or taken from occupied territory
Germany’s Military Manual (1992) states:
Each party to the conflict shall be bound to prevent the exportation of cultural property from a territory occupied by it during an international armed conflict. If, in spite of this prohibition, cultural property should nevertheless be transferred from the occupied territory into the territory of another party, the latter shall be bound to place such property under its protection. This shall be effected either immediately upon the importation of the property or, failing this, at a later date, at the request of the authorities of the occupied territory concerned.
Germany’s Law Implementing the 1954 Cultural Property Convention (2007) states:
§ 1 Obligation to return
(1) Cultural property as defined in Article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954 (Federal Law Gazette 1967, Part II, p. 1233) coming from occupied territory of a Contracting State shall, after the close of hostilities, be returned to the respective competent authorities of the previously occupied territory, if
1. after 11 November 1967, it was moved from the territory of that State into the federal territory during an armed conflict, and
2. the authorities of the Contracting State address a request for return to the Federal Foreign Office through the diplomatic channel.
(2) Deposited cultural property in the sense of Paragraph II No. 5 of the Protocol to the Convention of 14 May 1954 (Federal Law Gazette 1967, Part II, p. 1233, 1300) shall be returned after the close of hostilities, without the further conditions of paragraph 1 needing to be fulfilled.
(3) The costs of the return are borne by the requesting State.
(4) A person who, for himself or for someone else, exercises actual physical control of cultural property (person under the obligation to return), is obligated to return the cultural property only in reciprocal and simultaneous exchange for adequate compensation. The obligation to compensate is not applicable if the requesting State proves that the person under the obligation to return knew or as a result of gross negligence did not know when acquiring the cultural property that the property was moved from occupied territory or was deposited for the purpose of protection.
(5) If the person under the obligation to return acquired the cultural property through donation, inheritance or legacy, he assumes responsibility for the duties of care of the donor or the deceased.
In 1991, the Government of Germany declared that it “fully accepts the fact that cultural property has to be returned after the end of hostilities”. Germany has returned cultural property in all cases in which the cultural goods were found and could be identified. In other cases, Germany has paid compensation to the original owner countries.
In 1997, the Government of Germany reiterated the principles contained in a general declaration made in 1984, whereby “thefts and destruction of cultural property by the Nazi regime as well as the removal of cultural property by the Soviet Union during and after the Second World War were breaches of international law”. Furthermore, it pointed out that the basic principles of the protection of cultural property are not only binding upon the vanquished but also upon the victor.
In 1998, during a parliamentary debate concerning a dispute between Germany and the Russian Federation over a Russian parliamentary draft law to nationalize formerly German cultural property confiscated by the Soviet Union during the occupation of Germany after the Second World War, a representative of the Government of Germany stated:
The theft of cultural property committed by the German Nationalist-Socialist regime during the Second World War, as well as the transporting of cultural objects from Germany to Russia by the Soviet Union after the Second World War, represent violations of international law.