For archivists trying to resolve an archival dispute resulting after armed conflict it
is important to understand that, in legal terms, one has to differentiate between at
least three different sections of international law which may apply, often on top of
each other: firstly, the laws of war, or international humanitarian law, for records
being removed from the archives of an administrative or archival institution during
the conduct of hostilities or in the course of a belligerent occupation; secondly, the
law of state succession for situations where the territory of one state or parts of it
pass under the sovereignty and jurisdiction of another (existing or new) state,
opening up questions of ownership of records pertaining to, or being of interest for,
that territory; thirdly, general legal issues of sovereignty, recognition and of the law
of treaties which may affect the political or legal possibilities to conclude an
agreement on any of the other issues. Only the first two legal issues shall be covered
here, as they directly concern issues of ownership and the return or transfer of
archives.
Archives and the laws of war
The protection of records and archives against seizure and destruction during armed
conflict2 is currently governed first of all by the laws of belligerent occupation as
contained in the Hague Convention IV) Respecting the Laws and Customs of War
on Land and its Annex: Regulations concerning the Laws and Customs of War on
Land, adopted at the 1907 Second International Peace Conference at The Hague,
which also reflects the state of customary international law for those states who are
not parties to it. The Convention, however, does not deal specifically with state
papers, records and archives, but only with the more general category of state
property and to what extent it can be appropriated by the enemy during the conduct
of hostilities. A more recent international treaty takes a different approach:
The 1954 (Hague) Convention on the Protection of Cultural Property in the Event
of Armed Conflict is dedicated to a certain category of property irrespective of
ownership, namely cultural property of a certain level of importance for every
people in the territory of the contracting parties. It provides specific rules to
safeguard and respect such property against damage, loss or destruction, with a
number of measures already to be taken in peacetime.
Archives in the law of belligerent occupation
The classical law of land warfare as laid down in the 1907 Regulations concerning
the Laws and Customs of War on Land - developed out of the "Draft Declaration
concerning the laws and customs of Land Warfare" adopted at the Brussels
Conference of 18743 - takes as its point of departure a situation of belligerent
occupation where a certain territory - not necessarily the entire territory of a State -
is "placed under the authority of a hostile army" (art. 42). Here, the army of
occupation "can only take possession of... all movable property belonging to the
State" - and that would include the State's records and archives - "which may be
used for military operations" (art. 53). Private property, on the other hand, "cannot
be confiscated" (art. 46). Art. 56, however, places certain groups of "movable
property belonging to the state", namely "the property of municipalities, that of
institutions dedicated to the arts and sciences" at the same level of protection as
private property, thus prohibiting their confiscation.
Even though records and archives are not expressly mentioned in these articles, it is
obvious that certain groups of papers - in particular the military papers of all kinds,
i.e. records and documents produced or held by the armed forces and the military
administration of a State at war - can indeed be taken into possession by the
occupying forces. Like arms, ammunition and means of transportation they serve
the conduct of military operations and may thus be used and even confiscated and
taken away by the occupying power. On the other side of the spectrum, however,
documents and papers of civil administrative authorities which are solely of interest
to the population, or historical records that can have no war-related value
whatsoever, must not be seized or destroyed.
The drafters of the Brussels Declaration4 and indeed customary international law,
however, have accepted that an army of occupation can also take into custody and
utilize - albeit without acquiring ownership - otherwise 'civilian' records that the
occupying power needs in order to exercise its rights and duties, including those it
has towards the population of the occupied territory in running its administration
and in restoring and ensuring "public order and safety" under art. 43 of the
Regulations. In an age of 'total warfare', however, where entire societies and
economies are being subjected to the requirements of war and mobilized for its
conduct, many documents which in earlier times might have seem to cover only
'civilian' or private affairs may nevertheless become important, in a wider sense,
for the conduct of military operations by that country - and thus also for the enemy
as occupant.
The 1944 Handbook for Military Government Prior to Defeat or Surrender, issued
by the Supreme Headquarter Allied Expeditionary Forces, described the range of
documents being of interest for the allied armies as follows: "Every Military
Government activity in Germany will entail the use of German public documents,
business papers, files and records of every kind, official and unofficial. Military,
political, administrative, business and historical interests will be equally concerned
in them in connection with disarmament, the eradication of Nazi institutions,
the control of property, and generally for the imposition of control.5 The Allied
Commander was thus instructed to "consider all archives valuable, important and
HOOFDSTUK 1
2 For details see R. O'Keefe, The Protection of Cultural Property in Armed Conflict (2006); and 'Protection of
Cultural Property', in: D. Fleck and M. Bothe (eds.), The Handbook of International Humanitarian Law (2008,
2nd ed), 433-474; R. Wolfrum, 'Protection of Cultural Property in Armed conflict', in: R. Wolfrum (ed.),
Max Planck Encyclopedia of Public International Law; F. Francioni, 'Cultural Heritage', in: R. Wolfrum (ed.),
Max Planck Encyclopedia of Public International Law, Chapter B.
3 For the text see D. Schindler and J. Toman, The Laws of Armed Conflict (1988, 3rd ed.), document no. 2. The
draft declaration negotiated in Brussels was never formally adopted due to differences between the big
powers and smaller states. Another effort at codifying the laws of war was undertaken at the First Hague
Peace Conference of 1899 which reviewed the Brussels text and adopted it more or less unchanged;
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THOMAS FITSCHEN RETURNING DISPLACED ARCHIVES AFTER THE WAR
- A LEGAL PERSPECTIVE
the Regulations finally adopted at the Second Conference in 1907 again reproduced the text with only slight
changes, so the materials of the Brussels Conference can be drawn upon in the interpretation of the latter;
see also below, footnote 4.
4 For the negotiating history of Art. 8 see A. Mechelynck, La convention de La Haye concernant les lois et
coutumes de la guerre sur terre, d'après les actes et documents des conférences de Bruxelles de 1874 et de La Haye
de 1899 et 1907 (1915), Protocol No. 4 of the plenary session held on 26 August 1874, 438 (at 441-444);
for a short assessment see also T. Fitschen, Das rechtliche Schicksal von staatlichen Akten und Archiven bei
einem Wechsel der Herrschaft über Staatsgebiet (2004), 99-105.
5 Quoted from R. Wolfe, 'Sharing Records of Mutual Archival Concern to the Federal Republic of Germany
and the United States of America', in: Archivum 32 (1986), 292-302, at 293.
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