in part vital for intelligence and other military government purposes, whether
located in ancient archives, large depositories, the most modern archives, or in
current office papers."6
This expansion of the role and value of records and archives in modern warfare
notwithstanding, the basic 1907 standards as such have not been legally superseded
or become inapplicable or obsolete. It may be difficult to differentiate one category
from another in a given situation, but the general rule is still in place. The Manual of
the Law of Armed Conflict, published by the UK Ministry of Defence in 2004, puts it
as follows: After a short categorization of the only public movable property that may
be seized by an occupying force (cash and funds, arms and other movable property
that can be used for military operations, and public revenue)the Manual prescribes
thatother public movable property, not of use for military purposes, must be
respected and not appropriated. Official documents and papers connected with the
armed conflict may be seized, even if they are part of official archives, because they
will be of military significance. However, other types of archival documents may
not be seized."7
Even though the Hague Convention (IV) is silent on what happens after the war to
records seized in contravention of the Hague Rules or to those papers temporarily
taken into custody by the occupying power for the purposes mentioned above,
practice confirms that such records have to be returned to their rightful owners.
Many European peace treaties since the 17th century contained clauses prescribing
the return of the records belonging to the other side and carried off during the war.
Even though these provisions were not always fully or immediately implemented,
the basic obligation to do so can be considered part of customary international law.
The practice of widespread capture of documents during World War II on all sides
for some time seemed to have cast doubts on the general acceptance of this duty.
Whereas the return of cultural property and records seized throughout Europe by
Germany was one of the express war goals of the Allies, the fate of German and
other enemy records that had fallen into the hands of the victorious powers took a
lot longer to resolve. Unlike in the case of Italy where the peace treaties with its
former enemies contained the usual return clause (Art. 75 Treaty of Peace with
Italy)8, there was no general agreement with Germany that could have taken up this
issue. Due to the prevailing legal uncertainties concerning the status of Germany
after the war, the return or transfer of German and certain other records has taken
many years, sometimes decades to complete.9 Where returns were made, the
agreements took great care to ensure that they were not to be interpreted as
recognizing any legal obligation to do so, and generally did not mention any
applicable legal norms at all. But today the fact that indeed most cases have been
solved pragmatically without touching upon the difficult general legal issues of
post-war Europe seems to confirm - rather than question - the general legal
obligation to return, at some point in time, those captured records that are not
war booty in the strict sense.
Protection of archives as part of the Cultural Heritage of Mankind
Based on the observation that the 1907 Regulations did not effectively prevent
widespread devastation, destruction and displacement of cultural property -
including of large amounts records and archives - during World War II the United
Nations Educational, Scientific and Cultural Organization (UNESCO) set out to
add another layer of legal norms for its protection. The (Hague) Convention on the
Protection of Cultural Property in the Event of Armed Conflict signed on 14 May
19541° was based on the conviction that "damage of to the cultural property
belonging to any people whatsoever means damage to the cultural heritage of all
mankind". Art. 1 defines cultural property covered by the Convention as "movable
or immovable property of great importance to the cultural heritage of every people",
irrespective of origin or ownership, including "collections of archives" as well as
"buildings whose main and effective purpose is to preserve or exhibit" them, such as
depositories of archives (art. 1 lit a and b). The Convention requires States parties to
take measures "for the safeguarding of and respect for such property" (Art. 2), in
particular to prevent destruction or damage. In addition, art. 4 para. 3 obliges States
to "undertake to prohibit, prevent, and, if necessary, put a stop to any form of theft,
pillage or misappropriation of, and any acts of vandalism directed against, cultural
property"A State party which occupies parts of the territory of another state party
shall support as far as possible the authorities of the occupied country in safe
guarding and preserving its cultural property. Special provisions (art. 12-14) apply
where the safety of cultural property calls for the transport and transfer within the
territory of a State party or to another territory.11
The Convention itself is silent, however, on the issue of return in cases of trans-
border displacement of cultural property during the course of hostilities. During
the negotiations a number of states were concerned that they might not be able to
sign the Convention if it contained provisions that would affect issues of ownership
or court jurisdiction under their national civil law - an issue which is of course
less relevant for public records and archives which are always state property and for
which, unlike for works of art or historical artefacts, there is no international
"market". Therefore the respective provisions were assigned to a separate
instrument, the (First) Protocol for the Protection of Cultural Property in the Event
of Armed Conflict.12 Under art. 3 of the Protocol, each State party undertakes
HOOFDSTUK 1
6 See S. Pomrenze, 'Policies and Procedures for the Protection, Use and Return of Captured German records',
in: R. Wolfe (ed.), Captured German and Related Records. A National Archives Conference (Athens/Ohio 1974),
10.
7 UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford 2004), 304, paragraph 11.89.
8 Signed 10 February 1947, entered into force 15 September 1947; text in: United Nations Treaty Series, Vol. 49,
3.
9 For a detailed account see A. Eckert, The Struggle for the Files. The Western Allies and the Return of German
Archives after the Second World War (Cambridge 2014); T. Fitschen, Das rechtliche Schicksal, 140-205. The
handover, effected in 1974, of a number of German military and other records relating to the Netherlands
under German occupation to the German Bundesarchiv by the Rijksinstituut voor Oorlogsdokumentatie,
20
THOMAS FITSCHEN RETURNING DISPLACED ARCHIVES AFTER THE WAR
- A LEGAL PERSPECTIVE
which the latter had obtained after the War, was based on an understanding among the archivists of both
sides that records that had been created on Dutch territory should remain there, whereas records that had
originated in Germany should be preserved in German archives, see K. Oldenhage, 'Rückführung deutscher
Akten aus dem Rijksinstituut voor Oorlogsdokumentatie in Amsterdam', in: Der Archivar 28 (1975), 331.
10 Text in: United Nations Treaty Series Vol. 249, 240; the Convention entered into force on 7 August 1956;
for the records of the Conference see UNESCO, Actes de la conférence convoquée par TOrganisation des
Nations Unies pour l'éducation, la science et la culture a La Haye du 21 avril au 14 mai 1954 (The Hague
1961).
11 For the procedure see also Chapter III of the Regulations for the Execution of the Convention for the Protection
of Cultural Property in Event of Armed Conflict.
12 Text in: United Nations Treaty Series, Vol 249, 358; the Protocol entered into force on 7 August 1956.
21