WAR AND CULTURAL PROPERTY

MODERATOR:

HECTOR FELICIANO, Author, “The LostMuseum: The Nazi Conspiracy to Steal theWorld’s Greatest Works of Art”

PANELISTS:

KONSTANTIN AKINSHA, Author,“Beautiful Loot: The Soviet Plunder ofEurope’s Art Treasures”

ELIZABETH BECKER, PentagonCorrespondent, The New York Times; Author,“When the War Was Over: Cambodia and theKhmer Rouge Revolution”

CHARLES PARKHURST, Retired ArtHistorian, Former U.S. Army Officer,Monuments, Fine Arts, and ArchivesDivision, Allied Military Government

PETER MCCLOSKEY, Office of theProsecutor, International Criminal Tribunalfor Yugoslavia, The Hague, The Netherlands

FELICIANO: In any given country, in timesof peace, cultural property can be legallybought, sold, or even looted. It can be shownand admired and serve as an element ofnational identity.

But in times of war, cultural property can bedestroyed, disfigured and looted. This destruc-tion and loot can live on, either randomly orsystematically. Cultural property or patrimonyis almost always victim to war, and it will nat-urally be one-sided because of what it repre-sents or who it represents, whether it appliesto Nazi loot, to Soviet loot, to Cambodia, andto Yugoslavia.

I will now give the microphone to CharlesParkhurst, who was a U.S. Navy officer whowas in charge of seizing and protecting monu-

ments and assessing the looting of art by theNazis in World War II. He also participated inwhat probably is the only case of insubordina-tion from an occupying army. This insubordi-nation was known as the WiesbadenManifesto, by a group of U.S. Army officerswho protested the eventual transfer of art fromGerman museums to American museums.

PARKHURST: What follows will be anabbreviated recounting of a World War IIepisode verging on the “insubordination”referred to by the moderator in his introduc-tion. Its culminating event, the drafting of aletter of protest, took place on November 7,1945, within an art-collecting depot of theMonuments, Fine Arts and Archives section(MFA&A) of the United States MilitaryGovernment. The letter was produced andsigned by Monuments officers gathered in theLandesmuseum at Wiesbaden, which at thetime served as a collecting point for retrievedart. The only signed copy of the letter was sentto the head office of MFA&A at GeneralEisenhower’s Supreme Headquarters, calledSHAEF.

I shall begin by reading an excerpt from whatI believe was the first notice of this matter bythe press, printed in The New Yorker forNovember 17, 1945, as part of a “Letter fromthe Rhineland,” from its correspondent,‘Genet,’ the pen name of Janet Flanner, whowrote:

“In Frankfurt-am-Main, there is animportant relic of a badly damaged prin-cipal art museum—three now-ironicwords are carved above its portico:Wahr/Schön/Gut. Wiesbaden, Marburgand Frankfurt are the Rhineland’s threemost important centers for our Army’sMonuments, Fine Arts and Archives sub-commission, whose war-and-peace duty ithas been to save beauty from destruction,and disinterestedly to guard art worksuntil they have been returned to their cor-

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rect owner, whether the owner isGermany or looted Poland or France.

“A couple of days ago, the monumentsmen in Wiesbaden received official wordto ship from their depository to theUnited States four hundred of its finestGerman pictures. This export project,casually suggested by American officials atPotsdam, perhaps as a well-meaningattempt to keep the pictures warm thiswinter in the steam-heated United States,is already regarded in liberated Europe asshockingly similar to the practice of theEinsatzstab Rosenberg, or Minister ofNazi Kultur Rosenberg’s Foreign Art LootBureau.

“It has been precisely the task of our mon-uments men to undo what we Americanshad disdained Rosenberg and the Nazisfor doing, and what it was supposedly ourpolicy never to imitate. Of the manyerrors in occupation we have committedin Germany, nabbing German art à laNazi will most certainly make the empti-ness of the battered museum’s slogan—‘the True, the Beautiful, the Good’—asapplicable to us as it is to the citizens ofFrankfurt.”

A more complete story is told by Lynn H.Nicholas, in “The Rape of Europa” (Knopf,New York, 1994), a splendidly researchedaccount of the fate of Europe’s treasures in theThird Reich and the Second World War, withunsparing details in two final chapters aboutthose things of which I shall speak here. First, Ishall provide some background for what JanetFlanner and the MFA&A officers were in a flapabout, then read to you the document knownas the “Wiesbaden Manifesto,” an instrumentdevised by monuments officers to protestorders that they, like Flanner, viewed as wrong-headed and venal, and contrary to what—byreason of professional training, instinct, andindoctrination by our superior officers at

SHAEF (plus a dose of youthful idealism)—most of us understood to be our charge.

Unofficial art rescue as an activity within theAmerican forces had taken place inNormandy, after the landings. I mention onlyCorporal John Skilton’s personal efforts to sal-vage damaged calvaires along the road throughBrittany as he advanced. After the Rhinecrossing, officers George Stout, WalkerHancock, Sheldon Keck, WalterHuchthausen, and a few others, during com-bat, saved what art they could from under thetracks of war through Northern Germany. Aspossible, they returned it whence it came, orto improvised safe havens. By the time Iarrived in Europe in 1945, after naval duty atsea as a gunnery officer, the battle in Germanywas over, the MFA&A was a reality, and twoor three Central Collecting Points were inoperation. I was indoctrinated at SHAEF andsent to assist Lieutenant James Rorimer, whohad been on the job early, and had alreadycompiled much information through interro-gation; scouted out “the lay of the land” in theAmerican Zone, and made plans for that areabefore many of us had arrived. CorporalSkilton had been his assistant, but now hadgone to Würzburg where he almost single-handedly saved the Residenz Palace and itsglorious Tiepolo frescoes from destruction.

Rorimer and I were to work largely in south-west Germany, where we pinpointed 1,036 artrepositories. At each repository, as needed, weprovided for local security, listed the contents,and noted available information about owner-ship. Subsequently, personnel from one of ourCentral Collecting Points retrieved the art forfurther research and eventual restitution torightful owners, or we shipped it back directlyto the country of ownership. Among theserepositories was the castle of Neuschwanstein,where had been found all the records ofHitler’s art-looting task force, the EinsatzstabReichsleiter Rosenberg (ERR). In this site,also, was a vast amount of art seized by ERR

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from Jewish collections in Paris, for the repa-triation of which a special task force was creat-ed under Captain Edward Adams. Its carefulwork over the better part of a year was toidentify, pack, and ship to Paris, 49 freightcars chock-a-block with art.

All this labor was now being put at risk,wrongly, we believed. The Nazis had taken artas “spoils” or “loot,” which we now sought toprocess for restitution to rightful owners ortrustees. But some of us feared that otherobjectives for our labor might lie hidden fromus. And so an alarm sounded on or aboutNovember 5, 1945, when an uncalled-fornotion of protective custody was implied in acable received by Captain Walter Farmer atWiesbaden, presumably from the AmericanCommission for the Protection and Salvage ofArtistic and Historic Monuments in WarAreas, at Washington (also known as theRoberts Commission). The cable read:“Higher headquarters desires that immediatepreparations be made for prompt shipment tothe UNITEK [US] of a selection of at leasttwo zero zero German works of art of greatestimportance. Most of these are now in ArtCollecting Point Wiesbaden. Selections will bemade by personnel from HeadquartersEuropean Theater who will assist in packingand shipment by motor transport to Bremen.”(Nicholas, p. 393)

The Roberts Commission’s emissary alsorequested the addition of the CzerninVermeer, Nazi loot from Vienna, held in aCentral Collecting Point at Munich, onlyrecently established by Lieutenant CraigSmyth in the former Nazi party headquartersbuildings. Smyth cleverly blocked this effort.Events had moved into high gear. CaptainFarmer immediately called upon allMonuments officers he could reach to meetwith him at Wiesbaden collecting point.

The cable from Washington was very specific,and just because it was, we were led to be sus-

picious of the motivation for the order. Thesepictures, it seemed to us, fitted nicely into thecollections of the National Gallery of Art,whose curators had compiled earlier lists forthe Roberts Commission, the membership ofwhich included several officers of the Gallery.But works of art on these first lists were drawnfrom all over Germany. When it was explainedby our officers (hoping to delay matters) thatit was not feasible to locate and transport suchwidely scattered objects to Wiesbaden, thecommission quickly substituted a list of 202paintings, almost entirely from the KaiserFriedrich Museum in Berlin. By that timethese paintings had been moved into theWiesbaden collecting point.

Although, indeed, this cabled order led someof us to question motivation, suspicion is notproof; it is not even evidence. Nevertheless, itmade us wary. The “operation” that ensued wasbitingly encoded by one of us as “WestwardHo, Watteau!”, and we immediately began ourprotest. It was November 7, 1945.

Not all officers could get to Wiesbaden onshort notice, but of the 25 who did, all butone signed the protest, which was written thenand there by one of us, a gifted writer,Captain E. Parker (Bill) Lesley, and signed asdrafted, with only a short prudential clauseinserted unanimously to forestall risk of courtsmartial. Later, five other officers expressed pri-vate sentiments to the same effect in separateletters; three more expressed agreement withthe draft but did not feel at liberty to sign;and three could not be reached. Thus 32 ofthe 35 MFA&A officers then assigned toGermany supported this protest. May I add, Ihave always found this letter a moving docu-ment, which stirs me even as I re-read it. LynnNicholas commented, “The Founding Fatherswould have been proud.” (p. 395)

Here is that letter. It has not been read oftenenough by people who care about these mat-ters. Addressed to no one in particular, it was

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(This page and followingpage) Copy of theWiesbaden Manifesto.(Courtesy Charles Parkhurst)

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sent to the top American in our MFA&Aoffice at SHAEF, Major Bancel LaFarge.When and how it was released I can onlyspeculate; but, as we have seen, it got to JanetFlanner very quickly. Last known to be in ouroffice at SHAEF, the only signed copy isdoubtless still secure in Army files some-where; but we each took a copy at the time of signing.

FELICIANO: Konstantin Akinsha wasinstrumental in finding the extent of all of theSoviet plunder right after the war with theSoviet-occupying armies.

AKINSHA: I believe that Comrade Stalinwas much more successful than the Americangovernment, because the American govern-ment didn’t succeed in transporting 202paintings to the United States, and ComradeStalin succeeded in transporting to the SovietUnion more than 2.5 million art objects. Ithink that this success was connected with acomplete absence of idealism, but before Idescribe historical events, I want to say a fewwords about the current situation.

On the 15th of April 1998, the CulturalFederation of the Russian Parliament adoptedthe Federal Law on Cultural ValuablesRemoved to the U.S.S.R. as a Result of WorldWar II. The president of Russia protested thislaw. He refused to sign it. But after the adap-tation of the Cultural Federation, he wasexpected to sign the law and send it immedi-ately to the constitutional court. We have aconstitutional court that will research it for apretty long period of time, and soon, this lawwill be enacted.

The main task of the law is to proclaim allcultural valuables removed to the U.S.S.R. as aresult of the second World War—“trophy art-works”—the property of the RussianFederation. Russian parliament announcedthat the removal of such property was com-pletely legal and was realized in agreement

with Allied partners, according to the deci-sions of the Control Council of Germany, andaccording to international agreements of theSoviet Union.

It is not true. The Control Council ofGermany never gave permission for restitutionin kind. Such a discussion never took place.The Control Council asked Russia to supply alist of artworks that were looted by Nazis dur-ing the war. But the Soviet delegation failed tosupply such a list.

How were these cultural valuables removed tothe U.S.S.R? In 1943, in Moscow, the SpecialCommittee—which was dealing with thecomposition of a list of so-called “equiva-lents”—was created. Their goal was to preparelists of artworks that could be taken as com-pensation for damage committed to theU.S.S.R. by the Nazis. The best art historiansin the country began to compose such listswhen the future of the work was not clear yet.

However, very soon, the task was changed.Art historians understood that they could notcollect any grounded information about loot-ers of the Soviet Union. Many parts of thecountry were still under occupation, and thetemptation to compose lists—not of equiva-lents, but of very good artworks that theywanted to see in the Soviet museums after theend of the war—was very strong. By the endof 1943, the decision was made to create,after the end of the war, a huge museum,which was to be erected in Moscow and wasto become a kind of a war memorial thatwould accommodate all the best artworksfrom the occupied countries. The commissionwas very upset when Italy left the war,because all the lists for Italy were already pre-pared, and there was a long discussion aboutwhat they would do, they already knew whatthey wanted to take there. Already in 1944,Russian brigades were sent to occupiedEuropean countries. I’m not talking onlyabout Germany. Poland, Czechoslovakia,

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Hungary and other countries were in the zoneof Soviet occupation. In 1945, we finallyreached Berlin.

We were not talking about compensation. Wewere talking about removal—removal ofeverything that was of some artistic value. Itwas the policy of the Soviet Union in occu-pied Germany. Basically, every ministry of theSoviet Union sent special “trophy” brigades tooccupy the country to remove everything. Thedocuments of the time are strikingly open andcynical. We can go through the lists and listsof millions of pairs of shoes, hats, umbrellas,and other things, just sent to the U.S.S.R. Bythe way, violation by the Soviet administrationof reparation agreements led, in many ways, tothe first conflict that started the Cold War.

Artistic policy on removal of art objects wasno different. Throughout the brigades, art his-torians, who were dressed in military uni-forms, operated around occupied territory ofGermany. The good museum collectibles weretransported to Moscow—such collections asthe Leipzig Museum’s complete PergamonAltar, and basically everything that was found.

Trophy brigades were not interested in prove-nance. Collections that were looted by theNazis in the Soviet countries were simplypacked and transported. Already during thefirst years of occupation, Allied forces tried toreceive information from Russian sites onRussian activities in the Soviet zone of occupa-tion. Russians refused to give such informa-tion. However, American intelligence gavepretty good information and a pretty goodpicture of what was going on in the Russianzone, and such information was supplied tothe State Department and the White House.

Immediately after the war, President Trumansent a letter to Stalin asking him about thefate of the Dresden Gallery. Stalin answered itwith a very foggy letter that the DresdenGallery could be secure if it were in our hands.

After the war, trophies were hidden for onesimple reason—the Soviet government decid-ed it was more profitable to create an EastGerman republic than a museum of trophyart. During the days of Khruschev, more thanone million art objects were returned toPoland and East Germany. Remains are still inRussia. During the resistance to EastGermany, it was decided not to return objectsfrom the Federal Republic of Germany andthe source countries. So today, in Russianmuseums, we see artworks from differentGerman museum collections and artworksthat belonged to such countries as theNetherlands, and to numerous private owners.

Today, members of Russian parliament are say-ing they believe all these paintings belong toRussia, because in the war, Russia lost 47 mil-lion lives, 427 museums were devastated, andmore than a half million artworks were stolen.It’s true. War has paid an unbelievable price.

But it was not only Russian lives. This war waswon by the Soviet Union, and to say howmany of these lives belong to Uzbeks, Kazaks,Ukrainians, or Estonians, we cannot say.When Russia mentions the more than 400museums, these museums were situated on theterritory of both its states, both the Ukraineand Belarussia. So Russia has appropriatedtrophies, and appropriated all victims of thewar. Unfortunately, the problem of trophy artbecame a problem of Russian nations. And it’svery sad. This century started with restitutionin kind. After the first World War, the(Russians) violated the Hague Conventionand took some artworks from Germany as arestitution in kind. In many ways, it’s still upto the German Nazis to rise to the looting ofGermany after the first World War and to useit for nationalist purposes.

Today in Russia, we are facing the refutationof history. Unfortunately, an internationalagreement doesn’t work. It’s very sad.

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“We were

not talking

about com-

pensation.

We were

talking about

removal—

removal of

everything

that was of

some artistic

value.”

FELICIANO: Now, the story of a journalistwho saw what happened in Cambodia, andwho followed it through.

BECKER: My story is different. It’s a story ofa war in Cambodia, an Asian country, recentlyindependent from the French, and a warwhere the people who walked away were notnecessarily members of a great army, but peo-ple like you and me.

I first understood the connection of lootingand war as a journalist the first few monthscovering it when, with one of my favoriteItalian colleagues, we were interviewing somerefugees. We stopped them. They had beenfleeing from American bombing, and they hadfled their homes. B-52 bombers had made itimpossible to stay. They couldn’t go in onedirection because the Khmer Rouge werethere, so they were fleeing toward PhnomPenh. We stopped them, and asked them theusual questions: “Where are you from? Whydid you flee? How many children? Who died?”

Then, my Italian colleague asked the last ques-tion: “Do you have anything for sale?” I said,“What is that question about?” He said,“Elizabeth, you either buy it here and givethem the better price, or you buy it on theRue d’Argent and give it to the Madam whowill take most of the profit.”

That started me on a line of inquiry that con-tinues today. I then went to the Ministry ofCulture and discovered that the people whowere buying most of this art were the diplo-mats, the journalists, the humanitarian aidworkers.

Before you think that I’m just casting blameand making an easy point, it wasn’t so simplein a war. The people were selling their art-works. Then there were those of us who werecovering the war and would go out and watchthe battles. In a country like Cambodia, thenatural fortresses were the pagodas, and the

military would naturally fall back and stagetheir battle from a pagoda. You had walls. Itwas a good staging base.

As a result of the fighting, the temples wouldbe destroyed, and artifacts would find theirway into the backpack of a soldier or whomev-er, and then they would go to the market. Soyou start with the family possession of a silverpagoda, perhaps, or a death cloth—that iswhat you put in front of someone before theydie so that they see heaven. Gradually, you cansee how the small artifacts from your temple,from your home, from your family possessions,everything becomes for sale. It’s not one armyversus another army, one army taking loot, buteverything becomes for sale.

In one of the last battles, a reporter got a callfrom a New York broker, who asked him tobuy up all of these death cloths, because itwould be helpful for a boutique that wantedto make a whole bunch of pillows out ofthem. At one point, the Minister of Culturedid send a circular out to all of the embassies,asking that no more cultural properties betaken out. That was ignored.

UNESCO came. In the ’70s, there was alreadya sense that you could protect the cultural arti-facts, and UNESCO sent out boxes to all themajor spots in the country with the templesand artifacts to be saved, and asked the monksto bury the artifacts. The only things that theyhave ever recovered are empty boxes, becausein war, the question of protection is prettymuch impossible. You’re all talking about try-ing to enforce international law in peace. Inwar, the last thing the people are going toworry about are those cultural artifacts. They’llsell their Buddha to keep their child alive. Themonks will not bury their artifacts when theyare worried about feeding the people who werecoming into their pagodas. And as much wasdestroyed by the bombs and by the firepowerof the weapons as was stolen.

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“Gradually,

you can see

how the small

artifacts from

your temple,

from your

home, from

your family

possessions,

everything

becomes

for sale.”

The Temple of Angkor, because it was so well-known, was the one thing that was protectedduring the war. No one would touch Angkor.It’s the largest religious building in the world.It’s a funerary temple. Angkor is a sort ofKhmerization of the Sanskrit word for “city,”and it is a city of temples: awe-inspiring, redis-covered first by the Portuguese, who broughtthe story back and nobody believed it. Thenfinally when the French came at the end of the19th century, the French naturalists did redis-cover it, and the French helped rebuild it. Ithas a place in the whole world patrimony suchthat nobody touched it, not a bomber, not aKhmer Army, either the republic or theKhmer Rouge, or the Vietnamese.

In the country, it felt strange that the onlything that was protected were the beautifultemples. When the Khmer Rouge took over,in the middle of the genocide, the one thingthat survived was the Angkor temples. I wasable to go to Cambodia during the KhmerRouge period and was surprised that the onething they were proud of is that they were ableto preserve the temple. You have this strangeconnection between who you are when you,in fact, are a country like Cambodia—at itsknees, yet having one of the most beautifultemple complexes in the world. They save thetemple, they let the country fall apart andthey’re responsible for the death of 2 millionout of 6 million people. Then you have anoth-er war, and this time, everything is for sale.This led to tons of Angkor stone showing upon the Thai border.

Out of Paris, various cultural organizationshave tried very hard to find some of this andreturn it. But the war continued and the peo-ple who ran Cambodia under the Vietnamesedid not win international recognition. SoAngkor was under the control of a govern-ment that had no international recognition.And in an attempt to win that recognition,they tried even to use the temples again to say,“If you don’t recognize us, they’re just going to

be looted and looted.” That didn’t work.

Finally, in peace, the archaeologists were ableto reconvene in Paris and Bangkok to look atwhat was left of Angkor. It’s now beenrepaired in cement by the Indians, re-lookedat by the Japanese, the French went in, and soforth. But the effect of war has been dramaticfor the temples. The whole city of temples isbuilt around tanks of water, because it wasalso the very practical center of the kingdomas well as the religious center. Irrigation ditch-es were going out, big tanks to irrigate the ricefields, the temples to reflect the cosmology ofMt. Mehru, the entire Hindu cosmology. Itrequires great upkeep just to make sure thatthings don’t sink so that the stone doesn’tmove.

In the middle of all this, bandits had beencoming in. One thing that war leaves behindis weapons. And you don’t have simple peoplewho want to cut up one stone or two, butentire groups of military people—someretired, some not—who cut away hundreds oftons of stone. Just recently in The New YorkTimes, Seth Mydans wrote how they discov-ered that Banteay Chmar had lost 500 tons.The new technology is making it very easy.Cambodia is so blessed with so many temples,yet it’s so poor that there’s no way to protectthem. And you are left with a situation wherethrough war, revolution, and now poverty,who’s going to suggest that the very smallnational budget overseen by those very cor-rupt officials is going to, in any way, protectthose art objects?

The question this leads to is: If one doesbelieve that there is a responsibility to protectsuch incredible sites as Angkor, then what isthe international responsibility to pay forthem, in a country like Cambodia?

FELICIANO: Now we will be talking aboutYugoslavia. Peter McCloskey is a trial attorneyat the Office of the Prosecutor, Investigations

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“. . .Who’s

going to

suggest that

the very small

national

budget over-

seen by those

very corrupt

officials is

going to, in

any way,

protect those

art objects?”

Section, of the International CriminalTribunal for Yugoslavia in the Hague.

MCCLOSKEY: For the last four years, I havebeen investigating the case of Srebrenica,which was the murder of 8,000 people in afour-day period in July 1995.

I want to give you some rough background onsome of the damage that occurred during thewar in the former Yugoslavia.

I’ll be talking about what you call “non-removables.” I’m not speaking of art that waslooted, or objects from churches, or objectsfrom mosques. As you know, there’s not muchyou can take from a mosque. And investigat-ing and prosecuting this kind of a crime isvery difficult.

The War Crimes Tribunal was enacted nearthe end of the war by the Security Council ofthe United Nations. We are an arm of theSecurity Council and we do have the power toprosecute people for war crimes, includinggenocide, murder, crimes against humanity,and the damage, destruction and theft of cul-tural property.

In Bosnia, mosques and churches that sufferedmajor damage throughout the war. Croatiasuffered some tremendous damage. The oldcity of Dubrovnik was shelled, and quite a fewof the beautiful structures and churches andother buildings there were destroyed or greatlydamaged.

This happened throughout the formerYugoslavia. And while I don’t want to get intothe blaming business, it is clear that most ofthe damage that occurred was done by theBosnian-Serbs. The Bosnian-Croats come insecond, and some of the other damage wascaused by the Muslims, at a much lower levelthan the other two.

. . . Destroying churches and mosques clearly

played a part in this war. I want to ask you aquestion, and that is: Prosecuting people forthis kind of destruction, is it worth it? Is itsomething that an International CriminalTribunal should put its resources into doing? Ican describe to you an image of a large excava-tion. In the bottom of it, there’s about 150people, corpses with their hands tied behindtheir backs, bullet holes through their skulls,and many of them are blindfolded. They’re allBosnian men between the ages of 12 and 70.We found, during our investigation, about4,000 men in graves like this.

So in situations where we’re talking aboutgenocide, crimes against humanity—be it theWorld War II version, the genocide inCambodia, which is probably in the millions,or the genocide of Bosnia—is there a place forthe prosecution for war crimes of the nature ofdamaging or destroying buildings? We are notthe Allied forces coming through, with 30men assigned to one task. We’re not the victo-rious Soviet forces. We have a small group ofpeople in the Hague that are charged withinvestigating the entire war, and now Kosovois happening. Is it really worthwhile to dothis?

I think the answer to that is “yes,” as theydecided in Nuremberg that it was. From aprosecutorial point of view, this destructionclearly goes to the motivation of the peoplethat are committing the genocide. They aretrying to wipe out the people and the trace ofthe people that they have been sharing thecountry with. So by prosecuting these crimes,we’re assisting in the prosecution of the biggercrime: the genocide.

But that isn’t the only reason why we prose-cute these crimes. One of our witnesses we’vecalled in the prosecution of these crimes isColin Kaiser. He works for UNESCO. In histestimony, he spelled out one of the moreobvious and important reasons why we prose-cute these crimes. This is what he told a judge

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“Is there a

place for the

prosecution

for war

crimes of the

nature of

damaging or

destroying

buildings?”

in response to a question about how peoplereacted when their structures were blown upand destroyed.

He said, “The destruction of a mosque or achurch is different from the destruction of aBosnian’s house. What happens to you, every-body knows that you’re mortal. Your life is aseries of accidents. But the mosque or thechurch, it represents an order to the world.When you destroy that, you are sort of tam-pering or threatening their existence. It’s oftenbeen said to me in my travels during the war,and not only about churches and mosques,but about other major cultural buildings, that,‘We get used to being killed. We know thathuman life is no more tangible or permanentthan the life of a butterfly. But when we seethese other buildings being destroyed, we seethe rest of the world starting to crumblearound us, and we become lost.’”

And we felt that this was an important part ofour case. I think even the people in the gravesthat I can’t find, that I can’t put in my geno-cide case, will appreciate what we’re doinghere. And I know the rest of the world willappreciate that, also. But another questionarises, and that’s “How far do we go in theprosecution of this crime?” You heard a termbrought up, “military necessity.” Militarynecessity is part of the international law that isbuilt up from the Lieber Code, and it is partof the customary international law uponwhich our statute was based.

Let me give you a hypothetical situation andask you where you would go, one I borrowedfrom Professor Merryman.

Let’s say we have a famous old church withincredible frescos on it. And on the belfry ofthat church, there’s an artillery spotter, andhe’s dropping artillery on your troops. Youhave two choices. You can call in artillery ofyour own and blow the hell out of that spot,and you have just destroyed a 3,000-year-old

church but you will have knocked out thatspotter. Or does a soldier have a duty to sendin ground troops, at the risk of losing hismen, merely to save a cultural monument?This is something that soldiers have to dealwith, and we’re making a policy that willdecide what we require of soldiers, andwhether it is worth it. How far do we go?This issue can obviously be broader than justthe protection of cultural monuments. It cango so far as, “How far do we go in the protec-tion of civilian lives? What kind of a duty dosoldiers have in their objective, and the livesthat they are trying to save?”

AKINSHA: I was traveling in the last twoyears in the region pretty intensively. It is notonly the destruction of architectural monu-ments: We know many examples of museumcollections that were removed in typical Naziways, such as the whole collection of theVukovar museums—there’s a perfect collec-tion of west European paintings in Sarajevo.The main thing is that the locations of thesecollections are known. The contents of theVukovar museum are stocked in Belgrade;paintings from a museum in Sarajevo, accord-ing to three diplomatic sources, are in BanjaLuka, and there’s no movement. These paint-ings are not returning to their museums.

Of course, how to judge these crimes is a veryimportant issue. But I have another question:how do you prevent those crimes? I talked tothe director of the museum in Vukovar a cou-ple of years ago when she still was stuck in acellar in Croatia, running the so-calledMuseum of Vukovar in exile. She told me thisstory. When Serbian tents were on the otherside of the river, she put on the building ahuge sign of the Hague Convention, a sign todesignate protection of architectural monu-ments in museums. The next day, Serbs beginto shell this building, because the sign wasvery attractive. The same day, she sent atelegram to UNESCO, reporting that Serbsare bombing the building. UNESCO answers

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that they don’t want to be part of it, saying,“It’s your problem, just try to sort it out.”

Where is the prevention mechanism? Variousinternational laws could stop this crime. Ifyou can stop the crimes, it probably will liber-ate us from the necessity of organized tri-bunals later.

MCCLOSKEY: In Germany, it’s my obser-vation and others’ that, there being nonational American central control where alldecisions about cultural property came from,this was left up to the field commanders. Andthat was true of the Russian zone, the Frenchzone, the British zone, and the Americanzone. And because it was a new idea, theyweren’t prepared, by foresight or foreaction,to set up the organizations and to organizetheir forces in some way. And so everythinghas to be scrounged. But that’s at the will ofthat commander.

Eisenhower was pretty good on this, and heprovided us with a letter with his signature,which was copied, that said, “This buildingwas determined by the monuments officers tobe off-limits to all military personnel.” Thiscould go on cultural treasures such as 17th-century churches, 18th-century houses, etc.,that were of cultural meaning and signifi-cance.

On the other hand, we couldn’t get a simplesign for simple places that just said, “Off-lim-its to personnel.” They wouldn’t print it up foryou because there was no general order to dothis. There was, in short, no preparation forany exigencies.

I’ve got a portion of the letter that Eisenhowerwrote, and he was well before his time. “If wehave to choose between destroying a famousbuilding and sacrificing our own men, thenour men’s lives count infinitely more and thebuilding must go. But the choice is not alwaysso clear-cut as that. In many cases, the monu-

ments can be spared without any detriment tooperational needs.”

Nothing can stand against the argument of“military necessity.” That is an accepted prin-ciple. But the phrase “military necessity” issometimes used where it would be moretruthful to speak of “military convenience,” oreven of “personal convenience” or, I do notwant to cloak it, “slackness” or “indifference.”This particular letter may have some relevanceto what is going on today in Kosovo.

QUESTION FOR MR. MCCLOSKEY:I’m not really aware of what constitutes a warcrime. You’ve added in destruction of monu-ments and such. Let’s say I’m a commanderand I’m advancing through a country I’veinvaded, and I have a deep respect for church-es and mosques, and even individuals. I don’tkill anyone. But I torch crops, shoot livestock,dam up rivers, do anything I can to dam uppeople. Is that considered a war crime? Do weprotect monuments and then allow livestockand crops to be destroyed?

MCCLOSKEY: That depends. I think youhave to consider the military necessity of that.I think some of the generals and colonels inVietnam would have said “yes.” In some of thevillages, we had to kill livestock, we had toburn out the villages, because that’s where theVietcong were staying, and those were thepeople that were killing us. So if there is a jus-tifiable military reason to do it, that may ormay not be a defense, depending on how thejudges interpret these treaties and what weargue it to be a defense. A lot of times, thatwill depend on what the international com-munity wants it to be.

If a letter came out of a conference supportingthe idea that military necessity should not be adefense, and that was enacted in theUNESCO statute, then there may be nodefense to that. But it’s also against the law todestroy property, to take property. And that’s

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“The phrase

‘military

necessity’ is

sometimes

used where it

would be

more truthful

to speak of

‘military

convenience,’

or even of

‘personal

convenience’. . .”

also part of the the indictment, because that’salso part of the ethnic cleansing that occured,the destruction of homes, the destruction ofpersonal property. That’s also a war crime, ifthere’s no military necessity.

MARTIN WIESBER (Office of Justice inSwitzerland): I was legal counsel forUNESCO in Cambodia during the UN-spon-sored election period. It was said this morningthat usually, we should not blame the sourcenations for not doing anything at all.Cambodia is a good example. They don’t havethe resources to do anything at all. And thenwe talk about giving and taking something.

It puzzles me that there is an outcry at pic-tures showed to us by Mr. McCloskey, of theMostar bridge, for example. As soon as thingsturn more normal, there are no internationalefforts, apart from international agencies—which do not have the means necessary to putup cooperation mechanisms—between muse-ums and art associations. I think the commu-nity should also think about mechanisms tohelp those countries restore culture, not onlythe buildings, but also the country itself.

BECKER: There has been, throughUNESCO meetings in Paris and Bangkok, thebeginnings of a group. But more money has tobe given to these countries to protect theseextraordinary monuments.

It’s only recently that the Cambodian govern-ment has allowed this. There has been inter-national pressure and finally the governmentis working in that direction. So it’s now a pos-sibility.

AUDIENCE MEMBER: I’m really interest-ed in the concept of military necessity, andthe contradiction between this concept andinternational conventions that are preventingthe damage of architectural monuments.Kosovo is marked by unique Byzantine

churches. Serbian television is already broad-casting footage of damage to numerouschurches in Kosovo. The administration saidthat all targets in Kosovo and Yugoslavia areoff-limits. What does this mean? Churchesare off-limits, too? What is this: necessity, orpossibility of neglect and destruction of cul-tural monuments?

MCCLOSKEY: For some reason, the UnitedStates did not want to become a part of theinternational criminal tribunal that is beingnow put together in Rome. But if a Serb con-voy hid out in one of these famous monaster-ies and was shooting shoulder-armed missilesat F-16s, NATO planners, would they be asthoughtful as Eisenhower was, who actuallyassigned cultural officers in 1944 to histroops? Or would they go in and take it out?I’d like to think they know what they’re doingand that they’d think twice before doing that.But sometimes things happen from 15,000feet, and you’re not that aware of what you’redoing, and part of proving criminal intent isidentifying willfulness and negligence. Andrecklessness does not come into play, thoughthat’s a fuzzy area, and a lot of it depends onthe treaties and the body of law.

BECKER: The reason that the United Statesdidn’t sign another international tribunal isprecisely because the United States said, verypublicly, that they didn’t want to putAmerican soldiers in that kind of jeopardy.They did not want to be judged for interna-tional war crimes. They wanted their ownnational tribunal.

AUDIENCE MEMBER: The terrible dam-age that has occurred in Yugoslavia has beenobvious, and establishing the culprits is goingto be a little more difficult. Yet, there are otherplaces in the world where both the damageand the culprits are very evident. One examplein very recent history: Northern Cyprus wasinvaded by Turkish troops not too long ago,

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less than 25 years ago. The damage to thechurches and the plunder that has taken placein that small country is unheard of in moderntimes, except for more recent times. We knowexactly who the culprits are. They are thebonafide Turkish Army. These are not rene-gade soldiers. These are bonafide Turkish sol-diers. Much of the plunder is showing up invarious markets around the world. Is yourgroup, Mr. McCloskey, doing anything tobring that to light, as well as you’re obviouslydoing in Yugoslavia?

MCCLOSKEY: We were created by theSecurity Council with the former Yugoslaviain mind, only. Prior to Nuremberg, interna-tional law in this area was designed for coun-tries to take care of their own. And if anyoneknows the history of how the Germans took

care of themselves after World War I, thatdoesn’t work very well.

Now the Security Council is also considering awar crimes tribunal for Cambodia. TheCambodians don’t seem to want that. It’s adifficult thing to have, and it would take anact of the U.N. to create another kind of warcrimes tribunal, something that’s obviouslynot done very often. The world court is in theearly stages, and it is not being supported bythe U.S. The U.S. is in the leadership positionin the world, so without the U.S.’s participa-tion, there’s some doubt as to whether thatcourt will have anything. But you also havesome problems with prosecuting things afterthey’ve already occurred. This was a problemthey had to deal with in Nuremberg and withother tribunals.

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