CULTURAL GENOCIDE

The connection between the physical and cultural aspects of genocide was first articulated by the Polish-Jewish jurist Raphael Lemkin who coined the term “genocide” in his book Axis Rule in Occupied Europe (1944).Footnote ⁵ Although today genocide is commonly understood as synonymous with mass murder, Lemkin asserted that a new legal category was needed precisely because the crime entailed far more than physical destruction or mass murder.Footnote ⁶ He thought that the novelty of the Nazi crime lay in the methodical attempt to destroy a national group, which extended well beyond typical war crimes and acts of repression and constituted an assault on the essential foundations of the group’s life, including the disintegration of the political and social institutions of culture. For Lemkin, therefore, culture lay at the heart of genocide—a systematic attack on a group of people and its cultural identity, which is a crime directed against difference itself.Footnote ⁷

Lemkin viewed genocide as a crime with both “negative” and “positive” aspects, which proceeded in two phases: “[O]ne, destruction of the national pattern of the oppressed group [the negative aspect]; the other, the imposition of the national pattern of the oppressor [the positive aspect].”Footnote ⁸ Understanding the centrality of cultural destruction to genocide, Jewish organizations in the wake of World War II sought a way to connect the punitive (negative) and restorative (positive) responses to the crime.Footnote ⁹ Thus, alongside criminal law, which addressed genocide via corrective justice, there was a need to rehabilitate the victim group by means of a “positive” struggle for cultural restitution and reconstruction.Footnote ¹⁰

These views influenced the drafting of the Genocide Convention in the late 1940s. An initial draft, prepared with the help of Lemkin, among other experts, included a specific provision prohibiting cultural genocide, along with a provision that required state parties to provide reparations to victims of genocide (Article XIII). The adjacent comment explained that the redress could also be for “the group as such” in the form of “reconstitution of the moral, artistic and cultural inheritance of the group.”Footnote ¹¹ Thus, a close link was initially made between reparations for genocide and the cultural aspects of genocide when trying to redress the victim group. However, the reparation clause encountered strong opposition because it introduced a collective measure into a criminal law instrument, thus threatening to undermine the principle of individual responsibility. As a result, the final text of the 1948 Genocide Convention did not include the reparations provision, notwithstanding the Jewish representatives’ position about the need to bridge the divide between criminal law and civil law when combating crimes against a group such as genocide.Footnote ¹²

Moreover, notwithstanding the efforts by victim groups to expand the definition of genocide, the final draft of the convention does not prohibit cultural genocide as such. Thus, the prohibition on genocide in contemporary international law is limited to physical or biological extermination.Footnote ¹³ The political reasons for this exclusion have been the topic of a growing body of historical-legal studies in recent years, which I discussed in my earlier article.Footnote ¹⁴ In the next part, I will briefly survey the ways in which Jewish representatives tried to promote the recognition of cultural genocide in the Nuremberg trials.

CULTURAL GENOCIDE IN THE NUREMBERG TRIALS

According to the prevalent account, the architects of the International Military Tribunal (IMT) at Nuremberg chose the “aggressive war paradigm” as the framework for the trial because it better suited criminal law’s special requirements, such as the rule against retroactivity, although there is some disagreement on the extent of, and reasons for, the neglect of the Holocaust by the IMT.Footnote ¹⁵ Accordingly, although the judgment acknowledged the new category of “crimes against humanity,” it was initially limited to wartime, thereby ignoring the novel understanding of such crimes as including the persecution of groups by their own state.Footnote ¹⁶ Moreover, the judges were not persuaded that the crime of genocide was indeed part of international law and, hence, refused to use it as a distinct legal category. Rather, the judgment broke down the Nazis’ systematic persecution of groups into discrete war crimes, a complete reversal of Lemkin’s understanding. During the proceedings, the mass murder of the Jews underwent decontextualization and became perceived, not as a broad Nazi policy executed in stages and by various techniques but, rather, as disparate acts of war crimes perpetrated by men of the S.S. (Schutzstaffel).Footnote ¹⁷

Jewish organizations criticized the aggressive war framework of the trial and sought to highlight the Holocaust by putting the new crime of genocide at the center of the proceedings. Realizing the opposition to their approach, they tried to gain access to the trial through legal procedures in order to promote their understanding of the crime. They thought it necessary to include representatives of the victim group in the trial and asked to join the criminal process as prosecutors alongside the Allies or at least as “friends of the court.”Footnote ¹⁸ They also promoted the idea of summoning a “Jewish expert,” suggesting to Chief US Prosecutor Robert Jackson that he call upon Chaim Weizmann, president of the World Zionist Organization, to provide expert testimony on behalf of the Jewish nation.Footnote ¹⁹ All of these efforts had the dual aim of gaining legal redress for genocide alongside international recognition for the Jewish people as a collective victim of Nazi persecution and a subject in international law.

In the end, only three Jewish victims were summoned to testify at Nuremberg (two by the Soviet team and a third by the British prosecution).Footnote ²⁰ Their testimonies focused on the physical extermination of the Jews and not on cultural genocide. This omission is especially evident in the testimony of the most famous Jewish witness in the trial, Abraham Sutzkever, who was summoned to testify by the Soviet prosecutor.Footnote ²¹ Sutzkever was an acclaimed Yiddish poet who played a central role in the efforts to rescue Jewish cultural property in Vilna during and immediately after the war.Footnote ²² The Nazi assault on Vilna was especially harsh since it was one of the great cultural centers of Judaism (known as “the Jerusalem of Lithuania”). The special taskforce headed by the Nazi Party’s chief ideologue Alfred Rosenberg, the Einsatzstab Reichsleiter Rosenberg (ERR), which was one of the main agencies engaged in the plunder of cultural property in occupied Europe, confiscated the Jewish libraries of Vilna, including that of the Jewish research institute established as the Yidisher Visnshaftiekher Institut (YIVO).Footnote ²³ The most important books that they looted were sent to Frankfurt to the Nazi research institute on the Jewish question (Institut zur Erforschung der Judenfrage). Historian David Fishman relates the story of a group of Jewish forced laborers made up of Yiddish poets and scholars, including Sutzkever, who had to sort the books for transfer to Germany. While doing so, they formed a clandestine group (known as “the paper brigade”) to smuggle important materials from YIVO into the Vilna ghetto in order to salvage them.Footnote ²⁴

These efforts were continued after the war by the few survivors who had personally witnessed the central role played by the attack on culture in the Nazi genocidal policy and sought to reverse its course by documenting the crimes and salvaging the cultural remains. Sutzkever returned to Vilna in July 1944, shortly after its liberation and, as part of these efforts, helped to establish a Jewish Museum in Vilna, which served as a repository for the city’s surviving Jewish cultural treasures, including books, art, manuscripts, and archives from YIVO, the Strashun Library, and other Jewish institutions.Footnote ²⁵ He also participated in a collective effort to document Nazi crimes against the Jewish people in German-occupied Soviet territory. In The Black Book, he described the attempts of the Rosenberg office not only to destroy, but also to collect, Jewish cultural artifacts.Footnote ²⁶ Sutzkever compared the physical attack on the Jews to the cultural attack on their books: “Rosenberg’s office hunted down the printed Jewish word with the same zeal and relentlessness that the Gestapo exhibited when tracking down every last hidden Jew.”Footnote ²⁷

In the IMT in Nuremberg, Rosenberg was indicted, among other things, of the organized plunder of both public and private property throughout Europe (as war crimes), and he was eventually convicted on all four counts of conspiracy, crimes against peace, war crimes, and crimes against humanity and sentenced to death. Fishman reveals that Sutzkever’s notes in preparation for his testimony show that he had intended to speak at length about the looting and destruction of Jewish cultural treasures by Rosenberg’s unit (the ERR). Footnote ²⁸ However, the Soviet prosecutor refrained from asking him about these issues. This omission is particularly glaring given the importance the Soviet prosecution attributed to presenting evidence of the destruction of Russian culture in the trial, including bringing two witnesses who testified on the issue and the projection of a documentary film dedicated to cultural destruction.Footnote ²⁹ The Soviet prosecutor denied Sutzkever’s request to testify in his mother tongue—Yiddish, the language of most of the murdered Jewish victims—because it was not an official language in the trial (and there were no translators from that language).Footnote ³⁰ Consequently, Sutzkever had to testify in Russian.

Within the confines of his testimony, all he managed to do was to hint at the Jewish cultural dimensions of the Nazi prosecution, such as when German soldiers had compelled him, a rabbi, and a boy from his neighborhood to dance naked around a bonfire in front of the old synagogue, while throwing its Torah scrolls into the flames.Footnote ³¹ Within the constraints of criminal procedure, his testimony tended to depict the Jews as passive victims of Nazi persecution, leaving out the active efforts at cultural rescue and resistance that he and his friends in the “paper brigade” had undertaken.Footnote ³² His frustration with his interrogation might explain the unusual step he took. When Sutzkever was asked to leave the witness stand, he directly addressed the judge, without permission from the prosecutor and, in violation of protocol, offered to submit a Gestapo document that he and his friends had collected, which could substantiate his testimony about the mass murder of Jews in Ponary.Footnote ³³

A close reading of Sutzkever’s testimony reveals the alternative approach to the Nuremberg trial that the Jewish victims sought to advance: the attempt to link the new crime—genocide aimed at destroying a group and its culture—to questions of cultural restitution and reconstruction. Sutzkever’s testimony provides several clues to the radical alternative that Jewish representatives offered to the vision of international criminal law promoted by the Allies in the Nuremberg trials. First, seeking to undermine the reduction of genocide to physical destruction, Sutzkever’s testimony dwelled on the burning of Torah scrolls and the humiliation of rabbis and the intelligentsia as intrinsic to the crime. As we have seen, this was only a hint at the bigger story that Sutzkever had wanted to relate in his testimony, which would have elaborated at length on the systemic attack on Jewish culture carried out by Rosenberg’s unit in Vilna.

Second, in contrast to the statist bias of international law, which subordinated the victim group to the nation-state, Sutzkever’s testimony was intended to achieve direct acknowledgment of the Jews as a distinct victim group and of the unique damage they had suffered. To this end, he asked the Soviet prosecutor to testify in Yiddish, the language of the murdered Jews.Footnote ³⁴ In his diary notes from 17 February, he explains that he saw testifying in Yiddish not as a technical matter but, rather, as a matter of principle with symbolic meanings:

Sutzkever had wanted the victims’ language to be heard in the Nuremberg trials as a countermeasure to the genocide and as a symbol of the immortality of the Jewish people. However, since he was made to testify in Russian, his testimony was heard as part of the larger story of the suffering of the Soviet people as a whole.Footnote ³⁶

Third, contrary to the conventional view of criminal law that sees the victims as passive and limits their role in trials to witnesses on behalf of the prosecution, Sutzkever, a Jewish partisan, sought to return the initiative to the victims. His planned testimony on the “paper brigade” in the Vilna ghetto was intended to present the Jewish victims’ efforts to salvage their culture during the war as a kind of spiritual resistance to the crime, which continued after the war in the form of the survivors’ initiatives for cultural restoration, like the establishment of the Jewish Museum. His testimony was to have presented the victims as taking their fate into their own hands and to have shown the enormous importance that they attached to protecting the remnants of their culture. When the Russian prosecutor failed to ask him about these issues, Sutzkever made a direct appeal to the tribunal judge and received permission to present the court with incriminating evidence collected by the victims themselves. With this subversive move, Sutzkever sought to make the victims active and equal partners in the trial of the Nazi perpetrators.

The Jewish victims’ vision for international criminal law, as indicated by Sutzkever’s testimony, would have required profound changes in the Nuremberg trials. It would have been necessary not only to recognize cultural genocide as a crime under international law but also to recognize a non-statist victim group, the Jewish people, as a subject in international law. However, after the efforts of Jewish representatives to influence the criminal law channel at Nuremberg failed, they turned to the private law channel of cultural restitution, where they found a fertile ground for developing their alternative approach to international law. In the following parts, I will explore how Jewish organizations translated their conception of cultural genocide into a policy of collective cultural restitution to the Jewish people.

THE EARLY STRUGGLE FOR JEWISH CULTURAL RESTITUTION

If we limit our view to international criminal law, we may conclude at this point that the law failed to address the cultural dimensions of the genocidal attack against the Jewish people, such as the plunder of cultural property. However, a very different picture emerges when we turn our attention to the creative ways in which Jewish organizations and prominent Jewish jurists, in the wake of World War II, sought to harness private law to achieve the restitution of cultural property to the Jewish people. As noted, to succeed in the restitution struggle they had to transform some of the core premises of restitution law and create a new paradigm of cultural restitution conceived as a countermeasure to the crime of cultural genocide.

This postwar Jewish cultural restitution struggle has recently attracted the attention of several historians. Elizabeth Gallas has examined the early international Jewish struggle for restitution of looted Jewish cultural property that was captured in the occupation zones of the Western Allies, while David Fishman has described attempts to rescue and salvage Jewish cultural objects in Vilna during and after the war.Footnote ³⁷ Other scholars have focused on different organizations that led the struggle, such as Gish Amit, who examined the history of the Hebrew University’s Va’adat Otzrot ha-Golah (Diaspora Treasures Committee), and Dana Herman who related the story of Jewish Cultural Reconstruction (JCR).Footnote ³⁸ Natan Sznaider has examined Hannah Arendt’s work for the JCR, while others have studied the activities of Gershom Scholem, who traveled on behalf of the Hebrew University to Europe to take stock of stolen Jewish cultural goods.Footnote ³⁹ Yet other studies are devoted to the restitution of specific types of cultural property, such as Jason Lustig’s article on the restitution of archives.Footnote ⁴⁰

While the historical research has noted some of the legal innovations of these restitution struggles—particularly, the recognition of a non-state collective as a subject of international law and the success of international Jewish organizations in prevailing over the state of origin—it has largely overlooked the transformation in the very concept of restitution wrought by their struggle.Footnote ⁴¹ In the following parts, I will highlight the various facets of the conception of cultural restitution promoted by the Jewish organizations as a countermeasure to the crime of cultural genocideFootnote ⁴² and analyze the legal obstacles they faced and the important legal innovations they introduced. In particular, I discuss three main changes they introduced to core premises of restitution in international law:

• • from individual restitution of private property to collective restitution to the victim group;

• • from a backward-looking return to the status quo ante to a forward-looking restitution as a means for cultural rehabilitation and reconstruction;

• • from a conception of “property” focused on the economic value of the cultural objects to a more holistic understanding of cultural objects as aspects of a Jewish culture that was to be reconstructed and rehabilitated.

COLLECTIVE RESTITUTION TO THE JEWISH PEOPLE

Books stood at the center of this early Jewish cultural restitution struggle. As a prominent figure in this struggle, Salo Baron, professor of Jewish history at Columbia University, noted in Reference Baron1945: “Books have always been the very life-blood of the ‘people of the Book.’”Footnote ⁴³ They bore a dual symbolic meaning as both “carriers” of memory and transitional objects for the future reconstruction of the group’s culture and identity. At the end of World War II, American troops discovered depots filled with millions of books that had been seized by the Nazis throughout Europe. “[B]y one of the great and ironical paradoxes of human history,” wrote Jerome Michael, professor of law at Columbia University, to the American General J. H. Hilldring, “at the same time that the Nazis were exterminating the Jews of Europe they were carefully and methodically collecting and preserving Jewish religious and cultural objects and employing them as a means to Jewish annihilation.”Footnote ⁴⁴ Most of these books were transferred to what came to be called the Offenbach Archival Depot, a collecting point for looted books and ritual objects in the American Zone of Occupation.

Although, as a signatory to the Inter-Allied [London] Declaration against Acts of Dispossession Committed in Territories under Enemy Occupation or Control,Footnote ⁴⁵ which was signed on 5 January 1943, the American occupiers were committed to cultural restitution, the few existing international laws and treaties seemed extremely inadequate to deal with the complexity of the situation.Footnote ⁴⁶ The basic rule of restitution in international law stipulates return to the state of origin, and the state is then required to return the property to its original owner. “Heirless property,” according to the Escheat doctrine, reverts to the state.Footnote ⁴⁷ Consequently, Jewish organizations feared that the huge amount of heirless Jewish property, including around half a million books in the Offenbach Archival Depot whose owners could not be identified, would be returned to states that had participated in the persecution and plunder. In particular, they thought it would be a colossal injustice if the German states, the successors of the Third Reich, would become the rightful successors of the property of murdered Jews. Already in 1943, Jewish jurist Ernest Muntz wrote:

The Allies’ initial policy to return identifiable cultural property to its state of origin was therefore “morally unacceptable” to the Jewish organizations.Footnote ⁴⁹ In the case of states where most of the former Jewish population had perished in the Holocaust, it would effectively mean that Jews would no longer have access to their cultural treasures. Jewish international organizations argued, therefore, that, in the unique situation of Nazi persecution, a collective crime of genocide that targeted the Jews as a group, “[t]he Jewish people as such, represented by the body representative of Jewish people shall be granted a collective claim to heirless individual property as well as to the destroyed Jewish communities and institutions.”Footnote ⁵⁰ This position was clearly articulated in a letter sent by Chaim Weizmann in the name of the Jewish Agency to the four Allied governments in September 1945:

However, no precedent existed in international law for recognizing a non-state actor—“the Jewish people”—as a legal entity with a right of succession for heirless Jewish property. The task of reforming international law was first undertaken at the level of legal theory in two pathbreaking books published in Reference Moses1944: Siegfried Moses’s Jewish Post-War Claims, and Nehemia Robinson’s Indemnification and Reparations: Jewish Aspects. Footnote ⁵² Both books advocated a fundamentally new, collectivist approach to the problem of Jewish restitution and reparations, which would allow international Jewish organizations to claim the property of obliterated Jewish communities as the property of a stateless collective—the Jewish people.Footnote ⁵³

In order to translate these new theories into international law, there was a need to create a representative claimant that could speak on behalf of the Jewish collective and take part in creating an adequate restitution policy. The initial restitution law implemented by the Americans presupposed the existence of individual claimants for stolen goods and failed to address the issue of heirless property.Footnote ⁵⁴ To overcome this lacuna, Jewish groups formulated the innovative concept of a “successor organization” for Jewish heirless property and, subsequently in May 1947, incorporated a Jewish Restitution Commission in New York, consisting of national and international Jewish organizations (and which, a year later, changed its name to the Jewish Restitution Successor Organization [JRSO]). As stated in its certificate of incorporation, it defined itself as the successor to “Jewish persons, organizations, cultural and charitable funds and foundations, and communities, which were victims of Nazi or Fascist persecution and discrimination, in all matters relating to claims for the restitution of property and property rights of every nature and description.”Footnote ⁵⁵

Although international Jewish organizations agreed that, in the case of heirless property, restitution should be directed to the Jewish people as a collective rather than to the territorial state of origin, they strongly disagreed on who precisely was the proper heir for Jewish cultural objects. The main competition was between the Jerusalem-based Va’adat Otzrot Ha-Golah, a group established in 1946 at the Hebrew University, and the New York-based Jewish Cultural Reconstruction Commission (established in 1944), headed by Salo Baron.Footnote ⁵⁶ In a nutshell, the Hebrew University claimed that it should be the sole trustee for cultural objects because the center of Jewish life had moved to the land of Israel, in no small part thanks to the creation of the Hebrew University and the National Library. In contrast, Baron’s commission argued that it should be the trustee, as it anticipated the ascendance of American Jewry as the leader of postwar Jewish culture.Footnote ⁵⁷

After a prolonged internal struggle, they realized that the competition between the groups hampered their collective efforts. Acknowledging the relative advantage enjoyed by Salo Baron’s New York-based commission vis-à-vis the American authorities, they therefore decided in 1947 to collaborate under one umbrella organization, Jewish Cultural Reconstruction (JCR), which served as the cultural arm of the JRSO.Footnote ⁵⁸ In so doing, “[they] aspired to represent all of Jewry, balancing the needs and interests of each community and allocating public Jewish funds wherever the needs were greatest.”Footnote ⁵⁹ However, in order to gain official recognition, this organization needed to engage in a prolonged legal and political struggle both externally—with the four occupying forces (most importantly, to gain the recognition of the American army)—and internally, with the various Jewish communities in Europe.

Several historians who have examined this struggle claim that the Jewish organizations were able to succeed because of the receptivity of the Americans to their moral claims. Indeed, the Americans were the only occupying power that initially agreed to the idea of a Jewish successor organization since the Soviets believed heirless assets should become state property, the French argued for establishing an agency that would assist all Nazi victims, not merely Jews, and the British, fearing that assets transferred to an outside Jewish successor organization might be used for augmenting Jewish settlements in Palestine, urged that heirless property revert to a German relief agency.Footnote ⁶⁰ But no less important in my view were the legal innovations to the law of restitution advanced by Jewish groups. Jerome Michael, one of the founding members of the JCR, suggested that they rely on the legal institution of trusteeship, instead of on property law, and that a representative Jewish corporation should assume a trusteeship function for Jewish cultural objects.Footnote ⁶¹ This would allow Jewish organizations the flexibility to consider the interest of the Jewish people as a whole, and to take account of changing conditions, in contrast to the rigid property considerations of restitution law, which focused on identifying previous owners.

On 15 February 1949, after long negotiations, the American military government signed a unilateral agreement [the Frankfurt Agreement] with the JCR, in which the latter agreed to act as the trustee “[I]n receiving this property for the Jewish people and in distributing it to such public or quasi-public religious, cultural, or educational institutions that it sees fit to be used in the interest of perpetuating Jewish art and culture.”Footnote ⁶² Thus, we see how an established institution of private law—trusteeship—was utilized in these unique circumstances to fill a legal lacuna (regarding heirless property) to allow redistribution of cultural objects aimed at the rehabilitation of the Jewish people. The symbolic importance of recognizing a Jewish trustee for Jewish cultural property was summarized by the JCR’s president, Salo Baron: “This is one area in which Jews speak as Jews—not as displaced persons or refugees. The Jewish element is clearly defined—Jewish cultural treasures, Jewish religious objects, Jewish interests.”Footnote ⁶³ The contrast with the Nuremberg trials, where Sutzkever was made to testify in Russian instead of Yiddish, is pronounced. It was in the civil law track, through the struggle over heirless Jewish books pillaged by the Nazis from all over Europe, that “the Jewish element” became apparent. The private law of restitution, as opposed to criminal public law, enabled Jewish representatives to take the initiative and exercise their agency, speaking on behalf of a Jewish collective.

“FORWARD-LOOKING” RESTITUTION

Although, after a struggle, restitution law allowed Jewish groups to assert their collective agency, it also imposed formidable constraints. The basic rule of restitution—“a return to the status quo ante”—conflicted with the Jewish organizations’ efforts to move the cultural objects to the new Jewish centers outside Europe. To overcome this obstacle, they needed to change the direction of restitution, to allow for “forward-looking” restitution to be used as a basis for a future-oriented cultural renewal. Here, again, Jewish jurists demonstrated their ingenuity. In order to accentuate the link between genocide and restitution, they focused on the plight of the Jewish refugees in the displaced persons (DP) camps, the majority of whom refused to return to their home states.Footnote ⁶⁴

Since the administration of the DP camps was a burden on the American government, the American policy was that restitution of non-monetary gold would be used to finance refugee programs.Footnote ⁶⁵ This created a first link between questions of resettlement, restitution, and reparations. A further link was made when the American army, responsible for the Offenbach Archival Depot, agreed to a request by the American Jewish Joint Distribution Committee in late 1945 to loan 25,000 non-valuable Jewish books to the DP camps to help alleviate survivors’ spiritual suffering.Footnote ⁶⁶ Creating a link between reparations and the rehabilitation of refugees was in line with the policy of the Allies, who feared repeating the punitive reparation scheme of the Treaty of Versailles because of its devastating repercussions. The emphasis was therefore changed from the moral guilt of perpetrator states (retribution) to the needs of the victims (rehabilitation/welfare).

In anticipation of this change, Siegfried Moses, in his Reference Moses1944 book Jewish Post-War Claims, advocated that the Jews abandon the idea of punitive reparations and rely on arguments advanced by the Russians about reparations as a way for economic reconstruction. He argued that

With this formulation Moses also shifted the geographical locus of reparation from Europe to Palestine, stressing that this was the desired destination of the Jewish refugees. Judah Magnes, the president of the Hebrew University advanced a similar position in relation to cultural objects:

As noted earlier, the existence of a large category of “heirless cultural property,” 95 percent of which belonged to Jews,Footnote ⁶⁹ helped undermine the priority given to “private property” in restitution law. Moreover, the focus of Jewish advocates on “cultural objects” such as books and archives, which ordinarily do not carry great economic value outside the communities that rely on them for their religious and spiritual practices, helped minimize the property concerns of the Americans. However, in order to change the restitution policy of the Allies, there was a need to give these demands a firm legal basis by articulating a new rationale for the law of restitution.Footnote ⁷⁰ Nehemia Robinson in his Reference Robinson1944 book Indemnification and Reparations distinguished between “restorative” and “constructive” measures. The former, he explained, are aimed primarily at individual compensation and restitution. The latter, in contrast, consider the persecuted group collectively as a victim and aim to use the looted property to help it forge a new beginning.Footnote ⁷¹ Relying on this novel legal theory, Baron’s commission suggested that the American army shift its restitution policy from restoration to redistribution:

CULTURAL RESTITUTION AS A COUNTERMEASURE TO GENOCIDE

The most innovative change brought about by the Jewish restitution struggle was the understanding that restitution is not simply, or mainly, a property remedy for a wrong but, rather, a countermeasure to cultural genocide. Here, our two roads meet. We began the article with Lemkin’s insistence on recognizing the link between the physical and cultural aspects of genocide. Jewish organizations sought to bring this understanding of genocide to bear on the restitution policies of the Allies. For example, in a memo written by the Hebrew University’s Va’adat Otzrot ha-Golah, the committee argued that the regular laws of restitution must be overridden in the particular case of “heirless Jewish property” resulting from the crime of cultural genocide. The moral basis for the Jewish restitution claim stemmed from the nature of the German attack against the Jews, which “was not directed against [Germany’s] Jewish citizens as individuals, nor against Germany’s Jewish collective as such, but against the entire Jewish people, including its physical existence, its religious doctrines and spiritual culture.” The committee further justified its claims by referring to the Nuremberg indictment, which, according to the memo, had recognized the crime of genocide and charged Alfred Rosenberg with carrying out the systemic plunder of Jewish cultural treasures.Footnote ⁸⁴ Similarly, the legal committee of the JCR, headed by Jerome Michael, sent a memo to the US State Department arguing that the objective of restitution ought to be the cultural reconstruction of the Jewish people since they had been subject to genocide. Accordingly, restitution must not be reduced to categories of prior ownership but rather ought to be understood in holistic terms of reconstructing the persecuted culture.Footnote ⁸⁵

The link between the crime of genocide and the restitution claims was translated into several principles. First, the Jewish organizations rejected an understanding of culture as something static that should be preserved in a museum. Thus, they vehemently opposed a proposal by the Danish government to UNESCO in 1945 to create a central library of Jewish books in Copenhagen that would house heirless Jewish books, preserving them as a European heritage. Instead, they advocated a perception of culture as dynamic, as a living culture that could change along with the changing conditions of its subjects. As Judah Magnes explained, they were interested not in “a museum of historical objects” but, rather, in “Jewish creative scholarship.”Footnote ⁸⁶ Likewise, religious objects were not to be collected and displayed in a museum but, instead, distributed to various synagogues in Palestine and the United States to be used by Jewish communities.

Second, the most controversial request and the one most divergent from traditional restitution law and notions of private property was the demand for “restitution-in-kind.”Footnote ⁸⁷ Michael and his colleagues demanded to replace lost Jewish cultural treasures with “comparable objects of like value” from German and Austrian collections.Footnote ⁸⁸ Baron’s commission gave the example of the Jewish division of the Municipal Library of Frankfurt, whose impressive Judaica and Hebraica collections, largely donated by Jews, would otherwise remain in Germany where few people would have either the desire or the capacity to make use of it for scholarly or other purposes.Footnote ⁸⁹ Although this request for restitution-in-kind was in line with the Allied Paris resolution of 1946,Footnote ⁹⁰ in American eyes it came too close to revenge. The US military government argued that the seizure of Jewish objects from German institutions that rightfully owned them violated the 1907 Hague Convention and amounted to the “cultural rape of Germany.”Footnote ⁹¹ General Clay feared that this would turn into a legalized looting of German cultural property. While the Americans were sympathetic to Jewish demands for restitution, they rejected the idea of restitution-in-kind, which threatened to blur the line between cultural restitution and cultural spoliation and to contravene their whole policy.Footnote ⁹² As most Jewish cultural objects were in the American zone of occupation, the position of the Americans in this matter prevailed.

It is interesting that, in Reference Vrdoljak2006, law professor Ana Filipa Vrdoljak endorsed a position similar to the one advocated by the Jewish organizations 60 years earlier as a matter of principle for international law: “[I]f restitution is the cessation or reversal of a wrongful act, then restitution-in-kind … reinforces the importance of return of cultural objects for the rehabilitation of the persecuted group.”Footnote ⁹³