31 July 2011

Restitution vs. replacement-in-kind: a French approach to cultural plunder

When the Allied powers became gradually aware of the extent of the cultural looting being perpetrated by the Nazis and their local henchmen across continental Europe, they formulated a number of principles which, on face value, were high-minded and honorable.

In the Allies’ view, all items stolen or forcibly removed from the possession of civilians in Nazi-occupied territories should be restituted to the rightful owners upon cessation of hostilities. In other words, once peace returned to the European continent, those who had been stripped of their belongings because of who they were and what they were could obtain the return of those objects, as long as they could be located and identified as theirs. Through an elaborate and ill-organized system of claims, the Allies processed hundreds of thousands of requests for restitution of cultural and other assets.

The simplicity of Allied intentions to return stolen objects to their rightful owners quickly ran afoul of customary international law whereby the rights of nations supersede those of individuals. In terms of property recoveries and returns, Allied diplomats swiftly veered off course and established the preeminent principle of repatriation—the return of looted objects to the country from which it had been forcibly removed. Once repatriation had taken place, the recipient country was held responsible for restituting those returned objects to their rightful owners.

The French postwar authorities responsible for cultural restitution publicly and vociferously stated what many of their formerly occupied neighbors—Belgium and Holland in particular—kept to themselves: that their cultural losses were so extensive that they were entitled to replace those items looted from their territory with items that resembled or were close in value and theme to those which they had lost to the Nazi invader. More specifically, the French government included replacement in kind in its panoply of measures designed to repair the harm done to the French “patrimoine” or “cultural legacy.”  Allied protestations were duly noted (The US and Great Britain opposed replacement policies which were implemented by France and the Soviet Union).

How did this translate into practice?

French missions would set out for the US occupation zones of Germany and Austria armed with lists of objects looted by Nazi officials between 1940 and 1944. The easiest place to find those objects was at the many collecting points established by US authorities to centralize the collection, identification, and disposal of items located across their respective zones of occupation which they suspected of being looted cultural property. Many items were identified as having been acquired in France during the war and therefore could be turned over to the French authorities for return to France.

A careful study of cultural objects assembled under the rubric of “Musées Nationaux Récupération” or MNR allows us to reach certain conclusions.
  1. the American government allowed French recovery missions to repatriate any art object found on German or Austrian soil for which the French laid a claim on the presumption that the item had come from France.  As an example, a search on the word "probablement" (probably) in the "Musées Nationaux Récupération" database yields 222 items which may not be of French origin, but were handed over to France and incorporated into various city and national museums.
  2. Many of those items claimed by the French government had been acquired from merchants, dealers, and galleries in German-occupied France. Whether or not the transaction involved an object looted from a Jewish owner or not was immaterial. The fact is that the object had been acquired in France during the war and brought back to Germany or Austria by its new owners.
  3. Based on the aforementioned, any transaction involving art objects which had occurred in occupied France entitled postwar French authorities to claim those objects as property of the French State regardless of the nature of the transaction.

Photographies prises au Jeu de Paume sous l'Occupation
Source: Site Rose-Valland -- MNR
Who wins?

Clearly, the seller won because he or she was paid fair market value and more for objects sold under Nazi rule.

Clearly, the French government won because it obtained for free items traded during the occupation on the so-called “legitimate” art market, the market against which neither Vichy nor the German occupation authorities dared intervene because it was so lucrative and bountiful for all parties.

In sum, replacement in kind benefited postwar France by replenishing and embellishing its State collections. The French recovery missions, staffed by Museum curators and art specialists, acted as selection committees for vetting future accessions to their collections.

Were the sellers collaborating with the Germans by selling freely and openly to them? If so, were they punished with heavy fines and even jail terms or loss of voting rights? Aside from fines levied against a handful of the most notorious art market dealers, everyone did fine and continued to trade “sans inquiétude”—without any worry whatsoever.

Since most objects in the MNR category were acquired on the “open market” in France during the German occupation, chances are that they had nothing to do with an act of persecution motivated by racial, political, or other motives. For that reason alone, these objects should be removed from the MNR category because it is hypocritical to equate them with objects in that list that truly were plundered from Jewish victims who remain unidentified.

Interestingly enough, real estate that had been owned by Jews and expropriated from them during the Vichy years, to a large extent, was never restituted after the war, even if it was clear as crystal that the property had been subject to an act of plunder through expropriation and forced sale. The same holds for true for factories, stores, banks, investment firms, and other forms of assets, which continue to be claimed today, albeit with highly inconsistent results.

Time to stop picking on France. This story of failed restitution applies universally to all European countries.