In mid-May 2009, a dozen individuals from the United States and Europe, mostly lawyers, one historian, and several representatives of the art market, met in a classroom in the former home of General Governor Hans Frank on the outskirts of Krakow, Poland. The purpose of the meeting was to come up with a statement that might offer an alternative to the impending, inevitable Holocaust Era Assets Conference of Prague, scheduled for June 26-30, 2009.
After a day and a half, compromise was in the air, rebellious spirits subsided, and in the interest of pragmatism, a declaration was hashed out to be presented in some form or another at the Prague Conference.
Six weeks later, delegates from more than 45 countries and representatives of international non-governmental organizations, cobbled together a lengthy declaration branded with the name of one of Nazi Germany’s most perverse concentration camp experiments, Terezin. The Terezin Declaration gave top priority to the salvage of the neediest of the neediest amongst the dwindling population of Jewish Holocaust survivors around the globe. Coming almost at the end was a statement about looted art which echoed in an even more diluted manner the Krakow Declaration of May 2009.
The international community pledged to meet its obligations towards survivors and put into place national and international mechanisms to settle property questions, including cultural assets. The Czech Ministry of Foreign Affairs established an European Shoah Legacy Institute (ESLI), of which the initial mission was and continues to be to monitor the implementation of the Terezin Declaration and make recommendations on how best to accomplish that mission, providing annual reports on developments in signatory nations with respect to restitution, reparations, compensation, and aid to needy survivors. The implementation of the Terezin Declaration involves five major areas of activity, including looted cultural assets and Judaica.
Let’s take a look at where we are with respect to our favorite issue—looted art. One way to assess the situation is by looking at the relevant statements of the Krakow Declaration and the Terezin Declaration and measure them against concrete accomplishments recorded since July 1, 2009.
Aid to research:
Krakow: Exclusive government control of research into provenance and title issues and the failure to permit, encourage and enable independent research is not acceptable. We therefore urge nations to provide adequate funds to facilitate independent research and to make such research available to the general public.
The Terezin Declaration is mum on this point. As of now, the only countries which are funding provenance research at any scale are Germany and Austria.
Krakow: Taking into consideration the Washington Principles on Nazi-Confiscated Art, we urge all parties to ensure that claims to recover looted art are resolved expeditiously and based on the facts and merits of the claims, having taken into account legal, moral and other considerations, in order to achieve just and fair solutions.
Here, the Terezin Declaration is explicitly silent, but implicitly whispers something to the effect that mechanisms must be put into place for claimants. Nevertheless, despite the rare rulings coming from national restitution commissions (Holland, Germany, Austria), claimants are still forced to seek redress before the courts of their respective nations in expensive litigations. To date, no measures have been taken to alleviate the legal burden that befalls those who seek the return of their cultural property.
Cultural property and exports:
Krakow: Export control, cultural heritage and citizenship laws should not be applied to prevent the return of property to Holocaust victims. It is unjust for a country that took or came into possession of Holocaust looted property to keep it.
The Terezin Declaration ignores this point. All nations have invoked their cultural patrimony laws to prevent restituted property from leaving their territory under the pretext that those items belong to the cultural heritage of their nations. A tactic that has been used for decades now, during and after the Second World War. It is a perverse attack on the rights of individuals to be reunited with their cultural possessions and a clear abuse of power by nations seeking to prevent cultural items from being returned to their rightful owners.
Krakow: We urge nations to enact or modify laws and regulations to authorize the restitution of looted Holocaust cultural property to the rightful owners in appropriate cases.
Terezin: Where it has not already been done, we also recommend the establishment of mechanisms to assist claimants and others in their efforts,
As can be seen, the Terezin Declaration is a meek version of the Krakow declaration. However, let us not fool ourselves. Short of someone wielding a supranational equivalent of a nuclear detonator to convince nations to amend their laws so as to facilitate restitution procedures, there will be no amendments or new laws passed until the international community acts with one voice. It may very well be that an absence of political will at the national level might compel political solutions at supranational levels.
Legal impediments to restitution:
Krakow: Where statutes of limitations or prescription laws prevent the restitution of looted Holocaust property, they should be waived or exceptions for Holocaust looted property should be made in appropriate cases.
Terezin passed over this very delicate topic which constitutes the biggest legal impediment for anyone seeking a measure of justice in any asset category that was plundered during the Second World War. In some nations, stolen items can be converted after the passage of time into legitimately owned objects.
Krakow: We urge nations to conduct systematic surveys of works of art and other cultural objects in their collections, produce inventories of this property and make them available to the general public.
As expected, no one at the Prague Conference sought to press for the creation of inventories, a demand that has been largely unmet since the first calls for such inventories in the months that followed the collapse of the Third Reich. To date, inventories are fragmentary, incomplete, difficult to use and not updated.
Krakow: We urge nations to conduct systematic provenance research and make the results available to the public.
Terezin: In particular, recognizing that restitution cannot be accomplished without knowledge of potentially looted art and cultural property, we stress the importance for all stakeholders to continue and support intensified systematic provenance research, with due regard to legislation, in both public and private archives, and where relevant to make the results of this research, including ongoing updates, available via the internet, with due regard to privacy rules and regulations.
Provenance research is one area where one can say that there has been progress, albeit limited. Efforts in most nations are not inspired by their governments, but rather by museum professionals, as in the United States, for instance. Fragmentary as they may be, those limited efforts when combined are proving the point—that concerted, coordinated international action must be carried out to facilitate complex research on individual objects, their owners, the dealers and institutions that carried them over time.
Conflict resolution in claims disputes:
Krakow: We urge nations to provide alternative dispute resolution mechanisms using qualified and independent experts.
Terezin: Keeping in mind the Washington Conference Principles on Nazi-Confiscated Art, and considering the experience acquired since the Washington Conference, we urge all stakeholders to ensure that their legal systems or alternative processes, while taking into account the different legal traditions, facilitate just and fair solutions with regard to Naziconfiscated and looted art, and to make certain that claims to recover such art are resolved expeditiously and based on the facts and merits of the claims and all the relevant documents submitted by all parties. Governments should consider all relevant issues when applying various legal provisions that may impede the restitution of art and cultural property, in order to achieve just and fair solutions, as well as alternative dispute resolution, where appropriate under law.
Although there is an apparent overlap between the two declarations, lawyers and policymakers alike have warped the concept of a ‘just and fair solution”. Just and fair for whom? More likely than not, for the current possessor who is still viewed as an innocent party in the restitution process. Therefore, one needs to proceed with caution when promoting alternative dispute resolutions because fairness is in the eye of the beholder. By the way, there is nothing expeditious about the settlement of a cultural claim.
Access to archival records:
Krakow: Acknowledging that provenance research has priority over individual privacy protection, we urge nations to open all public records and archives pertaining to the looting of cultural property through various means including theft, coercion, abandonment, forced sales, and sales under duress; to make them accessible to researchers and the public, and to provide incentives for the accessibility of privately-owned archives.
The Terezin declaration might have implicitly supported access to archival records, both public and private. But, in order to achieve fair and just solutions, all relevant records must be made available and released so that all parties can equally benefit from the wisdom contained in those documents, be they letters, receipts, lists, telegrams, reports. Access to public records is going much faster than the facilitation of conflict resolution or provenance research. But private records remain locked behind closed doors, which is a detriment both to the art trade and to the general understanding of the history of ownership of cultural objects over time and space. Here too, political action and creative solutions might be needed to widen access to privately-held archives.
Krakow: All nations should monitor restitution activity and make public annual reports on the making and resolution of claims and supply to the public accurate information about looted Holocaust property.
Although the Terezin Declaration omits this idea completely, it is contained in the generic recommendation for a post-Prague 2009 initiative—encapsulated by the creation of the European Shoah Legacy Institute (ESLI). However, there has yet to be any distinctive output from ESLI on this and related matters since its founding two years ago.
Krakow: We urge all nations to create facilities where information is available on restitution procedures in other countries.
ESLI is supposed to be one of the key facilities through which information can be found on the practice of restitution in countries that participated in Washington in 1998 and in Prague in 2009. Still, no word from ESLI. Everyone is anxiously waiting for product.
Where do we go from here?
That is an excellent question. So far, there are no good answers that translate into effective strategies.
It might very well be that, in order to move forward on all fronts, drastic measures and severe medication are needed to protect the rights of claimants, to ensure fair and equitable processes for deciding on the fate of claimed objects, and to raise the general level of awareness amongst specialists and laypersons alike as to the mechanisms of cultural plunder and its long-term impact on civil society.