08 October 2016


by Marc Masurovsky

Historian Lisa Leff pointed out in her recent book, “The Archive Thief,” how, in the late 1940s, the leadership of the Jewish Cultural Reconstruction (JCR) compared identifiable books recovered in former Nazi-held territories in the aftermath of WWII to “kidnapped children.” According to Rabbi Bernard Heller, the “theoretical” restitution” of these “kidnapped children” would be akin to reuniting them with their “overjoyed parents”. For those cultural assets that could not be matched with an identifiable owner, these “stunned waifs” would be placed in “foster homes” run by “loving foster parents.” As it turns out, these “abductees” ended up in a complex network of “foster homes” happy as pie to become the new “[foster] parents.” These new “homes” consist of museums, libraries, and other cultural institutions, State-controlled and/or private, Jewish and non-Jewish around the world.

The JCR was tasked with redistributing among Jewish communities worldwide (mostly in the United States, Europe and Palestine/Israel) those cultural objects bearing no obvious markings that might tie them to an owner. In their zeal, even objects that could have been reunited with rightful owners were treated as “waifs.”

Decades later, European governments explained how they treated Jewish-owned assets in the post-Holocaust world and if they had made any effort to return them or make them available to their owners or next of kin. For example, the Swedish authorities issued a report in 1997 on “orphaned” assets located in Swedish financial and other institutions. To them “orphaned” meant that assets had remained “unclaimed” for decades following the end of the Holocaust.  In Greece, “orphaned” property was transferred to an organization responsible for aiding needy survivors, most likely with the proceeds from liquidating such “orphaned” assets.  The same scenario also unfolded in countries like Austria and France with greater or lesser success.

In 2008, the Israel Museum in Jerusalem staged an exhibit called “Orphaned Art: Looted Art from the Holocaust at the Israel Museum.” More than 1200 “orphaned” items are catalogued at the Israel Museum. The Jewish Restitution Successor Organization (JRSO) was the main collector of these cultural “orphans”. It operated in post-WWII Germany and Austria to locate, identify and disperse objects tagged as Jewish-owned, mostly without an identifiable owner to whom to return the found objects. The JCR was its redistribution arm.

Marilyn Henry, who wrote a regular column for the Jerusalem Post before her untimely death in  2011, argued that these “orphans” should be transferred to European Jewish cultural institutions since they came from European nations subjected to Nazi rule and terror. She mentioned how Benjamin Ferencz, the noted former chief prosecutor at the International Military Tribunal of Nuremberg, described recipients of “orphaned” assets as their new owners, rather than their trustees or custodians.
In other words, the new “parents” held clear title to these cultural “orphans.” Ferencz’s comment could be interpreted as a clear rebuke to any attempt by claimants, relatives of the unfortunate “parents”, to obtain restitution of these “objects”, in other words, reuniting them with their “families.”

Throughout the post-1945 era, museums, libraries and other cultural institutions have been transformed into massive “foster” homes for “orphaned” objects. In line with Ferencz’s comment, one can understand more clearly how Jewish museums around the world have been reluctant, remiss and even hostile to the idea of restituting any of the “orphans” that they lovingly curate and nurture as “foster parents.” Even the US Library of Congress played dumb in the late 1990s when faced with the evidence that they held at least a thousand valuable books spanning three centuries of noted Jewish authorship which it had obtained after WWII.

The London-based European Commission on Looted Art (ECLA) has described “orphaned” works as having no prior ownership history. If we adapt that line of thought liberally and argue that any cultural object is an “orphan” whose previous ownership history is non-existent, the vast majority of cultural objects currently sitting in cultural institutions worldwide or being offered for sale by auction houses across the globe should be dubbed as “orphans” in want of their “parents” due to the sheer absence of a provenance that describes their history. Surely, we cannot accuse the art world of being so cruel and insensitive, can we?

Incidentally, and this might be completely irrelevant, the US Senate considered a bill in 2008 referred to as the “Orphan Art Bill” which would regulate how copyrighted images can be used whose owners cannot be located. A law addressing similar issues was passed in the United Kingdom in 2013. Without getting in too deep into a legal swamp, users of copyrighted orphan works would not be penalized in their use and reuse of such images as long as they had been diligent in seeking out the purported owners of the images.  However, the US Copyright office noted recently that “the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace.”

Can the same reasoning be applied to cultural objects “orphaned” as a result of genocidal policies? Should we view cultural “orphans” as a liability risk? Not if we accept the Ferencz verdict of clear title to these objects.

And yet…

If we do generously apply that reasoning to cultural assets “orphaned” as a result of the violence that cost the lives of six million individuals of Jewish descent, we would have to question the level of diligence exerted by new “owners” (according to Ferencz) of “orphaned” cultural assets. In most cases, such diligence has not even been a consideration simply because the reigning assumption amongst the new “foster parents” was that the rightful owners had perished and not left any relatives who could become the new “parents” of these “orphaned” assets.

These poor “orphans” are routinely sold and resold through bookstores, antique shops, galleries, auction houses, Jewish and not, thus bouncing from one “loving foster parent” to another. If Rabbi Heller’s analogy holds, the treatment of these “orphans” constitutes systemic abuse and grievous neglect under the guise of providing a “good home” to those “waifs”.

Let’s face it, no systematic effort has been made in the past 80 years to find the “parents.”

You do know that objects are not people, something that, ironically, officials of Holocaust memorial institutions and even Jewish groups explain when they justify why they do not focus on cultural claims or include acts of plunder and misappropriation in their exhibits and educational programs. Isn’t it twisted irony that those responsible for the relocation and redistribution of “orphaned” objects grounded their arguments in anthropomorphic language to emphasize the humanitarian and profoundly sensitive motivations underlying their mission—to find new homes for the cultural wreckage of the Holocaust? Little did we know that these metaphors eliminated any possibility of viewing restitution as a viable solution to the fate of our “waifs”.