09 October 2016

Prisoners of war

by Marc Masurovsky

In late January 2014, Ronald Lauder, president of the World Jewish Congress, declared that art objects stolen from Jews “are the last prisoners of WWII”. He asked that they be returned to their rightful owners.  Two years later, testifying before the Senate Judiciary Committee in June 2016 in support of the so-called HEAR Act, S.2763, Ronald Lauder emphasized, rightly or wrongly, that this proposed bill would help return looted works of art, “the final prisoners of World War II,” to their rightful owners.

This is not the first time that we’ve heard art objects being compared to prisoners of war. The analogy, wittingly or not, produces a misconception as to the nature of the thefts of art objects from Jews and distorts the chronology of events surrounding cultural plunder at the hands of the Nazis between 1933 and 1945. It is a recent notion which may have its roots in the “Spoils of War” conference organized by Elizabeth Simpson in 1995 in collaboration with the Bard Graduate Center for Studies in the Decorative arts.”

The “Spoils of War” conference came on the heels of disclosures that important works of art thought to be missing at the end of WWII had resurfaced in the former Soviet Union. The trove which a shocked world discovered was described by some as the "last prisoners of World War II," citing Karl E. Meyer’s Editorial Notebook: Russia's Hidden Attic; Returning the Spoils of World WarII, (N.Y. TIMES, Feb. 1, 1995, p. A20). Meyer, a journalist for the New York Times, was referring to important French Impressionist paintings that had been deemed lost in the wreckage of WWII only to reappear in an exhibit at the Hermitage. In an unforgettable display of nationalistic and cultural arrogance, Soviet authorities flaunted their prized “takings”, the result of massive sweeps of works and objects of art by so-called Trophy Brigades operating in areas “liberated” by the Red Army in the months leading up to the end of WWII. The Soviets viewed these “treasures” as “reparations” for the staggering losses in lives, equipment, cultural objects and infrastructure that they had suffered at the hands of Nazis and their collaborators. [Cited by Seth A. Stuhl, Spoils of War? A Solution to the Hermitage Trove Debate , 18 J. Int'l L. 409 (2014).

Since 1995, the expression has been re-appropriated time and time again mostly in the form of catchy titles as a mis-characterization of the full dimension and scope of cultural plunder during the Nazi era (1933-1945). Some of the many authors, mostly legal experts, who used the expression:

1997: Margaret M. Mastroberardino, The Last Prisoners of World War II, 9 Pace Int'l L. Rev. 315 (1997)

2002 Emily J. Henson, The Last Prisoners of War: Returning World War II Art to Its Rightful Owners— Can Moral Obligations Be Translated into Legal Duties?, 51 DEPAUL L. REV. 1103, 1105

2004, Geri J. Yonover, NATIONAL PERSPECTIVE: The "Last Prisoners of War" 1: Unrestituted Nazi-Looted Art Fall, 2004 6 J.L. & Soc. Challenges 81

2006 Patricia Kennedy Grimsted, "A Silesian Crossroads for Europe’s Displaced Books: Compensation or Prisoners of War?"  

A world-renown authority on Nazi looting of archives, libraries and books, Dr. Patricia Kennedy Grimsted has often referred to looted books and archives as “prisoners of WWII, held captive by recipient nations as “compensation” or “reparations.”

2010, Jessica Grimes, "Forgotten Prisoners of War: Returning Nazi-Looted Art by Relaxing the National Stolen Property Act ," Roger Williams University Law Review: Vol. 15: Iss. 2, Article 4.

2011, Maria Liberatrice Vicentini, manager of the Nucleo Conservazione Archivio Siviero, suggested that unrestituted works of art should be viewed as “prisoners of war.”

2014, Jessica Schubert, "Prisoners of War: Nazi-Era Looted Art and the Need for Reform in the United States," Touro Law Review: Vol. 30: No. 3, Article 10.

Although these “prisoners of WWII” are universally associated with the former Soviet Union, one can easily argue that they exist in most countries involved in the Second World War, which received untold numbers of cultural items with no provenance that they simply “hung on to”. They rationalized their presence in State collections and warehouses in the same manner as Soviet officials did and their successors in the newly independent nations forged out of the former Soviet Socialist Republics—Russia, Ukraine, Belarus—and their close neighbors in the rest of Eastern Europe. Proof being in the pudding, however, in the absence of coherent, systematic, inventories and audits of such holdings in the aforementioned nations, we can only continue to speculate wildly about the true numbers of these “prisoners.”


Let’s give credit where credit is due. The late Elan Steinberg was a major force behind the WJC’s many advocacy campaigns of the 1990s In 1998, he called unrestituted looted art "the last prisoners of war."  In November 1998, the WJC reiterated its assertion that looted paintings by Matisse, Chagall and Fernand Léger residing in French museum collections as “orphans” waiting to be returned to “loving parents” were in fact “the last prisoners of war” and they should be “freed.” .

Unless anyone protests, we will award to Elan Steinberg paternity for the expression, which Ron Lauder must have adopted since then. Still, the expression is laden with misconceptions.

Prisoners of war are people, and like with “orphaned” works, we tend to give human shape to objects and assign them sentient qualities which allows us to compare with them with individuals who have been captured in combat or in a battle zone and subjected to forced internment, confinement, and imprisonment by a hostile force. A prisoner of war is usually a member of the military or an agency affiliated with the one of the branches of a country’s armed forces and taken into custody by the “enemy.”

Prisoners of war are usually released at the end of the conflict that provoked their capture. They can also be exchanged for enemy prisoners. In principle, they have rights covered by international agreements, like the Geneva Convention.

Not to be flip, but can all of the aforementioned be applied to cultural objects being held “against their will” by a country which has no designated right to hold them and whose responsibility, at least its ethical or moral responsibility, is to return them to their rightful owners?

Furthermore, a prisoner of war has to be captured during a period of active military conflict. The looting of art objects under Nazi rule began in 1933, six years before the eruption of military conflict on the European continent. Theoretically, the expression “prisoner of war” cannot apply to any art object which was misappropriated, confiscated, plundered or otherwise stolen from its rightful owner prior to the outbreak of war, in other words, during the six-year period of 1933-1939.

Mountain out of a mole hill? Historical accuracy is important and the use of rhetoric to score political points is so widespread as to constitute an epidemic of sorts and therefore cannot be controlled by conventional methods. Only through education and awareness raising can the record be corrected. Art objects, once again, are not people and do not share their characteristics. They have no will of their own. They might symbolize events that extend far beyond their intended purpose as a result of their twisted or disrupted ownership histories. But they cannot—and should not-- be compared to people held against their will behind bars or barbed wire. If people insist on analogizing unrestituted art objects with “prisoners of war”, then it would be more useful to compare them to US soldiers listed as “MIA-Missing in Action” whose return has been elusive since the end of the Vietnam War.

Where does that get us? Nowhere.