Sri Lanka skulls

by Marc Masurovsky

A recent spat is opposing some historians and museum scholars to a decision by Edinburgh University to return nine skulls to Sri Lanka which were in its collection for more than a century, although the exact circumstances of their “acquisition” remain murky.

Chief Uruwarige

Chief Uruwarige of Sri Lanka’s Vedda community accepted the skulls from officials of the Scottish university. Presumably, the Vedda had taken arms against the British colonial presence in the early 1800s.

The pushback in the United Kingdom to this return was rather loud. Some historians have argued that the repatriation of objects obtained by force and other means of duress from colonized peoples around the world weakens the narrative of the museums that hold these objects because it makes it more difficult to tell the story of Great Britain as a “former imperial and colonial power.”

Others are more vociferous in their opposition to these returns which propel museums in the middle of what is perceived as a “contemporary cultural war” and warning that “museums should not be used for political battles.”

Let’s stop here.

An initial observation is that the debate over the repatriation of objects seized by force and other means from colonial subjects of Britain has questioned more openly the role of museums and their function as extensions of State power and Ideology. These debates are not new; after all, even the public accepts the general trope that museums were founded with objects removed during warfare and accompanying acts of pillaging, considered “normal.” The only people upset about this state of affairs were those on the losing end of the stick, asking for the return of their cultural property. This charade has been on-going for several centuries.

Two world wars, half a dozen well-documented genocidal undertakings and a long chain of military feuds (on average, several per annum) since 1945, have gradually altered the tenor of this conversation from “to the victors go the spoils” to “we maybe should reconsider holding these objects which we stole.”

Thousands of academic careers have been forged on the presence of objects in Western cultural institutions removed by force from across the globe. Untold numbers of exhibits have highlighted these objects. Auction houses and collectors the world over continue to trade in these objects.

Every generation ushers in a different set of values, different notions of right and wrong, of just and unjust, for better or for worse.

Conditions on our planet have worsened at every level—the very notion of freedom is under attack every day as are basic civil, cultural, economic and human rights. Invariably, museums that hold objects obtained by force and subterfuge decades ago and admired as brilliant works and objects of art are finding that possession of such objects is coming under fire and are now paying the price for wanton acquisitions of objects that, truthfully, should not be in their hands.

One obvious irritant which fuels and hardens those who advocate for repatriation is the refusal of museum directors, curators and lawmakers to tell the story of these objects accurately, wrinkles and warts included. In other words, pretty objects may embody stories, histories which are not pretty. Sugar-coating does not work. That’s called rewriting history, a form of revisionism and denial of history. Like any drug, the effects of the sugar-coating are short-lived and reality sets in anew, naked and, oftentimes, ugly. In this case, the provenance of colonial objects and human remains is anchored in events that, today, would be qualified as crimes against humanity and attacks against the cultural rights of those who were assaulted by imperial forces many moons ago.

In short, instead of grandstanding, those who complain about museums being politicized by “cultural wars” should remind themselves that museums exist as instruments and extensions of economic and political power. As someone famous once said, he who controls the narrative holds the power. Or something to that effect.

Let the dialogue begin. There is still time to find a solution embraced by all.

Pots and pans

by Marc Masurovsky

Since the first Holocaust memorial was built in Europe, soon followed by dozens of others, the story line that these venerable institutions have conveyed to a global public has been exemplified by the Holocaust is not about property but about people.

Put another way, the vast majority of the six million Jewish men, women and children who lost their lives in the Holocaust were so downtrodden that all they owned were pots and pans and the clothes that they wore. Or so the conventional story goes. Those lucky enough to collect art were people of means who hailed for the most part from Central and Western Europe. The facts speak for themselves: 75 per cent of Jews lived in Eastern Europe; 90 per cent of them were murdered. In other words, the Holocaust is for the most part an Eastern European Ashkenazi story.

This stale stereotyping of Jews as living in substandard poverty across Europe has gone hand in hand with a stubborn refusal by Jewish communities worldwide to address the more complex question of property loss as one of the keystones of 20th century anti-Jewish behavior. If we follow this line of reasoning, there were only two classes of Jews-on top, the wealthy who had enough disposable income to collect fineries of all sorts including lavish furniture and expensive art, and the “shtetl” Jews, the peddlers, the pieceworkers who lived “on the other side of the tracks”, the inhabitants of the Jewish Pale in Eastern Europe. Forgotten or ignored are the lower middle class, artisans, skilled workers, cultural and intellectual workers, the midde class whom we find in every community, town, city, region of Europe. What of them? Do they fit in this story? They do but their property does not count. It’s not part of the Holocaust story. Or so we are told.

Fast forward to November 15, 2019, to the 20th anniversary celebration of the Paris-based CIVS—Commission for indemnification of Victims of Spoliation during WWII. Participants to that conference heard from some speakers that most Jews living in France were of “humble backgrounds” and did not collect any art. They were more about “pots and pans.” That did not stop the Vichy authorities and their Nazi friends In the Paris region alone, from confiscating and transferring to non-Jewish owners (a process known as “Aryanization”) the intangible and tangible property of 31000 owners. Moreover, close to 70000 residences where Jews lived were literally emptied during the so-called “M-Aktion” between March 1942 and the summer of 1944 in France, Belgium and the Netherlands. I doubt that those responsible for this wholesale campaign of ransacking Jewish dwellings would have committed so many resources and logistics if it were just about “pots and pans.” 

You do not have to be an “art collector” or “art dealer” to amass works and objects of art. There are multiple tiers of value in the art world and the art market whereby individuals can amass an impressive amount of esthetic objects of small value---paintings, works on paper, even sculpture, decorative objects, books, musical instruments, Judaica, produced by talented artists and craftsmen whose names are not Bellini, Tintoretto, Fragonard and Rembrandt.

In short, it is too convenient and shameful to oversimplify in order to deflect attention from the real problem:
-Culture is an integral part of the discussion on National Socialism, anti-Jewish policies and the Holocaust;
-Jewish culture was thriving in the interwar years;
-The Nazis and their local Fascist allies nearly extinguished it;
-Human beings—Jewish and non-Jewish alike—are attracted to objects that please them and, if they can, they acquire them so that they can live with them, appreciate them and share them with family, friends, acquaintances and complete strangers.

Thousands of artists, writers, poets, musicians, craftsmen from close to twenty nations lost their livelihood and their lives between 1933 and 1945, their property was seized, never to be seen again. The cumulative impact of those losses triggered a lessening, an impoverishment of the cultural heritage of Europe from which we have not fully recovered.

These losses were part of a well-orchestrated State-sponsored attempt (2/3 successful) by the Third Reich and its allies to erase all traces of Jewish life and activity across Europe—a continental form of “Aryanization” which witnessed a multi-billion dollar transfer of property from Jewish ownership into the hands of non-Jews and their businesses which powered the wartime and postwar economies of European countries.

So, no, it was not about “pots and pans.” It was about much more. To deny this fact is to deny and rewrite history.

The time is long overdue for these longstanding revisionist trends in the teaching of the Holocaust to come to an end.

Diplomatic highs and lows in Paris

by Marc Masurovsky

Ambassador Stuart Eizenstat, special envoy on Holocaust affairs for the US Department of State, was one of the most prominent speakers at the 20th anniversary colloquium of the CIVS in Paris on November 15, 2019.

The main point person since the Clinton era on matters pertaining to Holocaust-era claims, Mr. Eizenstat delivered an unusual speech regarding looted art, restitution, France’s treatment of looted art in State collections, and his own legacy.

From year to year, the Eizenstat narrative on looted art and restitution has morphed and been rewritten, not for stylistic reasons but perhaps because Mr. Eizenstat has had a decades-long love/hate relationship with the whole idea of restituting art objects to plundered victims of the Nazis. And he simply does not know how to address it. After all, you cannot package art the way you bundle insurance policies, gold bars and coins, bank accounts and so forth, something that he excels at, which has yielded billions of dollars worth of settlements for Jewish victims and their families. For that reason alone, Mr. Eizenstat's legacy as a reliable and devoted advocate and champion of Holocaust victims' rights is uncontested and admirable.

Here are some of his many statements which were oftentimes punctuated by occasional spurts of ire:

-“France is going from being a laggard to being a leader” on questions of art restitution. That elicited some giggles including from Mr. Eizenstat who appeared pleased by his joke which was not really a joke.

-The CIVS conference symbolized “our last opportunity”. Let’s recall that the Prague Conference on Holocaust-era Assets in June 2009 was also “our last opportunity.”

He reminded us of his infinite capacity to repeat “fake news” about cultural losses during WWII. Unverified, the numbers put forth by Eizenstat are the same ones he has repeated since 1998.
According to him, 600000 paintings were looted during WWII, of which 100000 are still missing. In 1997, Philip Saunders of Trace database had made this unfounded assertion.  (Mr. Eizenstat went on record with those numbers in 2006). The Polish government alone claims that half a million cultural objects were removed from its territory during WWII. Which irresponsible historian or advocacy group came up with these fictitious numbers? Not even the Monuments Men could be bothered to audit the cultural losses of each nation victim of Nazi aggression. The more accurate estimates situate cultural losses in the millions.

Speaking of the Monuments Men, Mr. Eizenstat delivered a paean in their honor, citing their bravery and courage (smoking pipes and sporting tweeds) in Munich and Wiesbaden, while recovering 5 million works of art! No kidding! He forgot to mention that this figure mostly accounts for books, decorative objects and State-owned art. Not much room left for Jews, is there? Moreover, 5 million might be just a tad exaggerated. But who’s counting? You get the idea. Lots of looted stuff was repatriated to countries of origin.

Mr. Eizenstat was on a roll. He posited that it was impossible to identify owners at the end of the war. If so, how did so many objects get returned? The heirless asset problem must be staggering.

Let us now enter fantasy land. In December 1997, Mr. Eizenstat came up with the brilliant idea for a conference on looted art or so he says. That’s really strange because he was firmly opposed to the inclusion of looted art in any international convening dealing with assets during the Holocaust. It was the seizure of the two Schiele paintings at the Museum of Modern Art in January 1998 that provoked the inclusion of looted art in what became the Washington Conference on Holocaust-era Assets.

Speaking of the 1998 conference, Mr. Eizenstat, since November 2018, has changed his tone regarding the 11 Washington Principles that he penned which were supposed to frame an international strategy to identify looted art in public collections (not private) and suggest ways for victims to settle their grievances with current possessors.

Well, as it turns out, these non-binding Principles were mostly based on a set of guidelines developed by American museums earlier in 1998 when faced with mounting criticism over their indifference to the presence of stolen objects in their collections. A funny way of helping claimants by seeking inspiration from the very institutions that are firmly opposed to any form of restitution.

Mr. Eizenstat went on to honor the Association of Art Museum Directors (AAMD) for setting up a task force to address the question of looted art in their collections. To that end, the AAMD issued a set of guidelines in June 1998 which served as the benchmark for the Washington Principles, of which Mr. Eizenstat is the uncontested author.

Mr. Eizenstat proffered adoring words for Philippe de Montebello. The flamboyant former director of the Metropolitan Museum of Art was a fierce opponent of restitution but a very savvy museum official who understood the value of pre-emptive strikes on issues of looted art and artifacts. To wit, he promoted the drawing up of guidelines for American museums to follow when confronted with objects in their collections that might be of dubious provenance and negotiated creative settlements with the Italian government over the presence of looted antiquities in the Met’s collections.

Mr. Eizenstat was particularly combative in upholding his legacy and defending his record against critics who have blasted him for “doing nothing” and uttering mere “words.”

Seizing the opportunity in a fiery tone, he shared a long list of recommendations and critiques in Uzi-like fashion. It was hard to keep up. Some of the more notable ones follow:

1/ he denounced the impossibility of de-accessioning restitutable objects from French museums as “a French problem.”

2/ He went on to skewer Dutch museums for having reneged on their commitment to the Washington Principles by equating the cohesiveness of their collections with the interests of Holocaust claimants—the notorious “balance of interest” doctrine approved by Dutch museums in 2016? Verify.

3/ he denounced the German Limbach commission and its 15 cases in 15 years.

4/ Once again, he congratulated the Metropolitan Museum and the Boston Museum of Fine Arts for showing the way on how to handle looted objects in their collections.

5/ Quoting the AAMD and the AAM, he observed that the NEPIP portal was worthless and “outmoded”, in other words, unusable.

6/ He criticized US museums for being so aggressive towards claimants by resorting to technical legal defenses in order to dismiss their claims.

7/ He applauded the HEAR Act as the antidote to summary judgments petitioned by museum lawyers against claimants, whether meritorious or not.

8/ He thinks highly of the JUST Act which requires countries to publish annual reports on the state of restitution in their midst.

9/ he took partial credit for launching “provenance research as a new profession.” As if it was not performed prior to 1998.

10/ He congratulated France for acting as a coordinator between the five standing restitution committees.

Then, Mr. Eizenstat pulled out his foggy crystal ball and peered inside it, noting:

1/ Forced sales and flight sales (fluchtgut) are to be included as part of the Washington Principles (the former are mentioned explicitly in the Terezin Declaration and the latter are suggested implicitly therein);

2/ provenance research is expensive and requires resources.

3/ Public museums should publish on the Internet a detailed provenance for all of their objects.

4/ research should be conducted in all museums—private and public.

5/ De-accession laws need to be changed in order to accommodate restitution of looted objects.

6/ The Washington Principles apply to private collections

7/ Every country should designate a point of reference for claimants

8/ there should be no time limits on claims.

9/ he denounced the European Union as being “behind the curve.”

10/ with regards to so-called heirless assets, Eizenstat reiterated the need for “just and fair solutions” which amount to selling off these unclaimed assets after giving research one more try. Meanwhile, the institutions holding such objects should educate their public about how they ended up in their collections. As an aside, Eizenstat lauded the Austrian solution to the heirless assets question, embodied in the National Fund run by Hannah Lessing. In short, if Austrian federal museums identify objects in their midst for which there are no identifiable owners, they are transferred to the National Fund which follows up with its own research and posts the objects on its website. After a period of time has elapsed, the Fund sets aside those objects for sale, the proceeds of which are disbursed amongst needy families of survivors. Ms. Lessing begged to differ during the question and answer period.

That was enough for one day.

CIVS mea culpas

by Marc Masurovsky

[Editor's note: This is the second part of a three-part delivery on the November 15, 2019, Paris colloquium to celebrate 20 years of activity of the CIVS.]

In short order, CIVS speakers delivered some hard facts throughout the day:

-72000 apartments were ransacked in Paris and its environs during the German occupation of France;

-30000 claims files were submitted after the war. Of these, 20000 were for material losses and 10000 for financial losses;

- 518 million Euros have been disbursed for material losses;

-58 million euros have been disbursed to cover financial losses. In the eyes of the CIVS, this sum represents only half of such losses;

-The average sums disbursed to claimants seeking compensation for material losses amounted to 50000 euros;

-There has been a 99 per cent approval rate for all claims submitted to the CIVS for some form of compensation;

-The current pace of claims being submitted to the CIVS is 11 per month.

Former Prime Minister Lionel Jospin declared that. for years, French officials had acknowledged that reparations had been inadequate after 1945. Hence, there was a crying need to “do more” but no one did so until the mid-1990s. On July 16, 1995, President Jacques Chirac delivered a landmark speech, breaking with four decades of official French denials regarding Vichy’s responsibility in the persecution, plunder and deportation of Jews in France from 1940 to 1944. His elocution, timed to coincide with the anniversary of the July 1942 mass arrests (rafle) of thousands of Jews forcibly removed from their residences, businesses, arrested in plain sight on Paris city streets and locked up at the Vel d’Hiv. The speech prefigured the need for the CIVS. The “Fondation pour la Mémoire de la Shoah” (FMS) was established three years later with funds from liquidated unclaimed Jewish-owned property and bank accounts.

On September 10, 1999, the CIVS opened its doors to handle claims submitted by survivors of anti-Jewish persecutions in France during the Vichy years. Its main mission was—and still is--to recommend that the Prime Minister approve compensation for claimants seeking relief for material and/or financial losses due to acts of persecution during WWII. Jospin reminisced over the various American “class action” lawsuits that had pitted claimants against the French government in 2000 and 2001. He recalled that the exchanges between French officials and American lawyers and lawmakers had oftentimes been “bitter”.

At the end of his presentation, Jospin, like so many others after him, reiterated the fact that “more needs to be done with regards to the restitution of cultural objects.” “Repair what must be repaired.”

In continuing the mea culpas of CIVS leaders, François Bernard, vice chairman of the CIVS, admitted that he and the rest of the CIVS had a difficult time grasping the true extent to which “people’s lives had been wrecked” during the years of occupation of France and thereafter. In essence, for him and others at the CIVS, the damage to individual victims was impossible to quantify in any satisfactory way. Citing the Matteoli report, Bernard solemnly declared that the mission of the CIVS, from its outset, was steeped in justice and humanity. Bernard turned the discussion inwardly by suggesting that the 20 years of the CIVS had been riddled with ambiguities. In a rather flippant comment, he stated: “we have no idea who we are.” The comment was more juridical than philosophical. He then went on to suggest that the CIVS had behaved like its own jurisdiction or a meta-jurisdiction.

Some of the disconnects and dysfunctions inherent in the CIVS mission stemmed from the decree that established it. The decree was interpreted too narrowly, which led to the following:

-War-related losses were excluded, although losses resulting from wartime plunder were not necessarily ignored.

-Anti-Semitic acts perpetrated by the German occupier outside the scope of Vichy policies may not have been taken into account.

-Lost earnings due to antisemitic decrees forcing people out of their professions were not addressed either. In other words, you were on your own if you thought you could be compensated for lost income resulting from anti-Jewish persecutions.

In spite of this, the CIVS leadership congratulated itself for having had one-on-one meetings with half to two-thirds of the claimants. The CIVS took note of all of the criticisms and insults proffered against it. Only 40 claims were litigated out of the tens of thousands that were submitted and adjudicated.

If not much has been done about cultural losses, the CIVS maintains that it will be difficult for it to change the way it does business. Matteoli once said that cultural losses constituted a “black hole.” They were also referred to as a “lost museum”. If it is lost, will it reappear? And if so, what to do? Meh.



to be continued...

Backdrop to the 20th anniversary celebration of the existence of the CIVS

by Marc Masurovsky

[Editor's note: This is the first of three articles on the November 15, 2019, one-day colloquium convened by the CIVS in Paris, France]

As is the case with all celebratory anniversary conclaves, the organizers are those who know more about what needs to be feted than the attendees to the erstwhile fiesta. After twenty years of existence, the “Commission pour l’indemnisation des victimes des spoliations (CIVS)” shared their 20-year odyssey through the wreckage of the Second World War exemplified by the staggering material, financial, and emotional losses suffered by the Jews of France during four endless years of persecution at the hands of a pseudo-legal French authority and German occupation forces.

A host of speakers were invited to share their thoughts with an audience of at least 400 participants who mostly hailed from the United States, the United Kingdom, the Netherlands, Belgium, Germany, Austria, Switzerland, and, of course, France. Much to my surprise, about one fourth of the participants were researchers, a pattern that has emerged over the past several years around similar international gatherings in London, Bonn, and Berlin, to name a few. The usual NGOs connected with art restitution matters were also in evidence—the Holocaust Art Restitution Project (HARP), the Commission for Art Recovery (CAR), Mondex, the Claims Conference, the Commission for Looted Art in Europe (CLAE)—as well as perennial personalities operating on the fringes of the art restitution community and constantly fighting for what they perceive is their rightful share of the “business.” An ugly thought.

As seen from the outside in, the proceedings began with a predictable self-congratulatory tone, where speakers highlighted the many accomplishments recorded by the valiant civil servants working tirelessly to restore a symbolic sense of justice to families broken and torn asunder by the horrors imposed upon them by those who despise Jews and covet their property. All of this in a country which has a terrible time facing its recent past in an open manner. Much has been done since 1945 but far more needs to be done still.

It is with that in mind that my cynicism was quickly checked when speaker after speaker articulated self-critical thoughts, most of whom belong to a coterie of—now—dignified, erudite, skilled elderly gentlemen and gentlewomen responsible for creating the CIVS and for shepherding it through the torturous and treacherous waters of accountability for crimes committed against the Jews of France and their possessions.

To be quite frank, I left satisfied that I had witnessed a historical event and been given a fairly reasonable balance sheet of two decades of activity on behalf of Jewish victims. In France, that counts for a lot.

The proceedings took place not too far from UNESCO in a building which houses administrative offices subordinate to the Prime Minister’s cabinet. It was miserably cold and wet outside, which made it easier to allow ourselves to be penned inside an auditorium which, although comfortable, gradually became stuffy and unbearable. But the high concentration of human-generated heat only exacerbated the situation. I am digressing….

To be continued…

  

Historians vs. lawyers

by Marc Masurovsky

The past two decades have witnessed hundreds of restitution cases whose purpose is to reclaim the return of objects looted during the Nazi era. Although the claimants are located around the world, the legal actions are concentrated in so-called market nations, namely in North America, Europe and occasionally in Japan.

These cases set out to fix, to repair historical wrongs. Ambassador Stuart Eizenstat came up with what turned out to be an enduring catch phrase to describe such actions: “just and fair solutions”. It’s anyone’s guess, frankly, what constitutes “fair” and “just” solutions. They vary greatly whether you are the current possessor or the victim’s heir/heiress.

Still, the wrongs being repaired took place during a historical act of genocide that spanned the greater part of 12 years, from 1933 to 1945. It was aimed principally at the citizens of European countries of Jewish descent. Thus, art restitution is an act of justice seeking to repair a historical wrong.

To establish the facts and circumstances surrounding the “historical wrong”, lawyers—who are not trained historians—rely on those who have made it their career to examine the historical past, understand its many sinews and meanders and interpret it for a larger public. Hence, lawyers need historians to compile evidence and build a persuasive case to convince a current possessor of the looted object either through mediation or before a judicial authority that the looted object should be returned to his/her client.

If lawyers need historians, historians do not need lawyers.

And yet…

The variegated ways by which art objects were forcibly removed from the ownership and control of their rightful Jewish owners can give us pause. Here are some, not all by any means:

-forced sales
-duress sales
-confiscations
-seizures
-sales while fleeing the site of persecution (flight sales or fluchtgut).

These complex “transactions” were deemed illicit by Allied powers fighting the Axis (Germany, Italy, and Japan) in a series of declarations during and after WWII making it clear that those responsible for aiding, abetting and/or provoking such illicit acts of forcible removal would be held accountable after the Allied victory over the Axis.

These illicit acts, in the eyes of those who study them—the historians—need to be clearly defined and all of their possible variations fully delineated and outlined so that their many permutations can be factored into legal proceedings.

By some perverse twist, American lawyers have increasingly opposed historians’ efforts to come up with clear definitions and delineations of these historical wrongs because any definition might impair their ability to successfully prosecute a claim against a current possessor.

The world is a strange place especially when, in order to repair a historical wrong tied to an act of genocide, a historian is asked to be silent on the exact details of these illicit acts.

Let’s be very clear here: historians need to do their jobs which is to apprehend the complexities of the past and explain them to the public in order to promote greater knowledge and enlightenment about what human beings do to other human beings so that, hopefully, we might not repeat such heinous acts in the future. Nice thought, I know.

Likewise, lawyers must do their job and protect their clients’ interests. For that, they need historians and other specialists to help them harness the facts of a case.

One thing they cannot do is order historians to censor themselves, just like historians do not ask lawyers to censor themselves.

Therefore, historians and researchers steeped in the tangled webs of persecution and exploitation of Jewish members of national communities between 1933 and 1945 will continue to study, examine, share in public and in private their findings and publish them where appropriate so that the many can have access to such knowledge.

Lawyers are intelligent people; they will surely find a way to adapt to such a state of affairs. After all, they cannot control the dissemination of knowledge anymore than governments can. And should not, under any circumstance.

Facts, ma’am, just the facts.

Some of the main Allied declarations:

"Inter-Allied Declaration on Axis Acts of Dispossession" (London Declaration) of 5 January 1943
Bretton Woods Resolution VI of 20 July 1944

 

Torso of General Psamtik, Governor of Upper Egypt

by Marc Masurovsky

MA-AEGY 1, front

MA-AEGY 1

This Torso is one of the more stunning Egyptian antiquities looted by the Nazis and their French collaborators from Jewish collectors living in Paris.

Described by the Nazis as "A torso of a man (Männlicher Torso)", it was inventoried at the Jeu de Paume museum in central Paris on 1 October 1943 as one of many objects confiscated from Jewish owners under the aegis of Möbel-Aktion. The person responsible for the description of this torso was Ernst Adalbert Voretzsch, a German archaeologist and specialist with the Einsatzstab Reichsleiter Rosenberg (ERR) in Paris. He actually oversaw the description of all ancient Egyptian antiquities rounded up during M-Aktion in the Paris region in 1943. 

ERR card for MA-AEGY 1

The ERR, when it inventoried the Torso as MA-AEGY 1, had originally mis-identified it as dating from the 13th dynasty in an earlier inventory dated 16 September 1943. Indications on the inventory show that the item had also been miscast as an “Asian” object. Lots of confusion at the Jeu de Paume. Apparently, there were no Egyptologists on hand, although Paris had its fair share of experts still on duty during the German occupation period. The Torso was ultimately dated to the 26th dynasty. 

Back of ERR card

ERR inventory page for MA-AEGY 1

mention of torso in Bernheim-Jeune restitution file

Shortly therafter, the ERR packed up the torso and sent it to one of its depots in Seisenegg, near Amstetten (Austria) on 18 November 1943. The looted objects stored at Seisenegg were eventually repatriated to France. As a M-Aktion piece, it was not obvious to identify the rightful owner. But eventually, the torso was restituted on 14 June 1950 to Jean Bernheim-Jeune, the heir of the Bernheim-Jeune gallery and inventory.

Fast forward 60 years…

On 5 June 2013, the Torso came up for sale in a Paris auction house, Boisgirard-Antonini, as a 30th dynasty piece, thus contradicting earlier appraisals of the object performed by French and German specialists. It allegedly broke a record. The Torso was then shown at TEFAF-Maastricht Art Fair in March 2014. Throughout this period, questions about the status of the object came up. Although the Paris auction house was aware that the object had been looted during WWII, those showing the piece at TEFAF wanted to be certain about its entire history.

The Paris-based Bernheim-Jeune family of art dealers and collectors had owned the Torso in the early part of the 20thcentury. The question then became: did they own the piece at the time of its confiscation by Möbel-Aktion agents?

Further research was necessary to ascertain that, in fact, the victim was Bernheim-Jeune. The family’s own restitution claim and recovery documents confirmed their ownership of the piece. The Torso had been on view atop a fireplace mantle at the Bernheim-Jeune residence in Paris up to the time of its seizure. The complication resided in the fact that those responsible for the seizure were French Fascists who had taken over the Bernheim-Jeune residence. The Torso was transferred at some point to the Nazi authorities in Paris and catalogued as a Möbel-Aktion piece. All of this makes little sense but the events speak for themselves.

This story of a restituted object being sold on the art market decades after its confiscation and restitution attests to the diligence exercised by those who handled the Torso in 2013 and 2014 in ascertaining the proper facts surrounding the object’s history prior to selling it.

Sources:

Bundesarchiv B323 series, Koblenz

Publications where the Torso appeared:

L'Art moderne et quelques aspects de l'art d'autrefois: cent-soixante-treize
planches d'après la collection privée de MM. J. & G. Bernheim-Jeune: poèmes de
Henri de Régnier, I-II, Galerie Bernheim-Jeune, Paris, 1919, p. 5 (vol. I),
pl. 173 (vol II).

J. J. Clère, `Autobiographie d'un général, gouverneur de la Haute Égypte à
l'époque saïte', Bulletin de l'Institut Français d'Archéologie Orientale, 83,
1983, pp. 85-100, pls IX-XII.

H. de Meulenaere, `Un général du Delta, gouverneur de la Haute Égypte',
Chronique d'Égypte: Bulletin périodique de la Fondation Égyptologique Reine
Élisabeth, 61, 1986, p. 203-210.


Shorter, The Journal of Egyptian Archaeology, 11, 1925, pp. 78-79.
H. Kees,`Der angebliche Titel "Vorsteher der südlichen Türöffnung (von
Elephantine)"', Zeitschrift für ägyptische Sprache und Altertumskunde, 70,
1934, p. 86, n. 5.


E. Otto, Die biographischen Inschriften der ägyptischen Spätzeit, Leiden,
1954, p. 92 and p. 128.


Wörterbuch Die Belegstellen, II-V, 1937-1953 where the inscription is cited
several times; for the references, see Clère op. cit., p. 86.

The “heirless” game update.

by Marc Masurovsky

One would have thought that this matter of who owns what object stolen during the Nazi era would have been settled by now. After all, either one can identify the owner or not.

Simple? Not quite.

The identification process of the rightful owner of an art object which was looted between January 30, 1933 and May 9, 1945, requires research. That effort is tedious and laborious in personnel days stretching into months and in other ancillary costs—travel, lodging, and other related indirect expenses associated with the collection of information located in remote sites far away from the site of discovery of the looted object.

When there are umpteen thousand objects whose owners are not readily identifiable, the problem becomes compounded and requires a political solution at the international level.

During the worst humanitarian tragedy of the 20th century, namely the Holocaust and the genocidal campaign against the Jews of Europe, every Jewish household on the European continent which lay in the path of the Nazis and their local henchmen was subjected to plunder, seizure, and, oftentimes, destruction. Where did the contents of these Jewish households go? Everywhere.

When the Second World War ended, Jewish-owned property was strewn all across Europe. The more appealing items, those with acknowledged value, could be found in commercial outlets everywhere. Those with appreciable value because of their authorship and aesthetic quality entered private and public collections, crossed international borders, and became fully incorporated into the cultural heritage of numerous nations (read State-owned museums) and a host of private and public collections.

On 3 December 1998, at the Washington Conference on Holocaust-era assets, a set of 11 non-binding principles were put forth, largely inspired by the American museum community, to guide nations and their cultural sector in the treatment of objects shown to having been displaced during the Nazi era.

Principle #9 addressed the unidentifiable ownership issue:

“If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, cannot be identified, steps should be taken expeditiously to achieve a just and fair solution.” I referred to this as “diplomatic hogwash.”

We are now nearing the end of 2019 and, still, there is no comprehensive approach to the disposition of art objects deemed “heirless.”

First, let’s go back to the wording. An object is “heirless” if there is no one around today to claim it as his/her rightful property by descent. To determine that the object is “heirless”, one has to conduct extensive research into its pre-Holocaust ownership. No research, no “heirless” verdict. The object remains in limbo land. After all, you have to prove, beyond a reasonable doubt, that a person of Jewish faith owned the object. How can you tell if an object was owned by someone Jewish? Does it exude some mysterious aura which is reminiscent of something “Jewish”? That is preposterous. We saw this egregious behavior with the Gurlitt scandal. And yet, intelligent people walk into German museums and proclaim that all objects in their collections with uncertain ownership which were accessioned after 1933 are, most likely, the property of Jewish owners. To that, I say categorically: “No!”.

What to do?

Back in June 26-30, 2009, I attended the official follow-up conference to the Washington Conference on Holocaust-era Assets. There, I spoke and suggested that the international community should establish “an international entity responsible for the return of such objects to their rightful owners and to dispose of so-called heirless objects in a manner that is of ultimate benefit to the families of victims, and which underwrites and promotes further research into the fate of such objects.”

Much ink has been spilled since June 2009. Looking back, it is clear that a proper resolution of the “heirless” problem is to conduct systematic provenance research in public and private collections worldwide. The likelihood of art objects with uncertain provenance which might have been the property of a Jewish owner is high in European, Israeli, and American collections. That’s where the research focus should be placed. To conduct such research, funds are required. A timeline should be established to research these objects and determine, once and for all, whether or not they are heirless. Once that decision is made, all concerned groups and governments should hammer out an acceptable solution to the final disposition of these objects.

I am clearly opposed to the following:

1/ wholesale liquidation through auction sales;
2/ wholesale transfer of these objects to Israeli institutions.

Point 2 is not feasible simply because it places an unacceptable burden on Israeli cultural institutions to welcome a potential tens of thousands of objects affected by this process. No institution can absorb them. And what good does it do to place these objects in warehouses? And, in any event, they do not belong to Israel. To apply the language of international pronunciamentos on cultural rights, they belong to “humankind.”

The solution that I favor is to ask museums which host these objects, most likely to tell their story as accurately as possible in order to educate the public. Their mission is in part to educate and share knowledge with their visitors, rather than cherry pick which objects should be discussed, at the expense of those objects with tortured histories. This reasoning also applies to looted antiquities, indigenous objects, ritual and sacred artifacts plundered from communities worldwide.

There are many other ways by which to honor “heirless” objects and their unknown owners. But the first step is to stop the political posturing and to come up with a scientific, rational approach to clear up the ownership issue. For that to happen, it requires a substantial investment, but it is an investment that all concerned nations need to share.

Restitution is an elite sport

by Marc Masurovsky

The post-1945 years have shown that State intervention in the treatment of restitution claims arising from wholesale plunder of Jewish-owned property ensured that the playing field would be somewhat level, allowing victims of modest income to have equal access to State officials as did members of elite and well-connected families, by reason of rank, status, and income.

This illusion of equal access did not last long. The vast majority of restitution claims were converted into compensation requests. In other words, the message to claimants was clear. Unless we think that your loss lessened the cultural patrimony or heritage of the Nation, you are better off asking for some form of financial compensation. Goodbye!

We can actually date this change of mind, somewhere between 1946 and 1947, not more than two years after the most destructive war devastated most of the European continent.

Jewish groups have behaved in similar fashion. Rushing to declare all unidentified Jewish cultural losses as “heirless”, they lobbied postwar officials and Allied military authorities in Germany and Austria across Western and Central Europe to turn over to them hundreds of tons of unclaimed Jewish property so that they could be sold off to benefit displaced persons and refugees. Choice pieces were transferred to Palestine/Israel where they were inevitably incorporated into Israeli cultural institutions.

Without a lawyer, an accountant, and one or more friends in “high places,” if your name was not Rothschild, Zuckerhandl, Seligmann, Bernheim, Rosenberg, Mannheimer, and so forth, your loss as a result of Nazi/Fascist anti-Jewish persecution and plunder was your problem, no one else’s.

Fast forward to the last 20 years…


The US government, at the outset of the Washington Conference on Holocaust-era Assets of December 1998, issued 11 principles, most of which shaped and framed by American museum officials, to guide the future behavior of museums and governments alike when faced with restitution claims. As soon as the conference ended and the Principles were announced to great fanfare, everyone went home and the 42 governments that had sent representatives to what was supposed to be a watershed moment in the postwar treatment of Jewish losses, forgot why they had attended the conference and business resumed as usual in some kind of amnesia-driven haze which had characterized their behavior since 1945 when confronted with Jewish losses-human and material.

Enter the private sector to fill the yawning void left gaping by governmental neglect, indifference and absenteeism. Private lawyers, consultants, researchers, treasure hunters and other glory seekers, entered the fray to “help claimants” with their quest for justice. The catch? If your loss was not “interesting”, viz., if your objects did not fetch a high enough value on the art market, your claim was dead. If, on the other hand, your objects, if found and recovered, could yield several hundred thousand dollars or euros and up to the tens of millions of dollars, sometimes hundreds of millions, you could easily find enough logistical and political support to carry you through the tedium of a restitution claim. High-value objects signed Schiele, Klimt, Pissarro, Picasso, Kirchner, Grosz, Modigliani, and many others, have shaped th public’s understanding of cultural plunder. Why would anyone steal something other than a “masterpiece”? It’s as if there were only a hundred artists in the entire world whose works the Nazis coveted. Wrong again. Still, the restitution game has fueled that perception which, in its very essence, is a-historical and a profound lie.

In the end, the top 1 to 5 percent of the claimant class can afford to obtain support for their quest for justice in the shape of a “solution” to the adverse ownership of an object looted and recycled on the international art market. For the beleaguered rest, go fish!

Justice is elusive for those who cannot afford it.

As of today, there is no mechanism, twenty years after the Washington Principles, 74 years since the end of WWII, which allows claimants to achieve measurable justice that rises above the word “imperfect” so perfectly touted by Ambassador Stuart Eizenstat and his ilk.

What’s worse is that wealthy claimants do not feel any compunction to come to the aid of the less fortunate amongst them. Not one, not a single one, and their lawyers, after recovering millions of dollars from the sale of restituted objects, has thought to support the less fortunate claimants with research and legal support. It is dog eat dog out there, no room for solidarity, compassion or commonality of interest, just like during the Holocaust. If you were of modest income, you were on your own and you definitely could not rely on your wealthy neighbors to bail you out. Too bad. Life’s not fair. Far more worthwhile to plant trees and give to your favorite animal rescue effort. History? Who cares? Culture? Who cares? Cultural rights? Yeah, right. Justice? Get over yourself.

Mainstream Jewish organizations have taken the greater part of 70 years before paying attention to victims of plunder. In so doing, they have continued to ignore individual claimants who seek the return of cultural objects from museums, auction houses and private collectors, except for the Claims Conference, the Commission for Art Recovery and the Holocaust Art Restitution Project.

Organizations established to promote the cause of restitution and aid in recovery efforts found themselves blurring the lines between justice and profit.

Holocaust memorials around the world pretend that the word “plunder” does not apply to their mission and should not be taught to their visitors. Selective ignorance is bliss.

The State of Israel has had a very ambivalent attitude towards the victims of plunder, preferring to ignore them rather than helping them, with the exception of Hashava, a State agency set up to assist in recovering looted objects and property located in Israel. It unfortunately closed its doors last year, therefore, Israel has no mechanism by which to assist claimants whose families endured the worst cataclysm to befall the Jewish people.

The only state agency in the United States that gives claimants a glimmer of hope is the Holocaust Claims Processing Office (HCPO) which has been in existence for over 20 years.

In the end, the 95 percent of claimants have been on their own since 1945. No wonder so many of them have chosen to forgo the torture of seeking the return of their lost property, to the great relief of those who own their property. After all, what are laws for except to protect the interests of those who own property even if looted during an act of genocide?

Plunder pays for itself. It is a crime against people, against communities, against culture which the international community has decried but done nothing measurable and concrete to prevent and to punish. Ownership of private property is more important than restorative justice for losses incurred during genocidal acts, objects ripped out of the ground of source nations, or forcibly removed from indigenous communities worldwide, powerless to oppose the white devils and their fire-breathing sticks.

Why should we expect museums, galleries, auction houses, art dealers and collectors to behave any differently? There is no incentive for them to be more “ethical”, no rewards for good behavior and no measurable consequence for bad behavior resulting in the acquisition and possession of looted cultural assets. They keep on doing what they do best—aid and abet the plundering ways of our fellow brothers and sisters around the world across generations. Catch us if you dare!

Arnold Toynbee summed it up beautifully when he declared that our species, Homo sapiens, should be renamed Homo cruellis.

The Gyeongju Declaration of 2016

by Marc Masurovsky

Three years ago, representatives from China, Turkey, Greece, Cambodia, UNESCO, the United States, the United Kingdom, and South Korea, gathered at Gyeongju, South Korea, to discuss the status of looted cultural objects and their recovery by rightful owners.

A declaration was drafted by representatives of the above nations and NGOs and ratified by the conference participants, most of whom hailed from South Korea. The declaration is a worthy reminder that, in the absence of art market denizens and museums, cooler heads prevail and a more fruitful dialogue can produce more far-reaching statements of principle than the museum-inspired Washington Principles of December 1998. 

 
Therefore, I invitee you to read through the various components of the Gyeongju Declaration which still stands as one of the more progressive statements of its kind on market behavior, the rights of claimants and source nations, and means by which to achieve increased due diligence and ethical behavior in cultural institutions worldwide.

The Gyeongju Declaration, was drafted, revised, discussed and ratified, paragraph by paragraph, by all participants at the 6th International Conference of Experts on the Return of Cultural Property which took place in Gyeongju, the Republic of Korea, from October 17-19, 2016.


The Gyeongju Recommendation
We, the participants of the “6th International Conference of Experts on the Return of Cultural Property," held in Gyeongju, Republic of Korea, from 17 to 19 October 2016,

Expressing our sincere gratitude to our hosts, the Ministry of Foreign Affairs and the Cultural Heritage Administration of the Republic of Korea, to our organizers, the Overseas Korean Cultural Heritage Foundation and the Cultural Property Return Campaign Center, and last but not least to our sponsors, Gyeongsangbuk-do Provincial Government, the City of Gyeongju, and the Korean National Commission for UNESCO, for their outstanding efforts and dedication,

Recognizing that the International Conference of Experts on the Return of Cultural Property, which was first proposed by the Republic of Korea in 2011 and whose first session was held in Seoul in the same year, with the second session in Seoul in 2012, third session in Ancient Olympia, Greece in 2013, fourth session in Dunhuang, China in 2014, fifth session in Nevsehir, Turkey in 2015, and sixth session here in Gyeongju, the Republic of Korea this year, has provided precious opportunities for the international community to share its experiences and knowledge on the return of cultural property and join the fight against the illicit trade in cultural property,

Welcoming the U.N. Resolution A/70/76, unanimously adopted in its December 9, 2015 General Assembly meeting and especially the operative paragraph 7 of this Resolution, where for the first time the recent institution of International Conference of Experts on the Return of Cultural Property as well as their concluding documents were recognized,

Recalling the Seoul Declaration (2011), the Seoul Recommendation (2012), the Ancient Olympia Recommendation (2013), the Dunhuang Recommendation (2014), and the Cappadocia Recommendation (2015) adopted by the previous International Conferences of Experts on the Return of Cultural Property.

Noting that international legal instruments, including the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) and its two protocols (1954 and 1999), the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and Transfer of Ownership of Cultural Property (1970), and the UNIDROIT Convention on Stolen or Illicitly Exported Cultural Objects (1995), as well as the devoted efforts and subsequently-adopted resolutions of the United Nations (UN) and legal instruments of the United Nations Educational, Scientific and Cultural Organization (UNESCO), have contributed to the prevention of the illicit trade in cultural property and its return to countries of origin,

Acknowledging that not only international non-governmental organizations, such as the International Council of Museums (ICOM), but also public and private institutions, including museums, libraries, and religious organizations, as well as the general public and local communities, have ever-increasing roles to play in the struggle against the illicit trade in cultural property,

Commending, in particular, that the amicable efforts by Korean civil society and religious organizations to recover illicitly exported cultural property by means of dialogue and mutual exchange cooperating with other foreign institutions in possession thereof have set a positive precedent that can be emulated by numerous states which have similarly suffered from the illicit export of their cultural property,

Observing greater need for administrative and judicial mutual assistance between countries and closer cooperation from auction houses, museums, and libraries in each country to prevent new means of illicit trade in cultural property in the art market, including online sales,

Condemning any uncivilized acts of vandalism directed against cultural property, including the recent destruction and illegal removal of cultural property in the conflict-ridden Middle East and the rest of the world,

Recommend that:
1. Each State should closely cooperate with other States for the return or restitution of illegally exported cultural property and the prevention of the illicit export of cultural property, and reinforce existing networks among public and private organizations, as well as individuals to share and exchange information concerning stolen or illicitly exported cultural property and its restitution;

2. Each State should continue to update the existing inventory of state owned and privately owned cultural property, as well as the databases of stolen or illicitly exported cultural property, and share actively such information with governments, relevant institutions, and non-governmental organizations of other States aiming to establish a common publicly available international platform;

3. Each State should continuously monitor the art market, including online markets, to control the illicit trade in cultural property, raise awareness of the legal and ethical duties of due diligence for participants of such markets, and impose administrative and judicial sanctions, when appropriate;

4. Each State should allocate resources to encourage provenance research, to facilitate licit trade in cultural property, and develop and implement educational programs to share and disseminate the outcomes of such research, thereby improving the capacity of those who work in the area.

5. Museums, libraries, and other public and private organizations that hold cultural property and collections are encouraged to: a) Take appropriate action to facilitate the rapid return of human remains and sacred cultural property when they receive a request for the return of such property, taking into account the wishes of the departed, the interests and beliefs of the members of the community, ethnic group or religious society from whom the property was taken; b) Make every effort before acquisition, in compliance with Article 4.4 of the 1995 UNIDROIT Convention, to ensure that any cultural property offered for purchase, donation, or any other transfer thereof, has clear title, c) Provide their directors, personnel, and volunteers with periodic training and educational sessions to raise awareness of illicit trade in cultural property and endeavor to ensure that the ICOM Code of Ethics for Museums is fully complied with;

And also,

6. Auction houses, museums and art dealers should accept for consignment, acquire or trade in cultural property only when they are satisfied that a valid title is held and should make public all available provenance-related information on cultural property;

7. Governmental organizations, non-governmental organizations, the general public and local communities, private research institutes, museums, libraries, international academic institutions etc. should continue their efforts to further promote the purpose and spirit of this Conference which has been held annually in the Republic of Korea, Greece, China, and Turkey since 2011, respectively, for prohibiting and preventing illicit trade in cultural property and promoting return or restitution of illicitly exported or stolen cultural property.