by Marc Masurovsky
[The following presentation was delivered at the annual conference of the Lawyers' Committee for Cultural Heritage Preservation (LCCHP), which took place in Washington, DC, on April 13, 2018. This presentation was part of a panel on ethnic minority rights to recover their looted cultural property and how States oftentimes interfere with those rights.]
I would like to thank the Lawyers Committee for Cultural Heritage Preservation for having invited me to speak today. I am grateful for their support and I thank this panel’s members for letting me sit among them.
I am neither a lawyer nor an art dealer. Neither do I collect indigenous or archaeological objects. Although I am identified as a co-founder of the Holocaust Art Restitution Project, the views that I hold today are my own.
I have been a lifelong student of the economics of genocide and more particularly of cultural plunder and the trauma that it has engendered and continues to inflict on its victims.
My first professional encounter with these crimes against humanity occurred while working for the Office of Special Investigations of the US Department of Justice. Three years in those trenches brought me into intimate face to face contact with Nazi collaborators living quiet lives in the United States. They owed their freedom to a cynical calculation by Western politicians, military strategists and intelligence agents that it was better for them to recruit Axis war criminals to be deployed in the event of an impending global conflict against the Soviet Union than handing them over to face justice in the countries where they had plundered, tortured and murdered untold numbers of Jews and local enemies of Nazism and fascism, real or imagined. A number of those whom I met were personally responsible for the forced dispossession of thousands of Jews in far-flung corners of Eastern Europe and the Aryanization of their holdings.
I have spent the greater part of my adult life, with mixed results, advocating for the restitution of looted art objects to their rightful Jewish owners. I have always viewed restitution, as part of an overall healing process, a salve on a trans-generational traumatic scar. I had thought that restitution or the physical return of a stolen object to its rightful owner would be as simple as removing the claimed object from a wall, a cupboard, a safe, a table, a library shelf, and handing it over to its rightful owner. As it turns out, I was quite naïve; I fell off that horse long ago as restitution is the most complicated and twisted process that I have ever encountered.
The reasons for this are manifold. They are ensconced in legal concepts and value systems that, in my view, place the private property rights of current possessors outside the realm of question. Those who possess the claimed item invoke good faith as a defense as if it was an accepted religious dogma. In most nations, good faith is accepted on faith in cult-like fashion and is upheld by State officials, museum personnel, their lawyers and those businessmen who currently own those objects. Good faith is an extremely difficult shield to pierce. Ethical and moral arguments alone cannot even dent its armor. A recent illustration of this problem comes from Switzerland where it took nearly two decades for a single Frenchman of Jewish descent with lots of pro bono help, creativity and chutzpah, to force a Swiss museum to return to him a painting which his family had lost in 1943, the first such restitution to a non-Swiss Jewish claimant since 1949.
In a world which hides behind good faith and heralds private property rights as sacred, even in the face of horrors committed against entire populations, one has to wonder: is justice an empty word?
It is partly in this context that I can discuss how ethnic minorities can recover their looted cultural assets. Their rights have been routinely trampled in the nations where they have dwelt for generations. To put it bluntly, human beings have been socialized for millennia to display very low levels of tolerance towards the “others”, those who do not think, look, and believe in the same way as those who belong to the dominant group wielding local, regional or State power. Too often, dominant groups will solve these differences through marginalization, dehumanization, persecution, incarceration, deportation, and outright extermination. Every corner of the globe is tainted with the blood of the “others”. And every corner of the globe is host to the displaced possessions of the “others.”
There is a system of international laws, charters, covenants, and conventions, which has been in place for decades that seeks to address these egregious acts of persecution and dispossession. International organizations tend to recognize those rights, countries around the world have signed international conventions recognizing the rights of indigenous peoples, the United Nations boasts of charters that uphold those rights. One cannot even count how many NGOs exist which are there to protect and safeguard the rights of ethnic minorities. And yet…
In practical terms, we need to address how dispossessed objects which are located in foreign markets or displayed in museums or galleries, far away from the scene of the crime, can be restituted to their rightful owners, be they cultural groups, religious minorities, ethnic communities whose members are scattered across many continents.
As indicated earlier, the physical return of these objects to rightful owners is the most difficult and yet, in my view, the clearest expression of how to counter a State-sponsored theft: by transferring title to the aggrieved party. The more likely scenario to unfold involves some form of compromise on the part of the victim or the victim’s heirs and representatives. Either the victims are compensated financially or some other arrangement is reached which upholds the rights of the current possessor while providing some form of relief to the claimant. Is that fair and just? In 1998, the Washington Conference on Holocaust assets produced a list of 11 non-binding principles which were designed to guide nations and institutions where looted objects were identified on how to either return them or seek some form of “just and fair solution.” Victims of plunder did not initiate the idea of just and fair; the current possessors, in most cases State-owned museums and institutions, pressed for that idea, one that diplomats embraced as an acceptable resolution of the treatment of objects looted during the Third Reich in the context of a genocidal enterprise.
If we apply the logic of the Washington Principles to the treatment of objects forcibly removed from ethnic minority groups around the world, the outcome would be nothing short of catastrophic since it would imply that no one could recover their lost property. Why return objects when the current possessors are given the opportunity to seek a compromise arrangement with the aggrieved parties? In the case of antiquities, source nations would never abide by these Principles because they would prevent the repatriation of their cultural heritage. A just and fair solution rarely entails the actual return of the object, unless the source nations accept that these objects be loaned to them without actually recovering them in the same way that the Victoria and Albert Museum has agreed to loan objects to Ethiopia on a long term basis.
When cultural objects are considered to be a nation’s cultural property, and are viewed as part of that nation’s patrimony, the questions of ownership become even more complex and require political solutions. Nations repatriate to other nations, not to individuals or local groups. Much like after the Second World War, Allied cultural advisers repatriated looted art to the nations where the thefts had taken place, leaving it to those governments to restitute the items to individuals and to aggrieved communities. All nations indulge in this duplicitous approach to culture, some are worse than others. Governments can and will impose their inalienable right to ownership of repatriated objects at the expense of victimized groups and individuals if they are allowed to do so.
Those who deal, collect, exhibit, trade, lend, donate cultural objects across borders bear a unique responsibility in the treatment of objects illicitly acquired and recirculated through private and public channels across borders. Although looting is an unacceptable crime, it is also universal, as is the acquisition and trade of looted cultural and artistic objects. Many of these looted objects come from nations governed by autocrats, where democracy is a dirty word. Many nations today have fallen prey to nationalist parties and movements which believe strongly in the cult of the nation as an incarnation of a certain ideal of citizenry. Culture is treated accordingly. In a peculiar way, those nations are anxious to recover their looted cultural property but they are not eager to return those objects to their citizens especially when they are members of ethnic minorities. While the nationalist wave is gaining ground across Europe and even in the United States, it has been a reality for decades in the Middle East, Africa, Latin America and Asia.
From an ethical and moral standpoint, the repatriation of looted objects to autocratic and dictatorial nations can be viewed as problematic. But what is the alternative? Prevent those objects from returning to their source? Under what pretense? That we are morally and culturally superior? If we follow those arguments, we are no better than 19th century colonial adventurers who viewed the “others” as inferiors and whose assets should best be handled by the Western world. We cannot allow ourselves to think that we are morally superior to anyone. Although I am not at all religious, I find that there is something to be said for the biblical adage: let he who is without sin cast the first stone.
Ultimately, this discussion should go beyond the rights of ethnic minority groups to recover their looted cultural assets. It should encompass all victims of cultural plunder. The solutions are manifold and delicate. They require careful coordination at the policy level, nationally and internationally. At the core, these solutions must reconcile the interests of the art market, the interests of governments, the interests of those who possess and display, the interests of those who have been victimized by acts of expropriation and dispossession and outright thievery. Art objects are an integral part of our individual and collective memory of the past and the present. They are an extension of who and what we are. For those reasons, it is as important to transcribe faithfully and truthfully the story of these objects as it is to recover them. Every cultural object, regardless of origin, deserves a thoroughly fleshed out provenance before it is displayed or traded. Ignorance, arrogance and greed are the enemy.
One way to forestall future acts of State-sanctioned plunder is to ensure that the history of these objects and their owners is written, published, disseminated and taught to as wide a public as possible.
Showing posts with label Alain Monteagle. Show all posts
Showing posts with label Alain Monteagle. Show all posts
15 April 2018
31 January 2016
When is “just and fair” fair and just?
by Marc Masurovsky
(updated on 5 July 2025)
It is difficult to pin down precisely the genesis of the concept known as “fair and just” or “just and fair” solution in matters pertaining to the restitution of art objects looted during the Holocaust. Who and when are almost impossible to trace.
A valid starting point is principle #8 of the “Washington Conference Principles on Nazi-confiscated art”. The “Washington Principles” were passed on December 3, 1998 at the close of the Washington Conference on Holocaust-era Assets.
“If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case."
Two years later, on October 5, 2000, a declaration came out of an international forum on Holocaust issues held in Vilnius, Lithuania, which placed heavy emphasis on the search for fair and just solutions “to the return” of looted art and cultural property. It went a bit further than the Washington conference without getting into any specifics, diplomatie oblige, as to what would constitute a just and fair solution to a claim for restitution. Forum participants did ask that “every reasonable effort be undertaken" to “achieve the restitution” of looted cultural assets. Hence restitution {again, without being properly defined] was invoked in the same breath as “just and fair solution.”
Eleven years after the Washington Conference of December 1998, a similar conclave of 40 odd nations and international NGOs gathered in Prague under the auspices of the hosting government of the Czech Republic. The International Conference on Holocaust-Era Assets issued a declaration, called the Terezin Declaration on June 30, 2009. In it, one can find multiple references to “just and fair solutions” without understanding at all what they are and how to achieve them. They do stipulate, however, that the Washington Conference of December 1998 established the moral (and non-binding) principle whereby looted art and cultural property should be “returned to victims or their heirs in a manner consistent with national laws and regulations [emphasis added] as well as international obligations, in order to achieve a just and fair solution.” Unless I am completely mixed up here, I read this as meaning that the restitution of looted cultural property achieves a “just and fair solution.”
In the years following the 1998 conference in Washington, DC, where the Principles were formulated, the tendency was to sharpen the link between restitution and “just and fair” or “fair and just” solutions. And yet….the word “restitution” was not defined in these declarations. If it was to mean the physical return of the looted object to the rightful owner and thereby transfer of legal title away from the current possessor to the rightful owner, many art market players like auction houses and museums, as well as governments, have violated the principle of what is just and fair by insisting that “just and fair” in all likelihood means upholding the good faith of the current possessor and asking—no, convincing—the claimant that financial compensation of some sort or another is the best result that can be achieved in the spirit of the Washington Principles of 1998. Best to invoke the trinity of Washington, Vilnius and Terezin in order to enshrine the physical return of the object.
Is that really what was meant or inferred at Vilnius in 2000 and at Prague in 2009? The answer is inconclusive, because most of the drafters and endorsers of these declarations were well aware that “national laws and regulations” would interfere with the actual physical restitution of the claimed object, especially in areas where the Idol of Good Faith rules all.
Hence, the apparent contradiction between settlements and the various declarations of Washington, Vilnius and Terezin disappears by stressing that the return of the object should be consistent with national laws and regulations. The emphasis of "fair and just" shifts in favor of the rights of the current possessor at the expense of those of the claimant.
"Dedham from Longham", by John Constable
An interesting twist to the Washington Principles involves a painting by John Constable being claimed by Alain Monteagle, representative of the Jaffe family’s restitution claim. The painting is presently located in the Fine Arts Museum of la Chaux de Fonds which is in the canton of Neuchatel in the French-speaking part of Switzerland. Historically, the Swiss federal government has always deferred to local governments’ discretion in the way that they manage or dispose of their cultural assets. If one should apply to the letter the principles enshrined in Washington and reiterated in Vilnius and Terezin, the museum at La Chaux de Fonds, which is municipal, should return the painting to Mr. Monteagle. However, if the return is subject to the “national laws and regulations” of Switzerland and the canton of Neuchatel, as well as the municipality of La Chaux de Fonds, Mr. Monteagle does not stand a chance, because civil law in Switzerland worships the good faith of the current possessor and no foreigner can come into Switzerland and claim what he/she feels is his/her rightful property, at least not since 1949, with a notable exception last year. At least, that is the impression that we are left with, if history serves as a valid reference point.
La Chaux de Fonds
Interestingly, in a 3-page report issued in January 2014, the Swiss Federal Office of Culture commented that “just and fair solutions must be sought—both when it has been possible to trace the victims and when identification has proved impossible.”
Hence, the principles of Washington, Vilnius and Terezin are not helpful in the real world and, more often than not, municipal governments and their national representatives heap scorn on them so as to safeguard their “cultural property.” If Mr. Monteagle wants his painting back, he has to wage total war against the Swiss government, the city council of La Chaux de Fonds which has oversight of its fine arts museum and the cantonal authorities in Neufchatel. To be successful, the battle for restitution must involve all aspects of civil society and should be waged inside and outside the legal system in order to "achieve a just and fair solution" consistent with Washington, Vilnius and Terezin.
Update of 5 July 2025
Since 1998, the concept of "Just and Fair" as applied to the resolution of Holocaust-era claims for Nazi looted art (encompassing losses suffered from the advent of Hitler to power on 30 January 1933 to the unconditional surrender of the Third Reich on 9 May 1945) has been embraced by governments, lawmakers, auction houses, museums (public and private), dealers and collectors, and many lawyers involved in looted art cases. It has become what lawyers and lawmakers describe as "soft law."
When "just and fair solutions" are invoked, they pave the way for a financial settlement allowing the current possessor to explain why it is not fair and just to them to relinquish the claimed object to the heirs of the victim who lost them. Moreover, these solutions undermine our understanding of the trauma of duress as experienced by those who lost their cultural goods as well as the rest of their belongings and assets.
As a historical footnote, the concept of just and fair was wholly concocted by Ambassador Stuart Eizenstat, organizer of the 1998 Washington Conference on Holocaust-era Assets and the US Government's chief negotiator and diplomat on matters dealing with reparations for Holocaust victims and their families. The American Alliance of Museums (AAM)--at the time known as the American Association of Museums--played a role in guiding Ambassador Eizenstat to formulate this concept which ended up being a gift to the class of current possessors at the expense of the interests of the claimants in their quest to obtain restitution (the physical return of their property).
Is it fair to ask whether Ambassador Eizenstat and his colleagues in major Jewish organizations involved in Holocaust reparations ever thought to sit down with claimants and restitution advocates about the implications of a "just and fair" approach to their request for restitution?
As for the Swiss government, it is on the brink of creating a Swiss commission inspired by those already in place in the United Kingdom, the Netherlands, France, Germany and Austria.
It is difficult to pin down precisely the genesis of the concept known as “fair and just” or “just and fair” solution in matters pertaining to the restitution of art objects looted during the Holocaust. Who and when are almost impossible to trace.
A valid starting point is principle #8 of the “Washington Conference Principles on Nazi-confiscated art”. The “Washington Principles” were passed on December 3, 1998 at the close of the Washington Conference on Holocaust-era Assets.
“If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case."
Two years later, on October 5, 2000, a declaration came out of an international forum on Holocaust issues held in Vilnius, Lithuania, which placed heavy emphasis on the search for fair and just solutions “to the return” of looted art and cultural property. It went a bit further than the Washington conference without getting into any specifics, diplomatie oblige, as to what would constitute a just and fair solution to a claim for restitution. Forum participants did ask that “every reasonable effort be undertaken" to “achieve the restitution” of looted cultural assets. Hence restitution {again, without being properly defined] was invoked in the same breath as “just and fair solution.”
Eleven years after the Washington Conference of December 1998, a similar conclave of 40 odd nations and international NGOs gathered in Prague under the auspices of the hosting government of the Czech Republic. The International Conference on Holocaust-Era Assets issued a declaration, called the Terezin Declaration on June 30, 2009. In it, one can find multiple references to “just and fair solutions” without understanding at all what they are and how to achieve them. They do stipulate, however, that the Washington Conference of December 1998 established the moral (and non-binding) principle whereby looted art and cultural property should be “returned to victims or their heirs in a manner consistent with national laws and regulations [emphasis added] as well as international obligations, in order to achieve a just and fair solution.” Unless I am completely mixed up here, I read this as meaning that the restitution of looted cultural property achieves a “just and fair solution.”
In the years following the 1998 conference in Washington, DC, where the Principles were formulated, the tendency was to sharpen the link between restitution and “just and fair” or “fair and just” solutions. And yet….the word “restitution” was not defined in these declarations. If it was to mean the physical return of the looted object to the rightful owner and thereby transfer of legal title away from the current possessor to the rightful owner, many art market players like auction houses and museums, as well as governments, have violated the principle of what is just and fair by insisting that “just and fair” in all likelihood means upholding the good faith of the current possessor and asking—no, convincing—the claimant that financial compensation of some sort or another is the best result that can be achieved in the spirit of the Washington Principles of 1998. Best to invoke the trinity of Washington, Vilnius and Terezin in order to enshrine the physical return of the object.
Is that really what was meant or inferred at Vilnius in 2000 and at Prague in 2009? The answer is inconclusive, because most of the drafters and endorsers of these declarations were well aware that “national laws and regulations” would interfere with the actual physical restitution of the claimed object, especially in areas where the Idol of Good Faith rules all.
Hence, the apparent contradiction between settlements and the various declarations of Washington, Vilnius and Terezin disappears by stressing that the return of the object should be consistent with national laws and regulations. The emphasis of "fair and just" shifts in favor of the rights of the current possessor at the expense of those of the claimant.
"Dedham from Longham", by John Constable
An interesting twist to the Washington Principles involves a painting by John Constable being claimed by Alain Monteagle, representative of the Jaffe family’s restitution claim. The painting is presently located in the Fine Arts Museum of la Chaux de Fonds which is in the canton of Neuchatel in the French-speaking part of Switzerland. Historically, the Swiss federal government has always deferred to local governments’ discretion in the way that they manage or dispose of their cultural assets. If one should apply to the letter the principles enshrined in Washington and reiterated in Vilnius and Terezin, the museum at La Chaux de Fonds, which is municipal, should return the painting to Mr. Monteagle. However, if the return is subject to the “national laws and regulations” of Switzerland and the canton of Neuchatel, as well as the municipality of La Chaux de Fonds, Mr. Monteagle does not stand a chance, because civil law in Switzerland worships the good faith of the current possessor and no foreigner can come into Switzerland and claim what he/she feels is his/her rightful property, at least not since 1949, with a notable exception last year. At least, that is the impression that we are left with, if history serves as a valid reference point.
La Chaux de Fonds
Interestingly, in a 3-page report issued in January 2014, the Swiss Federal Office of Culture commented that “just and fair solutions must be sought—both when it has been possible to trace the victims and when identification has proved impossible.”
Hence, the principles of Washington, Vilnius and Terezin are not helpful in the real world and, more often than not, municipal governments and their national representatives heap scorn on them so as to safeguard their “cultural property.” If Mr. Monteagle wants his painting back, he has to wage total war against the Swiss government, the city council of La Chaux de Fonds which has oversight of its fine arts museum and the cantonal authorities in Neufchatel. To be successful, the battle for restitution must involve all aspects of civil society and should be waged inside and outside the legal system in order to "achieve a just and fair solution" consistent with Washington, Vilnius and Terezin.
Update of 5 July 2025
Since 1998, the concept of "Just and Fair" as applied to the resolution of Holocaust-era claims for Nazi looted art (encompassing losses suffered from the advent of Hitler to power on 30 January 1933 to the unconditional surrender of the Third Reich on 9 May 1945) has been embraced by governments, lawmakers, auction houses, museums (public and private), dealers and collectors, and many lawyers involved in looted art cases. It has become what lawyers and lawmakers describe as "soft law."
When "just and fair solutions" are invoked, they pave the way for a financial settlement allowing the current possessor to explain why it is not fair and just to them to relinquish the claimed object to the heirs of the victim who lost them. Moreover, these solutions undermine our understanding of the trauma of duress as experienced by those who lost their cultural goods as well as the rest of their belongings and assets.
As a historical footnote, the concept of just and fair was wholly concocted by Ambassador Stuart Eizenstat, organizer of the 1998 Washington Conference on Holocaust-era Assets and the US Government's chief negotiator and diplomat on matters dealing with reparations for Holocaust victims and their families. The American Alliance of Museums (AAM)--at the time known as the American Association of Museums--played a role in guiding Ambassador Eizenstat to formulate this concept which ended up being a gift to the class of current possessors at the expense of the interests of the claimants in their quest to obtain restitution (the physical return of their property).
Is it fair to ask whether Ambassador Eizenstat and his colleagues in major Jewish organizations involved in Holocaust reparations ever thought to sit down with claimants and restitution advocates about the implications of a "just and fair" approach to their request for restitution?
As for the Swiss government, it is on the brink of creating a Swiss commission inspired by those already in place in the United Kingdom, the Netherlands, France, Germany and Austria.
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