RE: H.R. 4292 Foreign Cultural Exchange Jurisdictional Immunity Clarification Act

April 23, 2014

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All U.S. Representatives
U.S. House of Representatives

RE: H.R. 4292 Foreign Cultural Exchange Jurisdictional Immunity Clarification Act

Dear Representative:

Please be advised that the Ciric Law Firm, PLLC represents Ori Z. Soltes, Director and Co-Founder of the Holocaust Art Restitution Project (“HARP”), in connection with the matter described below. HARP is a not-for-profit organization that disseminates information to the public and to claimants about cultural property stolen, confiscated, and misappropriated during the Nazi-era. Professor Ori Z. Soltes teaches at Georgetown University across a range of disciplines, from theology and art history to philosophy and political history. He is the former Director of the B’nai B’rith Klutznick National Jewish Museum in Washington, DC, where he curated exhibitions on a variety of subjects such as archaeology, ethnography, and contemporary art. Professor Soltes has taught, lectured, and curated exhibitions across the U.S. and internationally. He is the author of over 230 articles, exhibition catalogues, essays, and books on a range of topics. Recent books include: The Ashen Rainbow: The Arts and the Holocaust; Our Sacred Signs: How Jewish, Christian and Muslim Art Draw from the Same Source; Searching for Oneness: Mysticism in Judaism, Christianity and Islam; and Untangling the Web: A Thinking Person’s Guide to Why the Middle East is a Mess and Always Has Been. Professor Soltes was also involved in providing the historical research and background information in regard to Egon Schiele’s “Portrait of Wally” case, as well as the restitution of an Odalisque painting by Henri Matisse to the Rosenberg family.

In March 2012, my client and many others wrote to members of the U.S. House of Representatives calling for the immediate withdrawal of S. 2212/H.R. 4086, the “Foreign Cultural Exchange Jurisdictional Immunity Clarification Act.” At that time, my client argued that the bill would bar valid claims by true owners of looted artwork in U.S. courts, thereby eliminating one of the rare remaining deterrents to the illicit trafficking of looted artworks.

We write to you again with the same adamant plea – that H.R. 4292 not be permitted to go forward. Although it is the same plea, the circumstances under which we write could not be more different. Given the unbelievable discovery in Munich, Germany of the Gurlitt horde, the mere proposal of immunity from seizure is mystifying. If ever there were a time to plainly see the destructiveness of such a bill, it would be now, where there is concrete proof that looted art continues to make its way into the market. The effect of passing H.R. 4292 would be nothing short of disastrous for Holocaust survivors who may have looted art claims, as well as source countries with claims for the return of looted antiquities and other artworks.

Today, if a foreign institution provides, in the context of a cultural exchange program, such as a temporary exhibit, artworks to U.S. institutions, this foreign institution is subject to two statutes:

- Under the Immunity from Seizure Act (IFSA), 22 U.S.C. § 2459, foreign lenders are already shielded from seizure of those objects while they are present on U.S. soil. To enjoy this protection, foreign institutions must apply for the immunity order with the U.S. Department of State, which has complete discretion in issuing these orders.

- Under the Federal Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(3), a government-related foreign institution which sends artworks to the U.S. may, under limited circumstances, be sued in the U.S. for either the return of the looted artworks or for related damages, when the looted artworks are the ones sent to U.S. for the exchange (Malewicz v. City of Amsterdam, 362 F.Supp.2d 298 (D.D.C.2005)) or if the looted artworks are still in Europe, but the institution has a commercial presence in the U.S. via other related activities (Republic of Austria v. Altmann, 541 U.S. 677 (2004)). This liability extends even though the artworks are protected from seizure under IFSA. Therefore, a government-related foreign entity is liable before U.S. courts if sufficient commercial activity is found in the U.S., whether directly or indirectly related to the looted objects being present in the U.S.

The following is a breakdown of the significant flaws in H.R. 4292.

1. The bill’s so-called “Nazi” exception is far too narrowly construed.

The bill only focuses the exception on "Nazi," but not on "Axis" related activities. Because the bill only covers governments occupied by Nazi Germany or governments that were allies of Nazi Germany, it eliminates claims involving objects from countries occupied, annexed or controlled by non-Nazi Axis powers, i.e. Japan and Italy. Therefore, all claims involving objects from the following countries would be excluded: British Somaliland, Eritrea, Ethiopia, Libya, Albania, several regions of Greece, Yugoslavia, Albania, Herzegovina, Montenegro, Croatia-Slovenia, Korea, Formosa (Taiwan), South Karafuto, Manchuria, several regions of mainland China, Portuguese Timor, Hong Kong, French Indochina, Thailand, Burma, British New Guinea, the Philippines, Malaya, Andaman and Nicobar Islands, several regions of Singapore, Sarawak, Brunei, British North Borneo, Nauru, the Dutch East Indies, Guam, Imphal, Wake Island, Gilbert and Ellice Islands, Christmas Island, Attu, and Kiska. Such an effect cannot be considered acceptable.

The narrow focus of the bill to a Nazi-only exception mischaracterizes the Holocaust. By adopting this bill, Congress will crystallize the Holocaust as an event specifically Jewish or specifically European, enabling it and the public to ignore the larger human issue of Holocaust-like events which have taken place since World War II and the associated large-scale cultural plunder associated with those events. If Congress passes H.R. 4292, it recognizes that the Holocaust was nothing but a simple historical aberration, and enables us to no longer consider the consequences, costs, or risks of persecution, and the associated cultural plunder in other situations. In essence, Congress’ message in passing H.R. 4292 is as follows: Nazi looting is not okay, but cultural looting and plundering in Cambodia, Afghanistan, Iraq, and Cyprus, is okay, protected, and shielded by the will of the U.S. Government.

In addition, the Nazi-era carve-out is restricted to State collections, and would therefore allow the illicit exchange of Nazi-looted artworks held by non-American private entities, or even municipalities.

Additionally, the same exception defines Nazi-plundered art far too narrowly. The so-called “Nazi” exception in the bill would exclude all objects obtained from forced sales or other forms of looting or plunder not executed directly by Nazi forces. It would also exclude all objects obtained from forced sales or other transactions apparently legal in form or purporting to be voluntarily effected, when in fact the intent was to deprive Holocaust victims of their property, rights and interests in artworks. Again, such an effect from this bill cannot be considered acceptable given that most of the recent looted art cases involve indirect acts of looting and dispossession. In essence, had such a bill been in place during the Gurlitt exhibit in New York in 1956, the art would have been immune from seizure.

2. The integrity of the FSIA would be substantially compromised.

H.R. 4292 removes the jurisdictional ground of commercial activity originating in the Federal Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(3). Therefore, a U.S. judge may conclude that the Louvre Museum, for example, will be shielded from any liability for any artwork currently held, either in the U.S. or in France, by any claimant, whether the looted artwork is related directly or indirectly to the initial Exhibit. This would serve as a clear sign to the world that U.S. institutions may freely accept looted artwork into their exhibits, and promote the illicit exchange of looted artwork plaguing the U.S. market.

H.R. 4292 provides that the government-related foreign institution would be completely shielded from any liability, whether the looted artwork is related directly or indirectly to the cultural exchange. Both bills accomplish this by declaring that the cultural exchange in the U.S. does not constitute commercial activity (“any activity in the United States of such foreign state or any carrier associated with the temporary exhibit or display of such work shall not be considered to be commercial activity for purposes of subsection (a)(3)”).

The following example shows that this risk is very concrete: On June 20, 2012, the City of Paris merged all its municipal museums into a public corporation, called “Paris Musées.” This public corporation also owns the Musée des Beaux-Arts in Paris, which currently holds 10 paintings looted by the Nazis and flagged as “MNR” (“Musées Nationaux Récupération”). MNR artwork is already proven to be looted property. Now Assume the Musée des Beaux-Arts lends one of the MNR paintings to a U.S. institution. Under H.R. 4292, not only would any U.S.-based heirs to the painting be unable to sue for either the return of the painting or for related damages, but because the same legal entity which would loan this painting to a U.S. institution also owns other MNR artworks, the partial loan would shield the ENTIRE holdings of the Public Corporation from any suit in the U.S. Therefore, H.R. 4292 would bar claimants to file any suit in the United States against the city of Paris for the return of any MNR artwork or for any related damages under Austria v. Altmann, 541 U.S. 677 (2004).

This case would be similar to potential claims by either source countries, such as Turkey, Cambodia, or India, or individuals in the United States against third parties outside of the United States sending looted artworks in the United States. The recent Kapoor case, involving an American antiquities dealer who sold looted ancient Indian art to museums and private collectors around the world, illustrates that such a scenario, where the entire holdings of a non-US institution would be shielded by the loan of one object, will be very likely in the future.

Therefore, the vast majority of European cultural institutions and governments will be shielded from ANY suit in the U.S. for any looted artwork not falling in the narrow Nazi-era carve-out, whether or not the looted artwork is directly or indirectly related to a commercial presence in the U.S. of the European cultural institution. Therefore, source countries, or individual claimants outside of the narrow Nazi-era carve-out will no longer be able to sue in the U.S. European museums, which are vastly government-owned, for any claims related to artworks subject to pillage, plunder or illegal excavation.

In the end, the only effect of H.R. 4292 will be to bar potential and valid claims by the true owners of looted artworks in U.S. courts, and will eliminate one of the rare remaining deterrents to the illicit trafficking of looted artworks, as well as encouraging transactions involving such looted objects.

3. The impact of H.R. 4292 on the U.S. cultural policy would be disastrous.

The claim by museum representatives that the bill would promote the open and free exchange of cultural works among nations, thus enhancing diplomatic relations, is patently untrue. The bill would promote the open and free exchange of looted art. It would eliminate the incentive for museums and galleries to engage in minimum due diligence and provenance research. It would remove the main tool this country has for helping victims of the worst crimes of the 20th century.

Beyond the Nazi exception and its exceedingly narrow definition of Nazi-plundered art, this bill will result in making the coming of all other kinds of plundered art into the United States immune not just from seizure, but from being recognized as plundered. In fact, in its most disastrous effect, the bill will allow every archaeological artifact originally looted, as well as the foreign government entity attempting to profit from its exhibition in the United States, to be completely protected from any damage or suit.

4. The impact of H.R. 4292 on public perception of cultural institutions would be disastrous.

In being encouraged to preserve their holdings of looted artworks, U.S. and European museums, as well as foreign European governments, continue to aid and abet the absence of justice for war crimes committed by the Nazi government and their allies, by constantly refusing to confront this past, by denying any measure of resolution or restitution for Holocaust victims and their heirs, and by refusing to provide for reasonable restitution procedures.

My client is also appalled at the missteps in public policy regarding restitution of artworks on the part of lawmakers, as well as museums. I am sure you remember the promises made by the museum directors in the House of Representatives 1998 Hearings, under then Chair of Banking Committee Jim Leach, to perform do in-depth research of provenance for their entire collections.

My client is also surprised that, rather than delivering on those empty promises, museums are lobbying you and are continuing the tragedy of the Holocaust, by asking you to ensure that theft from owners in times of war and dictatorship and the greed resulting from its commercial exploitation would be officially protected from justice.

How can Congress, which recognized the Holocaust and its effect by passing the Holocaust Victims Redress Act in 1998, claiming the right to protect Holocaust victims, then turn and attempt to redefine, restrict and change the definition of theft and victims, for the simple purpose of protecting the largest grand theft of art ever perpetrated on humanity?

You must abandon H.R. 4292, because its effects would be nothing short of disastrous for Holocaust survivors who may have looted art claims, as well as source countries with claims for the return of looted antiquities and other artworks.

For the above-mentioned reasons, my client urges you to withdraw H.R. 4292 from any further consideration, review, amendments or vote.

Thank you for your leadership on this important issue and for your support. If you have any questions, please do not hesitate to contact me. On behalf of my client, I thank you for your consideration.

Truly yours,

__________________________________
Pierre Ciric
Member of the Firm

Cc: Ori Z. Soltes
Director, Holocaust Art Restitution Project, Inc.

Revisiting Senate Bill 2212, Part Two

by Nikki Georgopulos, special to plundered art

As explored in Part One of this article, the so-called Nazi exception in Senate Bill 2212 (S.2212) has myriad weaknesses and loopholes through which claimants who identify as Holocaust victims and their heirs can be barred from bringing a case to court. The current language of the bill not only fails to provide sufficient protection for the people that it is ostensibly designed to protect, but is also misleading about the goals and motivations of the legislation’s sponsors.  

In addition to the suspect nature of the bill’s protections regarding works taken within the Nazi era, the bill strictly precludes the possibility of ownership claims for all art objects that were stolen, looted, or otherwise illicitly obtained outside the Nazi era that cross over US borders.

Illegal excavation of antiquities and trade in illicit artwork has been a serious problem since well before the introduction of S.2212 in March of this year. Illegal trade is endemic, and has deeply permeated the legitimate art market. As both Saving Antiquities for Everyone (SAFE) and the Lawyers' Committee for Cultural Heritage Preservation (LCCHP) point out on their websites, if passed, the bill would allow American museums and institutions to knowingly exhibit illicit artwork and antiquities without fear of litigation.

When questioned about the exclusivity of the bill, a Capitol Hill source familiar with the inner workings of the proposed legislation was notably unconcerned, stating that while the Senate Judiciary Committee (where S.2212 is currently trapped) is taking its time to perfect the language of the bill, they do not intend to “stretch the carve-out ” (referring to the “Nazi exception”) to include additional claimants. Indeed, the same source openly admitted that even “Holocaust-related concern is not at the heart of the bill.”

“This is not the Holocaust Victims Protection Bill,” the source asserted. “The purpose of this bill is to restore harmony between the Immunity from Judicial Seizure Statute and the Foreign Sovereign Immunities Act.” He went on to add that the “primary goal of S.2212 is to reverse one court decision. Congress wants to correct a misinterpretation of the Foreign Sovereign Immunities Act.” The source was referring to the 2007 US District Court decision that upheld the right of the heirs of Kazimir Malevich, the Russian abstract artist, to sue the City of Amsterdam to recover fourteen artworks that were in possession of the Stedelijk Museum. The Foreign Sovereign Immunities Act (FSIA) outlines the extent to which a foreign sovereign nation is protected from being sued in a US court. In Section 1605, which, enumerates the exceptions to the act, the FSIA indicates that a “foreign state shall not be immune from the courts of the United States […] in which rights in property taken in violation of international law are in issue.”

From the source’s perspective, this conflicts with the Immunity from Judicial Seizure Statue (also known as 22 USC 2459), which “protects from seizure or other judicial process certain objects of cultural significance imported into the United States for temporary display or exhibition.”  S.2212, therefore, has been designated a “clarification act” in order to amend the extent to which the rights guaranteed by FSIA can be exercised with regard to works of art and antiquities. Considering the current language of the bill and the widespread misperception regarding its altruistic intent, such revelations are troubling.

More troubling still are the weaknesses in importation standards and procedures, many of which belie the low priority that potential claimants are currently granted under US law.

As specified by 22 USC 2459, US institutions must submit an application to the US State Department at least six weeks before importing cultural objects in order to qualify for judicial immunity. According to the State Department website, the institution must submit a statement that asserts:

The applicant certifies that it has undertaken professional inquiry - including independent, multi-source research - into the provenance of the objects proposed for determination of cultural significance and national interest. The applicant certifies further that it does not know or have reason to know of any circumstances with respect to any of the objects that would indicate the potential for competing claims of ownership.

The first thing that is objectionable about this statement is that it suggests that provenance is important primarily because it establishes the national and cultural significance of the objects in question. That clean and complete provenance would assure that those objects were not obtained via the illicit market seems to be of secondary importance. As the signing of this statement is the only required protection against the importing of illicit art objects, it is clear that the State Department is not properly armed to prevent it. As Marilyn Henry wrote during the Malevich trail, “The State Department relies on an honor system, accepting a boilerplate statement that the provenance research has been done. It is not equipped to confirm that borrowers have undertaken research; it does not check for proof of provenance or conduct its own provenance research.”

Perhaps this would not be so much of a problem if the standards for provenance today were not already so devastatingly low. The unfortunate truth is that most American museums, even if their intentions are pure, do not have the resources to thoroughly research the provenance of every object in their collections, whether temporary or permanent. Indeed, a complete and flawless provenance is a very rare thing, and questionable histories are often overlooked for the sake of obtaining an object. Matthew Taylor, a UK-based architect and author of the Elginism blog, points out that objects with dubious histories continue to make their way into the global art market:

If you look at the antiquities trade today, there are still major problems with it - many items that [are] of poor provenance regularly turn up at auction - and furthermore, there are many more items that are known with certainty to have been looted at some point. In many of these cases though, the auction houses appear to shrug off the need for proper due diligence, in favour of selling the item anyway [and] taking their cut.

He goes on to highlight the important point that this issue of accepting unclear provenance is not limited to the auction houses: “The actions of art dealers such as Bob Hecht [and] Giacomo Medici are clear evidence of this less reputable side of the industry[, and] they are know to have had involvement with the sale of items to various US museums, particularly the Met in New York.”

Thus, the question must be asked – is the State Department asking enough of applicants? Is there a better system by which proper provenance could be established, perhaps by a third-party entity which has no stake in the outcome of the inquiry? In any case, it’s clear that US law does not sufficiently protect against the exhibition or sale of looted, stolen, or otherwise illicit art objects.

At an informal discussion and luncheon last week at Washington DC’s National Press Club led by Marc Masurovsky, the question of whether or not the State Department has the resources and wherewithal to monitor the import of cultural objects was one of many that were discussed. Organized by Keri Douglas of Nine Muses International, the October 19 discussion brought together participants from varied backgrounds and disciplines with equally diverse opinions. As Masurovsky describes, “The conversation was a first for most of the participants since it is rare that one can bring together around [the] same table both sides to a fiery and contentious debate such as art restitution and ethics in museums.”

That the issues on hand are both delicate and complex would seem to be the obvious explanation for why S.2212 is still stalled in the Senate Judiciary Committee. The aforementioned Capitol Hill source, however, reported that the Committee Chairman, Senator Patrick Leahy of Vermont, has yet to decide whether or not the bill merits a full hearing. According to the source, the committee is currently working to “perfect the language” of the legislation in order to “accomplish the narrow, specific goal of the bill,” namely, to “clarify [FSIA]” while avoiding “unintended consequences.”

American lawmakers, museum directors, and educators need to stand in staunch opposition to the illicit trade of art objects and antiquities. Both the LCCHP and SAFE are currently running campaigns related to S.2212—one to call for open hearings and one to abandon the legislation completely. If passed into law, the “unintended consequences” of S.2212 would be to stymie the rights of would-be claimants, whether they are victims of the Nazi era and their heirs or not.

Desk and Room, Kazimir Malevich
Source: Malevich Paintings

Suprematism, 18th Construction, Kazimir Malevich
Source: Malevich Paintings

Paintery Realism of a Football Player, Kazimir Malevich
Source: Malevich Paintings

Suprematist composition (blue rectangle over purple beam), Kazimir Malevich
Source: Malevich Paintings

Mystic Suprematism, Kazimir Malevich
Source: Malevich Paintings

    

Revisiting Senate Bill 2212—Part One

By Nikki Georgopulos, special to “plundered art”

There has been a great deal of opining and sounding off recently among lawyers, professors, art historians, and art-related organizations as to whether the Foreign Cultural Exchange Judicial Immunity Clarification Act, otherwise known as Senate Bill 2212 (S.2212), should be passed into law. Currently stuck in the Senate Judiciary Committee, the fact that no decision has been made has seemed only to increase the agonizing among those concerned.

The bill, introduced to the 112^th Congress in its second session in March 2012, would amend the judicial code concerning property rights and the protections of objects of “cultural significance” that is imported into the United States for the purposes of “temporary exhibition or display.” The key to understanding this relatively brief bill (it consists of less than 500 words) is to examine the other sections of US law with which it interacts. The most notable instance of this is the Immunity from Judicial Seizure Statute, otherwise known as Section 2459 of Title 22 of the US Code (commonly referred to as 22 USC 2459). Under the jurisdiction of the State Department, 22 USC 2459 “protects from seizure or other judicial process certain objects of cultural significance imported into the United States for temporary display or exhibition.”

The statute acts to guarantee foreign lenders (such as museums, private collections, educational institutions, etc.) that if they loan a cultural object to an institution within the United States, the lender is protected from any other claims of custody. That is to say, the object in question is protected by US law and granted immunity from seizure. The perceived benefit of 22 USC 2459 is that it encourages foreign lenders to send their cultural objects to the United States for exhibition, insofar as they can feel secure in the guarantee that the objects will be safely restored to their custody. This benefits museums and the American public in many obvious ways, and appeals to the “art as ambassador” argument that holds that the exchange of cultural objects supports cross-cultural understanding and cooperation. The problem, as many have pointed out, is that this protects objects that were obtained illicitly, whether by theft, looting, or illegal trade.

The proposed bill would act in accordance with the Immunity from Judicial Seizure Statute, but with one condition that has come to be known as the “Nazi exception.” The bill declares:

‘(2) NAZI-ERA CLAIMS- Paragraph (1) [which reiterates the protections provided under the Immunity from Judicial Seizure Statute] shall not apply in any case in which—

‘(A) the action is based upon a claim that the work was taken in Europe in violation of international law by a covered government during the covered period;

[…]

‘(3) DEFINITIONS- For purposes of this subsection--

‘(A) the term ‘work’ means a work of art or other object of cultural significance; and

‘(B) the term ‘covered government’ means--

‘(i) the Nazi government of Germany;

‘(ii) any government in any area occupied by the military forces of the Nazi government of Germany;

‘(iii) any government established with the assistance or cooperation of the Nazi government; and

‘(iv) any government that was an ally of the Nazi government of Germany; and

‘(C) the term ‘covered period’ means the period beginning on January 30, 1933, and ending on May 8, 1945.’.

To summarize, the so-called Nazi exception allows for suits to be filed that are based upon claims that the work in question was illegally obtained by the Nazi government or any Nazi-affiliated government during what the bill would define as the “Nazi Era” (January 30, 1933 to May 8, 1945). In other words, victims of Nazi theft and their heirs ostensibly retain the right to file a claim against a foreign lending institution in order to obtain their object.

Upon first glance, this would seem to not only make sense, but also be beneficial to those victims of the Nazi-era and their heirs who are seeking restitution. As it turns out, this is where things become seriously problematic. Many, such as cultural heritage lawyer Rick St. Hilaire, believe that S.2212 sufficiently protects both claimants and lending institutions, reaffirming the US’s commitment to protecting the cultural objects of foreign lenders. St. Hilaire’s points about the need to reassure foreign lending institutions, thus encouraging further lending, are well taken, and are commonly expressed in the art world today. However, other figures in the cultural heritage protection community are not so sure. According to a post on the website of the organization Saving Antiquities for Everyone (SAFE), the bill “sends an awful message that is in complete opposition to the U.S. commitment to cultural protection and preservation.”

SAFE rightly points out that the bill does not protect antiquities that were illegally excavated and exported from their countries of origin. This might be overlooked if there wasn’t staggering evidence that illicitly obtained antiquities have permeated the licit art trade in large quantities (Part Two of this article will cover this aspect in more detail), such as the recent scandal that overtook the J. Paul Getty Museum.  

Another concern is one that strikes many as ethically questionable, as the bill seems to create a sort of hierarchy of atrocities. In a post by Catherine Sezgin on the Association for Research into Crimes Against Art’s blog, HARP co-founders Marc Masurovsky and Ori Z. Soltes both expressed concern that while the bill seemingly protects against Nazi-era claims, other instances of wartime looting are overlooked. Masurovsky further expressed his frustration in a New York Times piece, asking, “How can you excuse 28 different kinds of plunder and only outlaw one subset of one subset? What is the point here? The only people who have anything to gain are the museum directors. So we’re basically saying it’s fine to plunder?” Indeed, to say that losses sustained during the Second World War are the only ones worth protecting is not only ethically remiss, but also legally problematic.

Setting aside the concerns of many about the exclusive nature of the bill, one is forced to ask, how effective is the bill in protecting Holocaust-era victims and their heirs? The language of the bill allows for many loopholes and exclusions that would prevent those seeking restitution from successfully filing claims. Reading through the bill, the first and perhaps most consequential item of concern comes in section A of Paragraph 2: “[Judicial immunity] shall not apply in any case in which […] the action is based upon a claim that the work was taken in Europe in violation of international law […].” The problem here is that while many of the thefts committed by the Nazis and related bodies have been deemed in violation of international law, there remains a gray about which national governments cannot seem to reach an agreement: that of forced sales.

While the bill covers property confiscations and estate seizures, there remains the question of those objects that were sold under duress by those trying to flee Europe for fear of persecution. The history is clear on this account; many prominent Jewish business people, particularly art collectors, dealers, and gallerists, had to sell off their belongings and collections in order to garner the funds necessary to escape Nazi Germany, France, and other Axis-controlled countries. Additionally, this extends to those who were not involved in the art community. Many German Jews, for example, faced serious economic hardship due to forcible exclusion from participating in the local economy. As a result, they were forced to sell family heirlooms in order to raise money for leaving the country and to provide for themselves and their families.

One possible explanation for why the forced sales question is so difficult to pin down is that it is difficult to provide evidence for what constitutes a sale under duress versus a normal sale. Because of this perceived ambiguity in cases of forced sales, there is no unifying policy that would fall under the category of “international law” to protect the rights of claimants filing for restitution of objects lost to forced sales.

The other major red flag in the bill comes directly after the aforementioned clause: “[Judicial immunity] shall not apply in any case in which […] the action is based upon a claim that the work was taken in Europe in violation of international law by a covered government during the covered period […]” (emphasis added). Paragraph 3 provides the definitions of the covered governments and period:

‘(B) the term ‘covered government’ means--

‘(i) the Nazi government of Germany;

‘(ii) any government in any area occupied by the military forces of the Nazi government of Germany;

‘(iii) any government established with the assistance or cooperation of the Nazi government; and

‘(iv) any government that was an ally of the Nazi government of Germany; and

‘(C) the term ‘covered period’ means the period beginning on January 30, 1933, and ending on May 8, 1945.’.

The bill makes it very clear that it is targeting those affected by the Nazi or otherwise Axis-associated governments. This overlooks a key group of claimants: those whose possessions were taken by Allied military agents. The unfortunate truth is that while the Allies, specifically the US, were responsible for preserving many of the art objects looted by the Nazis and related organizations, so too were they responsible for thefts of their own. Many soldiers took home what they may have considered to be harmless keepsakes. Some scholars posit that Jewish soldiers took Judaica as an act of protest or anger. In any case, a vast number of art objects were poorly protected and were easily targeted. Due to the fact that S.2212 specifies that only those claimants who will be considered are those who were affected specifically by Axis governments, Allied-looted objects remain protected. Additionally, there is evidence that looting by Axis forces continued after May 8, 1945 as German troops were returning home (particularly from Italy). This further weakens the bill’s claim to protecting victims of World War II-era losses.

Though ostensibly well intentioned, S.2212 has obvious weaknesses and carries immense consequences for not only claimants but also the rest of the art community. Part Two of this piece will feature multiple voices who will chime in to help tease out those consequences. It will also examine more closely the antiquities market and how S.2212 will interact with it if passed into law, as well as the potential interaction of the bill with the State Department’s application system for judicial immunity for cultural objects. Among the most troubling of these consequences is the potential for obfuscation of provenance of art objects that are crossing US borders under the aegis of this bill.

In the meantime, if you find yourself in the D.C. area, there is a discussion that is scheduled to take place tomorrow, October 19, 2012, that will cover S.2212 and related legislation featuring Marc Masurovsky. He will give a lecture entitled “Art, Antiquities & War: Is Our Obsession to Possess Art Above the Law.” The lecture and discussion will also be covered in Part Two of the article. For more information and advance ticketing, visit the event page.'

Cardozo Law School follow-up—last question of the day

The last panel addressed the way in which the Foreign Soverign Immunity Act (FSIA) is invoked to file claims on behalf of aggrieved individuals against a sovereign nation.  In this case, it was Iran....

The conversation between the lawyers—plaintiffs' lawyers, one lawyer representing Iran, and a deputy legal adviser at the Department of State—got mired in legal technicalities over Iran, terrorism, assets to attach in the US or abroad to satisfy claims.  In short, the word 'culture' had virtually disappeared from the vocabulary of the speakers at the end of a symposium about .... culture.

I asked them to return to issues pertaining to culture since, for the life of me, I could not comprehend what they were arguing about.  And I urged them to think aloud about how to apply their erudite knowledge about the FSIA and their experience filing claims against foreign nations to the question of looted art.

The answer came from the two plaintiffs' attorneys on the panel.  Their remarks were unequivocal: the issue of looted art ultimately does not belong in the courts.  It is a political problem that requires political solutions.