First anniversary of "plundered art"

Happy holidays!

The “plundered art” blog just passed its first anniversary.

This might be a good time to revisit its reason for existence.

It’s not that simple to decide one day: “Oh! Let’s write about the restitution of art objects looted by those Nazis and Fascists during the 1930s and 1940s and how so much of it was never returned to the rightful owners and why the current owners of those objects look for every way under the sun not to return those objects and why governments pretend that there is no problem.”

This blog is certainly not about settling scores, old and new.

It’s actually a complicated beast.

At first, I was very shy about putting anything in writing about an issue that has already absorbed several decades of my life. Truth be told, the initial motivation for this blog was to share the story of the Holocaust Art Restitution Project (HARP), how it came into existence and what it was able to accomplish.

The telling of HARP’s story has not been a simple affair and is still incomplete.

It runs afoul of important and enduring taboos:

• the unwillingness of postwar Jewish organizations in the Americas, Europe, and the Middle East, to press for a complete accounting of the cultural losses suffered by Jewish owners during the 1930s and 1940s;
• the unwillingness of State-controlled cultural institutions across the globe to produce a complete inventory of cultural assets that entered their collections since the 1930s which might have been acquired illegally;
• the unwillingness of governments to come clean about the extent, scope, and breadth of cultural plunder in their respective nations and their efforts to produce complete inventories of those looted cultural assets in State-owned collections;
• the unwillingness of governments to come clean about the total number of looted cultural assets present in State-owned collections;
• the unwillingness of national and international groups to address the question of cultural rights, the sovereign right of individuals to culture and to the ownership of cultural assets over those of States, the question of cultural patrimony, cultural property, and cultural heritage, and how those abstract notions interfere with and are used against the right of individuals to recover and own looted cultural assets which are rightfully theirs. Those non-governmental organizations include but are not limited to: the United Nations, the United Nations Educational, Scientific and Cultural Organization (UNESCO), the International Council of Museums (ICOM) and many other organizations and agencies, supranational and national which are specifically concerned with cultural rights, and the protection of cultural assets;
• the unwillingness of law enforcement, police and security agencies—civilian and military—to repress and suppress the illicit international trade in looted cultural assets, including and especially the millions of objects that changed hands illegally against the backdrop of genocide, mass conflict and slaughter in the 1930s and 1940s and beyond;
• the unwillingness of cultural institutions, universities, colleges, institutes, foundations, and other cultural establishments to teach and educate young and old about the phenomenon of cultural plunder, the cultural rights of individuals, and ask the fundamental question as to who owns culture when discussing the illicit removal of art objects from the hands of their rightful owners and the attempts of the latter—mostly vain—to recover them as their own.

As of now, the following items remain unanswered, more than sixty-five years after plunder was denounced at the International Military Tribunal at Nurnberg as a crime against humanity and a war crime:

• the true extent, scope, and breadth of thefts of cultural assets during the 1930s and 1940s for racial, political, and other reasons;
• the actual number of lost cultural assets, by type, by owner, by country;
• the actual number of cultural assets recovered;
• the actual number of cultural assets restituted to their rightful owners;
• the actual number of cultural assets that were recovered but never restituted;
• the actual number of cultural assets that were looted and never restituted—by type, by owner, by country.
• the identity of the thieves;
• the identity of those who agreed to trade in these looted cultural assets;
• the identity of those who currently own these looted cultural assets.

To make a long story short, for now, the telling of HARP’s story ran afoul of these unanswered questions and the overwhelming taboo that endures today as strongly as it did two decades ago of venerable institutions that seek to educate the world about the Holocaust and genocide and yet refuse out of principle—yes, OUT OF PRINCIPLE!—to avoid at all costs any discussion, any debate, any addressing in any way, shape or form, of the question of cultural plunder, despite the fact that millions of members of the Jewish community suffered unspeakable losses, physical, material, and spiritual—among them, the loss of objects that tied them to culture—their own and that of others.

Let’s be clear about one thing: it is far easier to ignore the problem than to address it. And for those who seek to address it absent any filters, any caveats, any disclaimers, any compromises, the road is long, steep, and lonely. But every time progress is made, however small, even the mere existence of this blog, justifies the desire to induce even the slightest change in society’s approach to the question of cultural rights, cultural ownership, and cultural restitution.

The second year of the “plundered art” blog opens on a renewed commitment to speak, document, critique, applaud, proclaim, advocate and document, document, and document more. Because transparency is the only way by which we can grasp the full breadth and scope of the problem, a problem made so complicated by those who oppose restitution. Those who refuse to address it are simply acting as accomplices, aiding and abetting in the crime of rewriting history by denying its existence.

I wish to thank you, our readers, listeners, observers, and critics alike, for checking into “plundered art.” I invite you to continue.

Year two promises to explore cultural plunder in other realms, like the Far East, the universality of cultural rights and its nemesis, cultural plunder; and the search for enduring, long-term solutions to remedy the ills of cultural thefts anchored in mass conflict, genocide, ethnocide, and other forms of wholesale persecutions perpetrated by a State or a group against individuals because of who they are and what they are.

Works and objects will be discussed with dubious ownership histories which are displayed, bought, and sold, across the globe.

And, of course, there is no shortage of historical information on plundered objects that have either been restituted or remain out of reach of their rightful owners.

Until next time…

A comprehensive database of looted art: fantasy or reality?

At present, there is no comprehensive database for works of art and objets d’art looted during the Second World War and under the Nazi regime.

Let’s assume that a comprehensive database of looted art objects is created and operational. What would it look like?

It would be dynamic, not static. In other words, it would link different types of events together to recreate a historical context for each object and its purported owner. This comprehensive database would be a dynamic beast acting as an intelligence tool for the market, the claimants, and law enforcement, a market research instrument, and a tracking device for lost objects.

Do we start from scratch and create such a database or do we try and make do with what already exists and improve upon it?

That all depends on what type of result you might expect. Both solutions can cost the same amount of money, resources, and time. One relies on a bottom-up approach with a fresh team of experts, researchers, data entry specialists and programmers, while the other stakes its credibility on the ability of stakeholders to work collaboratively, unlock their proprietary databases, build sophisticated interfaces to link these far-flung efforts. Assuming that one can set aside corporate, governmental, and ego-driven considerations to allow for this type of collaboration, the question will still remain: what will the interface accomplish? What results do we expect? What improvements will be needed across the board to create the equivalent of a comprehensive database? As Hamlet said, that’s the rub.

How will it affect the international art market?

One consequence will be the production of reliable and detailed provenances on a wide variety of objects that either come up for sale or are accessioned into museum collections or which can already be found in private and public collections around the world. In other word, the database will make it very difficult for anyone to claim ‘willful ignorance’ when selling or buying or donating or lending an object.

Where there are uncertainties about the provenance of an object, the database will contain sufficient circumstantial and contextual data to allow the researcher to either infer certain notions about the origin of the object under consideration or establish with a fair amount of accuracy the nature of the gaps in the provenance and how best to answer them. One must remember that there will always be a certain degree of uncertainty about the origin of most objects entering or leaving the market. The function of this database is to reduce these uncertainties.

The existence of such a tool raises a number of policy questions which hark back to the Washington Conference on Holocaust Assets of December 1998.

The international conference produced a set of so-called Washington Principles which have become a milestone and point of reference for the international art trade, museum community, and global cultural policy pertaining to Holocaust-era thefts and recovery efforts.

I will cite only those principles which are particularly relevant:

• share results of research on Nazi thefts
• advocate openness and transparency with respect to archives, research and dissemination of relevant information
• encourage research into public collections and promote the search for heirs
• establish provenance research projects in the private sector as a routine practice
• promote and implement international cooperation among interested groups
• create a guide to archives and a central repository of relevant data

The good news is that we have at least one guide produced by the American Association of Museums to assist international provenance research efforts. And there is a modicum of international cooperation among some institutions with respect to specific projects. However, the not-so-good news is that there is very little dissemination of research results on Nazi thefts, there is systematic opacity in the field; there has been erratic research within museums, often motivated by ignorance of the details of the Nazi-sponsored plunder, thus producing ‘false’ positives. There have been few if no efforts to seek out heirs except those deployed by a number of for-profit entities and NGOs. And there are no indications that, aside from the main auction houses and a handful of art dealers, the international art trade pays even remote attention to questions of due diligence and provenance research.

In the United States, the main museum organization is a self-policing entity which does not clearly define what constitutes ‘best practices’ for conducting provenance research and minimizing exposure to accusations of harboring loot.

One positive example of international cooperation in the recovery and restitution of looted cultural property came about shortly after the sacking of the Baghdad Museum in 2003. Within two weeks of the plunder, a series of meetings were held in Paris and London, bringing together under one roof scholars, archaeologists, antiquities officials, dealers, Culture Ministry officials from various countries, and members of NGO’s like UNESCO and ICOM. These officials established the framework for joint collaboration in order to recover thousands of objects that were now entering the international art trade and possibly even private and public collections. The group agreed that the most urgent priority consisted of building a database of the looted objects. Within a month, the Swiss government agreed to underwrite its initial expense at a cost of 250,000 Swiss Francs. This sum would allow the group to digitize the Museum’s inventory and thus facilitate recovery. The data were standardized to conform to the Object ID used by Interpol in its database of looted objects. In other words, they defined a common standard. Very shortly thereafter, recoveries occurred in Jordan and Turkey and warnings had been issued throughout the international art market as far as New York and London.

Over the last three years, Interpol has been calling for the creation of complete inventories, closer monitoring of the international art trade, requiring proof of ownership before any trade occurs, and increased cooperation between law enforcement and the art trade.

In other words, where there is a will, there is a way. After Holocaust-era claimants pass on, their heirs may or may not continue to press for some form of recovery in the years to come. Nevertheless, the problem of looted art will not go away all by itself. The larger issues pertaining to loot and plunder go far beyond the Jewish specificity of the question and preoccupy most countries of the world as they experience daily assaults on their cultural heritage. This is where we can make a clear difference and draw up a new international framework for finding concrete and workable solutions that we can apply over time, but sooner rather than later.

Canada and looted art

Ten years ago, on November 15-16, 2001, an international conference on looted art took place under the auspices of the National Gallery of Canada in Ottawa, organized by the Canadian Museum Association (CMA) and the Canadian Jewish Congress (CJC). The conference brought together all parties and individuals involved at the time with the issue of looted art. They represented the private art market, the public sector, NGOs; there were numerous lawyers representing both sides of the debate, claimants, historians, and researchers. In the course of two days of animated discussions and presentations, the participants agreed to articulate a series of points and principles from which to issue recommendations for future action in Canada and beyond.

The following is a summation of those debates. There are official reports of the conference and its effects on Canadian institutions that you can consult on-line via the Claims Conference website. Take what you will from them.

The good news is that the discussion was friendly, productive, and pragmatic. The not-so-good news is that everyone went home and not much happened in Canada to push forth the debate on restitution in a manner consistent with the wishes and concerns expressed by the participants. Judge for yourself:

Canada, like so many other countries where there is an art market, is a recipient of loot and has been for decades.

It is a general, albeit vastly understated fact, that 90% of looted art is ‘invisible’ to traditional art historians, and scholars. Although issues pertaining to cultural plunder are not new, there is widespread ignorance of its scope and breadth in the art world, government circles, and the Jewish Community of Canada.

As of 2001, there were no laws on the books—Federal, provincial, or local--to deal with this issue. Dr. Franklin, of the National Gallery of Canada in Ottawa, host of the Looted Art Conference, was quick to say that “There is no legal obligation [for museums in Canada] to restitute.”

Museums have no legal obligations to return stolen works of art to their rightful owners. If claims are filed against individuals, they will be subject to local laws governing statutory limits, laches, good faith purchasing, willful blindness and due diligence. In sum, there are no overt mechanisms in Canada either at Federal or local level for dealing with Holocaust-era cultural property claims.

Then and now, there are few if no resources—human, financial, archival, bibliographical, and academic—for undertaking a serious, exhaustive, review of all institutional holdings in Canada in an effort to identify looted art. Scattered efforts have been duly noted amid 4 largest museums in Canada, as well as in a few smaller institutions.

Everyone acknowledged that there are no short-term fixes to the problem. Solutions are long-term.

What is to be done?

The participants came up with a series of goals to consider for bringing about needed progress on the subject of looted and art restitution:

• To identify all looted works in Canadian collections.
• To facilitate recovery of such works by rightful owners.
• To prevent resale of looted/stolen works on Canadian art market—public/private
• To create legal/policy environment to facilitate identification and recovery of stolen works of art.
• To establish common standards of evidence that fall outside of traditional rules of civil procedure.

How can these goals be achieved?

Obviously, one cannot expect any assistance from the Federal government, at least not in the short-run.

The onus of support therefore falls on provincial governments: they should either enact or modify laws that facilitate recovery and restitution, and that acknowledge the problem of stolen cultural property.

Museums must conduct reviews of holdings and identify looted works in their collection, ascertain their status, whether those objects have been recovered or not.

The provinces should put forth standardized responses to this problem.

The Canadian Museum Association, ICOM, and other art and cultural property groups, should petition the Federal government to study the problem and produce a Green Paper (the Canadian equivalent of an American White Paper).

The legal experts at the Ottawa Conference agreed that restitution principles should be anchored in local and provincial laws because of the absence of any Federal law in Canada and of Canada’s obstinate refusal, like that of the United States and dozens of other countries, to sign the UNIDROIT convention on stolen and illicit cultural property.

However, conflict resolution in provincial and local jurisdictions will be subject to different legal regimens and rules governing statutes of limitations, laches, burden of proof and rules of evidence.

Hence, any legal strategy must be focused on a moral and ethical appeal to institutions to restitute, founded on the London Declaration of 5 January 1943—the Inter-Alled Declaration Against Axis Acts of Dispossession. The operating principle has been and should always be: if the work was stolen, theft does not convey title. Even this adage has its variants in countries where the possessor of stolen property can become the rightful owner of the stolen object if no claim has been filed against it over a set period of time.

According to Bonnie Czegledy, the good faith purchaser in Canada cannot hide behind ignorance of the fate of acquired works—which is also referred to as willful blindness. Due diligence rules apply, which involve on the part of the acquirer of the art object to engage in research that would enable her/him to be convinced of the licit/illicit status of the object and base her/his decision to acquire or not the object as a result of this research.

Fill the legal loopholes regarding the resale of stolen works of art.

RECOMMENDATIONS FOR CANADA:

• Define looted object to include EVERYTHING cultural, including antiquities and books/manuscripts, decorative objects.
• Create legal/policy environment to facilitate identification and recovery of looted works
• Establish common standards of provenance research, evidence and claims adjudication for Canada.
• Conduct a census of all institutional collections in Canada susceptible of containing looted works. Prioritize risk to institutions regarding the repatriation of works. The purpose of this census is to assess the breadth and scope of the problem of looted art in public and private collections. For this to occur, establish a core group of researchers to do initial research and that can travel to all collections across Canada, with financing from provincial governments and Federal foundation endowments, provided that the funding is renewable until the census is completed.
• Ask the Canadian Museum Association to adopt an assertive strategy that will facilitate ultimate goals; it should communicate guidelines to museums on how to deal with the public and with claimants.
• Petition the Federal government to issue a Green Paper on accession to the UNIDROIT convention on stolen and illicit cultural property. The Federal government involvement in the issue of looted art could begin with the creation of a Central Web Portal run by Canadian Heritage Info Network or another entity so as to respond to inquiries and disseminate information.
• Invoke as the moral framework for treatment of looted art claims in Canada the London Declaration of January 5, 1943, or the Inter-Allied Declaration against Axis Acts of Dispossession. Canada signed it together with 15 other countries, including the United States and Great Britain, leading co-sponsors and formulators of the Declaration.
• Build a network of assets and skills in Canada and elsewhere to facilitate research efforts.
• Create a third-party group which oversees claims if the Federal Government refuses to handle them. Encourage the creation of provincial offices within existing agencies to process claims modeled after HCPO in NYC. This NGO would be supported by the Federal government and owned by the community. The stakeholders would include: museums, the art world, claimants, Jewish and arts and cultural property groups, historians, researchers, scholars, experts, government representatives, with a balanced private/public membership. It would be transparent and completely accessible.
• Identify all pertinent records dealing with looted art which can be found in Canadian archives--governmental, academic, institutional, civilian and military.
• Produce a guide of those records, similar perhaps to NARA’s Guide on Holocaust-Era Assets
• Incorporate the Canadian Jewish community as well as arts and cultural property organizations into these efforts for education, outreach, lobbying, fundraising, and logistics.
• Promote the training of individuals in provenance research through universities, cultural institutions and at all levels of government—local, provincial, and Federal. For instance, recruit graduate students from Young Canada Works for provenance work who have art history, history, museum science, forensics and related backgrounds.
• Seek public and private funds perhaps even from the UN and the EU to include museums, auction houses, independent scholars, government agencies, as part of an overall effort to stanch the resale of looted works on the art market.

Internationally:

• Promote the creation of an international research network to assist provenance checks.
• Create a third-party group or panel to oversee claims adjudication and to conduct research.