So I Have Been Thinking…

[Note: The following text is a reaction/thought piece to a recent query. Since this blog page is about thinking, these are things to think about. The raising of questions can be as important as having absolute answers.]

by Ori Z. Soltes

A recent question prompts me to think: When Dina Gottliebova-Babbitt found herself in Auschwitz as a 17-year old, she probably did not expect her or her mother to survive (her father and fiance did not). But fortunately not only did she have significant talent as an artist but in an odd turn of fate, Josef Mengele, the notorious primary physician-in-residence at the camp, noted for his horrific experiments on his limitless supply of patients, had an interest in her art. Not because he was an art devotee, mind you—although many of the Nazi brass were, infamously enjoying Beethoven by night while beating prisoners to death by day, or ingathering Rembrandts and declaiming Schiller’s poetry in between consigning victims to the gas chambers. No, Mengele’s interest was more practical: he felt that the black and white photographic possibilities available to him could not capture the emotion sliding across the faces of his patients, to say nothing of their skin tones, and he hoped that Dina’s portraits of these victims (particularly Roma victims) would serve that purpose. Apparently they did—well enough, in any case, for her to use her skill as a bargaining chip not only for her own survival but that of her mother.

By now Dina Gottliebova’s story is known to some: that she came to the United States, ending up in California where she also married a fellow artist, Art Babbitt, and both of them had successful careers as cartoonists. It was only many decades after the war, when the issue not only of the Holocaust but of Nazi-plundered art surfaced in a world that had been in a deep slumber regarding such issues, that Gottliebova Babbitt began to wonder if those portraits had survived. It turns out that seven of them had. She sustained a long legal fight with the Auschwitz-Birkenau Museum authorities regarding ownership of the works—at one point the director of the museum opined that the real owner was Mengele, since he commissioned and, one might say, paid for them. That Director was fired shortly thereafter, but in the end little satisfaction for Gottliebova Babbitt was achieved by the time of her death from cancer in 2009.

The Museum refused restitution, although they required her authorizing signature every time one of these images was used. They also offered her financial compensation, which she refused, but instead asked that the money the museum paid for the right to exhibit the works be donated to organizations that assist the Roma. To me the issue has always seemed almost uniquely soluble among the myriad issues that form part of the ongoing saga of Nazi-plundered art and its restitution or non-restitution. Since there are multiple works in this case—seven, to repeat—it seems to me that they could be shared between the artist and the museum, with perfect copies of those in the hands of the one while the originals are in the hands of the other (the technology of this is a no-brainer in this day and age)—cycling them every, say, three or five years, so that both sides are always in possession of three (or four) and over a complete cycle each side has had possession of all of them.

I propose this, since the most substantial ground upon which the Museum stands in refusing restitution is that they require the images as part of the exhibition-cum-educational program in which they are always engaged. So in fact they would always have some, just not all of them in their possession. (And do they exhibit all seven at once anyway? No paper conservator would advise that). Were there only one of these paintings I admit that the solution would be more difficult—although one could even propose a similar back-and-forth between original and copy over a prescribed period of time with a single work at issue. In any case, the question of the artist’s rights as opposed to an educational institution’s rights remains problematic—and it does not become simpler once the artist is gone and the question moves on toward the artist’s survivors. And then the issue of how many survivors and how many works of art muddies things further. I don’t claim to have a one-size-fits-all answer to the question—appropriately enough, since time is continuing to demonstrate that the number of Holocaust “stories”—whether regarding art of other matters—is endless.

But the question pushes my thoughts in two further, somewhat related directions. One is this: Recently a colleague from Iraq—who manages to continue her work, with little pay under unimaginably difficult conditions, of trying to document and protect all of the antiquities that are at risk in that country the tearing to shreds of which was facilitated by our own country—asked one of my American colleagues: “why don’t you return our material?” Having asserted that “you” should not include him, but the American government, he also clarified what she meant by “our material.” As some may know, our troops were empowered to remove, among other things, many objects relevant to the long-gone Jewish community from Baghdad. These are mostly manuscript-type material, documents, mostly only one or two centuries old, although the Jewish community in Iraq traces itself back to the Judaean exile following the Babylonian destruction of the First Jerusalem Temple in 586 BCE.

I myself got to see this material. From the description leading to what I saw in our National Archives I expected thousand-year-old Torah scrolls, at least, and was sort of disappointed, frankly, that the collection was so much tamer than I had hoped. On the other hand, the work being done by the archives’ conservationists was extraordinary—spectacular, really—and there is something enormously intriguing even about report cards from schools of a few generations ago, with their names, grades, comments and photos of the students; it brings to life a community that has since vanished in a unique manner.

So what was my Iraqi colleague’s beef? That these documents are part of state-owned material, kept and carefully preserved until the Americans swept in and carried them off. The American claim—including certain important members of the American Jewish community—is that this material records a community that, mostly gone, is and will further be forgotten if we don’t preserve its memory by adequately conserving, protecting and presumably at some point displaying the documents (here’s a question: when? where?). The implication is, of course, that none of these activities was happening or can happen in Iraq.

My colleague disagrees: the documents were being cared for by the state, by dedicated state employees like her, because they recognize the importance of Jewish communities in the history of Iraq, and how important it is to preserve that part of their history—and not just that part represented by substantial ancient monuments. So we find ourselves in the crossfire of a question parallel (not identical, for various reasons) to that raised by Gottliebova Babbitt’s paintings and the Auschwitz-Birkenau Museum. Who owns this odd collection of “Judaica” since there is no longer a Jewish community in Iraq? That question cannot be disentangled from the question of who is best equipped to preserve and display these items.

We have, of course, loaded the dice by tearing apart that country, but the amazing thing is that there continue to be people like this colleague who continue to do their preservationist jobs. So if we refuse to return the material to the Iraqis, are we merely being the British Museum redux vis-à-vis the Parthenon Marbles: asserting with the superiority of a colonial power that we can take care of their heritage better than the natives can? Could we return some of it and mount a serious exhibit on the Jewish community of part of it—or an exhibit of all of it that travels for a few years before the whole thing goes back to a Baghdad where we even help assure that adequate facilities are there to receive it? I think once more of a parallel: we Americans exhibited art from Germany after the war, and when some members of the government and art community wanted us to keep it, other, wiser voices prevailed, arguing that if we did that, we would be no better than the German art-plunderers—or, as the Cold War took shape, the Soviet Red Army Trophy Squad thieves.

We always come back to the first question: what are we-as humans, as Americans, as whatever subsets of either of those categories we want to throw into the rhetorical hopper? And that leads me to a second offshoot of the Gottliebova-Babbitt question that is also very current, albeit having nothing to do with either the Holocaust or art plunder, but having everything to do with the role of art as an educational instrument—which was the main basis for the Museum’s argument against the artist’s claim for restitution. I recently led a study tour to Russia, and my group and I visited a number of smaller towns not far from Moscow—part of what is known as the “Golden Ring” for their importance with regard to churches, cathedrals, monasteries and kremlins—including Suzdal, Vladimir, Yaroslavl and a few others. I was struck in these places how—in spite of the sense one received in the early 1990s of a tearing down of public monuments; statues of Marx, Lenin, and Stalin in particular; in a repudiation of nearly 75 years of Soviet history and oppression—there remained in very town, in the main square, some statue of Lenin, standing, declaiming, striding.

It was clear—and I discussed this with local guides and others—that a decision was made to keep these images intact, since they are part of the history of Russia, and not to tear them all down as symbols of an oppressive Soviet regime that ruled Russia for a period of time. It is essential that people remain aware of their history—the bad parts so that they are not repeated, the good parts so that they may be emulated. This is an idea particularly connected to a dictum associated with the philosopher Santayana, and the Russians seem in this case to get the idea.

Should we not get it, as well? I could not be more disgusted by the American history of slavery or the recent extraordinary upsurging reminder that racism, antisemitism and a host of other forms of bigotry still prevail in our country. But I strongly believe that tearing down public statues of Robert E. Lee and Stonewall Jackson is not only not the answer, it runs contrary to the educational potential of art, especially public art. Do we, by the way, also tear down statues of other slave owners, like Washington and Jefferson? Or do we use all of these images as a stepping-off point to remind and educate ourselves to what we were when not at our best and to what we still need to do to make ourselves better—as individuals, as communities, and as a country?

Was Lee’s sin that he owned slaves or that he saw Virginia first and the Federal Union second—or both? The point is: it doesn’t matter. What matters is that we need to ask about these things, try to understand them and use them to better our world. Instead of tearing down or covering up these statues, or carting them off to museums, why not use them as the basis for an annual, dynamic program (have schoolkids take part in a kind of American Passion Play!) in which the story of what was wrong—and also what was right—about these people will encourage us to work actively to improve our communities.

Swiss foreign cultural policy?

by Marc Masurovsky

At a time when one French Jewish family is beating its head against a brick wall to recover a painting by John Constable, “Dedham from Langham”, from the Museum of Fine Arts in La Chaux-de-fonds, in the French-speaking part of Switzerland, a country whose officials revere Good Faith on the altar of Neutrality. A joke, by any stretch of the imagination. 

Dedham from Langham, by John Constable

This is the only known claim today submitted by a non-Swiss citizen of Jewish descent for a work of art sold under duress in German-occupied France in 1943 because its owners—the Jaffe family—were of Jewish descent.

In the mean time, the Swiss government has been returning a host of antiquities to foreign nations requesting them:

May 27, 2014: The Swiss government returned to Serbia a trove of 150 coins dating back to the Roman era. The crime? Illegal importation into Switzerland by a Serb national in 2011.

December 2014: The Swiss government returns a Han Dynasty terra cotta to China.  The crime? Forged customs declaration. The item had been shipped from the United Kingdom to the county of Vaud. This restitution was hailed as a major step in the fight against the illicit traffic in cultural assets.

November 2015: The Swiss government returned to the Iraqi government two cuneiform tablets on the pretext that they had not been properly registered as “cultural goods” when entering Switzerland. The crime here? False registration in violation of a June 1, 2005, law governing the transfer of international cultural goods.

July 2016: The Swiss government returned to Italy nine antiquities including five fresco fragments from the 6th century BC. The fresco fragments which come from Pompeii resulted from a voluntary restitution by their current possessor. Swiss cantonal police seized the other items.

Pending: a request by the Bolivian government for a statuette representing the deity, Ekeko, removed from Bolivia in 1858, the result of a drunken swap, a statuette for a bottle of brandy. The statuette currently sits at the History Museum of Bern.

It is remarkable that the new minister of Culture of the Swiss Confederation, Isabelle Chassot, is so committed to the return of cultural objects that are illegally in Switzerland.

One wonders whether these returns fit into a larger policy of maintaining cordial relations with source countries—a commendable goal in and of itself. 

What does it take to show a similar regard towards the heirs of Jewish victims whose looted cultural assets ended up in Swiss cultural institutions and private collections? Why is it that Jews have to fight like hell to recover what is theirs while source countries just have to ask for their objects?

This is not a whining session.

We know what the stark differences are. There are no laws covering the return of looted Jewish cultural assets. But there are a myriad of laws enacted in the last 20 years that make it very difficult to sustain the presence of looted cultural assets on Swiss territory.

Hopefully, Isabelle Chassot will figure out a way of making an ethically grounded exception to facilitate the return of looted Jewish cultural assets.

Mark my words: where there’s a will, there’s a way.

Seeking guidance from INTERPOL

The words vary but their meaning does not.

Plunder, looting, theft, spoliation, misappropriation, pillage—call it what you wish, it all comes down to the same thing: someone somewhere has committed a theft of cultural items either under cover of an international military conflict, a domestic uprising or insurrection or major civil unrest, or simply has broken into someone’s home, place of business, or public institution to commit the crime of art theft.

Lawyers will have a field day arguing that each word connotes something slightly different. But as one famous unnamed general said at the end of the Second World War, “Theft does not convey title”. Period.

Since 1945, much has been said but little has been done to address in absolute terms the global problem of cultural theft, especially when it has been fueled by considerations of race, ethnicity, belief, and/or greed and lucre.

INTERPOL
Source: Wikipedia

No global solution to the problem of cultural property theft, cultural plunder and looting, can be achieved without the full and engaged participation of international organizations, especially since the founding of the United Nations in 1945.  As part of an on-going effort to spark more interest in the role of the organized international community of experts and officials who take at least a nominal interest in questions of art crime, let’s take a brief look at one institution—INTERPOL—and its pronouncements between 2004 and 2007 regarding international art crime.

First off, we paid a visit to INTERPOL’s website datelined 2007 and found these remarkable items under the rubric of “frequently asked questions” or FAQs” :

• “In fact, it is very difficult to gain an exact idea of how many items of cultural property are stolen throughout the world and it is unlikely that there will ever be any accurate statistics. National statistics are often based on the circumstances of the theft (petty theft, theft by breaking and entering or armed robbery) rather than the type of object stolen. To illustrate this, every year, the Interpol General Secretariat asks all member countries for statistics on thefts of works of art, information on where the thefts took place, and the nature of the stolen objects. On average, we receive 60 replies a year (out of 186 member countries), some of which are incomplete or inform us that no statistics exist.”
• To the question, “Which countries are most affected by this type of crime?”, the answer is…….
  
  France
  Italy
  Russia
  Germany
• The most sought after items by thieves as reported by law enforcement agencies are:
  
  Paintings
  Sculptures and statues
  Religious items
• INTERPOL’s General Secretariat devised the following tools “to tackle the traffic in cultural property”:
  
  A "wanted" poster:
  
  In 1986, INTERPOL published “THE 12 MOST WANTED WORKS OF ART’ poster.  The following year, the poster was renamed “THE MOST WANTED WORKS OF ART", printed in black and white and updated twice. Since 1998, the poster has been printed in COLOR!
  
  A database of stolen works of art:
  
  As of 2007, Interpol’s computerized database contained 26,000 stolen works of art. The main caveat for eligibility to be entered into the Interpol Stolen Works of Art database is that the object be “fully identifiable.”  The most astounding development occurred in 2010 when, for the first time, INTERPOL agreed to publish a series of paintings stolen from Max Stern, a German Jewish art dealer once based in Duesseldorf whose business was liquidated by the Nazi government and he was forced to flee to Canada.  At his death, Concordia University became the executor of his estate and launched a unique program under the guise of the "Max Stern Foundation" to publicize the cultural losses suffered by Max Stern and promote the identification and restitution of his cultural property, with some measure of success, thanks in part to the crucial role played by the Immigration and Customs Enforcement (ICE) unit of the Department of Homeland Security in the apprehension and restitution of some of Stern's works from private collections in the United States.

Max Stern in Germany, c. 1925
Source: National Gallery of Canada, Library and Archives, Fonds Max Stern via Max Stern Art Restition Project, Concordia University

Since INTERPOL is comprised of representatives from police forces the world over, it is well-positioned to make recommendations that allow its law enforcement members to do their job more efficiently and curb the global crime wave of art theft.

When reading these recommendations, please keep in mind that we are now in the year 2011. Our planet has suffered through two global wars since 1914 which accounted for combined human casualties of close to 80 million individuals and massive thefts of cultural property. Since 1945, there has been at least one international military conflict in some part of the globe. Each conflict has produced its fair share of cultural plunder.

INTERPOL believes that the following conditions need to be met in order to achieve lasting long-term solutions to the problems of global art crime:

1. bring in laws to protect cultural heritage and regulate the art market. 
2.  become party to international conventions (1970 UNESCO Convention and the 1995 UNIDROIT Convention)
3. prepare inventories of public collections using standards which will make it possible to circulate information in the event of theft
4. develop a computerized database along the lines of those currently in use, to avoid duplication of effort. 
5. circulate information on thefts as rapidly as possible
6. raise public awareness with regard to the cultural heritage both in the country and abroad
7. set up specialized police units to tackle this type of crime
8. hold training courses for the police, other law enforcement services and customs, with the support of cultural institutions.

In order to appreciate the tedium of political discourse at the international level and the degree to which raising international awareness can best be compared to La Fontaine’s fable of the “Turtle and the Hare” (We know who won the race, right?), here are some highlights of meetings convened by INTERPOL between 2004 and 2007:

Meeting place: Sinaïa City, Romania 
Date: September 7-9, 2004
Title: 4th International Conference on the Illicit Traffic in Cultural Property Stolen in Central and Eastern Europe

The participants acknowledged that there were serious problems east of the Oder River “concerning the protection and documentation of cultural property”.

They recommended the following:

• “To monitor the art market including the increasing sales on the Internet.”
• “To encourage the completion of inventories including photographs of cultural property for public and private collections using international description standards such as Object ID.”

Castelul Peles, Sinaia, Romania
Source: Wikipedia

Meeting place: Washington, DC
Date: May 23, 2005
Title: 3rd Meeting of the Interpol Tracking Task Force to Fight the Illicit Trafficking of Cultural Property Stolen in Iraq

The participants realized that the Internet is becoming a favorite venue for the sale of cultural items stolen in Iraq.

Meeting place: Lyon, France
Date: June 21-23, 2005
Title: 6th International Symposium on the Theft of and Illicit Traffic in Works of Art, Cultural Property and Antiques

The participants recommended the adoption of a “model export certificate for cultural property jointly developed by UNESCO and the World Customs Organization.”

More importantly, albeit very diplomatically, the participants invite their members to “consider adopting legislation and developing procedures that require proper examination of appropriate documentation for all cultural goods entering their country.” Remember, we are now in 2005, not in 1955.

The participants agreed to provide “relevant law enforcement agencies” around the world access to Interpol’s Stolen Works of Art database.

This one is the clincher:

The participants asked that the governments of their respective nations should “consider whether their cultural heritage legislation should include a provision for proof of ownership of cultural property prior to their trade.” In other words, was there no requirement until 2005 to prove the ownership of a cultural item before it entered the art trade?

Other recommendations included:

“Countries seeking the return of their cultural property provide adequate relevant documentation detailing the date and place of the theft with a full inventory of the stolen objects including descriptions and photographs. For incidents of looting, date and place with documented justification of the provenance of the items should be provided.”

“Establishment of minimum documentation for all cultural objects and use of the Object ID checklist for this purpose.”

Meeting place: Lyon, France
Date: March 7-8, 2006
Title: 3rd Meeting of the Interpol Expert Group (IEG) on Stolen Cultural Property

The participants admitted that they needed the assistance of “art market professionals in the trade in cultural objects” in order to enable law enforcement agencies to locate stolen cultural items more effectively. Interesting… Should one surmise that the international art trade has not had to worry about the heavy arm of law enforcement until very recently?

As a result of high-profile looted art cases which required years of litigation and tentative outcomes, the participants focused on alternative dispute resolutions as one way of facilitating the restitution of stolen art to countries of origin.

Not only did they propose that “law enforcement agencies extend their co-operation efforts to art market professionals as valuable partners and sources of information,” but, in the same breath, the participants suggested that “creative solutions” be found to facilitate the “return of cultural objects.” These solutions might include: arbitration, conciliation, mediation or negotiation procedures. More worrisome is the notion that long term loans could be used as an acceptable compromise to achieve the return of coveted stolen objects. Worrisome in light of the deals struck by the Metropolitan Museum of Art, the Wadsworth Atheneum in Connecticut, the Getty Museum in Los Angeles. These institutions have sufficient clout, despite their egregious behavior concerning the harboring of looted art and antiquities, to convince the injured parties—in these instances, foreign nations—to accept complex deals whose outcome is to dilute the responsibility of the institution responsible for benefiting from the misappropriation of a cultural object.

In other words, the aiding and abetting of art crimes has a way of turning into a profitable moment for all parties concerned, fueled for the most part by commercial and financial incentives at the expense of ethics. Let's hope that INTERPOL and other like-minded well-intentioned organizations do not fall into this gilded trap.  Theft is theft, no matter how you look at it and cultural institutions that profit from it should be held accountable even if it costs them an exhibit or two and the ill-gotten items that they have acquired.