Showing posts with label LCCHP. Show all posts
Showing posts with label LCCHP. Show all posts

21 September 2023

Solidarity is an aspiration devoutly to be wished

by Marc Masurovsky

If you search for a definition of the word “solidarity”, this is what you find:

“Unity or agreement of feeling or action, especially among individuals with a common interest; mutual support within a group.”

In other words, “solidarity” requires unity of feeling or action amongst individuals and entities that share a common interest and support one another. It also implies that they all work together to achieve a common objective. Let’s apply the concept of “solidarity” to the interwoven notions of cultural plunder, art looting, and the restitution, repatriation, return of those plundered cultural goods to their rightful owners, be they individuals, groups, entities, or governments.

Past history teaches us that governments, entities, groups and individuals have systematically deprived others of their artistic, cultural and religious objects for a variety of reasons, ranging from greed and avarice to naked hatred of the rightful owners for reasons of race, gender, creed, and/or ethnicity. The international community, in all of its wisdom and desire to improve the lot of people around the globe, has agreed that it is wrong, illegal, and immoral to steal artistic, cultural and religious objects. If one does this, justice needs to prevail in part through the recovery, restitution, repatriation of these objects to their rightful owners.

Colonial expansionism unleashed cultural and other heinous crimes against communities living in areas coveted by the colonialists, resulting in the deprivation of life, identity, and culture for millions of people around the world. Successive wars fueled by racial and ethnic hatred of others have provoked the deaths of tens of millions of individuals and the outright theft of the property of those who were targeted for physical elimination and removal from the surface of Planet Earth. Make no mistake, these conflicts are still with us today and they are always accompanied by crimes against the culture, identity, and beliefs of the victims (case in point: the 1990s wars in the Western Balkans, and currently in Libya, Ukraine and Yemen.)

Since the 1990s, individuals and entities have come forward to hasten the restitution and/or repatriation of these looted objects wherever they may have ended up, either in private hands or in State-controlled collections and institutions. They focus separately on:

-the confiscations of Jewish-owned property displaced by the Nazis and their allies between 1933-1945;

-the expropriations of indigenous cultural objects through colonial conquest and occupation;

-the systematic illegal extraction of archaeological objects from source nations; and

-the plunder of Native American communities and First Nations in North America.

We have identified four categories of looted or plundered cultural goods:

1/ goods forcibly removed from geographical areas targeted for seizure and exploitation by colonial powers;

2/ goods forcibly removed by State authorities, with the help of military, police, and parastatal forces, from communities living within State borders;

3/ goods forcibly extracted from the territories of nations for ideological or commercial reasons under the cover of military conflicts or civil strife;

4/ goods forcibly removed from their rightful owners during acts of genocide, most notably during the Nazi era, the Holocaust and World War II.

Until the early years of the 21st century, there was no perceptible dialogue between the advocates of justice and restitution representing these four groups of looted cultural goods.

Archaeologists and so-called source nations worked in their corner, denouncing the irreparable loss of antiquities which ended up inevitably in private and public collections. Mainstream domestic and international Jewish organizations were never keen on seeking the actual physical restitution of objects plundered from Jewish victims between 1933-1945, preferring instead global schemes by which victims and their families would receive the equivalent of a “check in the mail.” Indigenous communities plundered during periods of domestic territorial expansionism and national unification (some call it “progress”) were left to their own devices for decades before there was widespread outrage at their plight. The systematic and on-going looting of their communities continues to benefit private collectors and cultural institutions worldwide. Advocates and organizations representing these four categories have worked separately in their silos, competing against one another for the attention of private donors, foundations and governments to enlist their aid in furthering the cause of their “clients.”

It is difficult to find instances of “solidarity” between these four categories and their respective communities, although, in theory, they agree on the common goal of restitution, repatriation, and return of looted objects to their rightful owners. Their professed mutual interest does not seem to include the possibility of reaching out to representatives of the “other categories.” Doing so would lead to a greater good by merging their separate agendas under the larger umbrella of a unified approach to the restitution, repatriation, and return of these objects to their rightful owners.

The Holocaust Art Restitution Project (HARP) was created in September 1997 to document Jewish cultural losses between 1933-1945 and the postwar fate of unrestituted looted objects. Our concern has always been to address in an open public discussion the question of cultural plunder in all its forms, regardless of when and where it occurred. More than 13 years ago, HARP crossed the bridge to get acquainted with the cultural heritage community, including archaeologists, anthropologists and other professionals documenting ancient cultures and the damage and destruction wrought upon them. One group stood out at the time—the Lawyers’ Committee for Cultural Heritage and Preservation (LCCHP). An instant synergy evolved between HARP and LCCHP over issues of plunder and restitution. Our representatives participated in and attended seminars, workshops, and fora organized by LCCHP. This cooperation has since extended to the Antiquities Coalition. 

Since 2013, HARP has forged ties with the Amelia (Italy)-based Association for Research into Crimes against Art (ARCA). HARP has been teaching a one-week provenance research workshop during ARCA’s three-month annual certification program focused on Holocaust-era losses and postwar restitution, a novelty in an environment mostly populated by cultural heritage specialists, archaeologists, and art law/art crime professionals.

HARP took interest in the continuing thefts of sacred Hopi artifacts from their communities in Arizona and New Mexico, the smuggling of these objects to France where certain auction houses sold these objects, in some instances, for tidy sums. All this under the nose of US Federal authorities. HARP advocated for the Hopi nation before an administrative court in Paris, not once, but six times, in a vain effort to stop these sales and return the sacred objects to their rightful owners. Although these battles were thankless, they helped make a point that, just because HARP specializes on Jewish cultural losses, it should not ignore the pain of other groups constantly subjected to similar forms of cultural plunder, largely unpunished. For the past ten years, HARP has forged ties with the Amelia (Italy)-based Association for Research into Crimes against Art (ARCA). HARP has been teaching a one-week provenance research workshop during ARCA’s three-month annual certification program focused [use gerund] on Holocaust-era losses and postwar restitution, a novelty in an environment mostly populated by cultural heritage specialists, archaeologists, and art law/art crime professionals.

HARP’s pivoting to a more ecumenical approach towards plunder and restitution has attracted some critics. A major Jewish organization once told HARP to remove the word “Holocaust” from its organizational name –HARP­­­–because of our defense of the Hopi nation. That senseless comment signaled an unhealthy parochialism and reaffirmed our resolve to pursue a path towards a more universal approach towards cultural plunder. HARP defines cultural plunder as a universal crime against humanity and promotes an interfaith, inter-ethnic, inter-cultural, global discussion on how to prevent future acts of cultural plunder and protect all cultures from commercial and ideological predation while prioritizing Jewish cultural losses from the Nazi era.

No other Jewish group seems willing to invest itself in an all-embracing dialogue about plunder and restitution. It reminds me of reports and correspondence written in 1940-1941 by officials of Jewish relief groups in France, pleading for assistance from non-Jewish organizations to help stranded, starving, interned Jews. The answer was always the same: you take care of your own, we take care of ours.

We are now in the Fall of 2023. Why do we continue to live in our separate corners, looking askance at the “others”? What will it take to bring these four categories under one big tent and forge a common strategy whose sole purpose is the restitution, repatriation and return of these objects, regardless of where they were forcibly removed, regardless of who or what instigated these crimes, and regardless of when these crimes occurred?

The lack of solidarity will spell the long-term failure of these restitution and repatriation campaigns to the immense relief and delight of those who currently hold these looted objects and continue to acquire them despite the general outcry of such behavior. It’s a bit like the movie “Catch me if you can!”. Unfortunately, this is not a game. It’s about the destruction of society (and humanity) to the great benefit of the perpetrators and at the expense of you, me and them.








15 April 2018

Beyond ethnic minority rights

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.



10 November 2012

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
Desk and Room, Kazimir Malevich
Source: Malevich Paintings
Supermatism
Suprematism, 18th Construction, Kazimir Malevich
Source: Malevich Paintings

Paintery Realism of a Football Player
Paintery Realism of a Football Player, Kazimir Malevich
Source: Malevich Paintings
Suprematist composition
Suprematist composition (blue rectangle over purple beam), Kazimir Malevich
Source: Malevich Paintings
Mystic Suprematism
Mystic Suprematism, Kazimir Malevich
Source: Malevich Paintings