Oppose Senate Bill 3155 which legalizes the display of looted art in the United States.

by Marc Masurovsky

Click here to voice your opposition.

If passed, Senate Bill 3155, sponsored by American museum lobbyists and art market players, is a dream come true.

S. 3155 makes it possible for an American museum or, for that matter, any institution located in the United States to borrow any object from any part of the world without fear of judicial seizure, resulting from a claim filed by a victim of cultural theft.

On paper, it all sounds innocent. If it is, how do you explain the total silence emanating from the American museum community’s lobbying arm, the Association of Art Museum Directors (AAMD), which has not uttered a single public word in its campaign to press for passage of S.3155. The AAMD has essentially refused to engage in a public discussion about the merits of S. 3155 through Senate hearings or in the public sphere. Clearly, its sponsors in the Senate have also agreed not to solicit opinions from the public and those most likely to be affected by the passage of this bill—source nations, indigenous groups, victims of cultural theft.

S. 3155 ensures that acts of plunder, whether State-sponsored or not, against entire groups and communities, resulting in systematic looting and misappropriation of cultural assets, do not stand in the way of museums’ ability to borrow freely from art collections across the globe.

There are numerous countries which have suffered from autocratic, dictatorial, even tyrannical governments and regimes which have cost countless lives, suppressed individual freedoms and resulted in untold losses of personal property through expropriation, misappropriation, and outright theft. Many objects displaced during these events have never been returned to their rightful owners. The more desirable ones have been sold and resold on the international art market, or have entered art collections stewarded by the very governments which enabled and sanctioned these illegal confiscations and expropriations.

There are numerous archaeological sites around the world which have been illegally exploited and whose ruins have yielded untold numbers of artifacts recycled through countless intermediaries before reaching museum collections, auction houses, and private dealers in “the West”, including North America.

Indigenous peoples across the globe have been subject to continual harassment and persecution by the governments of the countries in which they reside, victimized by violence and by illegal removals of their sacred objects. These looted objects, often used for ritual practices, find their way into “Western” collections through the illicit trade, once they have been reclassified as "art."

Museums thrive on attracting visitors. To do so, they must constantly borrow beautiful, rare, objects from domestic and foreign collections and highlight them in exceptional exhibits for the public to come and enjoy. We all love to go to museums, but does that excuse their willingness to be be a party to theft and plunder?

It appears so.

Is S. 3155 necessary?

In practical terms, there is no need for S. 3155. The US Department of State has in place a system by which foreign lenders and their American counterparts can request a certificate of immunity from seizure to allow them to lend one or more objects to American institutions for the purpose of an exhibit. The State Department issues these certificates several times a week. For better and for worse, the immunity system works.

So, why does one need S. 3155? There is a political motive underlying its introduction in the Senate. For years, US museums have been unable to borrow masterpieces from Russian museums as a result of several court cases which were interpreted by the Russian government as a direct threat to their ability to lend works of art without fear of them being seized. Whether rational or not, these feelings have translated into a near-absolute freeze in Russian cultural loans to US museums.

Is the AAMD using S.3155 to signal the Russian government that, if passed, Russian museums should relax their stance on loans to the US?

The same reasoning can be applied to other governments with whom the US has had severe difficulties, like the Cuban government. Now that Fidel Castro is dead, all eyes are on that little island off the coast of Florida. The likelihood is quite high that art works confiscated from private Cuban collections will head to the United States. Again, S.3155 will make it possible for these confiscated works to be displayed and will deprive dispossessed Cuban families from being able to seek redress in US courts in order to recover their expropriated property.

The main sponsors of S.3155—Senator Orrin Hatch (Republican-Utah), and Senator Chuck Schumer (Democrat-New York)—are doing everything they can to have this bill passed before the end of 2016. So, time is of the essence to send a clear message to the Senate that this bill is unacceptable, indecent, unethical, and unnecessary.

If you agree that S. 3155 should not be passed by the US Senate, click here and voice your concern.

Chabad vs. Russia

The legal battle pitting the Lubavitch movement against the Russian government has reached new heights following two developments:

1. a judgment issued on August 6, 2010, by Federal Judge Royce Lamberth in the United States in favor of the Chabad Lubavitch movement’s quest for restitution of the so-called “Schneerson Library” and related archives which can be found in several institutions in Russia;
   
2. the over-reaction by the Russian government to cancel loans of cultural assets to American museums and cultural institutions out of a perceived fear that those assets would be subject to seizure in order to force the Russian government to relent on its refusal to return the Schneerson library and archives to the Lubavitch movement.

The pitbull, scorched-earth approach taken by both sides in this struggle for recovery does not augur well for future attempts to negotiate the restitution of cultural assets currently located in the former Soviet Union. It also makes one wonder whether or not an all-or-nothing strategy is the best policy to pursue.

In the world that we strive to build, there would be no issues underlying the restitution of cultural artifacts forcibly removed from individuals and groups because of their racial, religious, political, ethnic, or other identities and beliefs. For that world to exist, all countries have to come to grips with the fact that they control significant quantities of cultural artifacts and assets which do not belong to them and that need to be returned to their rightful owners.

In reality, we live in a world where governments are either loath to admit that they hold such vast amounts of illicitly-obtained cultural assets or they prefer to view these misappropriated cultural assets as “cultural patrimony,” a rather primitive approach more attuned to the conquering ways of ancient societies than to individuals who pride themselves on being civilized and ethically-grounded.

Moreover, there is a propensity in the United States to litigate everything to death which can be viewed as an outright provocation by non-American entities. However, the idea that cultural assets can be held hostage in a transnational game of arm-wrestling with no end in sight, is neither appealing nor inspiring. And for that reason, both sides can be chided for outdoing the other in dogmatic, self-righteous indignation.

Most of us ignore the back-channel discussions, the unstated aims and motivations of all parties involved in this unseemly struggle for control over intellectual, cultural, and religious artifacts that are the rightful property of the Lubavitch movement. But, for any resolution to occur, the parties at war with one another have to engage in a very serious reality check. If we are to continue to interact as civilized human beings, it is time, therefore, to behave and grow up and discuss what is really at stake here. It is not the fact that the Lubavitch movement wants its archives back, an archive that, frankly, most people in the Russian Federation do not give two beans about. It’s all about principle, the principle that someone, anyone, would have the audacity to ask for the return of property that was once theirs, but was forcibly taken, removed, transferred, and amalgamated into another culture’s “patrimony” without its consent.

Consent is the key here. If there is no consent, we enter the realm of illegality. The Russian government cannot sensibly argue that its identity is wrapped up around the Lubavitch movement’s archives and library. Neither should we go to war over them.

An opportunity exists here to show the world how to avoid escalating the restitution of cultural assets to the level of an international incident between nations and cultures. All parties need to think seriously about what they are willing to settle for in order to bring about an acceptable resolution to this crisis. In other words, let’s speak plainly: it may very well be that nothing good will come of this pitch battle if there is not a negotiation. Both parties have to stop their respective chest-thumping. In sum, let’s talk.

To the Russians: what is it that you really want? Quid pro quo? Something in exchange? If so, what? Or, put another way, what would it cost you really, honestly, to effect the return of the Schneerson Library and the archives of the Lubavitch movement?

To the Lubavitch movement: you’ve lived this long without those papers and books. If the deal is all or nothing, you might well end up with nothing. What would you be willing to settle for in order for you to retrieve something as opposed to nothing, even if we all know that the ideal solution is to obtain full restitution.

Here, the Italian government comes to mind. Its concept of cultural patrimony has evolved to the point where it considers items stolen from Jews during the Second World War as part of its ‘patrimony’ just like antiquities that have been excavated from Italian soil. Therefore, the return of such property is doomed because of the label of ‘cultural patrimony.’ When countries hide behind that label, nothing is possible.

To the Russians: if you consider the Schneerson archives and books as part of your “cultural patrimony”, including those that the Nazis stole and you recovered, aren’t you behaving as shamefully as the Italian government?

To the Lubavitch movement: the Italian government negotiated with the Metropolitan Museum of Art and other cultural institutions in the United States for the return of its antiquities that had been illegally removed from Italian soil to adorn their collections. There was a moment where scorched earth seemed to be on the agenda, but the crafty negotiating skills of certain American museum directors, blended with the Italian government’s desire to obtain the safe return of its treasured objects, led to extraordinary settlements that provided American museums with access to more antiquities, exclusive rights to future exhibits and displays of Italian antiquities, and so forth.

To both parties: think outside the box and see if, however bizarre and unprincipled the agreements were between Italy and American museums over their antiquities, whether or not you might find similar answers to your current stalemate which is not helping anyone at all.

Looted paintings in the State Museum of Smolensk

Картинная галерея, Смоленск
Source: Smolensk Travel

In 2005, a museum in Smolensk, in cooperation with the German Embassy in Moscow, organized an exhibit of German paintings from the 17th century to the early part of the 20th century. Most of the paintings came from the permanent collection of the Smolensk Museum. Of the paintings that were exhibited, more than a dozen came from a single family—Stolberg-Wernigerode—whose estate in Radenz (present-day Borzeciczki), in western Poland near Poznan, had been plundered, first by the Nazis, then by Soviet troops.

The German Embassy in Moscow made contact with the Stolberg-Wernigerode heirs seeking to establish the correct provenance and ownership of the paintings being exhibited in Smolensk. Furthermore, the curatorial staff of the Smolensk Museum even invited the Stolberg-Wernigerode family to come and visit the museum and view the paintings. And so they did.

As they tell the story, the visit took place in November 2005 following a five-hour train ride from Moscow to Smolensk and was nothing short of surrealistic. The following is excerpted from a master’s thesis entitled “Fateful Encounter in Smolensk” submitted on December 10, 2010 by Marie Stolberg as partial fulfillment of a Master’s Degree in International Art Crime Studies sponsored by ARCA—Association for Research into Crimes against Art:

“For our visit they had been taken out of the depot and put up on easels in an extra room. There they were, so many years after they had gone missing, as if nothing had ever happened. Here was the beloved grandmother with the bracelet she gave to her granddaughter who wears it still; the grandfather, great‐grandparents and landscapes of Wernigerode. The paintings had all been restored and they were in excellent condition. It was moment of great emotion. We sat down for an intensive exchange of information with the curators and the director. They were keen to hear about the family and to see the photo album with the paintings hanging on the walls. The curator, Nadeshda Wolossenkowa, said that the crates with the collection from Krotoschinskij
 in Poland had arrived in the summer of 1945. She mentioned, rather incidentally, that a countless amount of further cultural objects (none of which had ever been unpacked, inventoried or even looked at), were still stored in the depots. The conversation was intriguing. At the end of the day we carefully touched on the subject of restitution. I remember Nadeshda’s answer was very polite if not a little vague. She had expected the question and said that one way could possibly be in exchange for cultural objects from Smolensk which had been looted by the Nazis and removed from Russia. She presented us with two catalogues published by the museum and listing works of art missing from their collection. At the same time she stressed that the matter of restitution was not in her hands and only to be decided by the ministry.”

And therein lies the rub. How do claimants recover anything from the former Soviet Union, despite having sufficient proof that the works were rightfully theirs?

Following various official exchanges with the Russian Ministry of Culture, it became apparent that there would not be any consideration of a restitution until the Stolberg-Wernigerode family produced official papers and documentation indicating that the paintings rightfully belonged to them. A difficult task considering the fact that over one hundred years had elapsed since the paintings had entered the family’s estate and a major European conflagration had been responsible for virtually wiping out all traces of historical evidence of individual and collective history, first at the hands of the Germans, then at the hands of the Soviets. Twice plundered.

In some measure, the behavior of the Russian Ministry of Culture closely mirrors that of most governments and cultural institutions faced with such claims—the desire to maintain their current ownership of objects which fell into their hands by circumstances associated with war, plunder, and genocide.

The solution proffered by the curator of the Smolensk Museum—to exchange the works for items plundered by the Germans from their museum by elements of the Einsatzstab Reichsleiter Rosenberg (ERR)—has become a preferred strategy of the Russian government. Nothing is unilateral. There has to be a quid pro quo, regardless of the validity of the claim submitted by the despoiled party.