by Marc Masurovsky
A Parisian curator once said about the Vichy regime: It was the revenge of good taste. You could apply this statement to Nazi cultural policy from 1933 to 1945. Restoring good taste in a society corrupted by Jews, Freemasons, Bolsheviks and sexual perverts, according to Nazi propaganda. La revanche du goût. The leitmotiv for State-sponsored plunder of art objects from collectors and dealers mainly of Jewish origin. This plunder lasted for 12 years and stretched throughout Europe, going hand in hand with persecution, racial extermination, and world war.
Why are we still talking about looted art today? Because there really was no justice at the end of WWII for the vast majority of victims of cultural plunder.
Why was there no justice at war’s end? Because the emphasis of restitution was on “cultural treasures”, on those art objects that reflected “good taste” and the cultural heritage of the despoiled nations at the hands of the Nazis and their local collaborators. Who owned those items, those “treasures”? The elite vicims of Nazism. All told, 5 to 10 per cent of the population of victims. What happened to the rest? They either received a check in the mail or their claims were never honored. Simple. It was not worth the effort of postwar governments, then and now, to search for their works of art because they did not rise to the standard of “treasure.” Who was in charge of the investigations? Curators, directors of museums, art historians, culture ministry officials, even art market players. Those responsible for shaping the cultural sphere of postwar societies.
What does that tell us about justice following a genocide?
If your art did not rise to the esthetic standard set by the government and the leadership of the art world and cultural institutions, it would never be recovered and instead would recirculate in the private art market with no chance for you to recover your family’s treasures.
The law protects the current possessor. No law has ever been passed to treat victims of genocidal plunder with respect. There are no laws today that allow victims to recover their property. As it turns out, government officials and museum professionals are beholden to collectors and private art market operators. They refuse to take actions against them that might disrupt the free flow of art within and across borders.
What does this tell us? Theft of art in the context of mass killings and genocide pays for itself. Restitution policies are shaped by perceptions of art and belie governments and elites’ obsession with what they perceive to be “high art” as the highest form of expression of who we are as “civilized” human beings. What really is an art “treasure” ? To date, no one can actually come up with an answer to that question.
Art ownership is forever transformed by acts of plunder and genocide. The demand for restitution clashes with dominant ideas about the value and meaning of art in society, especially for those who have been given the power to shape the esthetics of our society. Woe on those who dared own art objects that did not fit the ruling definition of acceptable art which was then plundered and becomes forever lost in the maelstrom of the global art market for others to enjoy at the expense of the victims. We can legitimately posit that the global art market has been contaminated since the late 1930s with looted, unrestituted art,, coming from both Europe and the Far East.
Can we then deduce that the art world tolerates plunder in the name of beauty and its possession? Perhaps, because, more than 30 billion of euros worth of unprovenanced art changed hands without anyone worrying whether it was stolen or not.
We need to ask ourselves, therefore. Why do we behave in this manner with art? Why do we tolerate the worst excesses and abuses in order to own, view, and enjoy art objects?
What is so complicated about the physical return of a stolen object to its rightful owner? Why does that very act generate so much passion, so much venom especially from the irate current possessor who feels more victimized than a survivor of genocide and victim of cultural plunder?
Is it a symptom of irrepressible narcissistic behavior that seems to pervade today’s elites?
What is it about art that it can generate so much irrationality amongst those who own it, those who curate it, those who steward it? Why does their ethical compass go haywire in the presence of an object that they covet, even if it origins clearly betray acts of illicit transfers of ownership due to conflicts, social upheavals, international conflagrations or outright acts of genocide?
WHY?
Why do governments do nothing to set examples and enforce ethical behavior in the art world?
Thou shall not possess, display, or trade in stolen art. That should be the mantra and yet it is rarely applied.
Showing posts with label claimants. Show all posts
Showing posts with label claimants. Show all posts
04 February 2024
16 November 2019
Historians vs. lawyers
by Marc Masurovsky
The past two decades have witnessed hundreds of restitution cases whose purpose is to reclaim the return of objects looted during the Nazi era. Although the claimants are located around the world, the legal actions are concentrated in so-called market nations, namely in North America, Europe and occasionally in Japan.
These cases set out to fix, to repair historical wrongs. Ambassador Stuart Eizenstat came up with what turned out to be an enduring catch phrase to describe such actions: “just and fair solutions”. It’s anyone’s guess, frankly, what constitutes “fair” and “just” solutions. They vary greatly whether you are the current possessor or the victim’s heir/heiress.
Still, the wrongs being repaired took place during a historical act of genocide that spanned the greater part of 12 years, from 1933 to 1945. It was aimed principally at the citizens of European countries of Jewish descent. Thus, art restitution is an act of justice seeking to repair a historical wrong.
To establish the facts and circumstances surrounding the “historical wrong”, lawyers—who are not trained historians—rely on those who have made it their career to examine the historical past, understand its many sinews and meanders and interpret it for a larger public. Hence, lawyers need historians to compile evidence and build a persuasive case to convince a current possessor of the looted object either through mediation or before a judicial authority that the looted object should be returned to his/her client.
If lawyers need historians, historians do not need lawyers.
The past two decades have witnessed hundreds of restitution cases whose purpose is to reclaim the return of objects looted during the Nazi era. Although the claimants are located around the world, the legal actions are concentrated in so-called market nations, namely in North America, Europe and occasionally in Japan.
These cases set out to fix, to repair historical wrongs. Ambassador Stuart Eizenstat came up with what turned out to be an enduring catch phrase to describe such actions: “just and fair solutions”. It’s anyone’s guess, frankly, what constitutes “fair” and “just” solutions. They vary greatly whether you are the current possessor or the victim’s heir/heiress.
Still, the wrongs being repaired took place during a historical act of genocide that spanned the greater part of 12 years, from 1933 to 1945. It was aimed principally at the citizens of European countries of Jewish descent. Thus, art restitution is an act of justice seeking to repair a historical wrong.
To establish the facts and circumstances surrounding the “historical wrong”, lawyers—who are not trained historians—rely on those who have made it their career to examine the historical past, understand its many sinews and meanders and interpret it for a larger public. Hence, lawyers need historians to compile evidence and build a persuasive case to convince a current possessor of the looted object either through mediation or before a judicial authority that the looted object should be returned to his/her client.
If lawyers need historians, historians do not need lawyers.
And yet…
The variegated ways by which art objects were forcibly removed from the ownership and control of their rightful Jewish owners can give us pause. Here are some, not all by any means:
-forced sales
-duress sales
-confiscations
-seizures
-sales while fleeing the site of persecution (flight sales or fluchtgut).
These complex “transactions” were deemed illicit by Allied powers fighting the Axis (Germany, Italy, and Japan) in a series of declarations during and after WWII making it clear that those responsible for aiding, abetting and/or provoking such illicit acts of forcible removal would be held accountable after the Allied victory over the Axis.
These illicit acts, in the eyes of those who study them—the historians—need to be clearly defined and all of their possible variations fully delineated and outlined so that their many permutations can be factored into legal proceedings.
By some perverse twist, American lawyers have increasingly opposed historians’ efforts to come up with clear definitions and delineations of these historical wrongs because any definition might impair their ability to successfully prosecute a claim against a current possessor.
The world is a strange place especially when, in order to repair a historical wrong tied to an act of genocide, a historian is asked to be silent on the exact details of these illicit acts.
Let’s be very clear here: historians need to do their jobs which is to apprehend the complexities of the past and explain them to the public in order to promote greater knowledge and enlightenment about what human beings do to other human beings so that, hopefully, we might not repeat such heinous acts in the future. Nice thought, I know.
Likewise, lawyers must do their job and protect their clients’ interests. For that, they need historians and other specialists to help them harness the facts of a case.
One thing they cannot do is order historians to censor themselves, just like historians do not ask lawyers to censor themselves.
Therefore, historians and researchers steeped in the tangled webs of persecution and exploitation of Jewish members of national communities between 1933 and 1945 will continue to study, examine, share in public and in private their findings and publish them where appropriate so that the many can have access to such knowledge.
Lawyers are intelligent people; they will surely find a way to adapt to such a state of affairs. After all, they cannot control the dissemination of knowledge anymore than governments can. And should not, under any circumstance.
Facts, ma’am, just the facts.
Some of the main Allied declarations:
The variegated ways by which art objects were forcibly removed from the ownership and control of their rightful Jewish owners can give us pause. Here are some, not all by any means:
-forced sales
-duress sales
-confiscations
-seizures
-sales while fleeing the site of persecution (flight sales or fluchtgut).
These complex “transactions” were deemed illicit by Allied powers fighting the Axis (Germany, Italy, and Japan) in a series of declarations during and after WWII making it clear that those responsible for aiding, abetting and/or provoking such illicit acts of forcible removal would be held accountable after the Allied victory over the Axis.
These illicit acts, in the eyes of those who study them—the historians—need to be clearly defined and all of their possible variations fully delineated and outlined so that their many permutations can be factored into legal proceedings.
By some perverse twist, American lawyers have increasingly opposed historians’ efforts to come up with clear definitions and delineations of these historical wrongs because any definition might impair their ability to successfully prosecute a claim against a current possessor.
The world is a strange place especially when, in order to repair a historical wrong tied to an act of genocide, a historian is asked to be silent on the exact details of these illicit acts.
Let’s be very clear here: historians need to do their jobs which is to apprehend the complexities of the past and explain them to the public in order to promote greater knowledge and enlightenment about what human beings do to other human beings so that, hopefully, we might not repeat such heinous acts in the future. Nice thought, I know.
Likewise, lawyers must do their job and protect their clients’ interests. For that, they need historians and other specialists to help them harness the facts of a case.
One thing they cannot do is order historians to censor themselves, just like historians do not ask lawyers to censor themselves.
Therefore, historians and researchers steeped in the tangled webs of persecution and exploitation of Jewish members of national communities between 1933 and 1945 will continue to study, examine, share in public and in private their findings and publish them where appropriate so that the many can have access to such knowledge.
Lawyers are intelligent people; they will surely find a way to adapt to such a state of affairs. After all, they cannot control the dissemination of knowledge anymore than governments can. And should not, under any circumstance.
Facts, ma’am, just the facts.
Some of the main Allied declarations:
"Inter-Allied Declaration on Axis Acts of Dispossession" (London Declaration) of 5 January 1943
Bretton Woods Resolution VI of 20 July 1944
Bretton Woods Resolution VI of 20 July 1944
12 February 2016
Why oppose the physical restitution of looted cultural objects?
by Marc Masurovsky
When a claim is filed for the return of an object that was allegedly misappropriated during the Nazi/Fascist era and especially as a result of anti-Jewish persecutions, the current possessor who receives the claim can either be an individual, a private entity, an entity controlled or owned by a public agency, and/or the public agency itself and its overseer (usually referred to as “the government”).
Individual possessors are mostly private collectors who have invested in the art market and whose main occupation is not necessarily the buying and selling of art. Objects in private collections are, by definition, the most difficult to trace because, unless there is a public record of all private transactions involving art objects of any kind, the chances are close to nil for a victim of cultural plunder or his/her heirs to locate the object unless several conditions are met:
1/ the person who took possession of the looted object dies and his/her estate is put up for sale. In this instance, the catalogue will list the item being claimed. If it is not deemed as important or “interesting” (whatever that actually means), there may not be a reproduction of the object in the sales catalogue, only a description. But if the object rises to the occasion and is worthy of being photographed, the process of identification is facilitated by the publication of a photograph. This does not mean that the claimant remembers what the object looked like but he/she might have a photo of it hanging or displayed in a room of the residence from which it was wrongly removed.
2/ the looted object is featured in a catalogue of a particular artist’s production. For instance, if you have lost a work by Degas, chances are that you will consult major publications pertaining to the artist who loved to paint young ballerinas and race horses. Catalogues raisonnés, exhibition brochures, specialized monographs, are all part of the arsenal of the claimant to locate the lost item. That does not imply that victims of cultural plunder spend eight hours a day, five days a week, looking for their stolen property. This should be a shared burden, whereby the current possessor should exercise reasonable multi-source due diligence before acquiring or displaying an art object. In all cases, the onus is placed on the claimant to do her "homework" and search, and search. Thankfully, judges have weighed in favor of victims when harassed by the current possessor's lawyers for not consulting art historical sources on a regular basis to prove that they were being diligent in the search for their lost property.
3/ the unimaginable: a claimant or a friend of hers walks into a residence, or a museum, or any building harboring works and objects of art, and recognizes (or thinks she recognizes) the lost item. It does happen, it has happened, and once over the shock, with some time elapsing from the initial (re)viewing of the lost object, the claimant initiates the process of confirming that it is in fact the same object and must decide whether to ask for its restitution. That can be the hardest decision to make. Since no statistics are kept about art claims resulting from Holocaust-era and Nazi/Fascist misappropriations, it is impossible to know how many individuals have mulled the idea of filing a claim and decided not to, in the end, because of financial and emotional cost associated with a long and burdensome legal entanglement.
Looted objects also end up with privately-held businesses whether or not these businesses base their commercial activity on the trade in cultural objects. Private entities that are most likely to hold and display works and objects of art are corporations, professional services firms which dispense legal, financial, and other types of specialized counsel for a fee and whose office spaces (including but not limited to hallways, lobbies, atria, enclosed gardens, and meeting rooms) are adorned with objects of art from all corners of the world. The theory goes that a visitor feels at ease in the presence of so much beauty on display and can only surmise that he/she will be encountering “cultured” individuals.
And of course, art and/or antiquities galleries, auction houses, flea markets, bric a brac stores, emporia.
Amazingly so, government offices do get decorated with important works of art and decorative objects either borrowed from state-owned museums or from government-run warehouses and storage depots where untold numbers of objects belonging to identifiable and heirless victims sit in limbo, the playthings of government-appointed civil servants and cultural officials.
When faced with a claim, there are numerous defensive postures that are used to repel the attempt to recover. What you will read below has been told to claimants more than once:
1/ you must be confused, it’s not the same object;
2/ do you have any proof that it is actually yours to claim?
3/ how dare you? I am insulted.
4/ I bought it fair and square.
5/ my parents gave it to me.
6/ I inherited it.
7/ I didn’t steal it. And in any case, even if it was stolen, it happened a long time ago. So go away…
8/ finders keepers losers weepers. In any event, we won the war. [the trophy art argument ad reductionem]
9/ It belongs to our museum. It will never leave.
and many more…
None of those responses are particularly inviting. They discourage moral and ethical solutions leading to restitution so that the claimant can close the book on a very upsetting moment in history which affected her and her family very deeply. The knowledge of the presence of the un-restituted object reopens old wounds, brings back memories left to be forgotten, re-awakens ancient emotions that no one wanted to “feel” again. The process of restitution can be a very jarring emotional experience.
To make matters worse, most often, the claimant is forced to press her claim through a body of laws and legal theories that are better suited for recovering a stolen car. How do you compare a stolen car to a painting looted by Nazi henchmen? Unfortunately, the law is highly reductionist and lawyers retained to represent claimants or to defend against them, must take a traumatic historical event, shove it through a sieve, and reduce its complex components, to a simpler distillation of facts that can match one or more legal theories or strategies which were not designed to incorporate extraordinary human failures resulting in mass death and genocide.
After half a century of litigation involving Nazi thefts of art owned by Jewish victims, no country has frayed a clear path to aid victims and survivors of genocide recover their property without the humiliation and stress associated with years of litigation that might lead to defeat and huge costs.
When a claim is filed for the return of an object that was allegedly misappropriated during the Nazi/Fascist era and especially as a result of anti-Jewish persecutions, the current possessor who receives the claim can either be an individual, a private entity, an entity controlled or owned by a public agency, and/or the public agency itself and its overseer (usually referred to as “the government”).
Individual possessors are mostly private collectors who have invested in the art market and whose main occupation is not necessarily the buying and selling of art. Objects in private collections are, by definition, the most difficult to trace because, unless there is a public record of all private transactions involving art objects of any kind, the chances are close to nil for a victim of cultural plunder or his/her heirs to locate the object unless several conditions are met:
1/ the person who took possession of the looted object dies and his/her estate is put up for sale. In this instance, the catalogue will list the item being claimed. If it is not deemed as important or “interesting” (whatever that actually means), there may not be a reproduction of the object in the sales catalogue, only a description. But if the object rises to the occasion and is worthy of being photographed, the process of identification is facilitated by the publication of a photograph. This does not mean that the claimant remembers what the object looked like but he/she might have a photo of it hanging or displayed in a room of the residence from which it was wrongly removed.
2/ the looted object is featured in a catalogue of a particular artist’s production. For instance, if you have lost a work by Degas, chances are that you will consult major publications pertaining to the artist who loved to paint young ballerinas and race horses. Catalogues raisonnés, exhibition brochures, specialized monographs, are all part of the arsenal of the claimant to locate the lost item. That does not imply that victims of cultural plunder spend eight hours a day, five days a week, looking for their stolen property. This should be a shared burden, whereby the current possessor should exercise reasonable multi-source due diligence before acquiring or displaying an art object. In all cases, the onus is placed on the claimant to do her "homework" and search, and search. Thankfully, judges have weighed in favor of victims when harassed by the current possessor's lawyers for not consulting art historical sources on a regular basis to prove that they were being diligent in the search for their lost property.
3/ the unimaginable: a claimant or a friend of hers walks into a residence, or a museum, or any building harboring works and objects of art, and recognizes (or thinks she recognizes) the lost item. It does happen, it has happened, and once over the shock, with some time elapsing from the initial (re)viewing of the lost object, the claimant initiates the process of confirming that it is in fact the same object and must decide whether to ask for its restitution. That can be the hardest decision to make. Since no statistics are kept about art claims resulting from Holocaust-era and Nazi/Fascist misappropriations, it is impossible to know how many individuals have mulled the idea of filing a claim and decided not to, in the end, because of financial and emotional cost associated with a long and burdensome legal entanglement.
Looted objects also end up with privately-held businesses whether or not these businesses base their commercial activity on the trade in cultural objects. Private entities that are most likely to hold and display works and objects of art are corporations, professional services firms which dispense legal, financial, and other types of specialized counsel for a fee and whose office spaces (including but not limited to hallways, lobbies, atria, enclosed gardens, and meeting rooms) are adorned with objects of art from all corners of the world. The theory goes that a visitor feels at ease in the presence of so much beauty on display and can only surmise that he/she will be encountering “cultured” individuals.
And of course, art and/or antiquities galleries, auction houses, flea markets, bric a brac stores, emporia.
Amazingly so, government offices do get decorated with important works of art and decorative objects either borrowed from state-owned museums or from government-run warehouses and storage depots where untold numbers of objects belonging to identifiable and heirless victims sit in limbo, the playthings of government-appointed civil servants and cultural officials.
When faced with a claim, there are numerous defensive postures that are used to repel the attempt to recover. What you will read below has been told to claimants more than once:
1/ you must be confused, it’s not the same object;
2/ do you have any proof that it is actually yours to claim?
3/ how dare you? I am insulted.
4/ I bought it fair and square.
5/ my parents gave it to me.
6/ I inherited it.
7/ I didn’t steal it. And in any case, even if it was stolen, it happened a long time ago. So go away…
8/ finders keepers losers weepers. In any event, we won the war. [the trophy art argument ad reductionem]
9/ It belongs to our museum. It will never leave.
and many more…
None of those responses are particularly inviting. They discourage moral and ethical solutions leading to restitution so that the claimant can close the book on a very upsetting moment in history which affected her and her family very deeply. The knowledge of the presence of the un-restituted object reopens old wounds, brings back memories left to be forgotten, re-awakens ancient emotions that no one wanted to “feel” again. The process of restitution can be a very jarring emotional experience.
To make matters worse, most often, the claimant is forced to press her claim through a body of laws and legal theories that are better suited for recovering a stolen car. How do you compare a stolen car to a painting looted by Nazi henchmen? Unfortunately, the law is highly reductionist and lawyers retained to represent claimants or to defend against them, must take a traumatic historical event, shove it through a sieve, and reduce its complex components, to a simpler distillation of facts that can match one or more legal theories or strategies which were not designed to incorporate extraordinary human failures resulting in mass death and genocide.
After half a century of litigation involving Nazi thefts of art owned by Jewish victims, no country has frayed a clear path to aid victims and survivors of genocide recover their property without the humiliation and stress associated with years of litigation that might lead to defeat and huge costs.
It makes one wonder whether government officials, members of the art trade and their sycophantic allies would just wish "bad" history to go away so that they can enjoy the fruits of cultural plunder. and not have to incorporate THAT history into the retelling of the story of art.
Or is that unfair?
In my view, they are the original revisionists, choosing to omit History from the history of art objects.
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