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.
Showing posts with label repatriation. Show all posts
Showing posts with label repatriation. Show all posts
15 April 2018
31 July 2011
Restitution vs. replacement-in-kind: a French approach to cultural plunder
When the Allied powers became gradually aware of the extent of the cultural looting being perpetrated by the Nazis and their local henchmen across continental Europe, they formulated a number of principles which, on face value, were high-minded and honorable.
In the Allies’ view, all items stolen or forcibly removed from the possession of civilians in Nazi-occupied territories should be restituted to the rightful owners upon cessation of hostilities. In other words, once peace returned to the European continent, those who had been stripped of their belongings because of who they were and what they were could obtain the return of those objects, as long as they could be located and identified as theirs. Through an elaborate and ill-organized system of claims, the Allies processed hundreds of thousands of requests for restitution of cultural and other assets.
The simplicity of Allied intentions to return stolen objects to their rightful owners quickly ran afoul of customary international law whereby the rights of nations supersede those of individuals. In terms of property recoveries and returns, Allied diplomats swiftly veered off course and established the preeminent principle of repatriation—the return of looted objects to the country from which it had been forcibly removed. Once repatriation had taken place, the recipient country was held responsible for restituting those returned objects to their rightful owners.
The French postwar authorities responsible for cultural restitution publicly and vociferously stated what many of their formerly occupied neighbors—Belgium and Holland in particular—kept to themselves: that their cultural losses were so extensive that they were entitled to replace those items looted from their territory with items that resembled or were close in value and theme to those which they had lost to the Nazi invader. More specifically, the French government included replacement in kind in its panoply of measures designed to repair the harm done to the French “patrimoine” or “cultural legacy.” Allied protestations were duly noted (The US and Great Britain opposed replacement policies which were implemented by France and the Soviet Union).
How did this translate into practice?
French missions would set out for the US occupation zones of Germany and Austria armed with lists of objects looted by Nazi officials between 1940 and 1944. The easiest place to find those objects was at the many collecting points established by US authorities to centralize the collection, identification, and disposal of items located across their respective zones of occupation which they suspected of being looted cultural property. Many items were identified as having been acquired in France during the war and therefore could be turned over to the French authorities for return to France.
A careful study of cultural objects assembled under the rubric of “Musées Nationaux Récupération” or MNR allows us to reach certain conclusions.
Who wins?
Clearly, the seller won because he or she was paid fair market value and more for objects sold under Nazi rule.
Clearly, the French government won because it obtained for free items traded during the occupation on the so-called “legitimate” art market, the market against which neither Vichy nor the German occupation authorities dared intervene because it was so lucrative and bountiful for all parties.
In sum, replacement in kind benefited postwar France by replenishing and embellishing its State collections. The French recovery missions, staffed by Museum curators and art specialists, acted as selection committees for vetting future accessions to their collections.
Were the sellers collaborating with the Germans by selling freely and openly to them? If so, were they punished with heavy fines and even jail terms or loss of voting rights? Aside from fines levied against a handful of the most notorious art market dealers, everyone did fine and continued to trade “sans inquiétude”—without any worry whatsoever.
Since most objects in the MNR category were acquired on the “open market” in France during the German occupation, chances are that they had nothing to do with an act of persecution motivated by racial, political, or other motives. For that reason alone, these objects should be removed from the MNR category because it is hypocritical to equate them with objects in that list that truly were plundered from Jewish victims who remain unidentified.
Interestingly enough, real estate that had been owned by Jews and expropriated from them during the Vichy years, to a large extent, was never restituted after the war, even if it was clear as crystal that the property had been subject to an act of plunder through expropriation and forced sale. The same holds for true for factories, stores, banks, investment firms, and other forms of assets, which continue to be claimed today, albeit with highly inconsistent results.
Time to stop picking on France. This story of failed restitution applies universally to all European countries.
In the Allies’ view, all items stolen or forcibly removed from the possession of civilians in Nazi-occupied territories should be restituted to the rightful owners upon cessation of hostilities. In other words, once peace returned to the European continent, those who had been stripped of their belongings because of who they were and what they were could obtain the return of those objects, as long as they could be located and identified as theirs. Through an elaborate and ill-organized system of claims, the Allies processed hundreds of thousands of requests for restitution of cultural and other assets.
The simplicity of Allied intentions to return stolen objects to their rightful owners quickly ran afoul of customary international law whereby the rights of nations supersede those of individuals. In terms of property recoveries and returns, Allied diplomats swiftly veered off course and established the preeminent principle of repatriation—the return of looted objects to the country from which it had been forcibly removed. Once repatriation had taken place, the recipient country was held responsible for restituting those returned objects to their rightful owners.
The French postwar authorities responsible for cultural restitution publicly and vociferously stated what many of their formerly occupied neighbors—Belgium and Holland in particular—kept to themselves: that their cultural losses were so extensive that they were entitled to replace those items looted from their territory with items that resembled or were close in value and theme to those which they had lost to the Nazi invader. More specifically, the French government included replacement in kind in its panoply of measures designed to repair the harm done to the French “patrimoine” or “cultural legacy.” Allied protestations were duly noted (The US and Great Britain opposed replacement policies which were implemented by France and the Soviet Union).
How did this translate into practice?
French missions would set out for the US occupation zones of Germany and Austria armed with lists of objects looted by Nazi officials between 1940 and 1944. The easiest place to find those objects was at the many collecting points established by US authorities to centralize the collection, identification, and disposal of items located across their respective zones of occupation which they suspected of being looted cultural property. Many items were identified as having been acquired in France during the war and therefore could be turned over to the French authorities for return to France.
A careful study of cultural objects assembled under the rubric of “Musées Nationaux Récupération” or MNR allows us to reach certain conclusions.
- the American government allowed French recovery missions to repatriate any art object found on German or Austrian soil for which the French laid a claim on the presumption that the item had come from France. As an example, a search on the word "probablement" (probably) in the "Musées Nationaux Récupération" database yields 222 items which may not be of French origin, but were handed over to France and incorporated into various city and national museums.
- Many of those items claimed by the French government had been acquired from merchants, dealers, and galleries in German-occupied France. Whether or not the transaction involved an object looted from a Jewish owner or not was immaterial. The fact is that the object had been acquired in France during the war and brought back to Germany or Austria by its new owners.
- Based on the aforementioned, any transaction involving art objects which had occurred in occupied France entitled postwar French authorities to claim those objects as property of the French State regardless of the nature of the transaction.
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| Photographies prises au Jeu de Paume sous l'Occupation Source: Site Rose-Valland -- MNR |
Clearly, the seller won because he or she was paid fair market value and more for objects sold under Nazi rule.
Clearly, the French government won because it obtained for free items traded during the occupation on the so-called “legitimate” art market, the market against which neither Vichy nor the German occupation authorities dared intervene because it was so lucrative and bountiful for all parties.
In sum, replacement in kind benefited postwar France by replenishing and embellishing its State collections. The French recovery missions, staffed by Museum curators and art specialists, acted as selection committees for vetting future accessions to their collections.
Were the sellers collaborating with the Germans by selling freely and openly to them? If so, were they punished with heavy fines and even jail terms or loss of voting rights? Aside from fines levied against a handful of the most notorious art market dealers, everyone did fine and continued to trade “sans inquiétude”—without any worry whatsoever.
Since most objects in the MNR category were acquired on the “open market” in France during the German occupation, chances are that they had nothing to do with an act of persecution motivated by racial, political, or other motives. For that reason alone, these objects should be removed from the MNR category because it is hypocritical to equate them with objects in that list that truly were plundered from Jewish victims who remain unidentified.
Interestingly enough, real estate that had been owned by Jews and expropriated from them during the Vichy years, to a large extent, was never restituted after the war, even if it was clear as crystal that the property had been subject to an act of plunder through expropriation and forced sale. The same holds for true for factories, stores, banks, investment firms, and other forms of assets, which continue to be claimed today, albeit with highly inconsistent results.
Time to stop picking on France. This story of failed restitution applies universally to all European countries.
21 May 2011
May 1945 and beyond
The Second World War is over in Europe and North Africa. The Third Reich no longer exists. The only active military front is in Asia where the Japanese Imperial Army continues to put up fierce resistance to American-led troops. That all comes to an end with the detonation of two atomic devices, one over Hiroshima and another over Nagasaki, in early August 1945.
60 million people are known to have died as a direct result of the Second World War. This figure includes six million Jewish men, women, and children exterminated in death camps, ghettos, forests, fields, marshes, and concentration camps. It also includes at least 5 million men, women, and children of other faiths decimated in concentration camps, forced labor, in villages and cities across Axis-occupied Europe. The remainder died in the crossfire between rival armies, as victims of reprisal killings, from hunger, disease, and exposure to the elements.
The victorious Allied powers set in motion policies to effect the repatriation of assets looted by the Axis to the countries from where they were forcibly removed. While laying down complex reparations formulae that leave no country satisfied, they also lay claims to assets owned by the Reich and its collaborators in countries often referred to as ‘neutral’, viz., Sweden, Spain, Portugal, Switzerland, and to a far lesser extent, Turkey, and Argentina.
Restitution is often confused with repatriation, but one thing is certain, restitution can only mean one thing: return of a stolen object to its rightful owner.
France and the Soviet Union argue for replacement policies—to replace objects stolen from them with objects of similar quality and value in the current possession of the defeated powers. The United States and Great Britain oppose such a move. While France continues to press for replacement into the early 1950s, the Soviet Union does not quibble over words and policies. It is busy removing untold numbers of items, equipment, and other goods from countries that the Red Army overran in its bid to defeat the Third Reich as partial payment for its losses—both infrastructural and human. One out of every three Soviet male between the ages of 17 and 45 is dead or unaccounted for at the end of the global conflict.
It is fair to say that 90 per cent of all those involved in direct fashion with the cultural plunder of Europe escaped severe punishment, with the notable exception of Alfred Rosenberg and a handful of his acolytes. The rest faced mostly fines, escaped prosecution altogether, and few were tried and handed down light sentences.
Every formerly occupied country in Europe busily enacts laws that restrict the ability of victims to recover items plundered by fellow citizens. Most egregious are the waivers granted to so-called third-party transactions: all individuals who were involved in brokering forced sales and illegal removals of property are granted the benefit of the doubt, lest it be explicitly proven that they knowingly handled items which had been misappropriated for racial and other reasons. Worst of all: the main proponent of postwar restitution, namely the United States, walks away from the restitution process in the early 1950s, feeling that the job was 'well done', ignoring the plight of claimants who by then have become naturalized US citizens.
No one has done an accounting of the numbers of claimants who actually obtained restitution of lost items and assets. Judging by the number of victims, their surviving next of kin, the figures can only be ridiculously low--in the single percentile digits.
Where are all the looted objects, aside from those which victorious armies recover by the truckloads in the aftermath of victory?
From East to West:
Plundered items infest bustling black markets across Europe; their sheer numbers make it impossible for local and Allied police and investigative agencies to intercept them. As a result, these items will slip through export restrictions and end up in collections as far away as Argentina.
The residual problem of World War II and Holocaust-related plunder is a global problem since, if half of what has just been put forth is correct, looted items are to be found everywhere, both in private and government hands. If we want to resolve this question in a way that is acceptable to all parties, knowing full well that full, 100 per cent restitution was--and will never be--possible, all countries involved must come to the table and carve out a solution which allows them once and for all to close the book on one of the worst chapters of human history. Failing that, all that we have accomplished is to inform the next generation that plunder is permissible and the passage of time allows the thieves to enjoy the fruits of their mischief without fear of accountability.
60 million people are known to have died as a direct result of the Second World War. This figure includes six million Jewish men, women, and children exterminated in death camps, ghettos, forests, fields, marshes, and concentration camps. It also includes at least 5 million men, women, and children of other faiths decimated in concentration camps, forced labor, in villages and cities across Axis-occupied Europe. The remainder died in the crossfire between rival armies, as victims of reprisal killings, from hunger, disease, and exposure to the elements.
The victorious Allied powers set in motion policies to effect the repatriation of assets looted by the Axis to the countries from where they were forcibly removed. While laying down complex reparations formulae that leave no country satisfied, they also lay claims to assets owned by the Reich and its collaborators in countries often referred to as ‘neutral’, viz., Sweden, Spain, Portugal, Switzerland, and to a far lesser extent, Turkey, and Argentina.
Restitution is often confused with repatriation, but one thing is certain, restitution can only mean one thing: return of a stolen object to its rightful owner.
France and the Soviet Union argue for replacement policies—to replace objects stolen from them with objects of similar quality and value in the current possession of the defeated powers. The United States and Great Britain oppose such a move. While France continues to press for replacement into the early 1950s, the Soviet Union does not quibble over words and policies. It is busy removing untold numbers of items, equipment, and other goods from countries that the Red Army overran in its bid to defeat the Third Reich as partial payment for its losses—both infrastructural and human. One out of every three Soviet male between the ages of 17 and 45 is dead or unaccounted for at the end of the global conflict.
It is fair to say that 90 per cent of all those involved in direct fashion with the cultural plunder of Europe escaped severe punishment, with the notable exception of Alfred Rosenberg and a handful of his acolytes. The rest faced mostly fines, escaped prosecution altogether, and few were tried and handed down light sentences.
Every formerly occupied country in Europe busily enacts laws that restrict the ability of victims to recover items plundered by fellow citizens. Most egregious are the waivers granted to so-called third-party transactions: all individuals who were involved in brokering forced sales and illegal removals of property are granted the benefit of the doubt, lest it be explicitly proven that they knowingly handled items which had been misappropriated for racial and other reasons. Worst of all: the main proponent of postwar restitution, namely the United States, walks away from the restitution process in the early 1950s, feeling that the job was 'well done', ignoring the plight of claimants who by then have become naturalized US citizens.
No one has done an accounting of the numbers of claimants who actually obtained restitution of lost items and assets. Judging by the number of victims, their surviving next of kin, the figures can only be ridiculously low--in the single percentile digits.
Where are all the looted objects, aside from those which victorious armies recover by the truckloads in the aftermath of victory?
From East to West:
- items removed from Soviet territory, Hungary, Czechoslovakia, and Poland, find their way into Germany, Austria, and Switzerland. For instance, many cultural objects stolen in Poland are discovered in the French zone of Occupation in Germany, while Russian icons, books from the Ukraine and private collections from Latvia end up in various parts of Austria and Germany. Although a percentage of those items are repatriated to the Soviet Union, the picture is unclear as to their numbers and the percentage that they represent of all items recovered by Allied forces.
- items from Yugoslavia enter Italy, Austria, and Switzerland.
- items from Italy go north to Switzerland, Germany, and Austria, as well as west to Spain and France (after August 1944).
- items from France, Belgium, Holland, travel to Italy, Spain, Germany, and as far as Austria and Poland, and in some cases even to German-occupied Ukraine where Belgian books looted by the ERR find a final resting place.
- items discovered in the various zones of occupation controlled by Great Britain, the United States, France, and the Soviet Union in Germany and Austria will never be properly repatriated and/or restituted and, instead, are transferred to the territories of the occupying powers.
Plundered items infest bustling black markets across Europe; their sheer numbers make it impossible for local and Allied police and investigative agencies to intercept them. As a result, these items will slip through export restrictions and end up in collections as far away as Argentina.
The residual problem of World War II and Holocaust-related plunder is a global problem since, if half of what has just been put forth is correct, looted items are to be found everywhere, both in private and government hands. If we want to resolve this question in a way that is acceptable to all parties, knowing full well that full, 100 per cent restitution was--and will never be--possible, all countries involved must come to the table and carve out a solution which allows them once and for all to close the book on one of the worst chapters of human history. Failing that, all that we have accomplished is to inform the next generation that plunder is permissible and the passage of time allows the thieves to enjoy the fruits of their mischief without fear of accountability.
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