By Nikki Georgopulos, special to “plundered art”
There has been a great deal of opining and sounding off
recently among lawyers, professors, art historians, and art-related
organizations as to whether the Foreign Cultural Exchange Judicial Immunity
Clarification Act, otherwise known as Senate Bill 2212 (S.2212), should be
passed into law. Currently stuck in the Senate Judiciary Committee, the fact
that no decision has been made has seemed only to increase the agonizing among
those concerned.
The bill,
introduced to the 112
th Congress in its second session in March
2012, would amend the judicial code concerning property rights and the protections
of objects of “cultural significance” that is imported into the United States
for the purposes of “temporary exhibition or display.” The key to understanding
this relatively brief bill (it consists of less than 500 words) is to examine
the other sections of US law with which it interacts. The most notable instance
of this is the
Immunity from
Judicial Seizure Statute, otherwise known as Section 2459 of Title 22 of
the US Code (commonly referred to as 22 USC 2459). Under the jurisdiction of
the State Department, 22 USC 2459 “protects from seizure or other judicial
process certain objects of cultural significance imported into the United
States for temporary display or exhibition.”
The statute acts to guarantee foreign lenders (such as
museums, private collections, educational institutions, etc.) that if they loan
a cultural object to an institution within the United States, the lender is
protected from any other claims of custody. That is to say, the object in
question is protected by US law and granted immunity from seizure. The
perceived benefit of 22 USC 2459 is that it encourages foreign lenders to send
their cultural objects to the United States for exhibition, insofar as they can
feel secure in the guarantee that the objects will be safely restored to their
custody. This benefits museums and the American public in many obvious ways,
and appeals to the “art as ambassador” argument that holds that the exchange of
cultural objects supports cross-cultural understanding and cooperation. The
problem, as many have pointed out, is that this protects objects that were
obtained illicitly, whether by theft, looting, or illegal trade.
The proposed bill would act in accordance with the Immunity
from Judicial Seizure Statute, but with one condition that has come to be known
as the “Nazi exception.” The bill declares:
‘(2) NAZI-ERA CLAIMS- Paragraph (1)
[which reiterates the protections provided under the Immunity from Judicial
Seizure Statute] shall not apply in any case in which—
‘(A) the action is based upon a
claim that the work was taken in Europe in violation of international law by a
covered government during the covered period;
[…]
‘(3) DEFINITIONS- For purposes of
this subsection--
‘(A) the term ‘work’ means a work
of art or other object of cultural significance; and
‘(B) the term
‘covered government’ means--
‘(i) the Nazi
government of Germany;
‘(ii) any government in any area
occupied by the military forces of the Nazi government of Germany;
‘(iii) any government established
with the assistance or cooperation of the Nazi government; and
‘(iv) any government that was an
ally of the Nazi government of Germany; and
‘(C) the term ‘covered period’
means the period beginning on January 30, 1933, and ending on May 8, 1945.’.
To summarize, the so-called Nazi exception allows for suits
to be filed that are based upon claims that the work in question was illegally
obtained by the Nazi government or any Nazi-affiliated government during what
the bill would define as the “Nazi Era” (January 30, 1933 to May 8, 1945). In
other words, victims of Nazi theft and their heirs ostensibly retain the right
to file a claim against a foreign lending institution in order to obtain their
object.
Upon first glance, this would seem to not only make sense,
but also be beneficial to those victims of the Nazi-era and their heirs who are
seeking restitution. As it turns out, this is where things become seriously
problematic. Many, such as
cultural
heritage lawyer Rick St. Hilaire, believe
that S.2212 sufficiently protects both claimants and lending institutions,
reaffirming the US’s commitment to protecting the cultural objects of foreign
lenders. St. Hilaire’s points about the need to reassure foreign lending
institutions, thus encouraging further lending, are well taken, and are
commonly expressed in the art world today. However, other figures in the
cultural heritage protection community are not so sure. According to
a post on the
website of the organization Saving Antiquities for Everyone (SAFE), the
bill “sends an awful message that is in complete opposition to the U.S.
commitment to cultural protection and preservation.”
SAFE rightly points out that the bill does not protect antiquities
that were illegally excavated and exported from their countries of origin. This
might be overlooked if there wasn’t staggering evidence that illicitly obtained
antiquities have permeated the licit art trade in large quantities (Part Two of
this article will cover this aspect in more detail), such as the recent scandal
that overtook the J. Paul Getty Museum.
Another concern is one that strikes many as ethically questionable,
as the bill seems to create a sort of hierarchy of atrocities. In a
post
by Catherine Sezgin on the Association for Research into Crimes Against Art’s
blog, HARP co-founders Marc Masurovsky and Ori Z. Soltes both expressed
concern that while the bill seemingly protects against Nazi-era claims, other instances
of wartime looting are overlooked. Masurovsky further expressed his frustration
in a
New
York Times piece, asking, “How can you excuse 28 different kinds of plunder
and only outlaw one subset of one subset? What is the point here? The only
people who have anything to gain are the museum directors. So we’re basically
saying it’s fine to plunder?” Indeed, to say that losses sustained during the
Second World War are the only ones worth protecting is not only ethically
remiss, but also legally problematic.
Setting aside the concerns of many about the exclusive
nature of the bill, one is forced to ask, how effective is the bill in
protecting Holocaust-era victims and their heirs? The language of the bill
allows for many loopholes and exclusions that would prevent those seeking
restitution from successfully filing claims. Reading through the bill, the
first and perhaps most consequential item of concern comes in section A of
Paragraph 2: “[Judicial immunity] shall not apply in any case in which […] the
action is based upon a claim that the work was taken in Europe in violation of
international law […].” The problem here is that while many of the thefts
committed by the Nazis and related bodies have been deemed in violation of
international law, there remains a gray about which national governments cannot
seem to reach an agreement: that of forced sales.
While the bill covers property confiscations and estate
seizures, there remains the question of those objects that were sold under
duress by those trying to flee Europe for fear of persecution. The history is
clear on this account; many prominent Jewish business people, particularly art
collectors, dealers, and gallerists, had to sell off their belongings and
collections in order to garner the funds necessary to escape Nazi Germany,
France, and other Axis-controlled countries. Additionally, this extends to
those who were not involved in the art community. Many German Jews, for
example, faced serious economic hardship due to forcible exclusion from
participating in the local economy. As a result, they were forced to sell family
heirlooms in order to raise money for leaving the country and to provide for
themselves and their families.
One possible explanation for why
the forced sales question is so difficult to pin down is that it is difficult
to provide evidence for what constitutes a sale under duress versus a normal
sale. Because of this perceived ambiguity in cases of forced sales, there is no
unifying policy that would fall under the category of “international law” to
protect the rights of claimants filing for restitution of objects lost to
forced sales.
The other major red flag in the
bill comes directly after the aforementioned clause: “[Judicial immunity] shall
not apply in any case in which […] the action is based upon a claim that the
work was taken in Europe in violation of international law by a covered government during the covered period […]” (emphasis
added). Paragraph 3 provides the definitions of the covered governments and
period:
‘(B) the term ‘covered government’
means--
‘(i) the Nazi
government of Germany;
‘(ii) any government in any area
occupied by the military forces of the Nazi government of Germany;
‘(iii) any government established
with the assistance or cooperation of the Nazi government; and
‘(iv) any government that was an
ally of the Nazi government of Germany; and
‘(C) the term ‘covered period’
means the period beginning on January 30, 1933, and ending on May 8, 1945.’.
The bill makes it very clear that
it is targeting those affected by the Nazi or otherwise Axis-associated
governments. This overlooks a key group of claimants: those whose possessions
were taken by Allied military agents. The unfortunate truth is that while the
Allies, specifically the US, were responsible for preserving many of the art
objects looted by the Nazis and related organizations, so too were they
responsible for thefts of their own. Many soldiers took home what they may have
considered to be harmless keepsakes. Some scholars posit that Jewish soldiers
took Judaica as an act of protest or anger. In any case, a vast number of art
objects were poorly protected and were easily targeted. Due to the fact that
S.2212 specifies that only those claimants who will be considered are those who
were affected specifically by Axis governments, Allied-looted objects remain
protected. Additionally, there is evidence that looting by Axis forces
continued after May 8, 1945 as German troops were returning home (particularly
from Italy). This further weakens the bill’s claim to protecting victims of
World War II-era losses.
Though ostensibly well
intentioned, S.2212 has obvious weaknesses and carries immense consequences for
not only claimants but also the rest of the art community. Part Two of this
piece will feature multiple voices who will chime in to help tease out those
consequences. It will also examine more closely the antiquities market and how
S.2212 will interact with it if passed into law, as well as the potential
interaction of the bill with the State Department’s application system for
judicial immunity for cultural objects. Among the most troubling of these
consequences is the potential for obfuscation of provenance of art objects that
are crossing US borders under the aegis of this bill.
In the meantime, if you find
yourself in the D.C. area, there is a discussion that is scheduled to take
place tomorrow, October 19, 2012, that will cover S.2212 and related legislation
featuring Marc Masurovsky. He will give a lecture entitled “Art, Antiquities
& War: Is Our Obsession to Possess Art Above the Law.” The lecture and
discussion will also be covered in Part Two of the article. For more
information and advance ticketing, visit the
event page.'
