final international responses to nazi art plunder
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Final International Responses to Nazi Art Plunder and the need of a legally binding treatyTRANSCRIPT
International
responses to Nazi
Art Plunder
The need for a legally binding agreement
Javiera F. Edwards
I6082698
Maastricht University
26/02/2014
"All of this accumulated beauty had been stolen by the most murderous thieves that ever existed on the face of the Earth. How they could retain the nicety of appreciation of great Art and be exterminating millions of people
nearby in concentration camps, I couldn't understand then and I can't understand today"
Dr. Leonard Malamut
Introduction
What have we done about the Nazi plunder of Jewish art property happened back in World
War II? One of the Nazi regime objectives was to confiscated art property from the Jews.
"Plunder of art" and destruction of artwork was considered another method of destroying and
defeating the Jews and their cultural heritage1 . They had an organization, an Official Confiscation Service, also known as the Einsatztab Reichleiters Rosenberg Taskforce. This
service was formed with the goal of creation the “largest private art collection in Europe”. The
Nazi efforts to accomplish this goal were considerable; this can be seen in the fact that
Germany’s central bank used approximately 40 million francs to buy art and antiques in
France alone2. The effects of this huge effort resulted in the distribution of the looted art
across the world in private collections, museums, etc. No one truly knows how much property
was looted, misplaced or destroyed during this time, but it has been estimated that
approximately 650.000 works of art were looted in the “biggest art heist ever”3.
Taking all this into consideration, the question then arises; what have we done to get the
looted art back into the hands of the original, rightful owners or their heirs? The first part of
this paper organizes the international responses to the problem and summarizes them. This
included an analysis of the Washington Conference Principles, the Terezin Declaration and
The American Association of Museum Directors Guidelines, weighing up the positive and
negative aspects of each one of them. Along with this the implications of The Vilnius Forum
Declaration will be explained too.
The second part of the paper shows the different approaches of the following three countries:
Austria, France and Switzerland.
Thirdly, suggested solutions are made, that an international legally binding agreement or the
creation of an International Tribunal could resolve the issue. Finally a conclusion will be
made, summing up all these points.
1 “The Lost Museum” by Hector Feliciano. http://www.bonjourparis.com/story/the-‐lost-‐museum/ (Consulted on 20/03/2014) 2 Ibid. 3 “Thousands of Nazi-‐Looted works are held by museums, survey says” by Catherine Hickley. http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aTk1ztqGBb_I (consulted on 20/03/2014)
1. The Washington Conference Principles on Nazi-‐Confiscated Art
The first thing to say is that these principles was endorsed in The Washington Conference on
Holocaust-‐Era Assets, back in 1998. The Conference was hosted by The Department of State
and the US Holocaust Memorial Museum, and was attended by agents from forty-‐four
countries, as well as a number of non-‐governmental bodies4. The goals of the conference were
to establish international standards for the return of the confiscated assets, specifically art
and insurances. Stuart Eizenstat, Undersecretary of State of the U.S., expressed that “his hope
was that the conference would reach an agreement on guidelines for the restitution on Nazi-‐
confiscated art objects”.
The American delegation drafted eleven principles with respect to Nazi-‐confiscated art and
submitted them to the other participants. The principles are the following:
1. Art that had been confiscated by the Nazis and not subsequently restituted should be
identified.
This means that each of the nations that had participated at The Conference should have
located all the art confiscated by the Nazis that may be in their country. If we talk about
looting, we have to understand that it can be as simple as forced removal of property at gun
point/or with the assistance of local law enforcement and judicial authorities working with
the occupation authority. It can also be the result of so-‐called forced sales or duress sales5.
This is where a problem lies, because not all the countries that attended to the Washington
Conference acknowledges that this so-‐called sales occurred on its territories during those
days of war.
Since the Conference took place, fifteen years ago, there are no firm standards by which to
move forward on identification of all that was confiscated by the Nazis6. It is interesting to
note that this principle does not say in an explicit, textual form that such efforts should be
4 A teacher’s guide to the Holocaust -‐ The Washington Conference on Holocaust-‐Era Assets. http://fcit.usf.edu/holocaust/resource/assets/index.HTM (consulted on 18/03/2014) 5 “Revisiting the Washington Conference Principles on Nazi-‐confiscated Art” http://plundered-‐art.blogspot.nl/2011/06/revisiting-‐washington-‐conference.html 6 Idem.
exhaustive and definitive. That being said each country can do a minimal effort and ensure
that it has abided the principle.
2. Relevant records and archives should be open and accessible to researchers, in
accordance with the guidelines of the International Council on Archives.
With this principle there has been good, but not too extensive, progress. The main problem
that prevents exhaustive research into Nazi looting is the difficulty experienced by all
researchers in gaining access to private archives, especially those developed by art dealers,
art collectors, private and state-‐owned museums, and other cultural institutions.
For instance, in recent court cases in the United States, American museums have been
unwilling to release all records that would shed a full historical light on transactions involving
works being claimed for restitution7.
It can be seen that it is getting difficult to achieve the goal of have the records and archives
open and accessible to the researches. This issue its more complicated, because all these
principles are not legally binding, so all the nations that have signed up them, don’t have a
mandatory obligation to make them happen.
3. Resources and personnel should be made available to facilitate the identification of all
art that had been confiscated by the Nazis and not subsequently restituted.
It’s interesting to notice that this principle embraces the notion that “all art” confiscated by
the Nazis should be identified. This is opposed to principle one, which just discusses “art”. All
endorsers to the Washington Principle have lamented that they do not have the necessary
resources and personnel needed to identify “all art confiscated by the Nazis”8.
For this principle to be achieve, there is a need for resources to complete the task. To resolve
this problem and until this does not happen, there will be not an understanding of the
magnitude of the matter of looted art in State-‐owned and private collections.
7 Idem. 8 Idem.
4. In establishing that a work of art had been confiscated by the Nazis and not
subsequently restituted, consideration should be given to unavoidable gaps or
ambiguities in the provenance in light of the passage of time and the circumstances of
the Holocaust era.
Provenance –ownership history– is everything. If there is a gap in the provenance, it is
because the information is not available. If the information is not available, it is because, as we
noticed in principle two, access is being denied to the relevant information.
How can we apply this principle to objects where the provenance is difficult, if not impossible,
to garner? It is a very difficult goal to achieve, because we have to keep in mind that there
were a lot of objects removed from Jewish homes in small towns, and cities where the Jewish
community was completely annihilated. Also, where records were burned or destroyed, there
is a small chance to provide sufficient evidence to demonstrate the ownership of a piece of art.
The question is: do the courts accept the inevitability of provenance gaps? Do governments
accept provenance gaps when assessing a restitution case? If the answer to this questions is
no, we have to accept that this principle is a failure.
5. Every effort should be made to publicize art that is found to have been confiscated by
the Nazis and not subsequently restituted in order to locate its pre-‐war owners or
their heirs.
Except for lists released by various governments –Netherlands, Germany, France, Poland–
there is a total opacity in this area, which means that this principle has a lot to be desired in
the way of implementation9.
Transparency is the key word here. Governments and institutions harbouring these types of
objects do not practice transparency as a general rule, because it implies that they become
accountable, and this may lead them to all sorts of outcomes, including the restitution.
9 “Revisiting the Washington Conference Principles on Nazi-‐confiscated Art” http://plundered-‐art.blogspot.nl/2011/06/revisiting-‐washington-‐conference.html (Consulted on 23/03/2014)
No one has ever asked museums if they, in fact, have conducted an exhaustive search of their
warehouses, basements, etc. Most of the time they confine their research to objects on display
or selectively to those not on display.
This principle is a double-‐edged sword and the dull edge of it is on full display. However,
every piece of information that is published on a work or object matters.
6. Efforts should be made to establish a central registry of such information.
The Commission for Looted Art in Europe (CLAE) is an example of an institution created with
the goal of commitment to the research and the location of missing artwork for claimants and
institutions internationally. The CLAE established the Central Registry of Information on
Looted Cultural Property, so we can see this principle fulfilled10.
Also we can add a similar institution, the International Foundation for Art Research (IFAR). It
is a private institution, which established the Art Loss Register. This database identifies and
archives information on stolen art.
7. Pre-‐war owners and their heirs should be encouraged to come forward and make
known their claims to art that was confiscated by the Nazis and not subsequently
restituted.
The heirs who can afford to come forward and make their claims find themselves caught up in
a complex situation, where legal restrictions lead them either to accept financial settlements
rather than restitution, or even to see their cases thrown out of court by assertive lawyers
working for museums, dealers and collectors.
There are no solid mechanisms put into place to allow all owners to come forward and make
their claims known, regardless of socio-‐economic background. This principle is useless until
effective public policies are decreed to systematize the processes inherent to this principle
and protective of the rights of claimants to seek compensation without penalties11.
10 “A proposal for arbitration panels to resolve holocaust-‐era art claims” by Jessica Mullery. 11 Idem.
8. If the pre-‐war owners of art that is found to have been confiscated by the Nazis and
not subsequently restituted, or their heirs, can be identified, steps should be taken
expeditiously to achieve a just and fair solution, recognizing this may vary according
to the facts and circumstances surrounding a specific case.
What is a “just and fair solution”? It is fair and just to allow financial settlements? For the
perspective of legal theory and jurisprudence, achieving a just and fair solution without any
rules and principles of justice and fairness is extremely difficult12. There is a need to start
working on a restatement of restitution principles and rules. This principle must be fixed in
this manner for it to be a success.
9. If the pre-‐war owners of art that is found to have been confiscated by the Nazis, or
their heirs, can not be identified, steps should be taken expeditiously to achieve a just
and fair solution.
We are talking about heirless property. No one really knows what to do with heirless
property, so it’s quite difficult to achieve a just and fair solution. This principle should
therefore be re-‐written13.
10. Commissions or other bodies established to identify art that was confiscated by the
Nazis and to assist in addressing ownership issues should have a balanced
membership.
Numerous commissions have been formed in the last years to deal with the problem of looted
art. The commissions must have experts that understand the details of looted art, plunder and
the complexities inherent to the dispossession of individuals on the basis of their race, creed,
status, etc. in society. There is a need of a study, a research of the relevant events about
cultural plunder, forced sales, confiscations, etc.
Until such a study is produced, one should reserve judgment on this principle and wonder
what a “balanced” membership is about14.
12 “Key elements of fair and just solutions” by Matthias Weller. 13 “Revisiting the Washington Conference Principles on Nazi-‐confiscated Art” http://plundered-‐art.blogspot.nl/2011/06/revisiting-‐washington-‐conference.html (Consulted on 23/03/2014)
11. Nations are encouraged to develop national processes to implement these principles,
particularly as they relate to alternative dispute resolution mechanisms for resolving
ownership issues15.
This principle has been respected insofar as nations have favoured alternative means of
resolving complex wartime ownership disputes that go counter to the notion of restitution16.
The Washington Principles do not establish a uniform policy for the signatory nations. In fact,
the preamble expressly notes: “among participating nations, there are differing legal systems
and… countries act within the context of their own laws”17. Because of the wide-‐ranging
differences between the forty-‐four nations’ legal systems—in particular concerning statutes of
limitations and bona fide purchaser issues—it is not surprising that a uniform approach was
not forthcoming.
As we can see there is a lot more to do, they sound very nice and clean, but if we analysed
them they have a very big amount of problems and contradictions. It was a good beginning,
but we still have the problem of the nature of them. They are not legally binding, so they
merely represent a moral commitment calling upon countries to “act within the context of
their own laws”; such sentiments may be overly optimistic18.
2. The Tezerin Declaration
The Tezerin Declaration it’s a document, which contains guidelines and best practices for a
final resolution to the problem of restitution. It provides that nations should:
“Ensure that their legal systems or alternative processes, while taking into account the
different legal traditions, facilitate just and fair solutions with regard to Nazi-‐confiscated and
looted art, and… make certain that claims to recover such art are resolved expeditiously and
14 Idem. 15 Washington Conference Principles on Nazi-‐confiscated art. U.S. Department of State. http://www.state.gov/p/eur/rt/hlcst/122038.htm (consulted on 20/03/2014) 16 Idem. 17 “Resolving Nazi-‐Looted Art Disputes” by Jennifer Anglim Kreder. http://www.lootedart.com/web_images/pdf/Final.pdf (consulted on 24/03/2014) 18 “The need for a legally binding international agreement regarding ownership of Nazi-‐ looted art” by Kelly Ann Falconer.
bases on the facts and merits of the claims and all the relevant documents submitted by all
parties19”
A major point in the declaration is the non-‐binding mechanism adopted regarding the notion
of restitution of Holocaust-‐era property. Based on the Washington Conference Principles on
Nazi-‐Confiscated Art of 1998, this mechanism morally obliges states to hold provenance
checks on suspected looted art, and calls upon individuals and institution in the art works to
conduct such checks. It is also a general declaration of morality and fair trade rules and a vital
structure that will assist in regulation markets in which the looted art might be offered for
sale20.
With regard to the restitution of Nazi-‐confiscated cultural property, the Terezin declaration
displayed old ideas as new ones. The document solemnly reaffirmed the signatories support
of the Washington Principles and encouraged all parties to apply them, yet did not actually
further the cause of restitution21.
Continuing with the restitution of cultural heritage, as has been said, the Terezin declaration
only speaks in terms of “voluntary commitments” and “moral principles”. In that connection it
is notable that the preamble to the declaration even explicitly affirms the legally nonbinding
nature of it, and the moral responsibilities expressed there.
The idea and main goal of this declaration was then to agree on a set of nonbinding
regulations that would set forth a framework to advance the process of restituting property
for owners or allocating funds to compensate for heirless property.
* The American Association of Museum Directors Guidelines
Besides the Terezin Declaration and the Washington Principles, there is also interesting to
look at The American Association of Museum Directors (AAMD). This American association
19 “State Law Holocaust-‐era art claims and Federal executive power” by Jennifer Anglim Kreder http://www.law.northwestern.edu/lawreview/colloquy/2011/14/LRColl2011n14Kreder.pdf (consulted on 23/03/2014) 20 The Holocaust restitution: the end game? By Aharon Mor and Avraham Weber http://israelcfr.com/documents/5-‐1/5-‐1-‐6-‐AharonMorandAvrahamWeber.pdf (Consuted on 21/03/2014) 21 “Restitution of Nazi Era Looted Art and the Tenuousness of Public International Law” by Bert Damarsin.
has released guideline “deploring the unlawful confiscation of art that constituted one of the
many horrors of the Holocaust and World War II”, setting principles “for resolving claims”,
and offering database recommendations22.
The guidelines call upon museums to conduct provenance research to determine if any works
were illegally confiscated during the Nazi era. If a museum discovers an unlawfully
confiscated work, it must publicize the finding. The AAMD recommended to the member
museums to consider using mediation to resolve claims regarding art presumably confiscated
during the Nazi era. The association expressed its commitment to employing the databases
established by third-‐party groups regarding claims, claimants, works confiscated, and works
later restituted23.
Again we have the same problem: these guidelines are not legally binding. There have,
however, been some demonstrations of the commitment to the principles by museums. For
instance, the Seattle Art Museum voted to return a $2 million painting. The painting was
“Odalisque”, a Henri Matisse artwork painted in 1927. The museum returns the painting to the
family of a Jewish art dealer from whom the Nazis stole it. This decision, along with a similar
decision by the Berlin National Gallery, has been heralded as setting a “major precedent for
museums and private collectors around the world”24.
“Odalisque” – Henri Matisse (1927)
22 AAMD Task Force Report Proposes Principles and Guidelines on Art Looted During Nazi/World War II Era (1933-‐1945). 23 “The need for a legally binding international agreement regarding ownership of Nazi-‐looted art” by Kelly Falconer. https://www.law.upenn.edu/journals/jil/articles/volume21/issue2/Falconer21U.Pa.J.Int'lEcon.L.383(2000).pdf 24 Ibidem
Despite of this admirable precedent, not all member museums have demonstrated an equally
strong commitment to the guidelines. According to them “member museums should not
borrow works of art known to have been illegally confiscated during the Nazi/World War II
era and not restituted” and should “endeavour to review provenance information regarding
incoming loans”25. However, and even tough a claim had been filed with the Art Loss Register,
the Boston Museum of Fine Arts (BMFA) exhibits the Water Lilies of Monet. This painting was
borrowed from a group of some 2.000 works recovered by the Allies in Germany after the War
and held in trust by the National Museum of France for eventual return to claimants.
It’s true that BMFA did not fulfil one of the guidelines, but it is also true that the situation of an
exhibition, it’s a very good opportunity to the claimants to the identification of works that may
be of their property. In fact Elaine Rosenberg “noted that her opportunity to eyeball the Monet
in Boston allowed positive identification of the work as the same one that her family
sought”26. This allowed them to file a formal claim with France.
“Water Lilies” – Claude Monet (1916)
These guidelines, although not being legally binding, had been very helpful with restitution
matters. But we have to keep in mind that this is only for museums members of the
association, so it’s true that the guidelines had been helpful, but still is not enough.
25 Idem 26 Idem
3. The Vilnius Forum Declaration
This forum took place 3-‐5 October 2000 in Lithuania, as a follow-‐up to the Washington
Conference, under the auspices of the Council of Europe. In this declaration thirty-‐eight
governments agreed to the following27:
1. The Vilnius Forum asks all governments to undertake every reasonable effort to achieve the
restitution of cultural assets looted during the Holocaust era to the original owners or their
heirs. To this end, it encourages all participating States to take all reasonable measures to
implement the Washington Conference Principles on Nazi-‐Confiscated Art as well as
Resolution 1205 of the Parliamentary Assembly of the Council of Europe.
2. In order to achieve this, the Vilnius Forum asks governments, museums, the art trade and
other relevant agencies to provide all information necessary to such restitution. This will
include the identification of looted assets; the identification and provision of access to
archives, public and commercial; and the provision of all data on claims from the Holocaust
era until today. Governments and other bodies as mentioned above are asked to make such
information available on publicly accessible websites and further to co-‐operate in establishing
hyperlinks to a centralized website in association with the Council of Europe. The Forum
further encourages governments, museums, the art trade and other relevant agencies to co-‐
operate and share information to ensure that archives remain open and accessible and
operate in as transparent a manner as possible.
In this paragraph we can notice that the Vilnius Principles are firmer than the Washington
Principles, they call upon governments, museums, the art trade and other relevant agencies to
provide all information necessary (…)
3. In order further to facilitate the just and fair resolution of the above mentioned issues, the
Vilnius Forum asks each government to maintain or establish a central reference and point of
inquiry to provide information and help on any query regarding looted cultural assets,
archives and claims in each country.
27 Looted Art Commission – The Vilnius Forum Declaration http://www.lootedartcommission.com/vilnius-‐forum
4. Recognizing the Nazi effort to exterminate the Jewish people, including the effort to
eradicate the Jewish cultural heritage, the Vilnius Forum recognizes the urgent need to work
on ways to achieve a just and fair solution to the issue of Nazi-‐looted art and cultural property
where owners, or heirs of former Jewish owners, individuals or legal persons, cannot be
identified; recognizes that there is no universal model for this issue; and recognizes the
previous Jewish ownership of such cultural assets,
5. The Vilnius Forum proposes to governments that periodical international expert meetings
are held to exchange views and experiences on the implementation of the Washington
Principles, the Resolution 1205 of the Parliamentary Assembly of the Council of Europe and
the Vilnius Declaration. These meetings should also serve to address outstanding issues and
problems and develop, for governments to consider, possible remedies within the framework
of existing national and international structures and instruments.
The problem with this is that since 2000 no new meetings appear to have been held or at least
none that have resulted in public reports28.
6. The Vilnius Forum welcomes the progress being made by countries to take the measures
necessary, within the context of their own laws, to assist in the identification and restitution
of cultural assets looted during the Holocaust era and the resolution of outstanding issues.
There are a lot of approaches that the different nations have taken regarding the issue of Nazi
plunder. Although there are no “right” answers to the problem, an examination of the varying
approaches of Austria, France and Switzerland would highlight the need for an international
and legally binding agreement that hopefully would solve this problem.
I. Austrian approach
Back in 1995, the Austrian government decreed legislation giving the Austrian Jewish
Community ownership over the heirless treasures looted by Nazis that the government had
28 “Resolving Nazi-‐Looted Art Disputes” by Jennifer Anglim Kreder. http://www.lootedart.com/web_images/pdf/Final.pdf (consulted on 24/03/2014)
held in storage for five decades29. After these major auction houses held an auction to sell off
the heirless works with the goal of using the money to benefit Holocaust survivors and their
heirs.
Later in 1998, Austria enacted legislation to provide for “restitution notwithstanding such
legal obstacles as the statue of limitations”30. In accordance with the law, Austria returned 200
pieces of art to the Rothschild family that where subsequently auctioned for $90 million31.
After this exemplar restitution, the Austrian restitution commission rejected the claims by the
foreign heirs of an Austrian Jewish family for the return of paintings by Gustave Klimt. The
history is like this: Ferdinand Bloch-‐Bauer was forced into exile and Nazis robbed his
collection. He died in 1945, and the paintings were no longer in his possession, to his family,
which has also fled Austria. The thing is that Adele Bloch-‐Bauer (Ferdinand’s wife) instructed
in her will to leave the paintings to the Austrian National Gallery back in 1923. The restitution
committee indicated that the Klimt paintings fall outside the purview of the 1998 law because
of the will of Adele. The problem with this argument is that the committee completely forgot
about the dates: the will of Adele was made back in 1923, which means that it was before the
World War II and the persecution and annihilation of Austrian Jews. The results are obvious, if
Adele knew about what was going to happen, she would have not left the paintings to the
Austrian National Gallery.
Despite the restitution committee’s mixed performances, the Austrian museum community
has taken compliance with the 1998 Restitution Law and the Washington Conference
principles seriously. The Joanneum Museum announced that it held about seventy works of
art it believes were looted by Nazis. The museum also indicated that the owners of about half
of the pieces had been identified and that photos of the others would “be posted on the
Internet if no owners can be found”32.
29 “Reconciling Individual and Group Justice with the Need for Repose in Nazi-‐Looted Art Disputes” by Jennifer Anglim. http://www.lootedart.com/web_images/pdf/Final.pdf (consulted on 23/03/2014) 30 “The need for a legally binding international agreement regarding ownership of Nazi-‐looted art” by Kelly Falconer. https://www.law.upenn.edu/journals/jil/articles/volume21/issue2/Falconer21U.Pa.J.Int'lEcon.L.383(2000).pdf 31 The New Battleground of Museum Ethics and Holocaust-‐Era Claims: Technicalities Trumping Justice or Responsible Stewardship for the Public Trust? http://law.uoregon.edu/org/olrold/archives/88/Kreder.pdf 32 The need for a legally binding international agreement regarding ownership of Nazi-‐looted art” by Kelly Falconer. https://www.law.upenn.edu/journals/jil/articles/volume21/issue2/Falconer21U.Pa.J.Int'lEcon.L.383(2000).pdf
This is a step forward, because the Joanneum Museum did not wait for the claiming of the
looted art, they announced their questionable holdings, which is a good indication of the
commitment with the Washington Conference principles and also with the Terezin
declaration.
II. French approach
During World War II, the Nazis looted approximately one-‐third of the known private art
collections in France. After the War, Germany returned more than 61.000 works to the French
government, who returned over 45.000 works to their respective owners. Of the remaining
16.000 works, the government sent approximately 2.000 of the most important works for
“temporary” safeguarding in museums and auctioned the remaining to be “precarious
holders” of the works, responsible for preserving them, exhibiting them, assisting
dispossessed collectors and establishing a provisional inventory33. Although these works do
not belong neither to the French government nor the museums that are housing them, most of
the works have been in this “provisional custody” for the past years.
The Lost Museum by Hector Feliciano is a book on France’s covert management of Nazi
spoilage. Since the publication of this book French museums have been “moving sluggishly
and replying cautiously to an ever widening circle of people interested in the subject”34. We
can say that the French have taken the right steps only when they have been forced to do so
by the spotlight.
In 1996 the French Cour des Comptes make an investigation: they criticized the French state
and museum curators for their failure to make any actual attempt to find the owners of the
looted works of art in their possession. After this, in 1997 the French Prime Minister
established a committee to determine the status of the valuable property confiscated from
33 Looted Art http://www.archives.gov/research/holocaust/bibliographies/looted-‐art.html (consulted on 23/03/2014) 34 “The Lost Museum: The Nazi Conspiracy to Steal the World’s Greatest Works of Art” by Hector Feliciano. http://books.google.nl/books?id=MSNrXr7WC-‐gC&printsec=frontcover&hl=es&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false
French Jews during the Nazi era. During this year the French government displayed 987
works of art with the goal of assist owners and their descendants in reclaiming them35.
The French government said that they would go along with the Washington Conference non-‐
binding principles, but the Georges Pompidou Centre (Paris) told the heirs of an important
French collector that they could not reclaim a stolen work of art by Georges Braque –French
painter, collagist, draughtsman, printmaker and sculptor who played a very important role in
the development of the Cubism– because the statute of limitations has expired.
So the French museum community, going against the principles and the Terezin declaration,
tries to evade justice by resorting to technicalities and by distinguishing between looted
works held by French museums as temporary custodians and looted works bought on the
market by French museums. Works belonging to the former class, like Leger’s “Woman in Red
and Green”, are slowly being returned to their original and rightful owners, while good-‐faith
purchaser laws shield the latter class36.
Therefore, the promise to repatriate these works amounts just to empty words, as long as a
nation can avoid its moral obligation through a rigid application of its own laws. An
international and legally binding agreement is therefore required.
III. Switzerland approach
“In the unique circumstances of World War II, neutrality collided with morality; too often
being neutral provided a pretext for avoiding moral considerations”37. The neutral status of
this nation immunized it from the Allied monitoring that occupied and belligerent nations
received.
In 1945, and to pacify the Allies, Switzerland adopted legislation that cancelled transactions
involving Nazi loot that otherwise would have received the protection of its bona fide
35 “The need for a legally binding international agreement regarding ownership of Nazi-‐looted art” by Kelly Falconer. https://www.law.upenn.edu/journals/jil/articles/volume21/issue2/Falconer21U.Pa.J.Int'lEcon.L.383(2000).pdf 36 Idem 37 Idem
purchaser laws. Then, in 1947 the Swiss suspended this legislation and from that time on,
standard Swiss civil law governed these transactions.
Under Swiss law, a bona fide purchaser gains title to stolen goods after five years of
possession, and if a stolen painting is sold through a dealer or at an auction, the legitimate
owner must compensate the buyer before reclaiming his possession. As a result, in
Switzerland, a claimant to Nazi-‐looted art would either (1) have their claim dismissed because
of the statute of limitations had expired or (2) would incur in compensation costs. Again it can
be seen that technicalities fare being used to deny the claims of the rightful owners, who are
victims of the Nazi regime.
The difference with the Austrians is that in Switzerland it seems like they are satisfied with
ignoring their cooperation with Nazi forces. During the war, a smuggling ring of people
brought looted art from France to Switzerland. For the past years much of this looted art has
remained under the protection of Swiss law.
The Swiss approach dramatically illustrates how one country’s inflexibility to technical rules
has international repercussions that preclude a definitive determination of the ownership of
Holocaust art absent an international legally binding solution38.
38 Idem
Suggestion to solve the problem
The countries should be willing and able to look outside of their existing legal framework to
solve this problem. Here we are talking about people (claimants) whose property, and in
many cases lives, were taken by one of the most violent, inhuman regimes the world have ever
seen, so it is not appropriate to think that the ordinary rules, laws, agreements, etc. does not
apply to this situation. The principles endorsed in the Washington Conference fifteen years
ago call upon countries to achieve a “just and fair” solution, but to achieve these goals within
the structure of their existing laws is very hard and even impossible to reach. The countries
must change; alter their laws in order to achieve the final goal. As seen through this paper,
many nations have shown a complete disregard for the same moral commitment that the
eleven principles and the Terezin declaration impose upon them.
There is need for a legally binding agreement, one that obligates countries to reform their
laws in order to allow the claims of hundreds of people, who are searching for this “just and
fair” solution, only in this way the claims will be able to proceed in a correct and reasonable
way.
The countries need to recognize that the nature of the Holocaust is exceptional, unique and
incomparable to anything that had happened before. Legal technicalities should not bar claims
to the lost of art of the Holocaust. We must understand that allowing the claims to proceed
does not necessitate that the works be returned to the original owner or that the claims must
be heard indefinitely. Of course that they should be heard into the near future, but at some
point the ownership of works of art should become secure and safe. After a certain amount of
time the possessors should be able to obtain a right title to a work.
A good idea would be also the creation of an International Tribunal with compulsory
jurisdiction to resolve all disputes concerning to Nazi-‐looted art and clear title to artwork39.
The Tribunal would achieve some measure of justice for those families that were targeted by
the Nazis; it would also alleviate the uncertainty in the art market that looms because of
39 “Reconciling individual and group justice with the need for repose in Nazi-‐looted art disputes / Creation of an
International Tribunal” by Jennifer Anglim Kreder www.lootedart.com/web_images/pdf/Final.pdf (consulted on
24/03/2014)
potential liability. By creating this Nazi-‐Looted Art Tribunal the commitments made at the
Washington Conference, Terezin Declaration and Vilnius Conference would be fulfilled40.
Having everything together in a same place would facilitate the assistance to the claimants in
finding their art. If this hypothetic Tribunal becomes reality, every participating nation could
provide staff for it in order to ensure a diverse array of language abilities to allow for more
efficient research across databases.
The easiest way to perform these searches is to have access to information housed in
governmental archives. Therefore, only nations that have opened their archives to generate
databases in accordance with the promises made in the Washington Conference, Terezin
Declaration and The Vilnius Forum should be eligible to be part of the Tribunal41.
The creation of a Tribunal specialized in this matter and with the aim of resolving this issue it
could be a long discussion, full of details and agreements between the parties and nations
whom will conform it. The discussion of this is not matter of this paper. As explain in the
introduction the aim of this paper is to make clear that the efforts made until now are not
sufficient and there is a need to do something else.
40 Idem 41 Idem
Conclusion
Almost seventy years have pass since the end of the World War II and much of the art that was
looted by the Nazis remains in museums or in private collections across Europe, the United
States and who knows maybe in places that we ignore.
Beyond the moral issues, the claims to ownership of these looted art works threaten the
normal functioning of the art world. Since the art market does not function purely on a
national level, only when nations jointly agree to hear legitimate claims to Holocaust spoilage
and such claims have been settled on ownership, then these works of art can be secured and
returned42.
We saw through this paper that many countries have, for too long, ignored their moral
obligation to assist victims of Nazi looting and their heirs. The adoption of the Washington
Principles, the Terezin Declaration, the Vilnius Forum and also the guidelines of the American
Association of Museum Directors mark steps in the right direction, but it is not enough.
Countries must not only be morally responsible for exacting a solution to this problem; they
must be legally liable43.
To resolve once for this entire problem it is compulsory to reach a legally binding
international agreement or set up a Tribunal to resolve any issues that may arises. Failure to
reach this would essentially allow the defeated and deranged efforts of the Nazis to retain
custody of these “last prisoners of World War II”44
42 “On the restitution of Jewish cultural property looted in World War II” by Yehuda Z. Blum
http://www.jstor.org/stable/25659364 (consulted on 23/04/2014) 43 “When honor will not suffice: The need for a legally binding international agreement regarding ownership of
Nazi-‐looted art” by Kelly Ann Falconer
www.law.upenn.edu/journals/jil/articles/volume21/issue2/Falconer21U.Pa.J.Int'lEcon.L.383(2000).pdf 44 The “Last prisoners of War”: unrestituted Nazi-‐looted art” by Geri J. Yonover
www.heinonline.org/HOL/Page?handle=hein.journals/usanfrajls6&div=9&g_sent=1&collection=journals#89
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