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Should all looted artefacts be returned?

A response to Norman Rosenthal’s statements about why museums should not return artefacts looted during the holocaust.

Modern Ghana [1]

By Kwame Opoku, Dr.
Tue, 13 Jan 2009
Feature Article

“The public interest must surely be in upholding the rule of law, rather than promoting an international free-for-all through the unrestricted circulation of tainted works of art. Do we really wish to educate our children to have no respect for history, legality and ethical values by providing museums with the opportunity freely to exhibit stolen property? ”

Extract from a letter by several members of the British House of Lords

There seems to be a concerted strategy or convergence of tactics by a group of writers who appear determined to subvert the basic principles of law, morality and decency by regularly bombarding the public with ideas which are, in intention and implications, subversive of the present social structure in most societies and against human rights generally. They present us with arguments that are so deficient in logic and substance that one does not know how to respond. Perhaps they are counting on shock effect and numbness on the part of the public so that by the time we realize what they are really trying to achieve it would be too late to respond.

Some days ago we had Norman Rosenthal saying that great grand children and distant relatives of victims of Nazi loot should not be allowed to recover the art works stolen from their relatives. Arguments advanced were that these procedures and litigations have gone on for too long. Moreover, there are many descendants of Nazi victims whose relatives had no art works that could have been seized by the Nazis. A moment’s reflection shows how baseless these arguments are. (http://www.theartnewspaper.com/article.asp?id=16627)

The Germans immediately stated that they have no intention of putting a stop to actions to recover Nazi-looted art works. The German Federal Commissioner Minister for Culture, Bernard Neumann, with a better understanding of the whole problem, pledged that there will be no time limit for descendants of Nazi victims to reclaim looted art. The German Government has rejected calls from some museums to impose deadlines.

Anne Webber, co-chair of the Commission for Looted Art in London, speaking of museums, said: “There are thousands of looted works in German museums but they have been very reluctant to do anything. They complained that it cost money to research their provenance, because there were so many.”

“The German government had attempted to encourage them by offering one million euros annually. But more than half the money has not been spent, which means the museums are not applying for it.” (http://www.thejc.com/node/10232)

Nicholas Serota, director of Tate Galleries and chair of the National Museum Director’s Conference, a working group examining the spoliation of art during the Second World War, has declared: “Spoliation has been under intensive discussion only for the past 10 years, since the Washington Conference on Holocaust-Era Assets in 1998. I think it would be premature to impose a moratorium now but at some point in the future this may be appropriate.”

The Department of Culture, Media and Sport, which created an independent spoliation advisory panel in 2000, has said: “We believe that, where a work of art can be proved to have been looted in the Nazi era, the wishes of the heirs of the original owners should be respected and, where possible, the work returned or appropriate amends made. This is a simple, right and fair way of righting historic wrongs, and we have no plans to resile on our commitment.” (http://www.lootedart.com/news.php?r=NFMTO7738801)

We now have Jonathan Jones stating that “Norman Rosenthal is right to question whether stolen artworks should be restituted at the expense of the great public collections”. (http://www.guardian.co.uk/looted-art-norman-rosenthal) In a normal free society, anyone can question anything or fact including his own existence. The right to question is guaranteed by various constitutions and human rights conventions. What is important is the argument or fact advanced to support any claim that certain practice, rule or law should be changed. Norman Rosenthal did not advance any valid argument or fact. Does Jonathan Jones advance any more valuable point? None.

We should note first, how a discussion on Nazi-looted art is expanded to cover “all looted art” so that one can bring in examples from the former Soviet Union and other periods which have nothing to do with the specific situation of Nazi spoliation in Europe before and during the last world war.

Jonathan Jones accuses the claimants of Nazi looted art as wanting to weaken public collections: “Sir Norman Rosenthal is courageous and correct to speak out against it. The former exhibitions secretary of the Royal Academy, writing in The Art Newspaper, has said that the descendants of Holocaust victims who suddenly discover they are the rightful owners of paintings worth millions of pounds have comparatively remote claims that do not justify weakening public collections.” What kind of logic is this which allows Jones to accuse those pursuing their lawful claims through the normal legal system and other procedures as wanting to weaken public collections? Are the public collections made up solely or mainly of such looted art? If so, the question arises whether we need at all public collections which are based on such weak and illegal basis that any time a claimant presents his demand one has to worry about possible depletion.

Jonathan Jones cites as an example of claims depleting public collection, the long drawn out proceedings concerning Gustav Klimt’s Portrait of Adele Bloch-Blauer and makes some astonishing comments:

“Visit Austria’s great museums and you can’t miss their sad spoliation. One of the most expensive art sales of all time, that of Gustav Klimt’s Portrait of Adele Bloch-Bauer I in 2006, came about after a court case that led to this crystalline monument to Freud’s and Mahler’s modern metropolis being removed from the Belvedere museum in Vienna – where it illuminated Vienna’s history, and specifically its Jewish history – and “restituted” to heirs of the original owner, who live in the United States”.

Jones has surely chosen the wrong example for that case illustrates abundantly the unwillingness of certain States to treat correctly those pursuing such claims. All kinds of delaying tactics and tricks were employed to prevent the claimant from obtaining her rights, including attempts to label her as some type of rapacious person. The way the claimant was handled was entirely disgraceful and without the intervention of determined lawyers during seven years of legal proceedings, she would not have recovered her property. (http://en.wikipedia.org/wiki/Maria_Altmann) Jones is probably not aware that when Maria Altman sued the Austrian Government in 1999 for her paintings, the Austrian courts required her to deposit a filing fee of US$1.5 million, later reduced to $350,000 and that in view of this excessive amount Altmann dropped the case and sued in the United States in 2000. The case, Republic of Austria v. Altmann, went to the Supreme Court of the United States, which ruled in 2004 that Austria was not immune from such a lawsuit. After this decision, Altmann and Austria entered into arbitration. The arbitration court ruled in 2006 that Austria was legally bound to return the artworks to Altmann. Austria returned the works in the same year, but not before some further shameful tactics and statements which are better left unmentioned.

Jones exceeds his own hyperboles when he exclaims: “Memory is being vandalised in the name of memory. The history of central Europe, of the matrix of Jewish art collectors and Jewish culture that was so rich and central to European life on the eve of the Holocaust, is obscured, not revealed, by this process.”

I must energetically contradict Jones on this point. Many of us not related in any way to the memory and culture he is referring to became aware and very interested in this subject when the various claims to recover Nazi looted art were published in the media. The public discussion on this matter in the mass media revealed to us the history and culture behind many of the artworks hanging in museums, not only in Vienna but elsewhere with cryptic words about their provenance. We would even go so far as to suggest that such claims should be pursued if for nothing else but for the light they throw on the history and culture of that period and for the memory of those who lost their lives under the evil and brutal Nazi regime.

How can anybody state “At best, restitution so long after the crime is meaningless”? Has Jones not heard of the saying “It is better late that never”?

Has Jones ever considered the feelings of the victims of Nazi spoliations and their successors? Above all, whose fault is it that such claims have taken so long to be settled?

It is surely not the fault of the claimants that those charged with settling such disputed have taken some sixty-years and are no where near settling the claims.

Sometimes, it is pretended that it is difficult to identify the owners and their successors but as shown by a current exhibition in Vienna, Recollecting: Looted Art and Restitution, the Nazis were methodical and in many cases carefully noted the names of owners and their residences where many objects were looted. (http://www.mak.at)

Does Jones realize that there has been the thought that by delaying the process of restitution one could reduce the number of possible claimants? Many will be dead before the process nears its end.

Every statement of Jones seems calculated to shock by its lack of logic and its irrelevance to the rights of claimants of Nazi-looted art: “The dark side of restitution became very visible last year, when the Royal Academy’s exhibition of Russian art (and perhaps this experience made Rosenthal think) was menaced by restitution claims. In this case, it is the descendants of Russian art collectors whose collections were nationalised after the 1917 Revolution who want “their” property back. It was amazing how such claims were reported as if their moral case were self-evident. In reality, anyone who has visited the Hermitage in St. Petersburg or the Tretyakov Gallery in Moscow knows how much good these museums do, what beacons of civility and culture they are, how brutish it would be to weaken their collections – and that is true of all public museums, everywhere.”

“The dark side of restitution” that Jones refers to turns out to be simply the possibility of claims by descendants of those whose art collections were nationalized after the Russian Revolution of 1917. Why is this “the dark side of Restitution”? After all such claims are brought before legally constituted courts.

How can claims within the established legal system be so described? Perhaps an attempt to discredit the courts too for entertaining such claims at all?

With all due respect to Jonathan Jones, the last paragraph in his article is illogical. That the Hermitage in St. Petersburg or the Tretyakov Gallery in Moscow are “beacons of civility and culture” has clearly nothing to do with the rights of the claimants to works of arts hanging there and would be considered as extraneous matter by an impartial body determining the foundation of the claims to those artworks.

We believe it is best to leave uncommented the last sentences by Jones:

“A work of art should never, ever be taken away from a public museum without the strongest of reasons. Making good the crimes of the Nazis may seem just that – but it is meaningless. No horrors are reversed. Instead, historical threads are broken, paintings are taken away from the cities where they have the deepest meaning, and money is made by the art market.”

Opponents of restitution may have some good arguments but so far what has been offered, especially in the last weeks, does not render good service to their cause.

Those who argue that the public has an interest to see some stolen artwork stay in a museum rather than be returned to the lawful owner do not often reflect seriously on what they are saying. To advance the public interest as an argument presupposes that one has defined the “public” that one is talking about. The general public, the population in a city or country cannot be confused with the museum going public that often is not more than 1 per cent of the general population. The argument also presupposes that one has distinguished the various competing and sometimes conflicting interests of the public (however defined) and concluded that a particular interest is so important as to take precedence over all others.

The competing interests of the general public (the total population) as regards the keeping of Nazi-looted art in museum, will surely include the interest in the respect for the rule of law, the respect for individual rights to property, the observation of individual freedoms and the avoidance of discrimination based on race, religion or sex, the prohibition against the use of force against any particular ethnic or religious group even by government authorities and the moral and religious precept, not to steal the property of others..

All the above interests have to be weighed before concluding that one interest is so important as to take precedence over the rest. Is the interest of the general public in seeing a Nazi-looted art work in a museum so important as to outweigh the need for respect of individual rights and the right to private property? In view of the Nazi atrocities (and here we are dealing with only Nazi- looted art works and not all artworks), it seems to me that the public interest in the respect for the rule of law and individual rights must prevail.

The contrary view taken by the opponents of restitution in this regard brings them to a position similar that of the Nazis even though they may not share their nefarious ideology. They both deny a particular group their right to property, albeit for different reasons. The one, because these persons belong to a certain ethnic/religious group they wish to eliminate and the other because they think this group has been exercising their normal rights for too long.

The pleas for setting time limits to claims by victims of Nazi-looted art and their descendants are remarkable from another point of view. Until now the general view has been that such claims have not been rapidly settled. Many countries did not seriously start to deal with these claims until recently. The Washington Conference on Holocaust-Era Assets which adopted principles for dealing with Nazi-confiscated art was held as late as December 1998.The members of the various bodies charged with assisting with restitution of Nazi-looted art would be the first to admit there is still a lot to be done. Moreover, it is common knowledge that Nazi-looted art in the possession of public museums and galleries in Great Britain cannot, according to English Law, be returned to their owners or their successors even if the relevant evidence of Nazi loot is accepted by all sides. The most they can hope for is compensation which is by no means as high as selling the object in the open market. http://www.elginism.com It is also necessary to mention that the British Parliament passed a specific law, Tribunals Courts and Enforcement Act 2007 to provide protection for objects on loan from abroad in temporary public exhibitions in museums and galleries in the United Kingdom in response to concerns from museums that a number of international lenders were refusing to lend items to UK museums without a guarantee of their safe return, because of possibility of legal actions for restitution by those who felt they and their relatives have been deprived of artworks by the Soviet Government, following the 1917 Russian Revolution.

Thus there is no basis for any alarm that museums and public galleries in Britain or any other countries are in imminent danger of being emptied of their artworks by claims for restitution for Nazi-looted art. A public anxiety, devoid of any substance or credible evidence except perhaps envy or dislike, is being created. The relatives and descendants of victims of Nazi loot are being accused or suspected of intending to do something which, as we have shown above, they cannot do because present English law does not allow it, namely, to remove from museums and public galleries Nazi-looted works of art by way of suits for restitution.

It is to the eternal shame of Europe that more than sixty years after the downfall of the evil Nazi regime, victims of Nazi oppression and their descendants still have to fight for their rights and that even persons in higher positions are beginning to question whether they should be allowed to continue to pursue their normal rights through the established legal system. Those making such calls should be reminded that one of the principles adopted at Washington was

“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.”

My old professor would have declared that the demand for time limitation is tainted with moral opprobrium.

Kwame Opoku, 13 January, 2009.