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KATRINA GUNN[*]
In order to survive during WWII, a Jewish woman was forced to sell a painting for the price of 'an apple and an egg';[2] the painting, now in the collection of the Tate Gallery, London, England, is valued at between £120,000 and £200,000.[3] Her son, learning of the painting's whereabouts, claimed ownership on behalf of her descendants. The United Kingdom Spoliation Advisory Panel, set up to resolve such disputes, determined that the claim would not succeed under any of the applicable laws which governed, respectively, the forced sale (Belg1an law), a subsequent sale in 1955 (German law) or the 1961 purchase by the Friends of the Tate Gallery (English law). Nevertheless, 'on the moral strength' of the claimant's case, the Panel recommended an ex-gratia payment of £125,000. In addition, a memorial tablet giving an account of the painting's 'history and provenance during and since the Nazi era, with special reference to the interest therein of the claimant and his family' will sit alongside the painting.[4]
In the words of Norman Palmer, a member of the Spoliation Advisory Panel and one of the speakers at the Cultural Property Disputes Seminar at The Hague in late May, the dispute was 'not a scramble for money' and the resolution was 'a form of vindication that transcends money'.
The well-orchestrated campaign of the Nazis to obtain by whatever means a wealth of cultural property is well documented; less so are the ongoing ramifications of their looting and theft, the subject of this Seminar: who were the works of art and antiquities taken from, how are they to be recovered, and what should occur if there is a conflict of ownership. These problems of provenance and restitution are not particular to the Nazi period. The wars in Iraq give rise to the same concerns. Nor is the problem purely a product of war.
LyndeI Prott, formerly head of UNESCO's Cultural Heritage section and now at the Australian National University, Canberra, delivered a special address at the Seminar on the immediate problem of looting in Iraq. Although 1t appears to be less than originally reported, with many of the National Museum's treasures stored in secure areas before the conflict began, and others such as he five thousand year-old Warka vase being miraculously returned,[5] archaeologists in particular fear that sites away from the major cities are the target of experienced looters intent on exploiting the post-war chaos. In light of lessons learned from previous conflicts and the existence of an international legal regime, the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, it is, in Prott's view, Inexcusable that the situation should have so deteriorated. It is clear, for example, that if Iraq, a party to the Convention, used the museum in Baghdad as a military base, 1t breached its obligations. Poland and Australia, as members of the Coalition force, may also have breached their obligations in failing to ensure protection of Iraq's cultural property. Neither the United Kingdom nor the United States, two of the largest art importing countries, are formally parties to the Convention (though on 14 May 2004, the 50th anniversary of the Convention, the UK Heritage Minister announced his country's intention to ratify the treaty).[6]
Whatever the extent of the looting, Prott rightly observed that the situation is 'tragic' following as it does the 1991 Gulf War which saw Iraq take treasures from the Kuwait National Museum; later, after Desert Storm, Iraqi museums were looted of these and other treasures w1th the result that of 3,500 items lost, few have been returned.
Where do these objects go and how to establish provenance in order to ensure their return? In the past decade, efforts to research thoroughly provenance of cultural property taken from or forcibly sold by Jews before and during WWII illustrate the changing and variable requirements necessary to prove ownership. Marc-Andre Renold, Director of the Art-Law Centre in Geneva, explained how, in 1885, under French law, the purchaser of a Spanish c1borium that had earl1er been donated to a Spanish cathedral on condition that it never be sold, successfully asserted his claim to ownership without exercising any due diligence.[7] More than a century later, in 2001, in a transaction also governed by French law, the purchaser of a Franz Hals painting was not so fortunate. It was not sufficient that he had checked only one catalogue to determine its provenance; the painting, part of the Schloss collection taken by the Germans during WWII, had resurfaced
in 1967 and had been sold at auction several times since, with some auct1on catalogues referring to it as a painting stolen by the Nazis.[8] Under the laws of many countries, far more is now requ1red of a purchaser if s/he is to prove adequate due diligence especially in light of the art databases now accessible online; international conventions also do not presume good faith on the part of the purchaser.[9]
Lucien Simmons, the Senior Director of Sotheby's in the United Kingdom, discussed provenance research in the context of the displacement of works of art between 1933 and 1948. Some experts in the field might blanche at the involvement of Sotheby's and also Christie's in the Cultural Property Disputes Seminar, in light of accusations that looted cultural property has passed through major auction houses. Not surprisingly, the auction houses are keen to outline reforms in their pract1ces.
Before publication of an auction catalogue, Sotheby's due diligence program requires that 'all sellers are asked to provide written confirmation of their legal ownership' and warranties regarding any potential claims. One could argue that a request alone is insufficient. Perhaps with this in mind Sotheby's has attempted to overcome any deficiencies in paperwork by undertaking its own due diligence research and creating a database of 'red flag' names of more than 5,000 Holocaust victims, Nazis and their collaborators. In June 1998, it also jointly sponsored the Art Loss Register's (ALR) Holocaust lnitiat1ve to register free of charge all Holocaust clams which relate to Nazi looting, the Soviet Trophy Brigades and Individual acts of looting by Allied troops with the result that since 1998, all of its worldw1de catalogues are checked against the Register for art taken during the Holocaust or more recently stolen.[10] In addition, checks are made against the German-based internet site, the Lost Art Internet Database which, backed by the German federal and state governments, especially focuses on cultural assets confiscated from Jewish citizens during the Nazi period.[11]
Simmons acknowledged the large scale of art seized during the Holocaust, but his personal view is that 'most property was restituted'; there may be some who disagree considering the acknowledged lack of documentation that could possibly prove this, and the contrary and defensive positions adopted by some states. 'It is heartening that the ALR is establishing an office in St. Petersburg, in collaboration with the Getty Museum and Trust, but Russia, a significant depository in the immediate post-war phase of German and no doubt Jewish-owned property confiscated during the Holocaust, now legally forbids the return of such state-held property. And although Austria passed legislation in 1995 to find owners of unclaimed works of art, it is currently attempting on behalf of the Austrian Gallery and with the assistance of the United States government, to block an American lawsuit brought by an he1r of a wealthy Jewish Viennese collector whose collection was stolen by the Nazis.[12]
Lawsuits against museums are not uncommon as Norman Palmer writes:
Most modem claims are against museums. This list of respondent institutions is almost an omnium gatherum of the world's great art houses: the Museum of Modem Art at New York, the Tate Gallery at London, the Musee du Louvre and the Pomp1dou Centre at Pans, the Foundation for Prussian Cultural Heritage at Berlin, the Israel Museum at Jerusalem, even the North Carolina Museum of Art and the Dunedin Public Art Gallery in New Zealand. It may be only a matter of time before a Scottish, Australian or Canadian gallery joins this list.[13]
Provenance research has thus become a crucial aspect of museum work. Nancy Yeide of the Department of Curatorial Records in the National Gallery of Art, Washington, noted that the American museum community differs from its European (and Australian) counterparts in that 'they are not federal but private institutions'; consequently, standards and practices are set by the museum associations and not by a federal ministry of culture. The American Association. of Museums and the Association of Art Museum Directors are taking responsibility in researching WWII era provenance: essentially 'a new field, and an interdisciplinary one' requiring 'a knowledge of politics, art history, the history of collections, and the locations of archival materials which document the movement of art', the latter aspect in particular being labour intensive and a relatively undeveloped area until the past few years.[14]
It is interesting to note by way of comparison that the United Kingdom Spoliation Advisory Panel is a British government initiative, with a mandate to advise the government, institutions and claimants, and any recommended payment, such as that detailed in the introductory paragraph above, comes from the public purse. Significantly, its Terms of Reference deal not only with legalities but also morality. Norman Palmer viewed this approach as more conducive to conciliation than litigation with all its emotional and financial pitfalls: 'dealing justly with a case means dealing with it proportionally', such that to spend more on litigation than the value of the object itself, especially when a loss may result in the unsuccessful claimant also paying the legal costs of the defendant, is simply 'a nonsense'. For example, litigation over the Edgar Degas painting Landscape w1th Smokestacks brought by Daniel Searle and later spotted in an art catalogue by a relative of the former Jewish owners, Friedrich and Louise Gutman, who died in Nazi concentration camps, was settled just before trial but only after considerable amounts of money had been spent on legal representation. The Art Institute of Chicago bought the painting, paying half to the relatives, who expressed hope that the settlement would show that there were constructive options to expensive litigation. Searle donated his half of the sale to the institute.[15]
Moreover, a litigious approach will not address the moral and ethical considerations that are pertinent factors in any quest for return of Jewish owned property taken during the 1930s and 1940s. If anything, prolonged litigation may result in further torment rather than any sense of having obtained justice. In comparison, mediation leaves room for considered negotiation and is less plagued with legal technicalities.
Another possible solution for conflict resolution proposed by Owen Pell of White & Case lawyers in New York, was the establishment of an arbitral tribunal of legal experts in the field, permanent or ad hoc, overseen by the Permanent Court of Arbitration. Founded on the premise that cultural property has a different status in international law to other forms of property (as indicated by conventions and recent indictments before the International Criminal Tribunal for the former Yugoslavia), accordingly it should be treated differently.
As Pell pointed out, Holocaust cultural property claims raise d1fficult 1ssues of proving ownership (when many of those involved in the earlier transactions are deceased and documents no longer available); of law (which law should apply when, for example, the Jewish owner may have been forced to sell the article under German law, the pa1nting was then sold by auction in Switzerland, and purchased by an English collector who lends the painting to an American museum which is where the painting is discovered by the Jewish heir and held by the American authorities pending hearing of the case); and
of time lim1tation periods, which differ depending on the applicable law, so that a claim may need to be made within, for example, three years of the theft or w1thin three years of learning of the whereabouts of the object, or the nght to claim ownership will be denied.
Michael Carl, of Eversheds lawyers in London, noted that Russia recently shortened its time limitation period to a mere eighteen months, and although the 1993 European Directive on the Return of Unlawfully Removed Cultural Objects[16] could potentially extend the time: period back more than seventy years, thus exempting WWII transfers, political pressure has made sure that option remains unexercised. Perhaps, as Teresa Giovannini of Lalive Partners in Geneva concluded in her closing comments, there should be no time limitations on cla1ms relating to art looted during war just as there are no time limitations on other forms of war crimes.
Hans Daas, who served as the Legal Department Director of the Commission for Real Property in Bosnia and a similar facility in Kosovo, detailed how an arbitral tribunal might deal with evidentiary problems: by exercising a strong fact-finding role in order to reduce the fact-finding burden on individual claimants, and in some circumstances, especially if involving mass claims, relaxing the standards for proof of ownership.
As many governments have already established commissions to explore the provenance of objects in state collections (for example, the United Kingdom Spoliation Advisory Panel, and the advisory committee to the Dutch government which explores the ownership of recuperated but unclaimed works that now form part of the Dutch National Art Collection[17]), arguably a strong fact-finding foundation is already in place.
An arbitral tribunal may be a viable option but the past offers a legislative alternative. Lyndel Prott reminded those at the Seminar of the precedential value of the Allies' 1943 Declaration of London. It gave 'formal warning to all concerned, and in particular to persons in neutral countries' that the Allies would 'do their utmost to defeat the methods of dispossession' practised by the Axis powers and accordingly, 'reserve all the1r rights to declare invalid transfers of, or dealings with, property, rights and interests' in occupied territories 'whether such transfers or dealings have taken the form of open looting or plunder, or of transactions apparently legal in form, even when they purport to be voluntarily effected.'[18] As Owen Pell succinctly stated, essentially it determined that there was no such thing as a bona fide purchaser of WWII-related property of the kind described.
Immediately following WWII, the neutral countries of Portugal, Sweden and Switzerland were pressured to give legal effect to the Declaration. The Swiss introduced a law that ensured that a 'good faith' purchaser-one who was unaware that the work of art had been improperly acquired -on giving up the work to its rightful owners would be fully compensated by the Swiss government. The law, however, was repealed on 23 December 1947, presumably to limit potential liability. Nonetheless, it showed that potential purchasers, by reason of the Declaration, could be put on notice and it obl1ged states to test the bona fides of a purchaser as ultimately the state could be liable to pay compensation. The real1ty of the transaction was also given higher priority than the legal form as Prott explained: 'under the German occupation this description covered not only forced loans and donations and those exacted by fear and intimidation, but also sales at unrealistic prices by persons seeking to ensure the physical safety of themselves and their families'.
Unfortunately, other than the pressure applied to the neutral countries, there was little enthusiasm amongst the Allies, being largely art importing countries, to give legal effect to the principles espoused in the Declaration. This reluctance to act remains apparent. Consider the time that many Western countries have taken to ratify the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property: the United States in 1983; France in 1997 and the United Kingdom in 2002. Switzerland, Belgium, Germany and the Netherlands are not part1es to the Convention.
The Resolution of Cultural Property Disputes Seminar in May largely focused on property taken during war, there are, however, other aspects which were not canvassed. Archaeological treasures are often lost to looters involved in clandestine digs; in tum, they become part of private collections never publicly viewed or researched. Even where a sale may be legitimate, the opportunity to trace provenance may be lost. As one expert observed of the sale of a unique Iranian inkwell sold at auction for £1.12 million: 'its huge importance to Iranian art and history accounts for the unheard-of price it fetched'. She posited that 'it must have been preserved until fairly recently either in the imperial treasury in Iran or in one of the great Shiite shrines in Iran or Iraq' but we may never know; its origins, along with other invaluable historical information, will now not easily, if ever, be identified and published.[19] The auction houses and dealers may not be involved in the first instance (when the local person sells for a few dollars) but they surely exacerbate the problem by failing to identify if the seller rightfully owns all of what they sell. A purchaser prepared to pay large sums should also bear responsibility for ensuring that it is being bought from a legitimate source.
As the problem of art looting and theft grows, in war and peace, so does the need for more comprehensive solutions. As Owen Pell observed, if cultural property is given unique status in international law through various conventions governing its protection, then surely it warrants special attention and directed solutions that may not be applicable to all forms of property but are certainly necessary to ensure the continued preservation of cultural heritage.
Postscript: Two recent developments illustrate respectively the possibility of recovering works of art stolen during conflict and the reluctance of some governments, in this case the US government, to initiate action that would help prevent theft from the source country. On 19 April 2004, the government of Ukraine returned 139 drawings to the Netherlands. These originally formed part of the Koenigs Collection that was first taken from the Netherlands by the Nazis, and later, in 1947, stolen by the Soviet Union. The Netherlands government was responsible for locating the drawings and negotiating their return and hopes also to recover other works of the collection which have been tracked to Moscow.[20] Meanwhile, the Iraq Cultural Heritage Protection Bill (HR 2009), introduced into the United States House of Representatives on 7 May 2003 and which provides for the recovery, restitution, and protection of the cultural heritage of Iraq through import restrictions and forfeiture of unlawful imports,[21] has been gradually watered down even amidst reports of increased looting.[22]
REFERENCES
Website addresses below were accessible 10 June 2004
[1] This article was first published in Art Monthly Australia Issue 162 (August 2003). It is an account of the Resolution of Cultural Property Disputes Seminar, the 7th International Law Sem1nar held by the Permanent Court of Arbitration at the Peace Palace, The Hague, The Netherlands, on 23 May 2003. In addition to the speakers referred to in this article, Seminar speakers also included Constance Lowenthal, former Director of the Comm1ss1on for Art Recovery based in the US, Wo1oech Kowalski of the University of Silesia and Legal Advisor to the Ministry of Foreign Affairs in Poland: and Konstantin Akinsha, Deputy Research Director of Art and Cultural Property for the Presidential Commission on Holocaust Era Assets in the USA The Seminar papers will be published in the Permanent Court of Arbitration Peace Palace Papers VII in late 2004
[*] KATRINA GUNN is an Australian lawyer who undertook a six-month fellowship at the Permanent Court of Arbitration in The Hague, The Netherlands, between January and June 2003.
© 2004 Katrina Gunn
email: katrina.gunn@bigpond.com
[2] Report of the Spo1iation Advisory Panel in Respect of Pa1nnng Now in the Possession of the Tate Gallery (2001) <www.culture.gov.uk/cultural_property/spoilation_ad-panel htm>. The painting is A View of Hampton Court Palace, by Jan Griffer the Elder (c1645-1718).
[3] Norman Palmer, Museums and the Holocaust (2000) 15
[4] Report of the Spoliation Advisory Panel0, above n 2, 13, [60, 65], 15, [68]
[5] Martin Bailey, 'Warka Vase returned to Baghdad museum -while Nimrud gold is unpacked in bank vault', The Art Newspaper com <www.theartnewspaper.com/news/article.asp?idart=11155>
[6] The Convention covers monuments, archaeological sites, works of art, and scientific collections as well as museums and libraries. In peacetime, parties are to prepare for the safekeeping of such cultural property 'against the foreseeable effects of an armed conflict' and during conflict, are to prevent its theft, and not use it or its immediate surroundings 'for purposes likely to expose it to destruction or damage' unless ‘military necessity imperatively requires’
[7] Duc de Frias cl Baron Pichon, Tribunal Civil de la Se1ne, 17 April 1885, Clunet 1886, 599
[8] The Franz Hals case, Demartini c Williams, Tribunal de Grande Instance de Naterre, 6 July 2001, not published
[9] 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Cultural Property is aimed at preventing imports and exports of illegally acquired objects, and the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects established common legal rules for the restitution and return of cultural property
[10] According to the Art Loss Register website, such claims are checked against forthcoming auctions sales of over 300,000 lots per annum Shareholders in ALR also include the other major auction houses of Christie's, Philips and Bonhams as well as insurance corporations and dealer associations See <www.artless.com>
[11] See Lost Art Internet Database <www.lostart.de>
[12] See Republic of Austria et al v Altmann (03-13) [2003] USCA9 246; 327 F 3d 1246, affirmed by the Supreme Court, June 7, 2004 <http //www.usscplus.com/current/cases/PDF/9940061.pdf> For background, see also Martha Lufkin, 'Austria fights ruling that it can be sued for Nazi-looted art', The Art Newspaper.com <www.theartnewspaper.com/newslarticle.asp?idart=11054>
[13] Palmer, above n 3, 14
[14] Such research has resulted in the Gallery's intention to return a painting by Flemish artist Frans Synders taken from Mme Edgard Stern in Pans in 1941.
[15] See K M Williams, 'Degas Settlement lands in unchartered territory' at <http:II museum-secunty.org/reports105098. html#8> Part of the difficulty is, as examined by Palmer, reluctance on the part of museums to question the provenance
of works donated or on loan, see above n 3, 23.
[16] Council Directive 93/7/EEC of 15 March 1993; Amendment 2001/38/EC of 5 June 2001; <http://europa.eu.int/scadplus/leg/en/lvb/111017b.htm> .
[17] See Origins Unknown <www.originsunknown.org>
[18] Inter-Allied Declaration against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control (The London Declaration) Signed London, January 5, 1943, by South Africa, the USA Australia, Belgium, Canada, China. the Czechoslovak Republic, UK, Greece, India, Luxembourg, the Netherlands, New Zealand, Norway, Poland, USSR. Yugoslavia and the French National Committee
[19] Souren Melikian, 'In war or peace, the ruin of world heritage' International Herald Tribune, 3-4 May 2003, 7
[20] Helen Fawkes, 'Netherlands hails return of stolen art', BBC News, 20 April 2004
<http //news.bbc.co.uk/go/pr/fr/-/1/hi/entertainment/arts/3640951.stm> Updates on cultural property looted between 1933 and 1945 are available on <http//www.lootedart.com>, an initiative of the Commission for Looted Art in Europe
[21] See <http//www.theorator.com/bills108/hr2009.html>
[22] See HR 3497 Introduced November 17, 2003 and S1291 -- and comment of Archaeological Institute of America at
<www.archaeological.org>
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