The Unlawful Acquisition of Cultural Property in Europe and its Restitution
The wanton destruction and looting of historical sites by ISIS and other terrorist organisations has dark echoes of another cultural ransacking in the history of Europe. The activities of the Nazis between 1933-1945 resulted in not just the annihilation of two thirds of the Jewry of Europe but in the spoliation and destruction of cultural property on an unprecedented scale.
It is estimated that the Nazis stored 5 million objects in castles, mines and other depots. Between 1945-1950 the Americans and the British restituted 2.5 million cultural objects. The Soviets restituted 1.5 million cultural objects to the GDR and other Warsaw Pact countries between 1955-1958.
As the years passed and as many of those who survived the Holocaust became older and died it fell upon heirs and relatives to pursue claims for the restitution of spoliated cultural objects. In November 1989 the people of Germany demolished the Berlin Wall and in October 1990 the East and West were unified. Nations began to recognise that a new reality was needed to deal with the problem of Nazi looted property. Archives in Eastern Europe and Russia were opened for the first time. As the millennium approached there was a renewed enthusiasm to complete the unfinished business of the 20th Century.
It is intended to examine in this paper the efforts made by governments, in particular that of the UK, to complete that business.
Soft Law: The Evolution of Just and Fair Solutions
In December of 1997 a meeting of 42 countries (the London conference) discussed the issues surrounding the theft by the Nazis of tons of gold in Europe. The conference also began to focus on other spoliated assets, including artworks, and emphasis was placed on the need for access to both private and public archives.
By 1998 a meeting of 44 nations at the influential Washington Conference on Holocaust Era Assets recognised the difficulties of establishing title to spoliated cultural objects and that allowances had to be made for “unavoidable gaps or ambiguities in the provenance (of works of art) in the light of the passage of time and the circumstances of the Holocaust era.” The emphasis was on obtaining a just and fair solution.
In November 1999 the Council of Europe representing 41 nations unanimously passed Resolution 1205 calling for the return of looted property. In particular it exhorted Member States to immediately give consideration to ways in which that aim might be achieved including, where necessary, passing laws to extend or remove statutory limitation periods.
A year later in Vilnius, Lithuania, the Vilnius Forum acknowledged the need to reach just and fair solutions to the return of spoliated cultural property. 38 countries agreed to make reasonable efforts to implement the Washington Conference Principles and Resolution 1205. In particular, to make freely available the information and resources to enable restitution including the establishment of a central reference point.
By 2003 the European Parliament adopted a resolution acknowledging that the problem of the disputed ownership of cultural goods remained. There still was no comprehensive framework in place to resolve the problems arising from looted art. The De Clerq Report concluded that what was needed was a clear and coherent approach based not just on legal principles but on moral and equitable principles as well.
Whilst some countries began to put their money where their mouth was, there was still a gulf between the good intentions espoused in the Washington and Vilnius conferences and what was actually happening on the ground.In 2009 the Conference on Jewish Material Claims against Germany (Claims Conference) and the World Jewish Restitution Organisation (WJRO) presented a worldwide overview of progress since Washington/Vilnius in Prague. On 30 June 2009, the final day of the Prague Conference, the representatives of the 46 States met in Terezin. The Participating States reaffirmed their commitment to the Washington Conference Principles and stressed the importance of intensified systematic provenance research and the establishment of mechanisms to facilitate just and fair solutions to the restitution of Nazi looted art.
In 2010, following on from the Prague Conference, the Czech Government established the European Shoah Legacy Institute in Terezin (ESLI) to serve as a forum for countries and organisations representing Holocaust survivors and other victims of Nazi persecution. Amongst its objectives the ESLI would publish reports on activities related to the Terezin Declaration and develop websites to facilitate sharing of information in respect of art provenance.
Since the Terezin Declaration and the establishment of the ESLI there has been an increase in the number of research databases that have been established. International Research Portal for Records Relating to Nazi Era Cultural Property came on line in 2011 at the National Archives and Records Administration (USA) and provided links to sites in USA and Europe.
The Response of the United Kingdom to Finding a Just and Fair Solution
A few months after the London Nazi Gold Conference in December 1997 the Secretary of State for Culture, Media and Sport asked the National Museum Director’s Conference to examine the collections of the national museums.
The first report published in February 2000 listed 340 works for which 1933-1945 provenance was either incomplete or absent.
In July 1999 the Tate Gallery was approached by a Jewish family living in Britain who claimed that a painting that belonged to their family until WWII had been sold at an undervalue and was now in the collection of the Tate. The painting was View of Hampton Court Palace by Jan Griffier the Elder. The family were seeking guidance as to their rights and their claim. An exchange of information was made and the Tate eventually sought advice from the Government as to the appropriate way forward.
In February 2000 the Government formally announced the creation of the Spoliation Advisory Panel SAP.) The first claim that the SAP considered was the Tate Griffier painting.
The SAP resolves claims concerning property lost during 1933-1945, which is now held in the UK national collections. It considers both legal and non-legal obligations including the moral strength of the case. It is an alternative to litigation and the claimant is expected to accept the Panel’s recommendation as a full and final settlement.
The Panel shall make such factual and legal inquiries as appropriate (including seeking legal and other expert advice) and evaluate on the balance of probabilities the validity of the claimants original title to the object recognising the difficulties of proving such title.
If the Panel upholds a claim it may recommend either:
- the return of the object to the claimant, or
- the payment of compensation, or
- an ex gratia payment, or
- the display alongside the object of an account of its history and provenance with special reference to the claimant’s interest.
Since its first recommendation in 2001 (upholding the claim in relation to the Griffier painintg and recommending an ex gratia payment and provenance display) it has made recommendations in a further 17 cases involving works in the collections of the UK’s major museums and libraries.
In the years since the Prague Conference there has been a significant increase in the establishment of research databases, both private and national, and in the training of provenance researchers. The discovery in November 2013 of the “Schwabing Art Trove” in the Munich apartment of Cornelius Gurlitt (the son of Nazi art dealer Hildebrand Gurlitt) and the recent claim about the so called “Nazi Gold Train” said to be in an underground tunnel near Wroclaw in Poland aroused new interest in Nazi era looted art and emphasised the international nature of work in researching provenance and determining just and fair solutions to ownership claims.