As Prepared For Delivery
Tonight, if you would like, I can be very brief. I can answer the question posed by the title of my talk in one word: Yes. Now, I would probably be wise to stop right there. But I can try to elaborate a bit, if you would like.
To set the scene, I would like to begin by reading a passage from something written by the woman who was for half a century the Paris correspondent for The New Yorker. Not long after the war, Janet Flanner published a three-part series in that magazine, which later appeared in a book entitled Men and Monuments, under the title “The Beautiful Spoils.” It begins this way:
For several thousand years, the looting of art by the victors from the vanquished has been the most civilized sideline of war. From time immemorial, war has given to the conqueror the privilege of plundering whatever art treasures have not been demolished. This last European war … produced history’s greatest, most delicate military traffic problem: the portage of the transferable loot, of which the art-hungry Nazis assembled thousands of tons and myriad trainloads of the classic, from bronze Apollos to stone saints, and of the cozy, from gold Empire soup tureens to a portrait of Mme de Pompadour in her boudoir. The physical act of carting pillaged beauty off to the homeland is older than the hills of Rome, which are peopled with marble mythology stolen from the temples of Athens. But the [Nazis] did something new this time; they looted art on an ideological basis—almost all of the victims were French, Dutch, Austrian and Belgian Jews, and Poles and Russians of any faith. The fact that the Nazis considered the looting of art a protection of art was also a novel touch.
The United States government’s commitment to returning such beautiful spoils to those from whom it was taken also dates back to World War II. During that war the Supreme Allied Commander, General Dwight Eisenhower, established measures to facilitate the eventual restitution of looted art and historical objects. This was in accord with the Allies’ wartime statements about looting, particularly the “London Declaration,” which “reserve[d]” the Allies’ “rights to declare invalid” any property transfers in the Axis and occupied territories, even those “apparently legal in form, even when they purport to be voluntarily effected.” The Allies continued the policy after the war by issuing Allied Military Law Number 59, which they applied to property restitution cases in the Occupied Zones of Germany.
This policy of favoring restitution extended beyond the United States’ role as an occupying force. Shortly after the war, government officials stated that the introduction of looted art into the United States contravened U.S. policy and that the U.S. government had both a responsibility and a desire to return looted cultural property to its country of origin. Two circulars published in the Department of State Bulletin, in August 1951 and October 1954 respectively, reiterated our commitment to pursue restitution. They made it clear that all transfers in Nazi-dominated Europe, including so-called forced or coerced transfers, were suspect, and that defenses, such as a buyer’s claimed ignorance of a forced transfer, should not bar restitution. The Department of State also circulated a letter to universities, museums, libraries, art dealers, and booksellers explaining the government’s policy on the restitution of cultural objects, including works of art, and requesting assistance in identifying potentially looted items.
Almost fifty years later, at the very end of 1998, the Department of State and the United States Holocaust Memorial Museum convened an international conference in Washington to discuss what they called “Holocaust-era assets.” This was no small event. Its published proceedings, which were edited by the first person to hold the title of Special Envoy for Holocaust Issues in the Department of State, clocked in at 1146 pages. One-hundred-fifty or so pages of this volume alone are devoted to “Nazi-confiscated art issues.” But it’s not until you come to page 971, in the Appendices, that you find a short document called the Washington Conference Principles on Nazi-Confiscated Art. At this conference, forty-four countries, including our own, agreed to these principles, which essentially stated that where owners of such art or their heirs can be identified, “steps should be taken expeditiously to achieve a just and fair solution.” The eleventh and final principle “encouraged” nations to “develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.”
Since then, it has regularly been said that these principles revolutionized the art market. Here, for instance, is how one prominent participant in that conference characterized them years later:
At the Washington Conference we obtained a consensus from 44 countries on a voluntary set of Principles on Nazi-Confiscated Art, which profoundly changed the world of art. The guidelines have important moral authority. They called on museums, galleries, and auction houses to cooperate in tracing looted art through stringent research into the provenance of their collections. Leeway was to be given to accepting claims. An international effort was to be made to publish information about provenance research. A system of alternative dispute resolution was to be considered to prevent art claims from turning into protracted legal battles. Since none of these principles was legally binding, one may legitimately ask whether anything has really changed. The answer is unequivocally yes.
Major auction houses conduct thorough research on artworks that they bring to market, museums examine the provenance of any prospective purchases carefully; and private collectors consider the prior history of paintings they have under consideration…And hundreds of artworks have been returned to their rightful owners.
These principles also played an important role in the decision of five or so European countries to set up national processes to implement them in the form of alternate dispute resolution mechanisms. I shall return to this topic in a few moments.
But first I would like to turn the clock—or perhaps I should say the pages of the calendar—back to 2009. In June of that year, the Czech Republic, which was then holding the presidency of the Council of the European Union, played host to the fifth post-war conference on Holocaust-era assets. This conference occurred nearly a decade after the fourth. Since the previous four conferences had occurred within about four years of one another, this might suggest that some wind had gone out of the sails of the movement to review Holocaust-era assets at international gatherings. If so, the Prague Conference did its best to fill those sails again.
That conference’s final document, the Terezin Declaration, has been called the most comprehensive final document of the most ambitious of the five such post-war conferences on Holocaust-era assets. Among other things, the Prague conference is often said to have been the first of these conferences to create a “follow-up mechanism.” That follow-up mechanism is called the European Shoah Legacy Institute, which is located in, yes, Prague. ESLI, as we call it, describes its mission as: “…to seek – in cooperation with governments, non-governmental organizations and independent experts – systemic solutions on an international level leading to restitution of immovable property, art, Judaica and Jewish cultural assets stolen by the Nazis; provision of adequate social welfare to Holocaust (Shoah) survivors and other victims of Nazism; and promotion of Holocaust education, research and remembrance. The Institute serves both as a voluntary forum for exchange of views, sharing of experience, and articulation of needs and priorities. At the same time, it is a vehicle or a catalyst for the parties already active in this field, helping them to identify and develop best practices and guidelines of work.”
As you will note, among its missions is that of seeking systemic solutions on an international level to the restitution of Nazi-confiscated art. This particular mission, like its others, flows out of the conference’s concluding document, the Terezin Declaration, which among other things reaffirmed the Washington Principles and then added to them. It stated:
We urge all stakeholders to 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 to make certain that claims to recover such art are resolved expeditiously and fairly based on the facts and merits of the claims and all the relevant documents submitted by the parties. Governments should consider all legal issues when applying various legal provisions that may impede the restitution of art and cultural property, in order to achieve just and fair solutions, as well as alternate dispute resolution, where appropriate under law.
The Terezin Declaration, like the Washington Principles before it, does not mandate a particular outcome. Instead, both documents lay out the guidelines and the “best practices” that ought to guide deliberations over the restitution of art once plundered by the National Socialist regime or its collaborators. Their intent is to coax the parties to a particular dispute to seek to determine the facts of the matter and to avoid if possible resorting to legal arguments grounded in procedural matters. In saying this, I am aware that procedural defenses exist for a reason and that they are also an ancient and venerable part of the common law tradition. But setting aside the question of valid defenses that may be available in litigation, we believe that the best way to arrive at a just and fair solution to a dispute over Nazi-confiscated art is for the parties to resolve it where appropriate, based on the facts of the claims. It is, in addition, the view of the United States Department of State that the public good is best served when institutions return cultural property looted or spoliated by the National Socialist regime, including by transfers that appear to have been voluntarily effected but were not, to those from whom it can be shown to have been unlawfully or forcibly taken or to their heirs.
Now, that having been said, I should perhaps add that we take no particular position on the best way to do so. In general, however, our Holocaust policy favors dialogue and negotiation—mediation, if you will—over litigation. It is this long-standing policy, I believe, that underlies the encouragement in the Washington Principles of national processes for alternate dispute resolution mechanisms.
In the wake of the Washington Conference, as I noted earlier, a number of nations in Europe took its encouragement to heart. They established national processes—generally in the form of commissions—to review claims for the return of art as an alternative to “protracted legal battles.” For whatever reason, they felt it was no longer possible for their museums and other cultural institutions to hang on to art in question. They could do this in part because much of this art was in national collections under their direct control. Thus, for them, it was mainly an administrative matter to deal with claims for looted art. Once such a national process resulted in a recommendation by a commission to the cultural authorities, to remove the art work from a national museum and to give it back to its rightful owner, it became, as the great P.G. Wodehouse used to write, the work of but a moment to return that work of art.
In this country, which lacks such a national alternate dispute resolution mechanism, not to mention much in the way of national collections, things are not quite this simple. As you well know, many disputes over high-value works of art inevitably land in American courts of law. Of course, museums do from time to time voluntarily return works of art to those they deem the rightful owners. In fact, their own guidelines and best practices encourage if not require them to do so. In 1998, the U.S. Association of Art Museum Directors issued a “Report of the Task Force on the Spoliation of Art During the Nazi/World War II Era (1933-1945), which contained principles that clearly preceded and informed the Washington Conference Principles. In the section entitled “Response to Claims Against the Museum,” the report states:
1. If a member museum receives a claim against a work of art in its collection related to an illegal confiscation during the Nazi/World War II era, it should seek to review such a claim promptly and thoroughly. The museum should request evidence of ownership from the claimant in order to assist in determining the provenance of the work of art.
2. If after working with the claimant to determine the provenance, a member museum should determine that a work of art in its collection was illegally confiscated during the Nazi/World War II era and not restituted, the museum should offer to resolve the matter in an equitable, appropriate, and mutually agreeable manner.
3. AAMD recommends that member museums consider using mediation wherever reasonably practical to help resolve claims regarding art illegally confiscated during the Nazi/World War II era and not restituted.
These guidelines suggest a means of resolving art disputes that offers an alternative to litigation. For this to work, however, museums must adhere to them, especially by resorting to mediation. The United States government has little, if any, leverage to force compliance with these guidelines. Museums in the United States, after all, tend to be owned and operated privately, or by state or municipal authorities.
At the same time, we should recall that, according to the American Alliance of Museums’ Code of Ethics:
Museums in the United States are grounded in the tradition of public service. They are organized as public trusts, holding their collections and information as a benefit for those they were established to serve. Members of their governing authority, employees and volunteers are committed to the interests of these beneficiaries. The law provides the basic framework for museum operations. As nonprofit institutions, museums comply with applicable local, state, and federal laws and international conventions, as well as with the specific legal standards governing trust responsibilities. This Code of Ethics for Museums takes that compliance as given. But legal standards are a minimum. Museums and those responsible for them must do more than avoid legal liability, they must take affirmative steps to maintain their integrity so as to warrant public confidence. They must act not only legally but also ethically. This Code of Ethics for Museums, therefore, outlines ethical standards that frequently exceed legal minimums.
This being the case, there is perhaps an opportunity here for museums to seek to maintain their integrity so as to warrant public confidence by voluntarily engaging in mediation or some other manner of resolving disputes over ownership of Nazi-looted art that avoids the need to do so in a court of law. The same might be said for attorneys who pursue cases against them, for it is not entirely uncommon for me to hear the criticism voiced that sizable settlements and legal fees do more to benefit the attorneys who have litigated the cases than they do to benefit the rightful owners, particularly when there are a number of heirs involved in a claim.
There is an expectation, which we ourselves may have created, that the Department of State will create a national alternate dispute resolution process similar to those one finds in a number of European countries today. It is also widely observed that we have not yet fulfilled this expectation. But there is no reason why this should impede the efforts of others to do the same. Nor should our inability so far to create such a process or mechanism to deal with Holocaust-era art losses be taken to represent some sort of larger policy decision of the U.S. government that all such disputes should now be settled in court. After all, it is not as if other branches of government have not engaged successfully in returning art confiscated by the Nazis to claimants both at home and abroad, as the actions of the customs authorities and law enforcement officials who have returned porcelain to Germany and paintings to Poland, and the work of New York State’s own Holocaust Claims Processing Office in securing a number of paintings for the rightful heirs of the Max Stern Estate, demonstrate.
Alexis de Toqueville once observed that: Americans of all ages, all stations of life, and all types of disposition are forever forming associations...In democratic countries knowledge of how to combine is the mother of all other forms of knowledge; on its progress depends that of all the others." It seems to me that this meeting today offers you an opportunity to discuss whether Americans in the legal and art communities might not find it in their mutual interest to form an association of some sort that would provide an alternative to long and expensive litigation over Nazi-confiscated art that all-too-often leaves a bitter taste in many mouths. There is no guarantee, of course, that a claimant would always prevail in such circumstances. They do not even in European nations with such processes, as the not infrequent requests I get from unsuccessful claimants or their attorneys in this country to intervene diplomatically with commissions abroad to get them to reverse their decisions also demonstrates. But if a mechanism could be created that would allow the parties to submit their dispute to impartial mediation, it would certainly offer an alternative resolution mechanism that would aid rightful owners or their heirs, still provide attorneys with a decent living, and allow art museums to live up to commitments they willingly assumed fifteen years ago. You might even consider an innovation that the Dutch Restitutions Committee requires in private party disputes—a binding opinion.
Finally, to end where I began, allow me to read a statement issued by former Secretary of State Clinton on January 16 of this year on the subject of “Holocaust-era Looted Art.” It provides a brief and clear answer to the question I was asked to address here tonight, by saying:
This month we commemorate the seventieth anniversary of the Inter-Allied Declaration against Acts of Dispossession Committed in Territories under Enemy Occupation and Control, known as the London Declaration of January 5, 1943. Beginning with the London Declaration, the United States implemented a policy of returning Nazi-confiscated art, including art taken through forced and coerced transfers, to its countries of origin, with the expectation that the art would be returned to its lawful owners. Under U.S. leadership, the international community has endorsed these principles as well. In the 1998 Washington Principles on Nazi-Confiscated Art and the Terezin Declaration of the 2009 Prague Conference on Holocaust Assets, more than forty countries joined the United States in agreeing that their respective legal systems or alternative dispute resolution processes should facilitate just and fair solutions for art that was taken by the Nazis and their collaborators. In reaffirming these commitments, the Department of State expresses no view on any issue currently in litigation. U.S. policy will continue to support the fair and just resolution of claims involving Nazi-confiscated art, in light of the provenance and rightful ownership of each particular work, while also respecting the bona fide internal restitution proceedings of foreign governments.
US State Department website accessed 26 March 2013 http://www.state.gov/p/eur/rls/rm/2013/mar/206719.htm?goMobile=0