Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected. Private property cannot be confiscated. (Art. 46)
Pillage is formally forbidden. (Art. 47)
1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land
K. To make restitution of art and cultural property that remains in state-owned collections and private hands possible, countries should consider making exceptions to barriers such as regulations against deaccessioning from state collections, statutes of limitations, market overt, usucapion (mode of acquiring title to property by uninterrupted possession of it for a definite period), good faith acquisition, and export bans.
Best Practices for the Washington Conference Principles on Nazi Confiscated Art
In early 1997, the Meili affair exposed pervasive cover-up schemes by Swiss banks to conceal the laundering of Nazi-looted assets by destroying documents of confiscated and looted Holocaust-era assets. This scandal was emblematic of the lack of political will and commitment to the 20 January 1943 London Inter-Allied Declaration Against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control, which called on neutral countries not to trade in property (art included) looted by the Nazis. Seemingly, the Meili affair was the tripwire for Washington Conference On Holocaust-Era Assets that endorsed the Washington Conference Principles on Nazi Confiscated Art. Credit, however, must go to a three-day symposium in 1995. Commemorating the 50th anniversary of the end of WWII, the Bard Graduate Center for Studies in the Decorative Arts hosted a symposium organized by Elizabeth Simpson to discuss the Nazi plunder of art work, cultural property, and historic sites. Simpson, an archaeologist and professor at Bard, would exquisitely write on the substance of the symposium in The Spoils of War: World War II and Its Aftermath: The Loss, Reappearance and Recovery of Cultural Property – a highly recommended read.
The Washington Principles attempted to reach “a consensus on non-binding principles to assist in resolving issues relating to Nazi-confiscated art,” the Conference recognizing “that among participating nations there are differing legal systems and that countries act within the context of their own laws.” This recognition was nothing new. In fact, this pesky issue was appreciated during the London Conference, and to this day persists as a reality beyond change.
The expectation since the London Conference and the adoption of the Washington Principles were that the signatories would make concerted efforts to pass domestic legislation and adopt robust modalities to meet the clearly defined goals, however aspirational. Yet progress has been tepid – but not for lack of awareness.
The same signatories to the Washington Principles met in 2009, and, once again, renewed their resolve in dealing with Holocaust-era looted art and cultural property by adopting the Terezin Declaration on Holocaust-Era Assets and Related Issues. A bit of retread of the Washington Principles – though exceptionally detailed, exceptionally aspirational, and unexceptionally consequential.
As of today, most states who signed on to the Terezin Declaration (many who were signatories at the London Conference, and all signatories to the Washington Principles) have done exceptionally little to meaningfully address with robust measures and actions most of the principles agreed to in the Terezin Declaration. According to the 2024 World Jewish Restitution Organization’s Report – Holocaust-Era Looted Cultural Property: A Current Worldwide Overview (here) – only seven of 47 countries have made major progress in art and cultural property restitution. Chalk this up to a lack of domestic political will, even indifference. It is as if these sorts of international declarations are merely feel-good recognitions of past crimes and unacceptable conduct, but not sufficiently significant to spring the signatories to act beyond what is most convenient and least taxing.
So here we are, 80 years after the 1943 London Conference and the efforts made during WWII to protect against the plundering of art and heritage sites (George Clooney’s mediocre comedy-drama Three Monuments Men is somewhat historically accurate but woefully unsatisfying), and 25 years after the Washington Principles that the same signatories felt the need to draft a set of Best Practices.
Best practices are generally welcomed. They are designed to provide cookbook guidance and modalities in behavior and problem-solving. The Best Practices, which, incidentally, were ushered in by a powerfully persuasive and inspiring announcement by US Secretary of State Antony Blinken, however, aside from reinforcing what needs to be done, offer little concrete guidance and more of the same aspirational supplications (encouraging the signatories). No new ground is covered. Nothing said is anything not known. Determining the provenance of art to ensure it is not looted or forged requires due diligence. The methods and means are widely known – especially by museums and auction houses. Assuredly, more robust efforts must be made in identifying and tracking looted art and cultural property – whether for the Holocaust or otherwise. The Achilles heel in getting the stolen property back to the rightful owner, however, remains. Namely, the laws and procedure at the state level tend to be user-unfriendly. Best Practice K, quoted above, informs.
There are plenty of examples. One that I find illuminating and entertaining (and with a happy ending) is the film The Woman in Gold, starring Helen Mirren and Ryan Reynolds. It showcases just how difficult it is to retrieve a stolen piece of art (in this case, a Gustav Klimt painting), even after proving provenance and ownership. It took a decade for this case to work its way through the various legal hoops and dodgy maneuverings of the Austrian Government before the rightful owner could take possession of the painting. Other cases have dragged on longer and with less success or no end in sight (see e.g., A shocking return: Nazi-looted Pissarro painting won’t return to Jewish Family).
Looting has been around since ancient times. But even then, there were laws and limits. And while up until the emergence of nation-states, the saying went “to the victor goes the spoils”, we see a greater appreciation against looting and plundering. Nothing excuses the looting by the Nazis, as nothing should excuse impediments that prevent full restitution to dispossessed owners.
One of the earliest cases dealing with illegal appropriation of artwork and artifacts is the case against Caius Verres, a Roman magistrate and Governor of Sicily, prosecuted by Cicero in 70 BC in the Roman Extortion Court. Verres used his position in appropriating sacred images and objects belonging to temples and shrines. Cicero successfully argued that Verres had turned public and religious artifacts into his own private property by forcibly removing them contrary to Roman law. As for pillaging and plundering, the great legal scholar Emer de Vattel wrote his celebrated The Law of Nations (1797):
For whatever cause a country is ravaged, we ought to spare those edifices which do honour to human society, and do not contribute to increase the enemy’s strength,—such as temples, tombs, public buildings, and all works of remarkable beauty. What advantage is obtained by destroying them? It is declaring one’s self an enemy to mankind, thus wantonly to deprive them of these monuments of art and models of taste.
U.S. President Abraham Lincoln’s General Orders No. 100: Instructions for the Government of the Armies of the United States in the Field,” commonly known as the “Lieber Code” (after its main author Francis (Franz) Lieber) reaffirms Vattel’s refrain. The Geneva and Hague conventions that follow prohibit looting and plundering. Yet the Nazis looted with abandon. Decades later fairness and justice and equity are hard to come by.
Navigating through the intricate web of historical injustices, legal hurdles, and the moral imperatives surrounding the restitution of looted art and cultural property reveals the intricate interplay of history and law. It is within this context of ongoing dialogue and exploration that my involvement in the Avant-Gardes Dialogues podcast came to be – which turned out to be an excellent opportunity to delve deeper into these themes, share insights, and engage with a fellow advocate.
Some of the topics discussed during the podcast included the restitution of looted art and artifacts, whether by the Nazis or by the colonial and imperial powers or settlers during their heyday when they were out to “civilize” the “uncivilized” (as in Canada and the US where cultural genocide in various forms is all but certain to have been committed). We also briefly touched on intangible cultural heritage rights, and the return of cultural heritage property. Naturally, I took aim at Lord Elgin and the British Museum for the unlawful destruction of the Parthenon, the removal of the marbles, and the purchase of them by the British Government despite knowing the dubious acquisition of them by Lord Elgin.
I am grateful to Nikoletta M for inviting me on Avant-Gardes Dialogues to discuss timely and relevant and important issues – as is her aim in launching her podcast. Have a listen. And while you are at it, you might also find it interesting to read my blog posts mentioned during the podcast:
- Book Review: The Parthenon Marbles and International Law by Prof. Catherine Titi
- Guidance to English Museums for Responding to Restitution and Repatriation Cases: Are the winds blowing in the direction for the return of the Parthenon Marbles?
- Book Review Series: On Returning Cultural Objects and Heritage Destruction – Part One
- Book Review Series: On Returning Cultural Objects and Heritage Destruction – Part Two
- Book Review Series: On Returning Cultural Objects and Heritage Destruction – Part Three
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Excellent commentary, Michael. But what’s with the strikeouts?