Historians vs. lawyers
by Marc Masurovsky
The past two decades have witnessed hundreds of restitution cases whose purpose is to reclaim the return of objects looted during the Nazi era. Although the claimants are located around the world, the legal actions are concentrated in so-called market nations, namely in North America, Europe and occasionally in Japan.
These cases set out to fix, to repair historical wrongs. Ambassador Stuart Eizenstat came up with what turned out to be an enduring catch phrase to describe such actions: “just and fair solutions”. It’s anyone’s guess, frankly, what constitutes “fair” and “just” solutions. They vary greatly whether you are the current possessor or the victim’s heir/heiress.
Still, the wrongs being repaired took place during a historical act of genocide that spanned the greater part of 12 years, from 1933 to 1945. It was aimed principally at the citizens of European countries of Jewish descent. Thus, art restitution is an act of justice seeking to repair a historical wrong.
To establish the facts and circumstances surrounding the “historical wrong”, lawyers—who are not trained historians—rely on those who have made it their career to examine the historical past, understand its many sinews and meanders and interpret it for a larger public. Hence, lawyers need historians to compile evidence and build a persuasive case to convince a current possessor of the looted object either through mediation or before a judicial authority that the looted object should be returned to his/her client.
If lawyers need historians, historians do not need lawyers.
The variegated ways by which art objects were forcibly removed from the ownership and control of their rightful Jewish owners can give us pause. Here are some, not all by any means:
-forced sales
-duress sales
-confiscations
-seizures
-sales while fleeing the site of persecution (flight sales or fluchtgut).
These complex “transactions” were deemed illicit by Allied powers fighting the Axis (Germany, Italy, and Japan) in a series of declarations during and after WWII making it clear that those responsible for aiding, abetting and/or provoking such illicit acts of forcible removal would be held accountable after the Allied victory over the Axis.
These illicit acts, in the eyes of those who study them—the historians—need to be clearly defined and all of their possible variations fully delineated and outlined so that their many permutations can be factored into legal proceedings.
By some perverse twist, American lawyers have increasingly opposed historians’ efforts to come up with clear definitions and delineations of these historical wrongs because any definition might impair their ability to successfully prosecute a claim against a current possessor.
The world is a strange place especially when, in order to repair a historical wrong tied to an act of genocide, a historian is asked to be silent on the exact details of these illicit acts.
Let’s be very clear here: historians need to do their jobs which is to apprehend the complexities of the past and explain them to the public in order to promote greater knowledge and enlightenment about what human beings do to other human beings so that, hopefully, we might not repeat such heinous acts in the future. Nice thought, I know.
Likewise, lawyers must do their job and protect their clients’ interests. For that, they need historians and other specialists to help them harness the facts of a case.
One thing they cannot do is order historians to censor themselves, just like historians do not ask lawyers to censor themselves.
Therefore, historians and researchers steeped in the tangled webs of persecution and exploitation of Jewish members of national communities between 1933 and 1945 will continue to study, examine, share in public and in private their findings and publish them where appropriate so that the many can have access to such knowledge.
Lawyers are intelligent people; they will surely find a way to adapt to such a state of affairs. After all, they cannot control the dissemination of knowledge anymore than governments can. And should not, under any circumstance.
Facts, ma’am, just the facts.
Some of the main Allied declarations:
Bretton Woods Resolution VI of 20 July 1944
