by Marc Masurovsky

[The following presentation was delivered at the annual conference of the Lawyers’ Committee for Cultural Heritage Preservation (LCCHP), which took place in Washington, DC, on April 13, 2018. This presentation was part of a panel on ethnic minority rights to recover their looted cultural property and how States oftentimes interfere with those rights.]

I would like to thank the Lawyers Committee for Cultural Heritage Preservation for having invited me to speak today. I am grateful for their support and I thank this panel’s members for letting me sit among them.

I am neither a lawyer nor an art dealer. Neither do I collect indigenous or archaeological objects. Although I am identified as a co-founder of the Holocaust Art Restitution Project, the views that I hold today are my own.

I have been a lifelong student of the economics of genocide and more particularly of cultural plunder and the trauma that it has engendered and continues to inflict on its victims.

My first professional encounter with these crimes against humanity occurred while working for the Office of Special Investigations of the US Department of Justice. Three years in those trenches brought me into intimate face to face contact with Nazi collaborators living quiet lives in the United States. They owed their freedom to a cynical calculation by Western politicians, military strategists and intelligence agents that it was better for them to recruit Axis war criminals to be deployed in the event of an impending global conflict against the Soviet Union than handing them over to face justice in the countries where they had plundered, tortured and murdered untold numbers of Jews and local enemies of Nazism and fascism, real or imagined. A number of those whom I met were personally responsible for the forced dispossession of thousands of Jews in far-flung corners of Eastern Europe and the Aryanization of their holdings.

I have spent the greater part of my adult life, with mixed results, advocating for the restitution of looted art objects to their rightful Jewish owners. I have always viewed restitution, as part of an overall healing process, a salve on a trans-generational traumatic scar. I had thought that restitution or the physical return of a stolen object to its rightful owner would be as simple as removing the claimed object from a wall, a cupboard, a safe, a table, a library shelf, and handing it over to its rightful owner. As it turns out, I was quite naïve; I fell off that horse long ago as restitution is the most complicated and twisted process that I have ever encountered.

The reasons for this are manifold. They are ensconced in legal concepts and value systems that, in my view, place the private property rights of current possessors outside the realm of question. Those who possess the claimed item invoke good faith as a defense as if it was an accepted religious dogma. In most nations, good faith is accepted on faith in cult-like fashion and is upheld by State officials, museum personnel, their lawyers and those businessmen who currently own those objects. Good faith is an extremely difficult shield to pierce. Ethical and moral arguments alone cannot even dent its armor. A recent illustration of this problem comes from Switzerland where it took nearly two decades for a single Frenchman of Jewish descent with lots of pro bono help, creativity and chutzpah, to force a Swiss museum to return to him a painting which his family had lost in 1943, the first such restitution to a non-Swiss Jewish claimant since 1949.

In a world which hides behind good faith and heralds private property rights as sacred, even in the face of horrors committed against entire populations, one has to wonder: is justice an empty word?

It is partly in this context that I can discuss how ethnic minorities can recover their looted cultural assets. Their rights have been routinely trampled in the nations where they have dwelt for generations. To put it bluntly, human beings have been socialized for millennia to display very low levels of tolerance towards the “others”, those who do not think, look, and believe in the same way as those who belong to the dominant group wielding local, regional or State power. Too often, dominant groups will solve these differences through marginalization, dehumanization, persecution, incarceration, deportation, and outright extermination. Every corner of the globe is tainted with the blood of the “others”. And every corner of the globe is host to the displaced possessions of the “others.”

There is a system of international laws, charters, covenants, and conventions, which has been in place for decades that seeks to address these egregious acts of persecution and dispossession. International organizations tend to recognize those rights, countries around the world have signed international conventions recognizing the rights of indigenous peoples, the United Nations boasts of charters that uphold those rights. One cannot even count how many NGOs exist which are there to protect and safeguard the rights of ethnic minorities. And yet…

In practical terms, we need to address how dispossessed objects which are located in foreign markets or displayed in museums or galleries, far away from the scene of the crime, can be restituted to their rightful owners, be they cultural groups, religious minorities, ethnic communities whose members are scattered across many continents.

As indicated earlier, the physical return of these objects to rightful owners is the most difficult and yet, in my view, the clearest expression of how to counter a State-sponsored theft: by transferring title to the aggrieved party. The more likely scenario to unfold involves some form of compromise on the part of the victim or the victim’s heirs and representatives. Either the victims are compensated financially or some other arrangement is reached which upholds the rights of the current possessor while providing some form of relief to the claimant. Is that fair and just? In 1998, the Washington Conference on Holocaust assets produced a list of 11 non-binding principles which were designed to guide nations and institutions where looted objects were identified on how to either return them or seek some form of “just and fair solution.” Victims of plunder did not initiate the idea of just and fair; the current possessors, in most cases State-owned museums and institutions, pressed for that idea, one that diplomats embraced as an acceptable resolution of the treatment of objects looted during the Third Reich in the context of a genocidal enterprise.

If we apply the logic of the Washington Principles to the treatment of objects forcibly removed from ethnic minority groups around the world, the outcome would be nothing short of catastrophic since it would imply that no one could recover their lost property. Why return objects when the current possessors are given the opportunity to seek a compromise arrangement with the aggrieved parties? In the case of antiquities, source nations would never abide by these Principles because they would prevent the repatriation of their cultural heritage. A just and fair solution rarely entails the actual return of the object, unless the source nations accept that these objects be loaned to them without actually recovering them in the same way that the Victoria and Albert Museum has agreed to loan objects to Ethiopia on a long term basis.

When cultural objects are considered to be a nation’s cultural property, and are viewed as part of that nation’s patrimony, the questions of ownership become even more complex and require political solutions. Nations repatriate to other nations, not to individuals or local groups. Much like after the Second World War, Allied cultural advisers repatriated looted art to the nations where the thefts had taken place, leaving it to those governments to restitute the items to individuals and to aggrieved communities. All nations indulge in this duplicitous approach to culture, some are worse than others. Governments can and will impose their inalienable right to ownership of repatriated objects at the expense of victimized groups and individuals if they are allowed to do so.

Those who deal, collect, exhibit, trade, lend, donate cultural objects across borders bear a unique responsibility in the treatment of objects illicitly acquired and recirculated through private and public channels across borders. Although looting is an unacceptable crime, it is also universal, as is the acquisition and trade of looted cultural and artistic objects. Many of these looted objects come from nations governed by autocrats, where democracy is a dirty word. Many nations today have fallen prey to nationalist parties and movements which believe strongly in the cult of the nation as an incarnation of a certain ideal of citizenry. Culture is treated accordingly. In a peculiar way, those nations are anxious to recover their looted cultural property but they are not eager to return those objects to their citizens especially when they are members of ethnic minorities. While the nationalist wave is gaining ground across Europe and even in the United States, it has been a reality for decades in the Middle East, Africa, Latin America and Asia.

From an ethical and moral standpoint, the repatriation of looted objects to autocratic and dictatorial nations can be viewed as problematic. But what is the alternative? Prevent those objects from returning to their source? Under what pretense? That we are morally and culturally superior? If we follow those arguments, we are no better than 19th century colonial adventurers who viewed the “others” as inferiors and whose assets should best be handled by the Western world. We cannot allow ourselves to think that we are morally superior to anyone. Although I am not at all religious, I find that there is something to be said for the biblical adage: let he who is without sin cast the first stone.

Ultimately, this discussion should go beyond the rights of ethnic minority groups to recover their looted cultural assets. It should encompass all victims of cultural plunder. The solutions are manifold and delicate. They require careful coordination at the policy level, nationally and internationally. At the core, these solutions must reconcile the interests of the art market, the interests of governments, the interests of those who possess and display, the interests of those who have been victimized by acts of expropriation and dispossession and outright thievery. Art objects are an integral part of our individual and collective memory of the past and the present. They are an extension of who and what we are. For those reasons, it is as important to transcribe faithfully and truthfully the story of these objects as it is to recover them. Every cultural object, regardless of origin, deserves a thoroughly fleshed out provenance before it is displayed or traded. Ignorance, arrogance and greed are the enemy.

One way to forestall future acts of State-sanctioned plunder is to ensure that the history of these objects and their owners is written, published, disseminated and taught to as wide a public as possible.