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by Marc Masurovsky
[Editor’s note: this is an opinion piece which reflects the views of the author and does not necessarily commit those of others to what is argued hereunder.]
For our purposes, I will limit my comments to Jewish losses and restitutions to people of Jewish descent who either were persecuted or were blood relatives of victims of anti-Jewish persecutions between 1933 and 1945.
Most commonly, the notion of restitution has been associated in the minds of both the public and legal practitioners and policymakers with anti-Jewish persecution.
The actual physical return of the looted object affirms the transfer of legitimate title to the stolen/recovered property to the rightful owner/claimant.
National governments, their agencies, and international organizations, view the word “restitution” in a different light. It would be easier to use words like “return” or more aptly “transfer.” Indeed, after WWII ended, Allied governments detailed cultural specialists to recently liberated territories in Europe and the Far East to sort out the origins of cultural and religious objects discovered by troops on the march and during their occupation of captured sites.
Once they identified the origin of the objects, as in the country from where the objects had been forcibly removed by the occupying power’s representatives—civilian and military—these cultural specialists, referred to in popular culture as “Monuments Men”—had the objects inventoried, marked as “restituted” and shipped back to the country of origin where they assumed that the returned objects would be then physically restituted to their rightful owners. Here, restitution is a bureaucratic word that holds a specific meaning distinct from the physical return of the object to the rightful owner.
Now that I have ascertained in a “nutshell” what restitution is all about and how it differs in meaning depending on who or what uses the word, what happens when an object is actually not restituted but when some kind of agreement is reached that results:
Ever since the end of WWII, government officials overseeing the restitution programs of postwar nations had to contend with current possessors of the objects suspected of being looted who had to respond to claims filed by the aggrieved parties. Very quickly, they sought alternative ways of resolving what were viewed essentially as property disputes over who has good title to an object of art. In other words, the debate over restitution shifted away from the righteousness to apply in concrete terms a responsibility to restitute an object stolen during a genocidal undertaking.
The current possessors pushed back almost immediately after Victory Day. They hid behind national and local property laws that upheld their good faith in the way that they had come into possession of the looted object. The act of restitution was, in effect, held hostage to property laws which regulate who gets to hold title to an object and under what circumstances. Genocide did not figure in the equation. It was simpler that way and continues to be that way today. Good faith is almost like a religion.
As a result of a societal predisposition to invoke good faith arguments when challenges to ownership occur resulting from Holocaust-related events, restitution—meaning the physical return of the looted object to its rightful owner—has become a complex, difficult and almost insurmountable goal to achieve for thousands of claimants, victims or relatives of victims of acts of plunder committed during the Nazi/Fascist era.
Financial settlements—indemnification or compensation for loss of the claimed property—have been the rule of thumb for most claimants until today and the preferred way of “restituting” practiced by the art market and governments alike. In other words, the looted objects remain in the possession of those who have acquired them either on the art market or by inheritance or by exchange for other objects or obtained them directly through the commission of crimes against humanity. Legal title is not transferred to the rightful owner. In defense of many claimants who choose financial settlements over the arduous challenges posed by restitution, a settlement can be rationalized as a tacit, unspoken (words are dangerous, especially written ones) acknowledgment of the wrong that produced the loss of the object in the context of persecution and genocide.
Nowadays, financial settlements are referred to as “fair and just solutions.” Based on the above, you can figure out rather quickly for whom those solutions work best.
It’s up to you to decide whether a financial settlement can help right the wrongs of the past. For me, the physical return of the object to the rightful owner and the transfer of legal title to said owner, are the only true form of restitution. The rest is a rewrite of history, a sanitized approach to the byproduct of unspeakable crimes so that trade can continue and good faith can remain as a pillar of protection of private property for those who stand to profit the most from the act of possession of those un-restituted objects. Most “current possessors” feel no guilt or remorse over their ownership of objects tainted by genocide. Instead, they can be rather offended that a claimant can show up at their door decades after the events and ask for the object back. Genocide is not barred by statute. However, its byproduct of plunder and theft is shielded by antiquated property laws regarding good faith and title to the property.
