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A formal legalistic approach is inadequate for Nazi-looted art claims, Alternative Dispute Resolution would be preferable

1970
1945
NRC Handelsblad 12 November 2013
By Evelien Campfens

The discovery of more than fourteen hundred works of art in a Munich apartment has unleashed a heated international discussion about Nazi-looted art and how claims submitted by dispossessed owners should be dealt with. This debate is taking place in a grey area where ethical standards are at odds with current law.

The announcement that the find had been kept secret for months and that there were no plans to publish the works met with an outraged response. The message is that there are doubts as to whether the situation is illegal, and that a private rather than a public collection is concerned. Under German law it could well be that, so many years after the event, Cornelius Gurlitt — the 79-year-old son of the art dealer Hildebrand Gurlitt, who apparently acquired some of the works in his capacity as Hitler’s buyer — must be deemed the lawful owner.

Consternation all round. Because how will the world know what’s involved? And disbelief. How could these works possibly be and remain the lawful property of the son of Hildebrand Gurlitt? How does this stand in relation to evidence that they include looted Jewish property, such as the Max Liebermann from the Friedman collection or the Matisse from Paul Rosenberg’s collection?

This illustrates the complex legal status of looted art. Seventy years after the loss of possession claims from dispossessed owners will in principle be time-barred by the statute of limitations under German (and also Dutch) law. But what about the international rules, originally laid down in Washington in 1998, to which the German government is also a signatory?

These rules prescribe
- transparency with regard to ‘suspect’ works, for example through publication of works on a website (as the Netherlands Museums Association did in late October);
- a proactive stance in respect of former dispossessed owners and/or their heirs and a fair and just solution for claims; and
- alternative dispute resolution mechanisms for dealing with claims (as provided by the Restitutions Committee in the Netherlands).

Chancellor Merkel has meanwhile announced that Germany will abide by the Washington Principles and will press for publication in the event it turns out that looted art is involved. That is good news. But the question remains as to what this will mean for claims from families of dispossessed owners. Will they have to make do with the regular German legal system? Because it should be noted that the fair and just rule will not push aside German law; the Washington Principles are non-enforceable rules — soft law — not treaty standards transposed into German (or Dutch) legislation. In Germany the standard has been implemented in a federal government policy for public collections, but this does not seem to apply to private collections. The same goes for the Netherlands. However here, a pro-active approach is encouraged by the fact that the Restitutions Committee is also made available to advise on disputes involving private ownership as an alternative to going down the legal route. And thus, being able to find fair and just solutions while at the same time taking into account interests of present possessors and offering transparent procedural rules.

Analysing the legal status of Nazi-looted art, which always involves international aspects, means finding one’s way through a legal labyrinth. Wartime laws, post-war legislation, Allied laws for post-war Germany, and national and international private law produce unpredictable outcomes. This is compounded by the fact that countries with the Continental legal system — such as the Netherlands and Germany — take a fundamentally different approach to the issue of who has legal title to an object following a theft than countries with the Anglo-American legal system. This means there is a risk of mutual incomprehension between the parties involved.

The Gurlitt works are currently viewed as a private collection. It is clear that this could change if they were to be seized in connection with tax arrears or such like. But even then I believe it would be preferable to look to alternative means of dispute settlement for handling the claims of dispossessed Jewish families. With the consent of the current owner, a committee could be appointed to investigate and assess claims. Who is to say that he would not be open to this? The sale of the Flechtheim work some years ago at the auction house Lempertz, where there was a sharing of the sale price with heirs of the dispossessed owners, testify to this. The purpose would be to take the process out of the legal domain and bypass obstacles that stand in the way of assessing claims on their merits.

An alternative process such as this will also take time, given that it is not simply a matter of publishing and distributing the art. Because in addition to investigations into the works themselves and their acquisition by Hildebrand (or Cornelius) Gurlitt, research will be needed into the circumstances under which possession was lost and into any post-war compensation. The alternative process will also have to be rigorous and transparent, and those who have to decide will above all have to be wise and enjoy the trust of all those involved. It should be noted that Germany has an alternative dispute committee — the Beratende Kommission — that deals with claims to possible Nazi-looted art. However, its mandate is currently restricted to public collections.

In my view, a formal legalistic approach does in any case not form an adequate response here.

 

Evelien Campfens is director of the Restitutions Committee in the Netherlands. She wrote this article in a personal capacity.

 

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