The Ethics of Restitution
I am giving
nothing back willingly….What do these people want from me?[i]
When Cornelius Gurlitt finally popped up more than a week after the
treasure hoard hidden in his Munich flat was made public and he himself went
missing, unavailable for comment to the press, he seemed surprised and put-out
by all the fuss, an old man wondering what had happened: no television set, no
computer, no friends to chat with, no relatives to comfort him. A pathetic old wreck thrown up on the shores
of history.
So far as Cornelius is concerned, he inherited all the art works from
his father and Hildebrand had purchased them or received them legally, and thus
all these paintings, prints, etchings and so on were his and he was not going
to hand them over to the Jews. At best,
perhaps, we can see this 79-year old man as confused and cranky; at worst, his
are the usual denials and obfuscations of those who collaborated with the Nazis
and who still think only the worst of the victims of the Holocaust. Gurlitt says his paintings were his friends,
the friends that did not exist in real life, and he wants them back. Well, too
much information has already been published in the media to show that many, if
not most or all, of these objects of art did not and could not have been
acquired by his father by legitimate means.
Instead, they were given to Bernhard Gurlitt by the Nazis to dispose of
in one way or another, most likely by sales that would produce cash that would
go to the Third Reich; and then they stayed in his possession. Other prints, etchings, water colors and oil
paintings came to him, through his work on behalf of Reich committees to
confiscate art from Jews who had already fled or were deported to the death
camps and to purchase works put on quick sale by fleeing families. Therefore it is likely that the bulk of Cornelius’
hoard does not rightfully belong to him, should not have been kept for so many
years, and cannot be sold by him.
Whatever happened in the first few years after the War, when Bernhard
was detailed by the Allies and his art collection held until it could be assessed by experts, the fact that he was
released from custody and some of his art works returned to him, does not alter
the legal situation. Living like a
recluse, without registering his name in the municipality’s directory, never
paying taxes on the proceeds of the sales he already made from time to time of
these inherited objets d’art, that
is, living all his life on the profits of his father’s crimes and his own
repressed lies, can he rouse any sympathy whatsoever?
However, there are remaining questions both legal and moral.
In a legal sense, since almost all statutes of limitations have been
passed, the question of restitution or compensation cannot be easy. Fairness requires that very careful study be
given to ascertain the exact provenance of each work, tracking back as far as
possible each step of the way from Gurlitt’s apartment to his father’s
collection and to the various sources from which he gained possession of
them. Though museums, galleries and
still extant dealerships may have some legal claim, each acquisition, sale or
aryanization needs to be examined carefully.
These processes of law are there, not to protect the guilty or the
innocent receivers of stolen property, but to ensure that the early victims of
theft and malfeasance are treated with dignity.
If only the wheels of justice turned swiftly and dispassionately!
Further complications enter the field, in that some of the paintings
were seen to be fakes at some point in the past; yet this fact or suspicion does
not extinguish claims because collectors and museums may have purchased those
copies for purposes of education, to complete their presentation of an artist’s
oeuvre or for the sheer pleasure of
owning a near perfect facsimile of an unobtainable masterpiece.
No, the son of Bernhard’s whining complaints do not constitute strong
evidence, but his father’s and his mother’s lies during their lifetime do point
untrustworthiness in their testimonies to various officials., and thus to
Cornelius’s right to have “his friends” back.
In an ethical sense, despite the lapse of legal limitations, most
museums, art galleries, auction houses and other agencies through which art is
bought and sold have undertaken, at least in a public gentlemen’s agreement, to
scrutinize all objects that come to them or were acquired since the War under
dubious conditions. Where doubts exist
and when survivors of victims or their families make claims that cannot be
immediately backed up, it is up to these institutions to seek to reach amicable
conclusions—returning works, providing compensation in one form or another
(with other paintings, in cash, or through rectification of the provenance
record). The burden of proof rests with
the institutions, not the claimants—they have suffered enough loss and
indignity.
The last few years have seen
numerous instances where lawyers in America or Israel have had to engage in
lengthy, protracted actions to have their elderly clients’ cases heard and
proper outcomes effected. Sometimes there is a need to compromise, to show understanding,
to try to put together broken lives and histories., Individual purchasers may have come into
possession of looted art only after many links in a chain of shifting ownership
since the original act of confiscation or looting. Where the works of art have
now climbed in value into millions of dollars where the original purchase was a
matter of thousands, the ability to claw back the work or some monetary
equivalent can be ruinous. Nevertheless, most nations see that possession of
stolen goods does not constitute legal ownership. Therefore some form of
accommodation is needed, through negotiations or legal remedy. This is not the place for cold-hearted
bureaucrats to follow the letter of the law—law often created after the fact to
justify the deeds of the Nazis.
Yet institutional owners and dealerships too may have long-since have
changed hands, changed most or all of the staff involved in the suspicious
acquisitions, and sometimes, too, when objects were sold through many
countries, the latest in the line of collectors and the sellers may have acted
in good faith in terms of information available twenty, fifteen or ten years
ago. Such directors, curators and
patrons of the public and private galleries should ensure that the legal
procedures were gone through and to rectify errors, even when inadvertent. Given the intransigence of certain
governments, such as Austria, in ensuring these procedures are gone through
quickly and meticulously, the argument that some works deemed national
treasures and key displays in the collection does not always hold water. This has been the case in regard to Gustav Klimt
paintings which eventually and reluctantly the government in Vienna was forced
to return to the rightful Jewish owners.
After the War, too often the same unscrupulous curators, directors, government
officials and academic experts who aided and abetted the thugs of Goebbels and
Rosenberg to carry out their heartless programmes returned to take up their old
positions, cleared of charges by over-hasty Allied investigators or having
seemingly but only superficially passed through denazification classes. Or if not them specifically, then their
disciples, and all those brought up on false doctrines, doctored versions of
history, and imbued with the same tacit principels that Jews are an
unassimilable other, cannot be trusted, and lack the spiritual essence to create
or appreciate great art. If the blatant thuggery
of the Blond beast does not stalk the streets these days—yet in the halls of
chancelleries and the offices of museum curators, all too often it comes back—more
subtle, unctuous versions of Gemutlichkeit
remains to inflict further humiliations on those who seek redress one or two or
more generations after the fact.
Those agencies that have been working to compile lists of what was
confiscated, stolen, wrongfully purchased, and subsequently destroyed,
distributed with falsified provenance, or deemed lost have indicated that there
are still large numbers of missing and unaccounted for works of art once in the
possession of the Nazis and their collaborators. It may have been thought that by the opening
of the twenty-first century most of what could be retrieved or accounted for
had been done, Gurlitt’s case makes it probable now that such a pessimistic
view cannot be sustained. Many of the
victims who survived the Holocaust are dying off now and their families do not
always know the full story of what was lost during the War. The Nazi outrage
was of such enormity that normal rules of legal responsibility cannot apply,
and moral obligations override little technicalities, and thus the search for
justice must go on for many years to come.
[i] Cornelius Gurlitt cited in Reuters,
“Collector of Billion-Dollar Nazi-Looted Art Trove”. More on this interview
given to Der Speigel appears in Zach Pontz, “German Recluse”
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