Bridging the Gap between Ethics and Law: The Dutch Framework for Nazi-Looted Art.

Author:Campfens, Evelien
 
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"Our objective is not to recover every stolen work of art. For us it's about recognition. The most important issue for us is that the name of our great-grandfather is restored into the work's provenance." (1)

In the Netherlands, as in many other jurisdictions, claims to Nazi-looted art form a 'grey category' where positive law is at odds with ethical norms. The Goudstikker case concerning well in excess of 200 paintings from the stock-in-trade of Amsterdam art dealer Jacques Goudstikker, taken by Nazi officials after he managed to escape, is exemplary in this regard: whereas a claim to these works by his heirs was denied in a court of law, that same claim was upheld under the 'ethical model' resulting in the restitution of 202 paintings by the Dutch Government some years later. (2)

The following article aims to give an impression of the Dutch model for dealing with Nazi-looted art, set against a historical background of Nazi looting practices and post-war restitution laws. Dutch private law, like other civil law systems, is characterised by a strong protection of legal security and the interests of new possessors, leaving little legal scope for title claims based on a loss which occurred longer than 75 years ago. On the other hand, the Dutch Restitutions Committee (the 'Restitutiecommissie') has recommended the return of almost 600 works of art to Nazi victims or their heirs since its establishment in 2002. (3) How can this apparent contradiction be explained? How is a 'claimant-unfriendly' legal reality brought into line with international softlaw instruments like the 1998 Washington Principles? (4) And what is the relevance of the special Dutch post-War legislation that was adopted with an eye on the restoration of individual rights that were lost as a result of Nazi looting, today?

These questions will be addressed in what follows. To that end, section 2 of this article deals with the post-War legal framework that may be of relevance for artefacts that were looted or sold in the Netherlands during the Nazi period. Section 3 deals with the legal framework for claims regarding artefacts that, today, are found within the Dutch jurisdiction, addressing both the 'hard' and 'soft' law regulations (i.e. black-letter law and the 'ethical' model of the Dutch Restitutions Committee). Section 4 concludes with some final remarks. As an introduction to the topic, section 1 will render a brief historical overview of Nazi looting in the Netherlands and the organisation with regard to recovery and restitution in the post-War period.

  1. SHORT HISTORICAL OVERVIEW (5)

    1.1 Persecution and Methods of Acquisition During the Nazi Occupation

    The policy of Nazi looting of artefacts differed from country to country, but one of the objectives was to obtain as much 'desirable' art as possible to underline the hegemony of the Third Reich. The methods of acquiring artefacts ranged from confiscation of private collections in the context of racial policies and persecution; pillage of public art collections, mostly in Eastern European countries, and acquisition of artefacts in Western countries. (6) In the Netherlands, Nazi looting focused on confiscations of Jewish assets and sales transactions from private individuals and art dealers.

    Germany invaded the Netherlands in the night of 9 to 10 May 1940, and, once the Dutch forces capitulated on 15 May 1940, the German Occupation was a fact. At first, a relatively quiet period followed in which the Nazis concentrated on the installation of a civil administration, led by the Austrian lawyer Arthur Seyss-fnquart. The persecution of the Jewish population and their dispossession took effect through a gradual process of registration, isolation and deportation. An approach that, ultimately, contributed to the death of a very high percentage--compared to other occupied countries--of the Dutch Jewish community. (7) Kunert and Marck describe this process as follows:

    For pragmatic reasons it was decided not to engage in immediate Gleichschaltung (synchronisation) with Germany and Austria. [...] [but at a policy, EC] aimed at the "self-Nazification" of the Dutch population [...]. The immediate enactment of harsh measures against the Jewish population would be counterproductive to this policy, and thus, normal life resumed as much as possible, even for the Jewish population. (8) One needs to bear in mind that the words 'normal life' are used in comparison with the situation in some other occupied territories, as obviously life for any Jewish person at the time was anything but 'normal'.

    This gradual process by which the Nazis increasingly tightened their grip on possessions of Jewish inhabitants formally started in October 1940 when Jewish firms were required to register with the authorities. (9) The looting of Jewish assets mainly took place in the period that started in the course of 1941. Before 1941, seizure of assets was mostly limited to specific categories. As the Netherlands had been an important safe haven and transit country for Jewish refugees from Germany and Austria in the 1930s, stored household effects left behind in the Netherlands were an easy target and soon put under control of the German occupying authorities as 'enemy property'. At the same time, the Dienststelle Muhlmann--formally part of the Seyss-Inquart's occupational Government--was actively gathering information on artworks in Dutch (Jewish and non-Jewish) collections that were deemed important for Germany.

    From 12 March 1941 onwards, Jewish firms were 'aryanised': placed under the control of a non-Jewish administrator ('Verwalter'), who could deny a Jewish art dealer control over its business and could liquidate its firm and assets. (10) In August 1941, Jews were forced to deposit their monetary assets with Lippmann, Rosenthal & Co., Sarphatistraat, the so-called 'Liro Bank', a looting agency formed to assemble and administer Jewish assets which was deceptively named after a reputable Jewish-owned bank. (11) In May 1942, this was followed by an order that Jews had to deposit all valuable items, including art, at the Liro Bank. (12) Deportations of Jewish citizens on a large scale to concentration camps started in the summer of 1942. When that happened, or when people had managed to escape or go into hiding, houses were ransacked ('Pulsed'), household effects were sold off or transported to Germany as part of the M-Aktion. (13) Assets were, at times, also simply stolen by fellow citizens.

    Another method the Nazis deployed to acquire artefacts in Jewish collections was through trading art for 'preferential' treatment. While leaving the country after May 1940 was practically impossible, permission to exit the country or obtain a so-called 'Sperre' (a status that would prevent deportation) at times was possible. In such circumstances, Jewish collectors and art dealers sold works to persons such as Hans Posse, Erhard Gopel, Hermann Goring and Kajetan Miihlmann. (14)

    During the Occupation of the Netherlands a significant quantity of high-quality fine art was acquired through both the regular and irregular art market, not necessarily by transactions under direct force. German buyers in search of 'suitable' art--not only Nazi officials but also other buyers--caused a frenzy on the Dutch art market after the economic depression of the 1930s: it contributed to a steep increase in prices. (15) The Dutch art trade used this opportunity to make substantial profits, inflating prices to previously unseen heights. (16) This may be illustrated by the fact that prices decreased again after the Occupation. (17) Apart from the official art dealers, many others took advantage of this opportunity: occasional dealers were active and those in need of money sold their artefacts--Jewish owners obviously being in an increasingly weaker position. (18)

    The fact that the Dutch art market flourished during the Nazi Occupation and that individuals and institutions on a wide scale collaborated with the German occupiers, at times blurs the notion of 'Nazi looting'. (19) Of importance in this regard is that a sale during the Nazi period in the Netherlands does not, of itself and without consideration of the specific circumstances, justify the label 'Nazi loot'. At least not if one takes the forced nature of a loss to be a key element of 'looting'. Moreover, one must also take into account the fact that artefacts may have been traded and changed hands many times during this period. In 2003, this historical background was the reason for the adoption by the Dutch Government, on the recommendation of the so-called Ekkart Committee, of separate--less liberal--policy guidelines for losses sustained by Jewish art dealers. (20)

    The Netherlands was liberated, starting in September 1944 with the southern part of the country and ending with the formal capitulation of Germany on 5 May 1945.

    1.2 Post-War Organisation of Recovery and Restitution

    After the Liberation in August 1945 the Council for the Restoration of Rights (Raad voor het Rechtsherstel) was charged with the task of restoring the Dutch legal order. (21) The Council comprised a Justice Department, to which claims could be submitted and that acted as an appeal court for rulings by subsidiary bodies concerned with the restoration of rights. In addition, the Council had an Administrative Department (Nederlands Beheersinsituut, 'NBI'), which had the task of tracing, seizing, administering and liquidating enemy and collaborationist assets, but also the assets of absent and unknown owners. (22) The NBI had wide discretionary powers in this regard. (23)

    For the recovery of artefacts that had been removed from Dutch territory, the authorities set up the Netherlands Art Property Foundation (Stichting Nederlands Kunstbezit, 'SNK') in 1945. (24) On the basis of territoriality and without prejudice to the character of the removal (i.e. whether this had been a result of a voluntary sale or as a result of...

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