by Judge Arthur Tompkins
The finding of a treasure trove of so-called ‘degenerate’ art in a Munich flat will trigger many challenges, not the least of which is, what to do with all these unique and, inevitably, storied art works? Having, almost certainly, been stolen from their original owners around 70 or so years ago now, they should, each and every one of them, be returned to the heirs of those same dispossessed owners, wherever and whoever they might be.
Doing that, or getting close to doing that, is the great challenge now faced by, initially, the Bavarian and the German federal authorities, but in the end it should not be a challenge faced, nor indeed resolved, by them alone.
Undoing the great harm of the theft of any work of art, and all the more so when, as here, the thefts were all part of the greater evil of the Nazi regime, and perpetrated amid the chaos and uncertainty of gathering and then actual war, is a uniquely international problem. It demands both an international but also a creative answer. Leaving the fate of these precious works of art, and the hopes of the many and various claimants, handicapped as they will by the burdens of lost memories, lost or destroyed evidence, departed or disappeared witnesses, and all the ragged turmoil of the passing of the years, to the vagaries and the lottery of an administrative or judicial process within a domestic legal system is an inadequate response.
What is needed is, in short, an ad-hoc International Art Crime Tribunal. Such a Tribunal would be assisted by art historians, provenance researchers, advocates to assist the commission and, crucially, claimant advocates and advisers who will work with claimants so that they can properly and effectively present their claims. By this means the Tribunal could create the kind of neutral ground necessary for the lasting resolution of the disputes that will inevitably arise concerning the art.
The Tribunal should be entrusted with the task of resolving the fate of each work of art, not only by deciding the historical and legal claim or claims to it, but also by explicitly evaluating, and giving equal weight to, the moral claim of the claimant. This is crucial – in the past claims to art looted in wartime have been undermined or destroyed by an insufficiency of legal evidence to establish prior ownership, where the moral claim for return of looted art is clear.
The Tribunal should have the ability to, and the processes to, adjudicate and determine claims by a binding judgment. But throughout the claim process, a spectrum of alternative dispute resolution tools should be employed to resolve claims by agreement, and, if appropriate, to resolve claims by agreed solutions, which may enable unresolvable factual or legal issues simply to be left unresolved.
In addition, the Tribunal should seek not only to return the paintings found in the Munich flat, but should also proactively pursue those sold over the years by Herr Gurlitt. Media reports record that he was, from time to time, seemingly in the habit of selling individual works, to defray living expenses and the like. It would be unlikely that any gallery handling the sale of works such as these could claim to be ignorant of the vast history of the Nazi campaign against degenerate art, nor indeed would many collectors be similarly unaware. That paintings such as these would suddenly appear, unannounced and unaccompanied by any real provenance, inevitably places an immediate obligation to seek out such provenance and, in its absence, at the very least to refusing to handle the sale. The fate of those sold stolen art works should not be ignored.
None of this is new. Precedents for all these aspects of the proposed Tribunal exist, and have in a variety of settings and circumstances been used during the many decades following Hitler’s defeat. The challenges presented by these pictures provide a rare chance, that should not be missed, to bring together many of the valuable lessons learnt over the long years of hard-won, accumulated experience gained in trying to undo the art crimes of the Nazis
There are great challenges here, but also great opportunities. Answering the difficult question, what now to do with these art works, must not, in the answering, create a whole new set of tragedies and a legacy of bitterness and regret. There is enough of that already bound up in this story.
Judge Arthur Tompkins is a trustee and faculty member of the Association for Research into Crimes against Art (ARCA), and teaches Art Crime in War during ARCA’s annual Postgraduate Certificate Program in Art Crime and Heritage Protection Studies program in Umbria, Italy. He can be contacted on firstname.lastname@example.org.