by Judge Arthur Tompkins*
As the trustees of the Kuntsmuseum in Bern, you have an sudden, unique and unforeseen opportunity, as you consider whether or not to accept the unexpected inheritance from Herr Cornelius Gurlitt, to avoid and indeed remedy the numerous mistakes made by the German federal and state authorities as they dealt with the hoard of artworks hidden by Herr Gurlittfor many decades, in his apartment and elsewhere.
After the news of the existence of Herr Gurlitt’s hoard broke in November 2013, stonewalling and bluster and a dismissively bureaucratic attitude were all on display, until the belated acknowledgement that this was not just another local tax evasion case. The release of details of the art works continued to be frustratingly slow and incomplete, even after the multinational Task Force to investigate the provenance of the art works was announced by the German Government. Then there was the deal negotiated between Mr Gurlitt’s legal guardian, his defense counsel and the Bavarian authorities just before Herr Gurlitt’s death, “to allow provenance research on a voluntary basis once the works are released from police custody,” but including a self-imposed and unrealistic one-year deadline.
The confusion and uncertainty left behind by Herr Gurlitt is not a German, or indeed a Swiss, tangle to unravel. It is unavoidably an international one. I urge the Trustees to accept this inheritance, with the clear-headed and sure acceptance that this extraordinary and storied collection of art works brings with it great challenges. These are challenges that should be embraced, and viewed as an opportunity to right great wrongs.
What should happen, and immediately after the acceptance of the inheritance, is the creation by the museum of an independent, well-resourced international tribunal to determine the fate of each and every one of the many art works. The tribunal itself should consist of international jurists and others with a range of art-crime related skills, assisted by a staff of independent provenance researchers, cataloguers, art and general historians, claimant advocates, and dispute resolution specialists.
After identifying each art work, promulgating identifying and other characteristics widely, and proactively inviting and assisting claimant contact with the tribunal, the tribunal should resolve the fate of each art work by employing first a range of appropriate dispute resolution processes so as to reach an agreed, just and fair solution. Failing agreement, the tribunal should determine each individual case by giving due weight and recognition both to the relevant legal factors, but also and crucially to the moral aspects as well.
A transparent and just process as outlined would avoid heaping future injustice on the top of past wrongs. It would propel the Kunstmuseum in Bern to the forefront of efforts to undo some of the great harm done 70 years ago, amid the chaos and confusion of war.
* Judge Arthur Tompkins is a New Zealand Judge. He teaches Art in War each year as part of the Postgraduate Certificate in Art Crimes Studies offered by the Association for Research into Crimes against Art, in Umbria, Italy.