Showing posts with label International Art Crime Tribunal. Show all posts
Showing posts with label International Art Crime Tribunal. Show all posts

November 5, 2013

Gurlitt Art Collection OpEd: An ad-hoc International Art Crime Tribunal for the Munich Gurlitt pictures?

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

March 29, 2012

Catching up with Judge Tompkins About his "Art Crime during Armed Conflict" course at the University of Waikato's Law School

University of Waikato's Law School
Judge Arthur Tompkins, an instructor at ARCA's Postgraduate Certificate Program in International Art Crime and Cultural Heritage Protection Studies, also taught a course in February in his home country.  ARCA Blog caught up with him to see how it went in New Zealand.

Tell us about the Art Crime course you presented earlier this year at the University of Waikato?

The University of Waikato's Law School hosted the course and offered it as a credit course to their own students.  It was also offered as a non-credit coruse through the Continuing Education arm of the University. The course was entitled "Art Crime during Armed Conflict", and, similarly to the course I teach in Amelia as part of the ARCA Postgraduate, it was a five-day intensive course, comprising 5 hours of teaching each day for a week during the height of our Southern Hemisphere summer. We cover two thousand years of the history of art crime during war, and the international and private law responses to it. And all in five fun-filled and fascinating days! 

We ended up with 16 students in the group, from three countries and two hemispheres, with the largest sub-group being law students (I was teaching the course within a Law School, after all!). But the class also included a working artist, two art historians, a police officer, a doctor, an art gallery director, a cultural heritage worker, and others.  It all made for a vibrant and energetic group, and we had some spirited discussions!  And on the last day, ARCA's Noah Charney was able to join us, via Skype, from Slovenia, which was a real highlight.

University of Waikato's campus
At least two of the group will be in Amelia for this year's Art Crime Conference on 23/24 June, and in addition, in the last few days, I have learnt that one of the group has been accepted into the full ARCA Postgraduate Program, so will get to spend the entire Italian summer living and studying in Amelia.

It is likely that the course will be offered every second year at Waikato University, so the next occasion will be in February 2014. I am presently investigating offering a similar course elsewhere in New Zealand in the intervening year.

What time period do students seem most interested in? Nazi theft?

The students were from a wide range of backgrounds and interests, as I said, and I think that as a result no one area or era stood out.  They have written (or are writing - the assignments from the for-credit students are due soon!) assignments on an equally wide range or topics - which is, I think, a testament to the breadth of scholarship that falls under the art crime umbrella.  And because the course covers not only the historical background to art crimes during wars over the centuries, but also the international and national legal responses, there is something of real interest there for everyone.

What do you think are the most contentious legal issues involved in conflict art?

Two difficult issues continue stand out for me - first, the return of objects taken during past armed conflict, that are held currently by a state or national institution, and where there is a call for return.  In that context no issue of private ownership arises, but rather the issue revolves around often contentious questions of the principles underlying the legal structures around the state's continued retention of the object, and the ability or willingness of a state, or its politicians, to relinquish possession. Secondly, the spectrum of responses by legal systems around the world to the bona fide purchaser rule - where someone has paid a reasonable price without knowledge of the fact that the item had in the past been stolen, do they or should they prevail over the original, dispossessed owner's rights? Different legal systems around the world adopt often mutually exclusive positions on this issue, and despite decades of work, the gulf remains unbridged.  We need to find some way of reconciling the irreconcilable!

In 2009 you spoke at the International Art Crime Conference in Amelia about a proposed International Art Crime Tribunal.  As you have now taught this course three times, how have your ideas about an IACT evolved? What would it take to make it happen and what do you think would be some of the first cases that you would like to see be dealt with?

I would still love to see such a Tribunal established, and nothing that I have seen or read or heard over the last three years has changed that view - to the contrary, there is still much to recommend it.  The United Kingdom's Spoliation Panel has shown that a tribunal can effectively apply both legal and moral criteria when resolving claims to disputed art, and, whilst effective in some cases, the litigation experience in the United States shows that the resolution of such disputes by "traditional" adversarial litigation brings with it inevitable constraints, in terms of access to justice, the restrictions inherent in the rules of evidence a court applies, and a likely win/lose result paradigm.  

What would it need to make this happen? As I said to the ARCA Conference in 2010, it needs a champion on the world stage, and a real commitment by a group of states with a single voice in the forums of international law - particularly the United Nations and within that, UNESCO - to make it happen.  Where either of those might be found, I do not know.  Until then, it will remain a lonely idea wandering at large in the world, although I was very heartened to hear Pablo Ferri support the idea at last year's ARCA Conference!  

By the way, I still think, for a whole lot of reasons, that Florence would be a very suitable seat for such a Tribunal!

December 7, 2010

Profile: ARCA Lecturer Judge Arthur Tompkins

ARCA is accepting applications for the 2011 Postgraduate Program in International Art Crime and Cultural Heritage Protection Studies until January 3, 2011. ARCA's blog will be interviewing instructors in December and today spotlights a returning lecturer.

New Zealand Judge Arthur Tompkins’ relationship with ARCA began in 2009 when he travelled to Amelia for the first of a two-part presentation at the International Art Crime Conference to discuss the possible pathway to creating an International Art Crime Tribunal. Last summer, in addition to presenting the second part of his proposal for the Tribunal at ARCA’s annual conference, Judge Tompkins taught a course, Art in War, at ARCA’s Postgraduate Program in International Art Crime and Cultural Heritage Protection Studies. He is returning to teach the same course again in Italy in July 2011.

Judge Tompkins has been a District Court Judge in New Zealand for nearly 14 years. His appointment as a Judge, in 1997, followed 10 years in private practice in Auckland as a commercial barrister. He gained his Bachelor’s degree in Law from Canterbury University, in Christchurch, New Zealand, in 1983, and subsequently graduated Masters in Law, with First Class Honours, from Cambridge University, England, in 1984. He has taught the Law of Evidence, and presented at numerous conferences and workshops on a variety of topics, including expert evidence, the intersect between law and science in the Courtroom, and most extensively in relation to forensic DNA and forensic DNA Databanks, in New Zealand, China, England, Ireland, France and Mauritius. He is an Honorary Member of Interpol’s DNA Monitoring Expert Group.

ARCA blog: Judge Tompkins, welcome to ARCA’s blog. First, we’d like to start off with an easy question – what brings you away from your court in New Zealand to travel halfway around the world to teach Art in War to graduate students? It can’t all be about the pizza and gelato.
Judge Tompkins: The pizza and the gelato – and especially the latter – is certainly a part of it! How I came to be involved with ARCA is a serendipitous tale of chance meetings, leading to contact with Noah Charney in relation to the chapter that I wrote for the Art and Crime volume he edited. Then, when I visited Amelia in July 2009 for the Conference, Noah offered me the chance to return to Amelia to teach. I made a considered decision (it took me, I seem to recall, less than a second to decide!) to leap at the opportunity both to develop the course, and then to escape the New Zealand winter for the summer in Umbria amid the company of a wonderful group of enthusiastic staff and students.
But perhaps most importantly, the course I teach allows me to combine on a longstanding interest in history (from my distant youth I have three-quarters of a BA majoring in European History, which some day I might just get around to finishing) with the work I have done with Interpol and others concerning the cross-border operation of the criminal law, and my interest in the way, over the years, public international law has developed and matured. I am not an art historian, so I leave that side of things to others!

ARCA blog: Have there been any recent events in the past six months that have refined your concept of an International Art Crime Tribunal?

It is not so much something that has happened, as what has not happened. In my paper to the ARCA Conference in 2009, I talked about, in relation to confronting the many issues raised by art crime, there being islands of excellence amid a sea of indifference. And I think that is still accurate – there are many people in many different places doing great work, including of course ARCA. But realistically they are islands, and there are lots of bridges still to build between them. It is happening, slowly – the availability now on the internet of the Jeu de Paume records left behind by the ERR is one recent example – but I still believe that a single bright focus would bring numerous benefits, not least of which would be the continued development of the durable and lasting culture of interdisciplinary scholarship that ARCA has done so much to reinvigorate and foster.

ARCA blog: In your course, what are some of the areas that you focus on and what do you find the most challenging?

Part of the challenge for both me and the students is that, in the first two days of the course, we cover a little over 3000 years of history – starting with the taking of the Stele of Hammurabi following the sack of Babylon in 1160 BCE, right through to the looting of the Iraqi National Museum and Library in 2003. On the way we stop off at, among many other things, the Thirty Years’ War and, inevitably, both the Napoleonic era and the Second World War. Because I seek to examine, with the students, the various art crimes we look at in their historical context, it is often challenging to summarise major historical events in a very short time – World War I in two paragraphs, anyone? Inevitably, I have many favourite parts of the course, but a couple stand out as particularly interesting. The story of the carrying of a large part of the Palatine Library over the Alps in 1622, on the backs of 200 mules who each wore a silver collar inscribed in Latin is an evocative image. The Vatican Library was closed for renovations this year, but next year I will arrange a reader’s pass to visit and, I hope, inspect some of the volumes, most of which are still in Rome. The astounding heroism of Rose Valland, who worked at the Jeu de Paume on behalf of the French Resistance for four tumultuous years during World War II, recording and identifying the numerous looted art shipments to Germany, to ensure that the Resistance did not inadvertently blow the trains up is a remarkable tale of sustained courage. And, in the second half of the course, presenting the sometimes complex subject of the public international law of treaties and the like presents its own challenges! Using actual examples, like the shelling of Dubrovnik by the Yugoslavian forces and the prosecution and conviction of two senior officers in the International Criminal Tribunal for the Former Yugoslavia, helps bring the international criminal law to life in a real and tangible way – especially as Dubrovnik is not all that far from Italy, just across the Adriatic Sea.