by Judge Arthur Tompkins

arthur.tompkins@gmail.com

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 arthur.tompkins@gmail.com.