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.
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