Tackling Varied Moral Circumstances

Claims with respect to Nazi era dispossessions of cultural objects need to be dealt with on a case-by-case basis not only because they involve “specific and identifiable object[s]” but also because the circumstances of the loss may be quite varied and raise different moral issues that need to be addressed individually. ^{Footnote 29} Therefore, the SAP has necessarily grappled with difficult moral issues arising from the circumstances of the individual claims brought in respect of Nazi era dispossessions of cultural objects. While there may be instances of direct seizure where there is a strong moral claim on the part of the claimant based on the circumstances of loss, the circumstances in other cases giving rise to the necessary moral strength of the claim have required more consideration since they are not so clear cut. Thus, in all cases where there is evidence of direct seizure by the Nazis, the SAP has concluded that there is a strong moral claim. ^{Footnote 30} There is nothing to suggest that some acts of seizure have been considered any less morally severe than other acts of seizure. In all cases of seizure where the return by the possessor museum has been possible, this is the remedy recommended by the panel. ^{Footnote 31} This falls in line with the principle found in the Council of Europe’s Resolution 1205 that institutions that are in receipt of public funding, which all of the possessor museums featured in SAP reports have been, should return such “looted Jewish cultural property.” ^{Footnote 32}

While the Washington Conference Principles and the Resolution 1205 are phrased in terms of “Nazi confiscated art” and “looted Jewish cultural property” respectively and could thus be interpreted as applying only to direct seizure, it is widely accepted that the Nazi era dispossessions of cultural objects were not only much more varied than confiscations and lootings, properly so-called, but also extended further. It is clear from the Inter-Allied Declaration of 1943 that the transfers that were to be regarded as invalid included “transfers or dealings [that] have taken the form of open looting or plunder, or of transactions apparently legal in form, even when they purport to be voluntarily effected.” ^{Footnote 33}

One particular category of losses that has been seen in a variety of forms in the SAP’s work has been forced sales. These claims have given rise to a variety of different recommended remedies to reflect what the panel has accepted as being differing levels of moral severity dependent on both the circumstances of the loss as well as any subsequent compensation and the like.

The first type of forced sale is where extortionate tax demands were made to Jewish individuals that had to be paid before they were free to emigrate. In these claims, any money that was received by the claimants tended not to be available to them to spend afterwards. In effect, the claims were made on the basis that the claimants were denied the free right to dispose of their cultural objects. Two claims, both involving the same group of claimants, show that the panel treated this as a sufficiently strong moral claim to justify the return of objects. ^{Footnote 34}

The second type of forced sale can be seen in the claims involving the estate of Emma Budge, an American Jew who had a property in Hamburg. On her death, as a result of anti-Semitism, the works of art that formed part of her estate were sold in a manner contrary to the stipulations of her will, and the estate was deprived of the works of art “without receiving fair or any value for them.” ^{Footnote 35} In the Courtauld/Glaser claim, the sale at auction of Curt Glaser’s art collection was said to be in part because of Nazi persecution, which had meant that he had lost his job and his flat, but also was in part due to his desire to start a new life following the death of his wife. It was because of these mixed motives, as well as the fact that he had received a reasonable market price for the objects and his second wife had received post-war compensation from Germany, that a lesser remedy than return was recommended. ^{Footnote 36} Unlike the Ashmolean/Budge claim, it did seem that Glaser was free to use the proceeds of the sale.

The final type of forced sales consists of those that took place not during persecution but, rather, while the owners were fleeing across Europe. This category was clearly envisaged by the Inter-Allied Declaration of 1943, which committed its signatories to setting aside transactions that were even seemingly legal in effect. ^{Footnote 37} The Tate Gallery/Griffier claim involved a sale that took place in Belgium while the claimant’s mother was fleeing from the Nazis through Belgium. ^{Footnote 38} The sale was concluded at a significant undervalue since the evidence presented to the SAP was that the owner had received next to nothing for the objects. ^{Footnote 39} Even though she was able to spend the money that she received from the sale, this was for the necessities of life during her escape. ^{Footnote 40} The second claim that took place in circumstances following escape from persecution was the British Museum/Koch claim in which the claimant’s mother sold various clocks and watches at auction in London. In this case, the sale was considered to be forced since it was undertaken to alleviate the financial difficulties of the family that had resulted when they were fleeing persecution. However, the sale was not considered to be at an undervalue. The panel therefore concluded that the moral strength of the claim was at the lower end of the spectrum and again recommended a commemorative remedy rather than the return of the objects. ^{Footnote 41}

The final category of dispossessions that the SAP has dealt with is that of general loss, which probably involves theft during the war. The only claim heard to date is the British Library/Benevento claim in which it was found that, on the balance of probabilities, the missal was lost during the confusion of war rather than by spoliation at the hands of the Nazis. ^{Footnote 42} This claim fell within the panel’s jurisdiction because it was probable that the object had been lost during the requisite timeframe of the Nazi era.

What is clear from the SAP’s reports so far is that the panel needs to be satisfied that there is a moral strength to the circumstances surrounding the object itself. The panel has expressly stated that it will not make a recommendation of return on the basis of the general suffering encountered by a claimant’s family at the hands of the Nazis but that it will only do so based on the actual circumstances of the loss. ^{Footnote 43}

The Structural Difficulties with Enforcing Recommendations

It is clear that the ability of the SAP to take into account the various moral nuances of a case’s circumstances and to overcome the legal procedural impediments has a positive effect on the ability of claimants to have claims heard and to receive recommendations. However, from a structural point of view, there is a clear disadvantage to a more informal, non-litigious approach, namely that there is no means of enforcing the panel’s recommendations where the possessor museum refuses to put in place the panel’s recommended remedy. The use of the SAP is unlike other forms of ADR where the parties undertake to accept the determination as the full and final settlement. ^{Footnote 46} Instead, it is clear from the panel’s terms of reference that its recommendations are not legally binding on either of the parties or on the secretary of state. ^{Footnote 47} The only existing concession is that where a respondent does put in place the panel’s recommendation, it is then seemingly protected by virtue of the fact that the claimant is expected to accept the full and final settlement of the claim. ^{Footnote 48} Norman Palmer has suggested that where a claimant accepts the SAP’s recommendation, this acceptance should act as an estoppel against any subsequent claim being brought. ^{Footnote 49} In only one claim to date has the claimant expressed publicly any dissatisfaction with the panel’s recommendation. This was in the claim made by the heirs of Curt Glaser, ^{Footnote 50} in which the panel acknowledged that there was a strength to the moral claim but recommended that the remedy should be the display of an account of the object’s history rather than the return of the object or the payment of an ex gratia sum. ^{Footnote 51}

The SAP’s work does not fall neatly into the existing categories of ADR. It has been described as an example of parties making use of a “neutral third-party facilitator,” which is something that can best be termed an “innominate category.” ^{Footnote 52} Nevertheless, similar models have also been used in other European countries, including Austria, France, the Netherlands, and Germany. These panels have heard claims relating to Nazi era dispossessions in a similar manner to the UK panel. The differences in procedure and substantive considerations have been compared by Annemarie Marck and Eelke Muller following the completion of questionnaires by the various panels. ^{Footnote 53} Notable differences include the fact that the Austrian panel can only recommend restitution rather than what Marck and Muller describe as “‘compromising’ solutions,” such as compensation and presumably also the account of an object’s history. ^{Footnote 54} Interestingly, different conclusions were reached in the UK and the Netherlands in claims that involved the same claimants and losses that took place in the same circumstances. ^{Footnote 55}

Even where the SAP has recommended the transfer of a cultural object under section 2 of the Holocaust (Return of Cultural Objects) Act 2009, and the secretary of state has approved this recommendation under this same section, only the governing body of the national museum has the power to transfer the object, and it is not obligated to do so. Of the national museums that were given such a power of transfer, only the trustees of the British Museum have expressly stated their approach to exercising this power. ^{Footnote 56} The British Museum Policy on De-Accession of Registered Objects from the Collection states that even if the SAP recommends return and the secretary of state approves this, the trustees will make their own independent decision. ^{Footnote 57}

The policy then goes on to state several factors on which they would normally base their decision. First, the trustees will need to satisfy themselves not only that the claimants have a strong moral claim but also that they have the authority to represent all of the heirs of the original owner. ^{Footnote 58} The second factor is particularly interesting because it effectively restricts the scope of the claims that would be effected through the transfer; return would normally be granted only where the object was lost “as the consequence of wrongful action of the National Socialist Government of Germany or its collaborators in Nazi occupied Europe.” ^{Footnote 59} Consequently, had the Benevento missal remained in the British Museum rather than being transferred to the British Library in 1972, ^{Footnote 60} it is unlikely that it would have been returned to Benevento under the power granted by section 2 of the Holocaust (Return of Cultural Objects) Act 2009. This declaration by the British Museum trustees of their own restriction of the way in which they can exercise the discretion under section 2 of the 2009 Act seems at odds with one of the conclusions of a recent independent panel review, which stated that it did not recommend any change to the panel’s terms of reference to “require the loss to be more closely linked to the actions of the Nazis or their allies.” ^{Footnote 61}

Previous compensation received by the claimant was the third factor that the British Museum trustees consider, such that a return would be unlikely to be put into effect if the claimants were deemed to have received just and fair compensation. ^{Footnote 62} Finally, the trustees also consider a more controversial factor, which is the importance of the object to the museum. Thus, when exercising this power, the trustees must be satisfied that “the transfer of the object represented the best solution to the claim after giving due weight to the importance of the object to the Museum’s collection and circumstances in which the object was acquired by the Museum.” ^{Footnote 63}

In this way, the trustees take into account the public benefit derived from the cultural object, something that the SAP has not been prepared to take into account as an operative factor in its decision-making process. ^{Footnote 64} Arguably, there are three aspects to this factor, which can be seen in two claims heard by the panel. First, the issue of the care and stewardship taken of the object while in the national museum’s care; second, the wide audience that an object within such a national collection can reach; and, third, the importance of the object to the museum in terms of its place within the collection as a whole. The first two of these aspects are clear from the panel’s response to arguments put forward in the claim regarding the Beneventan missal by the British Library. ^{Footnote 65} In this case, the British Library suggested that the careful stewardship of the missal by the British Library staff, together with easier access to the missal for the public in a major collection such as the British Library was relevant to the issue of where the public interest should lie in the panel’s decision making. ^{Footnote 66} However, the SAP was not prepared to treat such an issue as a decisive factor since it took the view that were it to take such an approach then this would “almost certainly defeat any claim for restitution against any of the national collections within our remit, and thus frustrate the Panel’s primary role as laid down in our terms of reference.” ^{Footnote 67}

Arguments relating to the importance of the object to the collection were advanced by the Tate Gallery in a claim involving a painting entitled Beaching a Boat, Brighton by John Constable. ^{Footnote 68} In this case, the Tate juxtaposed the lack of emotional significance of the painting to the claimants (based on the supposed anomaly of this English painting within a primarily continental European collection and the fact that the claimants had sold some other restituted works) and the importance of the painting to the Tate. ^{Footnote 69} Specifically, the Tate Gallery referred to the importance of the work to the gallery “as the major national repository of Constable’s work” and the fact that the painting was a preparatory sketch for another work in the Tate’s collection (Chain Pier, Brighton). ^{Footnote 70} However, once again, the SAP was unwilling to accept the importance of the object as a “paramount consideration” when making its recommendation, because otherwise “the very principle of restitution of important works would be called into question.” ^{Footnote 71}

Overall, the SAP seems to assume that all objects within a national collection are of equal cultural value, as in the Tate Gallery/Constable claim it did not account for particular art historical value that may be achieved by seeing associated objects together. ^{Footnote 72} I have argued elsewhere that the importance of an object to a collection might be relevant as a factor in the context of claims in three narrow circumstances, namely: “(1) where the object is a superlative example of a particular style or period; (2) where it is a unique object; or (3) where the object has a particular connection with other objects within the collection, with thus more context that adds to the value of the object.” ^{Footnote 73}

The way in which the SAP has been established as an ADR procedure without any sanction for non-compliance with its recommendations has the potential to dilute its effectiveness as a solution to the problem of Nazi era dispossessions. Furthermore, there is a certain fragility of giving the governing bodies of national museums merely the power to transfer objects rather than making it mandatory. The governing bodies of national museums have only been given a power to transfer because there is strong support for the independence of the governing bodies, free of political control. ^{Footnote 74} This fragility is particularly evident in the context of the British Museum, ^{Footnote 75} although it appears to be the only national museum to have adopted such a restrictive policy in this regard. Nevertheless, successful claimants, in practice, do not appear to have encountered problems with the enforceability of the panel’s recommendations, although, on some occasions, the exact terms of the panel’s recommended remedies have not been followed. These situations will be analyzed later in this article.

There may be a number of different reasons for the general atmosphere of compliance with the SAP’s recommendations. First, some claims are made in an environment of consensus where the respondent is content to return an object if the panel is content to recommend this course of action. In this way, the strength of the claimant’s moral claim is conceded in certain cases, or, in other cases, the factual evidence submitted by the claimants is not disputed by the respondents. ^{Footnote 76} On occasion, the respondent and claimant come to the panel with a preferred solution that they are asking the panel to rubber stamp. This may be to request that an ex gratia payment be made by the government. ^{Footnote 77} Even a wholly consensual claim would still need to be brought before the panel where the favored remedy specifies that a national museum return an object since the power of the museum’s governing body is only engaged following the panel’s recommendation. ^{Footnote 78}

Even if a claim is robustly defended by a respondent, but the return is ultimately recommended, there appears to be respect for the recommendations of the panel such that the content of its reports are followed in practice. This may be due in part to the professional commitment demonstrated by many museums to the principles relating to Nazi era dispossessions published by the National Museum Directors’ Conference (NMDC) ^{Footnote 79} and the now disbanded Museums and Galleries Commission (MGC), ^{Footnote 80} which is evident in the acquisition and disposal policies of many museums. ^{Footnote 81}

There is an argument for saying that were a respondent museum to fail to put into effect the SAP’s recommended remedy, then it would experience professional embarrassment caused by a failure to uphold the commitments stated in the NMDC or MGC principles. There is strong public support for the resolution of Nazi era claims, which is evident in the media that, when discussing the return of Nazi era cultural objects, uses the terminology of the return to the “rightful owners.” ^{Footnote 82} Furthermore, there is a clear cross-party agreement on the importance of giving effect to the perceived moral obligation to address these historical wrongs that was clearly articulated not only in the Select Committee report of 2000, ^{Footnote 83} and its follow-up report of 2003, ^{Footnote 84} but also in the parliamentary debates on the passing of the bill that ultimately became the Holocaust (Return of Cultural Objects) Act 2009. In this context, it was described as a “friendly consensus on an important issue.” ^{Footnote 85}

In Practice

The discussion now focuses on the extent to which, in practice, the SAP’s recommendations have been followed by the parties. The analysis therefore is functional in order to assess the effectiveness of the panel’s recommendations in giving effect to a resolution of disputes involving Nazi era dispossessed objects. It was noted above how the narratives surrounding the resolution of Nazi era dispossessions of cultural objects have tended to center around the notion of restitution. The panel has a range of remedies that it can recommend, but where there is a strong moral claim, it generally takes the starting point that return would normally be recommended. This is clear from the very first claim brought before the panel, which was with respect to the Griffier painting in the possession of the Tate Gallery. In this case, it stated that “[h]aving upheld the claim in principle, our first option would be to recommend the return of the picture.” ^{Footnote 86} This presumption in favor of the return appears to be based on the “powerful, and to our minds morally preponderant, consideration that those who lost possession of their property as a result of Nazi oppression should be entitled to its return where, as here, any alternative remedy is inappropriate, and so long as there is no legal impediment.” ^{Footnote 87}

The SAP appears reluctant to impose conditions on the claimants when recommending the return of a cultural object. For example, in the renewed claim in respect of the Benevento missal, ^{Footnote 88} the panel was unwilling to stipulate, as conditions for transfer, that the British Library’s stewardship of the missal should be recognized and that its loss should be acknowledged even though the panel considered that “such recognition and acknowledgement are due.” ^{Footnote 89} However, more recently, where the panel recommended return in the Tate Gallery/Constable claim, this was subject to the claimants returning to the German state the compensation that had been paid earlier to them to reflect the loss of the painting. ^{Footnote 90} This was presumably to avoid the problems of the claimant being doubly compensated for his loss. ^{Footnote 91} In a claim made against the Victoria and Albert Museum by the executors of Emma Budge, the panel, when recommending the return of three Meissen figures, invited the executors to use their discretion under the terms of the will to donate one of the figures to the Victoria and Albert Museum. ^{Footnote 92} However, this invitation was not acceded to as the figures were returned to the claimants, and all three figures were sold at Bonhams auction house. ^{Footnote 93}

Where the SAP has recommended the return of objects, these recommendations have been acceded to, except in the case of a few selected cases, where there were specific reasons for not returning the cultural objects despite the panel’s recommendation. The first of these cases was the Glasgow City Council/Chardin claim, where the terms of the bequest under which the object, as part of the Burrell Collection, had been transferred to Glasgow City Council could not, in the opinion of the legal counsel to the city council, be altered to permit its return. Instead, the council made an ex gratia payment to the claimants. ^{Footnote 94} In a subsequent decision involving the Burrell Collection, the panel made an alternative recommendation to implement were the council once again to receive legal advice that transfer from the collection was not permissible. ^{Footnote 95}

In the recent British Library/Biccherna Panel claim, the claimants sought return of the object, but the respondents were of the view that the claimants were prepared to accept an ex gratia payment in lieu of return. In its report, the SAP stated that it had no objection if the claimant agreed to compensation instead of return. ^{Footnote 96} After the report, the British Library board agreed to de-accession the panel, ^{Footnote 97} but the parties then agreed for compensation to be paid. The online collection states that: “The British Library did not contest the claim of the heirs but a mutually agreed sum was arranged between the heirs and the Library to ensure the official ownership was passed to the Library in January 2015.” ^{Footnote 98}

In some situations, return has been effected, but then the claimants donate works back to the respondent institution. This can be seen in the claim brought by the Feldmann heirs against the Courtauld Institute of Art, in which the parties had, prior to the submission of the claim to the panel, agreed that the drawings should remain in the Courtauld but wished for the claimants to be paid an ex gratia payment. ^{Footnote 99} Since the payment of this sum was sought from the government, the parties brought the claim before the panel. Despite the parties’ preferred solution, the panel nevertheless recommended return rather than an ex gratia payment because the panel did not consider itself justified in recommending such a payment from the public purse where there would be insufficient public benefit derived from making such a payment because of the relative poor quality of the objects. ^{Footnote 100} The Courtauld de-accessioned the three drawings pursuant to a charity commission order of 3 May 2007. ^{Footnote 101} The heirs then donated one of the three drawings (A Dog Lying Down, which is attributed to Frans Van Mieris, the elder) to the Courtauld as a “symbol of friendship.” ^{Footnote 102}

In one claim, the initial recommendation of the SAP was questioned by the respondent when new evidence came to light. In the Tate Gallery/Constable claim, the Board of Trustees of the Tate Gallery confirmed at its meeting of 21 May 2014 that it intended to exercise its power to de-accession the painting under section 2 of the Holocaust (Return of Cultural Objects) Act 2009. ^{Footnote 103} However, new evidence came to light that led to the Tate referring the matter to the secretary of state, who, in turn, asked the panel to reconsider the claim in light of the new evidence. ^{Footnote 104} Following a supplementary report by the panel that recommended return, ^{Footnote 105} the Tate’s Board of Trustees unanimously agreed to follow the recommendation. ^{Footnote 106}

The SAP has recommended the payment by the government of an ex gratia payment in only two claims. In both instances, the moral circumstances of the claim would have been sufficiently strong to justify return, but, at the time, the national museums in question were prevented from transferring objects out of their collections even on moral grounds. ^{Footnote 107} In both cases, it appears that the payments were made since this information has been recorded on the online catalogue entries for both objects. ^{Footnote 108} The Feldmann heirs, whose claim against the British Museum was resolved by the payment of an ex gratia payment, have since resolved two further disputes with the British Museum on an informal basis, rather than making a claim to the panel. The claimants were content for the objects to remain in the museum, and the museum then made ex gratia payments to the heirs. ^{Footnote 109}

In two cases where the SAP has recommended that the British Museum display an account of an object’s history, this information is also available to view as part of the “Acquisitions Notes” on its online collection. ^{Footnote 110} The Tate Gallery also includes the information relating to the object’s history with the painting by Jan Griffier, View of Hampton Court Palace, on its online collection. ^{Footnote 111} Even though it was reported that the Glaser heirs were not prepared to accept the panel’s recommendation, ^{Footnote 112} the Courtauld Institute of Art does display an account of the disputed objects’ history on the online catalogue entries. ^{Footnote 113} In two recent claims, the panel has concluded that the sales were not forced sales carried out in the context of Nazi persecution, but it has nevertheless suggested that it would be appropriate to include an account of the objects’ history when the objects are displayed. In the case of a claim by the Oppenheimer heirs against Bristol City Council, the panel suggested that “without any obligation on the Council” that it would be “fitting to incorporate into the Painting’s narrative history when display the [claimants’] connection with the Painting.” ^{Footnote 114} In the case of a claim by the Silberberg heirs against the Ashmolean museum, the panel recommended “the display alongside the Work, wherever it is, and in whatever medium, of an account of the history of the Work in the collection of its former owner during the Nazi era, and his tragic fate and that of his wife.” ^{Footnote 115}