THE ROAD TO ESTABLISHING THE PANEL AND THE POWER OF MUSEUMS TO RETURN OBJECTS

The political impetus leading to the establishment of the Panel was clearly based on the need to respond to the specific problem of cultural objects of which their original Jewish owners (and other persecuted groups) were dispossessed by the Nazis. As early as 1943 the Allied countries reserved the right to declare invalid transactions or dealings with property whether amounting to “open looting or plunder, or of transfers apparently legal in form, even if they purport to be voluntarily effected.”^{Footnote 8} Despite its wide remit, this instrument, known as the London Declaration, made specific reference to the forced purchase of works of art.^{Footnote 9} While the status of this instrument as internationally customary law has been doubted,^{Footnote 10} it nevertheless demonstrates that the problem was acknowledged at an early stage and that there was a clear desire to respond to it. While the postwar efforts made by the Allies to reunite the original owners or their heirs with their lost objects,^{Footnote 11} including the work of the Monuments Men, made significant inroads into the widespread dispersal of such objects, they were not completely successful. Although the British Committee on the Preservation and Restitution of Works of Art, Archives and Other Material in Enemy Hands (The Macmillan Committee) was established in 1944, it was dissolved two years later because it believed that little could be done until the establishment of an International Restitution Committee.^{Footnote 12} Furthermore, many of the postwar restitution laws were limited in time,^{Footnote 13} although some claimants did receive limited compensation from the German government.^{Footnote 14}

Despite these efforts, cultural objects with disputed Nazi-era title were still displayed in some of the world’s major museums many years later.^{Footnote 15} However, litigation proved difficult for claimants in many European countries because of limitation statutes. In the United Kingdom the original owner’s legal title would have been extinguished six years after an act of conversion (which gives rise to an action in the law of tort for the wrongful interference with goods).^{Footnote 16} Even if a claimant were able to surmount the limitation barrier, some claims involved sales forced by the circumstances of persecution (rather than direct physical pressure) and would not fit neatly within any existing legal action such as conversion or duress of persons or property; once again litigation was an imperfect means of achieving justice.^{Footnote 17}

The end of the 20th century witnessed a significant revitalization of interest in claims related to Nazi persecution, not only those involving cultural objects, but also forced labor claims, claims on insurance policies, and claims for money that lay dormant in Swiss bank accounts.^{Footnote 18} The resurgence in claims for cultural objects was, in part, due to access to information previously sealed in Eastern European archives, increased academic study, and the international determination to bring this unresolved matter to a close.^{Footnote 19}

International statements of principle were clearly aimed not at the general loss of cultural objects during the Second World War, but at those objects that were lost at the hands of the Nazis (and in some cases more specifically focused on those cultural objects of Jewish owners). One such statement of nonbinding principles (the Washington Conference Principles) concentrates on the need to identify “Nazi confiscated art,” to publish information about its whereabouts and to expeditiously achieve just and fair solutions.^{Footnote 20} The desire for return had preeminence, particularly where “looted Jewish cultural property” was displayed in publically funded museums, and it was clearly envisaged that government action might involve the facilitation of legislative change by removing or extending limitation periods.^{Footnote 21} Alternative dispute resolution procedures were clearly encouraged as a mechanism for facilitating return.^{Footnote 22}

The United Kingdom’s National Museum Directors’ Conference (representing national museums^{Footnote 23}) published a statement of principles and proposed action regarding the “spoliation of works of art by the Nazis and others during the Holocaust and World War II period”^{Footnote 24} and also coordinated the provenance reports that were undertaken by UK museum collections. The approach taken here was wider than either the Washington Conference Principles or the Council of Europe Resolution and covered “wrongful taking” rather than specifically looting or confiscation; consequently, it took account of the varied means by which owners lost possession of their cultural objects, including forced sales and sales necessitated by persecution.^{Footnote 25} In this atmosphere of seeking justice for those who had lost cultural objects because of the Nazi agenda, and as a means of fulfilling its international commitments,^{Footnote 26} the Panel was formed in 2000, as were similar panels across Europe.^{Footnote 27} These panels now address claims in fora outside the traditional legal rules and where the moral strength of claims is key to achieving just and fair solutions. The Panel’s establishment thereby fulfilled Principle 11 of the Washington Conference Principles, which called upon states to develop dispute resolution processes.

The aim of establishing a Panel with the narrow jurisdiction of dealing with Nazi-related Holocaust claims was clear from much of the discussion in Parliament preceding and immediately subsequent to the Panel’s establishment and the National Museum Directors’ Conference’s provenance project. The discussion was couched in terms of “art that may have been looted from victims of Nazi persecution.”^{Footnote 28} The government’s position was that it was “working on the basis of the recommendations of the Washington conference on Holocaust-era assets”^{Footnote 29} and aimed “to facilitate a just resolution of claims made for cultural objects that may have been looted in the Nazi era.”^{Footnote 30} Further justification for the Panel and the subsequent power of transfer from national museums was that the Nazi misappropriation of cultural objects was of an unprecedented nature and scale,^{Footnote 31} carried out in a “methodical and systematic manner” directed at specific people,^{Footnote 32} and formed “an integral part of their attack on other races,”^{Footnote 33} such that resolution of these claims was essential to “close a chapter of history.”^{Footnote 34} The link between the dispossessions from Jewish owners and crimes against humanity has been used to justify the separate treatment of these claims from others involving cultural objects^{Footnote 35} and the establishment of special panels and legislation.^{Footnote 36} The introduction of such mechanisms to resolve disputes demonstrates a “privileging of Holocaust claims over those of other art-theft victims,”^{Footnote 37} but this is acknowledged as potentially problematic for future groups who might call for legislation to facilitate return and who would need to “surpass Holocaust-paradigmatic standards of suffering.”^{Footnote 38} Setting an obvious hurdle of moral turpitude that future claimants must surmount seems unpalatable, yet some direct comparisons have been made between the Nazi agenda and other horrific events, for example, “the nature and extent of the Nazi atrocities were quite exceptional—orders of magnitude greater than the disasters of Bosnia and Rwanda.”^{Footnote 39} The bar seems to have been set, even though one can acknowledge that all of these reprehensible situations could justify specific treatment, taking claims outside the usual legal rules. Similarly, colonial oppression of indigenous cultures resulting in sacred objects and human remains being held by museum collections might also provide a basis on which to provide nonlegal solutions that circumvent the legal barriers to return. The original theft of such objects has been described as a form of genocide,^{Footnote 40} and the continued decontextualization of these objects within museums can harm communities.^{Footnote 41} Repatriation claims have been described as “personal affronts or moral claims that survive from generation to generation”^{Footnote 42} that raise “questions of cultural identity and involve strong emotions”^{Footnote 43} and “ultimately come down to emotions and beliefs—not things.”^{Footnote 44} The act of repatriation itself can be empowering.^{Footnote 45} If provision were made for other repatriation claims, then this would give effect to elements of the UN Declaration on the Rights of Indigenous Peoples, which requires states “to provide redress through effective mechanism, which may include restitution ... with respect to their cultural ... religious and spiritual property taken with their free, prior and informed consent or in violation of their laws, traditions and customs.”^{Footnote 46} This instrument goes further in the context of ceremonial objects and human remains and requires states “to enable the access and/or repatriation” of such things “through fair, transparent and effective mechanism developed in conjunction with indigenous peoples concerned.”^{Footnote 47}

Despite these strong arguments in favor of providing a remedy for other dispossessions, in part based on the importance of the objects to cultural communities and the clear benefits of repatriation, the only exception in UK law to the statutory bar on transfer from national museum collections other than Nazi-era claims has been in the context of human remains.^{Footnote 48} Indeed, the approach generally has been to treat Nazi-era claims and human remains separately from other claims for cultural objects.^{Footnote 49} The influence of the Washington Conference Principles and arguably necessarily the focus on cultural objects lost as a result of the Nazis rather than simply lost during the Nazi-era extends beyond the rationale for establishing the Panel and permeates much of its work; this is clear in the context of the Panel’s Terms of Reference and its reports. The most significant influence on the substantive jurisdiction of the Panel is in the Panel’s paramount purpose of achieving a fair and just solution for both parties,^{Footnote 50} which has its origins in Principles 8 and 9 and is a thread running through the Panel’s work. It became apparent that the statutory bars on transferring objects from national museum collections,^{Footnote 51} in place during the first nine years of the Panel’s existence, led “to unjust, unfair and sometimes downright ludicrous outcomes,”^{Footnote 52} such that a non-national museum could return an object to the prewar owner on the Panel’s recommendation, whereas a national museum in possession of an object lost in the same circumstances could not.^{Footnote 53} Consequently, the Holocaust (Return of Cultural Objects) Act 2009 (“the 2009 Act”) facilitated the just and fair resolution of all disputes regardless of the institution in which the object was housed and overcame this impediment to achieving just and fair solutions by permitting national museums to return cultural objects to the heirs of their prewar owners. More specific reliance on the Washington Conference Principles by the Panel is found in the context of making allowances for the difficulties of evidence many years after the events; the Panel’s Terms of Reference acknowledge this difficulty, but direct reference has been made to the Washington Conference Principles in reports where the claim raised challenging evidential questions.^{Footnote 54}

Having taken the Washington Conference Principles as its guiding light, the Panel’s Terms of Reference are wider not only in terms of the types of dispossession that it deals with (i.e., not only confiscations properly so-called) but also in terms of the cause of dispossession (whether or not Nazi-related). Therefore the Panel’s primary function is to consider claims relating to people who lost possession of cultural objects during the Nazi era (1933–45) where such objects are now held in UK national collections or other museums or galleries established for the public benefit.^{Footnote 55} The Panel may hear private claims where both parties agree.^{Footnote 56} The phrase “lost possession” clearly anticipates the varied means by which the original owners lost their cultural objects and extends beyond the Washington Conference and Council of Europe definitions of “Nazi confiscated art” and “looted Jewish cultural property” to “forced sale[s], sale[s] at an undervalue and otherwise.”^{Footnote 57} In this regard the Panel has acknowledged the influence of the Inter-Allied Declaration in several reports; these included situations where sales were necessitated by the circumstances of persecution rather than the direct intervention of the Nazis ^{Footnote 58} and to fulfil extortionate taxation demands levied on some owners solely because they were Jewish.^{Footnote 59} However, the more controversial widening of its ambit beyond the earlier statements of principles is the extension to all cases of cultural objects lost during the Nazi era and thereby “privileges”^{Footnote 60} claims for those cultural objects lost during that time rather than solely losses caused by Nazi persecution. There is no clear justification for this extension in any of the parliamentary discussions in advance of the Panel’s establishment. Indeed, criticisms have been levied at the lack of full consultation leading up to this.^{Footnote 61} If, as O’Donnell suggests, there is a metaphorical bar,^{Footnote 62} the Panel, by extending its jurisdiction to other claims for cultural objects lost during this time, has allowed potential claimants to pass the bar of the suffering associated with the Holocaust and to have standing as claimants in the moral claims process that is the Panel. The Panel, therefore, “not without some hesitation” concluded that it had jurisdiction in the case involving the Beneventan Missal^{Footnote 63} (a 12th-century manuscript) where the unknown act by which the claimant lost possession of the manuscript appeared likely to have occurred during 1933–1945.^{Footnote 64} Here there was no obvious Nazi connotation, and it seems that the manuscript was lost in the aftermath of a bombing campaign or during the requisition by the Allies of the building in which the manuscript was housed.^{Footnote 65} The 2006 DCMS Consultation on prospective legislation clearly envisaged a statute with a narrower remit; it had identified the problem of potentially applying to all losses of cultural objects that occurred during the Nazi Era if future legislation used the same approach as the Panel’s Terms of Reference.^{Footnote 66} The writers of the Consultation paper proposed for discussion a separate statute dealing specifically with the Beneventan Missal in the event of support from consultation respondents for a power to cover that particular transfer. Nevertheless, the scope of the 2009 Act, which started its legislative life as a Private Members’ Bill, similarly reflects the Panel’s jurisdiction despite the word “Holocaust” in the act’s title. Consequently, it has the potential to cover cultural objects taken from any country during the Nazi era, but in circumstances wholly unrelated to the Nazi agenda.^{Footnote 67} Somewhat ironically, the first return under the power in section 2 of the 2009 Act was for the Beneventan Missal;^{Footnote 68} consequently, the act that was so strongly justified on the basis of the scale and nature of the Nazi persecution of the Jews was used to return an object that was, arguably, more likely to have been stolen by an Allied soldier or someone else in Benevento than it was by the Nazis. There was certainly no hint of Nazi persecution of the claimants in that claim. Both the Panel’s jurisdiction and the 2009 Act’s scope shift the focus away from the Nazi agenda and towards the more general confusion of war, something that could apply equally to other wartime losses such as in the Balkans as well as to colonial dispossessions. While the responses to the 2006 Consultation revealed some support for specific provision for the Beneventan Missal, it was by no means clear that there was widespread support from the respondents for such a power to extend to all losses of cultural objects between 1933 and 1945. By providing a mechanism by which a just and fair solution can be achieved, Parliament, intentionally or unintentionally, has privileged any claim for cultural objects taken during this period over equally (if not stronger) claims that arise in colonial times or during other conflicts. Parliament has therefore widened the jurisdictional focus to loss of property itself, rather than the circumstance of the loss (i.e., as a result of the actions of the Nazis); with this in mind, it is extremely difficult to justify why other claims against national museums arising at times other than 1933–1945 should not be heard and acceded to.

THE PANEL’S APPROACH—NO DIRECT LINK WITH THE FOUNDING RATIONALE

Despite the strong rationale set out for the formation of the Panel, it is difficult to see the particular recommendations being based squarely on any one of these rationales. Instead, the decisions have tended to be based more generally on achieving a just and fair solution in response to an appropriately strong moral claim in line with the Panel’s Terms of Reference and the Washington Conference Principles and have not referred to the underlying rationale to which they seek to give effect through the use of just and fair solutions. Nevertheless, it is argued in this article that these rationales necessarily influence how to frame, or achieve, the just and fair solutions sought by the panel.

It is difficult to interpret the successful claim of the Benevento Chapter as a recommendation based on the rationale of providing redress for the Nazis’ past wrongs, since the circumstances of that dispossession were wholly unrelated to persecution by the Nazis. There appears to have been a past wrong of some kind, in terms of an apparent dispossession that was more than likely unlawful.^{Footnote 111} However, similar wrongs have happened concerning other cultural objects currently in museums, yet no comparable panel exists to resolve claims relating to them. Referring back to the original rationale for the Panel, it would seem that the Panel’s recommendation in this case is more readily interpreted as one based on returning property to rightful owners of the manuscript. Alternatively, the recommendation could be interpreted as being based on the need to strip the museum of an unjust gain; this gain would be unjust not only because the original owner was wrongfully dispossessed of the manuscript, but also because the respondent acquired the manuscript in circumstances where there were doubts about its provenance. Focusing on the former consideration first, the rationale of “rightful owner” must presuppose an original entitlement to the object by the original owner, who can be followed down the generations to the claimant. In the British Library/Benevento claim, this was unproblematic because here the institutional claimant was the original owner who had lost possession of the manuscript. What needed to be established was whether or not the original owner retained ownership until the act of dispossession. The exact timing of the dispossession was unclear, and so the Panel relied heavily on circumstantial evidence that the manuscript was owned by the claimant between 1933 and 1945, during which time it went missing in the confusion of war.^{Footnote 112} This approach might be interpreted as indicating that the claimant continued to be the “rightful owner” in a moral sense and justified the Panel’s recommended remedy.

Since the notion of “rightful owner” is used in a moral rather than legal context, it seems logical to assume that if one is to conclude that a person’s moral entitlement should trump an otherwise legal entitlement, the relative moral positions of the parties should be weighed in the balance. The British Library/Benevento claim and the Tate Gallery/Constable claim are the only recommendations in which the level of the respondent’s provenance checks has been found to be wanting.^{Footnote 113} The respondent’s lack of scrupulousness when acquiring the object could therefore be interpreted as diminishing any moral entitlement that it might otherwise have had, were it to have acquired the manuscript in good faith. This could therefore strengthen the claimant’s status as the “rightful owner” and consequently might lead to the conclusion that return is necessary to achieve the appropriate just and fair solution. Similarly, the insufficient provenance checks could also strengthen the argument that the viewers would be tainted by the manuscript’s continued display in the British Library. The viewers’ complicity would be greater in a situation where they had knowledge not only that the object had been looted but also that the institution had acquired it in circumstances where there was a suspicion that it might have been looted. This case could therefore also be analyzed on the basis that the British Library was unjustly enriched by the past wrongs of the dispossession and the acquisition, and so this justified stripping it of an unjust benefit to prevent the tainting of the viewers. This does, though, assume that all looted art should be treated in this way, rather than just that taken directly or indirectly by the Nazis. Whether one interprets the Panel’s recommendation in the British Library/Benevento claim on the basis of returning objects to their rightful owners or on stripping a museum of its unjust gains, this recommendation could be used as justification for a widening of the power to transfer cultural objects from national museum collections to other categories such as those taken during colonial times.

Two categories of decisions by the Panel will now be discussed. The first category consists of those recommendations involving a rather forensic analysis of possible allowances and deductions from the market value. It is argued that these can be interpreted as being made on the basis of a rationale of returning objects to their rightful owners or, rather, providing monetary payment to reflect this loss of property. These effectively rest on some notion of historical entitlement.^{Footnote 114} The second category consists of recommendations in which the Panel takes a more broad-brush approach to quantification and which might be seen as reflecting a holistic use of remedies to redress the Nazis’ past wrongs and to achieve broader justice, with less concern about potential overcompensation of claimants. This latter approach taken by the Panel might be more akin to reconciliatory justice.^{Footnote 115}

The first category of claims can be seen in the context of recommendations where an ex gratia payment has been awarded of a sum initially based on the market value attributable to the object and then altered to reflect certain deductions and allowances. First, deductions are made to reflect the hypothetical expenditure that the claimant would otherwise have had to incur had he or she owned the object between the Nazi era and the time of the claim. These have included sums to reflect the conservation work that the respondent had undertaken,^{Footnote 116} the ongoing insurance costs,^{Footnote 117} and the sellers’ commission payable by the claimants were they to have sold the object, realizing it as an asset.^{Footnote 118} Second, allowances are made to account for the public benefit that has been derived, and will continue to be derived, from the object’s public display and access.^{Footnote 119} This latter category can be interpreted as reflecting the desire to prevent the museum’s (or the public’s) continued unjust enrichment at the expense of the claimant.^{Footnote 120} While the Panel obtains expert valuations to arrive at the market price, the allowances and deductions it then makes are not fully particularized in the Panel’s reports since there is no reference to specific evidence about the costs of these over the years. However, it is clear that the Panel seeks to avoid either the unjust enrichment of the respondent or of the claimant as a result of any recommended remedies. Further evidence of the latter is clear from the reluctance of the Panel to award return where (a) a claimant has already received compensation that can be attributable to the object’s loss (even if relatively modest in nature) and (b) where the sum received at a sale forced by the circumstances of persecution was nevertheless a fair one reflective of the object’s value.^{Footnote 121} In these circumstances the Panel recommended the display of an account of the object’s history next to it when it is publicly displayed, in preference to return of the object,^{Footnote 122} because return had the potential to doubly recompensed the claimants.^{Footnote 123} In contrast, in the same heirs’ successful Dutch claim, the Advisory Committee did not treat the German compensation as “unjustified enrichment,” considering any repayment of the compensation as a matter between the German government and claimants.^{Footnote 124} Furthermore, the Dutch Committee considered it likely that Glaser would have used the proceeds of the sale to fund his escape from persecution.^{Footnote 125} The United Kingdom’s Panel’s rather forensic approach in the Courtauld/Glaser claim, concentrating on the avoidance of overcompensation of the claimants for the loss of property could be interpreted as treating the claim as one that focused on who was the object’s rightful owner.^{Footnote 126} Seemingly, in this case, the Panel treated the Courtauld as the rightful owner because the Glaser family had already received “modest” compensation a 1959 settlement of German proceedings^{Footnote 127} and a reasonable sum when the paintings were sold in 1933.

The Panel’s rather forensic approach can be contrasted with some of its other recommendations where it did not make such deductions and allowances in ex gratia payments or where it chose to overcompensate by recommending return. In the British Museum/Rothberger claim, a deduction was made to reflect the insurance premiums that would have been paid, but not one corresponding to the sellers’ commission.^{Footnote 128} Similarly, in that claim, no allowance was made for the public benefit derived from this, despite the object being “an object of considerable importance” to the British Museum.^{Footnote 129} While ultimately the lack of a deduction and the addition of an allowance probably cancel each other out, nevertheless this much more holistic approach to quantification sits less easily with the notion of seeking to compensate a rightful owner in terms of recompensing the loss of property and seems more akin to a general approach of righting the past wrongs of the Nazis.

Where return is recommended, no payment is required from the claimant to reflect the savings of conservation or insurance costs that the claimant would otherwise have incurred (although equally no allowance for the public benefit is made in addition^{Footnote 130}). The absence of any power to recommend such a payment contrasts with the decree establishing the Dutch Committee, which permits the committee to recommend that the applicant pay a sum of money to the owner on return^{Footnote 131} or that return is “subject to further provision.”^{Footnote 132} The UK Panel’s inability to make such a deduction has the potential to lead to double recovery, since a claimant could recover the object (worth its full market value) but would also benefit from not having paid towards insurance and other costs.^{Footnote 133} In fact, were the Respondent Council to have returned the painting in the Glasgow CC claim in accordance with the Panel’s recommendation, the claimants would have received double recompense by virtue of the fact that in addition to the return of the painting (which they could have realized as an asset by selling it) they had previously received (a) the “more than generous” auction price,^{Footnote 134} (b) a small amount of compensation, and (c) the benefit of not having to have paid any insurance premiums and conservation costs. This seems to treat remedies as redressing past injustices and as a symbolic act, rather than providing recompense to the rightful owner because monetary loss would have been minimal and yet return would overcompensate.^{Footnote 135}

It seems inconsistent to make deductions from ex gratia payments but not to make similar arrangements on return; the claimant in the latter case is still in the position of being able to sell the object and to realize its full market value. In fact, he or she may receive a higher price at auction than that received following a recommendation by the Panel, since the Panel starts with conservative valuations rather than “high saleroom estimates,”^{Footnote 136} adopts a middle ground between those, and then makes any appropriate allowances and deductions to that sum. Auction sale prices might be heightened owing to the publicity surrounding the return. Prior to the 2009 Act coming into force, when transfer was prohibited from certain institutions and claimants were therefore restricted to monetary recompense, making deductions from ex gratia payments could be seen as causing a double injustice. Not only were claimants not granted their preferred remedy, but the monetary award was reduced to take account of payments that they would have made, but which would not have been taken into account in instances where return was permitted. The current role played by ex gratia payments might be diminished because all English public museums are now equally placed to transfer cultural objects taken during the Nazi era, at least until the setting of the sun on claims in 2019.^{Footnote 137} Nevertheless, it is clear that in some cases claimants will be satisfied with an ex gratia payment in the knowledge that the public can continue to benefit from the object, as was the case in the Feldmann heirs’ recent decision to accept an ex gratia payment directly from the British Museum (see discussion above). In more recent cases the Panel has been prepared to focus more on the moral severity of the act of dispossession and recommend an account of the object’s history to avoid the double recompense that might result from return.^{Footnote 138} Having said that, it would remain open to the Panel to recommend a small ex gratia payment as a token financial gesture to remedy past injustices.

DO SOME REMEDIES BETTER REFLECT ONE RATIONALE THAN ANOTHER?

Physical return of a cultural object is frequently seen as the primary objective of claimants, and there seems to be a presumption in favor of return in debates surrounding the Panel’s claims process as well as to a small extent in some of the earlier decisions of the Panel.^{Footnote 139} It has been suggested that the key purpose of the Panel ought to be return,^{Footnote 140} and the previous absence of legislation permitting national museums to return objects undermined the authority and credibility of the Panel.^{Footnote 141} Furthermore, the Council of Europe treats return as a presumption in the case of publicly funded institutions, requiring compensation only where restitution has been made impossible.^{Footnote 142}

The notion of returning objects to their rightful owners presupposes the need for return itself (although, as discussed above, where the statute prevented this then ex gratia payments were made instead), and where payments are made, these tend to reflect (or equate as far as possible to) the loss of property. Therefore, if the purpose of remedies is about restoring property to its rightful owner, then a presumption in favor of return seems justified, even though it may occasionally result in an element of overcompensation.

The concept of return of cultural objects that were lost in circumstances directly or indirectly related to the Nazis has been justified on several bases. It plays an instrumental role first as “reconciliatory transitional justice,”^{Footnote 143} in part by restoring dignity to the Jewish community,^{Footnote 144} and second because of the objects’ special status as cultural objects which will have sentimental value to the claimants.^{Footnote 145} O’Donnell suggests that where restitution takes place, “although the restituted object may be a relic of the past, it reifies, and allows for the veneration of a culture which tyranny sought to make disappear.”^{Footnote 146} In this way, return permits the telling of the narrative;^{Footnote 147} however, the most effective means by which the narrative of the Nazi era history is recorded and told is arguably where the Panel recommends what Palmer has called “commemorative ... action”^{Footnote 148} in the form of the display of an account of the history next to the object.^{Footnote 149} It could be said that where a museum has returned an object to its prewar owner, the public recognition of past injustices will not necessarily go further than the publication of the report and the attendant press coverage. An account of the history can therefore more widely contribute to the Holocaust memorial because while “explanatory labels ... and provenance notes may not compensate for harm done ... they humbly recognize tainted possession.”^{Footnote 150} This recognition of tainted possession might in turn launder the object. The Panel has not recommended such a display when an object is restored to the claimant. The absence of an object that was previously in a national museum collection and the display of an account of its departure could serve an equally important role in recognizing past injustices. It could therefore contribute to the wider historical memory regarding the Nazi persecution of the Jews. The Terms of Reference do not provide for this because the remedies now appear to be phrased as “either ... or.” Indeed, this changed phrasing makes it questionable whether an account of the object’s history can now be awarded in conjunction with an ex gratia payment. Thompson suggests that it is an acknowledgment of the wrong that is frequently needed in order to reestablish “relations of respect,” and this therefore provides reconciliatory reparation;^{Footnote 151} it can be seen as the “moral dimension” to reparation.^{Footnote 152} With this in mind, it appears that an account of an object’s provenance can play a tangible role as a remedy.

It has been suggested by those who represent Jewish restitution claimants that an account of the object’s history on its own “would be most inappropriate as a sole remedy.”^{Footnote 153} Nevertheless, as discussed above, the Panel has used this remedy to recommend the public recording of past injustices in circumstances where individual claimants would otherwise receive a windfall, perceived as potential “double recompense”^{Footnote 154} or where they had already been “justly and fairly compensated.”^{Footnote 155} This remedy does not directly compensate a claimant for the loss of the physical object; however, in instances where an account has been recommended, the original owners (or the heirs) had already received monetary compensation either from a previous claim or from the original sale.^{Footnote 156} Therefore the Panel’s remedy focuses more on the intangible element of the claim and the recognition of the past wrongs imposed by the Nazis. In this way, the commemorative nature of an account of the object’s history is arguably firmly based on the rationale of recognizing past Nazi injustices. The more cynical view might be that at the same time, this act serves to launder the otherwise tainted object, making it more palatable for the viewer who is no longer complicit in the ill deeds of the past. Either way, the commemorative account of the history may serve as a educative device, to inform the public of the widespread dispossessions that took place during the Nazi era.

Despite the arguments used to justify the Panel’s existence and the favoring of return as a remedy based on the strong link between claimants and the objects that were lost as a result of the Nazis, the Panel has not analyzed this relationship in any of the claims before it.^{Footnote 157} The Panel has recommended return even where there was no sentimental link between the owners and the objects because the painting was owned by the gallery of which the claimants were shareholders.^{Footnote 158} On occasion, a claimant may have no particular sentimental attachment to the object and is likely to sell it immediately following transfer from the museum, particularly where there are multiple heirs who cannot enjoy the object concurrently. In such a situation, there is an argument for saying that the Panel should balance this information with the public benefit that might be derived from the object. On the whole, the Panel focuses more heavily on the fairness to the claimants, in terms of the strength of their claims, without considering any public benefit that might be lost were a major cultural object to be transferred from a museum, particularly when it was not at fault in its provenance checks when it acquired the object.

There may be a significant, identifiable, public benefit to maintaining a cultural object for public viewing, particularly where the claimant seeks return because he or she hopes to sell it to a buyer who would pay more than any ex gratia payment recommended by the panel.^{Footnote 159} In these circumstances, there is a strong argument for the payment of money or an account of the object’s history rather than return, because the object will in any event be realized as an asset once restored to the claimant, so money is clearly a sufficient remedy, and arguably, past wrongs can be redressed more publicly by an account of the history. Bearing in mind the Panel’s paramount purpose of achieving a just and fair solution, not only for the claimant but also the respondent, this seems logical. The Panel certainly has a wide discretion in deciding remedies, and this could extend to considering the claimant’s intentions postreturn.

Hitherto, none of the Panel’s recommendations has justified retention of an important cultural object and an ex gratia payment on the basis of a strong public benefit to retaining it within the public collection.^{Footnote 160} Arguably, UK public benefit would be lost if there were a possibility that (a) on its return, the object would be kept in private without public access or (b) it might be exported abroad. In the former situation, it would be difficult to justify retention solely because the potential transferee (who would later be the owner) decided to keep the object in private. There is no general obligation on private owners of culturally important objects to publically display them, and so it would be difficult to indirectly impose one here.^{Footnote 161} In the latter situation, the public benefit in retaining the object would be strong where a cultural object was of national importance (thereby satisfying the Waverley Criteria^{Footnote 162}), such that in the usual course of things the granting of an export license would be deferred to allow an opportunity for UK institutions to raise a sum equivalent to the market price to retain the object within the country.^{Footnote 163}

According to the Select Committee, despite merits to solutions facilitating continued public access to cultural objects, this public access consideration “must be seen as subordinate to the interests and wishes of the rightful owner.”^{Footnote 164} However, where there is clear evidence that a claimant will sell the object and it will be lost to the UK public through export, this could justify at least a right of preemption of the object such that when an owner does offer it for sale, the respondent museum would have a right of first refusal.^{Footnote 165} This might be preferable to an ex gratia payment if the physical return of the object is interpreted as an important symbolic act for the claimants;^{Footnote 166} it gives the claimants the opportunity to decide what happens to the object. It is this freedom of choice that is preeminent for many claims by the heirs of Nazi era.^{Footnote 167} The recent Dutch claims involving the heirs of Richard Semmel show that return may be recommended where the claimants’ emotional and moral interests in having the object returned to them outweighed the interests of the museum,^{Footnote 168} but not where the museum had a stronger interest in retaining the object and making it available to the public.^{Footnote 169} These claims therefore demonstrate that the public benefit may take priority over the interests of the claimants, where the emotional link is less strong. Here the claimants were not family members, never knew Semmel, and had no recollections of the paintings in dispute.^{Footnote 170} The discussion now turns, therefore, to the importance the Panel attaches to the relationship between claimants and original dispossessed owners.

ARE JUST AND FAIR SOLUTIONS WEAKENED BY MORE DISTANT FAMILIAL RELATIONSHIPS?

The Panel has not questioned the standing of claimants in terms of their relationship to the original owner and has been content to hear claims from distant relatives.^{Footnote 171} By looking at the link between the claimant and the original owner through the series of bequests (which appears to be the approach of the Panel^{Footnote 172}), the focus seems to be on returning the objects to their rightful owner. In effect, this treats the claimants as having derived any entitlement by means of succession, and therefore the heir to the estate could be a descendant of a friend of the original owner, rather than a family member. However, the further one moves down the chain of succession, the further away the heir is from the original owner and the likelihood that the object would have stayed in the family would fall.^{Footnote 173} Therefore, over time, the successful achievement of returning the object to the rightful owner (in any moral sense) would be diminished. Even if the aim of the Panel’s remedies is the broader goal of remedying past injustices, then where the claimants are very distant relatives, for example, by marriage, the remedies of return or financial recompense are again perhaps a less effective means of achieving this aim.^{Footnote 174} In such circumstances it may be more appropriate to recommend the display of an account of the history, since this becomes part of the Holocaust memorial. Rosenthal has expressed the following view:

He prefaced his comments by saying that his own relatives suffered at the hands of the Nazis, but said that the stain of what the Nazis did “cannot be cleansed by the restitution of master works from museums. After all, neither Rembrandt nor Klimt were responsible for those political crimes.”^{Footnote 176} The 2009 Act has a 10-year sunset clause,^{Footnote 177} which will naturally bring to an end claims for the return of Nazi-era cultural objects from national museums, although it is unclear whether the Panel, as a forum for dispute resolution, will continue its work after that date. The sunset clause was justified on the basis that it gives sufficient time to facilitate claims, but that it gives the museums some long-term certainty.^{Footnote 178}

It would seem that whether the remedies seek to return cultural objects to their rightful owners or to provide redress for the Nazis’ past wrongs, the nature of the relationship between the claimant and the original victim might well be important to achieve either of these aims. It might seem callous to discuss issues of succession in a legalistic way, considering the atrocities that befell the original owners of these objects. However, when calculating ex gratia payments, the Panel already deducts hypothetical costs from the market value. It is therefore not so far removed from this to determine the effective “standing” of claimants and link this to the appropriateness of remedies. Indeed, as discussed above, in the recent Dutch claim of the heirs of Richard Semmel, the lack of a familial link weakened those claims where there was a strong public benefit to retaining the paintings.^{Footnote 179} The more remote a claimant is from the original owner, the less likely the claimants would be to inherit the object as it may have otherwise been transferred.^{Footnote 180} Waldron suggests that:

However, it should be remembered that the work of the Panel and the 2009 Act are exceptions to the general rule that the governing bodies of museums have a duty to keep museum collections intact^{Footnote 182} and that transfer from them should not take place save in the most limited of circumstances.^{Footnote 183} The processes that facilitate transfer in the context of Nazi-era claims “invert the typical deaccession framework.”^{Footnote 184} Given that the procedure of the Panel is to mitigate the harshness of the effects of the limitation periods thereby circumventing these rules for this narrow category of dispossessions, the Panel is tasked with making a moral judgment about the heirs’ entitlement to receive property to which they have no strict legal entitlement. Therefore, particularly in the context of a claim where the respondent is a private rather than public collection, the claimants’ status, measured by their connection with the prewar owner, is particularly relevant when weighing the moral considerations since any recommendation would have the potential to affect individual private property rights.