Myth on looted art: what was stolen, remains stolen
Van Vliet emphasises: looted art is legally very complex. “The cases are terribly complicated. To begin with, how do you find out what happened back then? It starts for example with research into the heirs: you have to ensure that you have access to all the wills and division of joint property (in the case of divorce) to prove that the plaintiff is the actual heir.
You take something from me without my consent, so logically I want it back. Whether it is a piece of jewellery, a bicycle, a car or a pen. It is the same with art. Even if it was stolen eighty years ago or maybe even longer and I can prove that the object is mine.
In reality, it appears not to be so black-and-white, says Lars van Vliet, Assistant Professor at the Faculty of Law, specialising in looted art. While there is a new law in the United States that makes Holocaust claims possible on a large scale, most European law systems have important exceptions to the principle of ‘what was stolen, remains stolen’. In the Netherlands, for example, periods of limitation apply, making it impossible for heirs of the original owners to reclaim art that was stolen during the war.
First of all, the term looted art. Why not stolen art? “Looted is much broader,” says Van Vliet. “This was not just about theft. The German occupier also confiscated items without paying reasonable compensation. But often the owner was forced to sell, often for next to nothing, sometimes for reasonable amounts.”
Van Vliet tells of how hundreds of paintings came into German hands from the Amsterdam art dealer Jacques Goudstikker in 1940. Soon after the German invasion of the Netherlands, Goudstikker decided to leave the country, together with his wife and their son. During the night on board, while he was taking a stroll, he fell into the hold of the ship that was taking them to England and died. After that, the Goudstikker firm sold a large part of its art works under duress to the German Field Marshal Hermann Göring, who paid a sizeable amount for them.
After the Second World War, the Dutch government tried to retrieve as much ‘Dutch’ works of art from Germany as possible. The paintings and other objects that were returned automatically became property of the state. The original owners were then given the opportunity to reclaim their objects. Van Vliet: “The Dutch government (the government in London) had already drafted regulations during the war for victims of forced transactions. They were given the opportunity to cancel the transaction and in doing so get back their property. A separate legal framework was set up and what we call restoration of rights was introduced. The deadline for these claims was 1951, but the special court remained active until the nineteen-sixties.”
The end of the restoration of rights system unfortunately did not mean the end of looted art claims. On the contrary. Van Vliet himself is involved as an expert witness in a lawsuit between heirs of the Goudstikker firm and a Californian museum that has two sixteenth-century paintings (previously in the collection of Goudstikker).
He worked on this case for years, for the defendant (the museum), doing “fascinating but time-consuming” research in the records to reconstruct how the Dutch restoration of rights worked and how it was implemented by the restoration court from 1944.
Van Vliet emphasises: looted art is legally very complex. “The cases are terribly complicated. To begin with, how do you find out what happened back then? It starts for example with research into the heirs: you have to ensure that you have access to all the wills and division of joint property (in the case of divorce) to prove that the plaintiff is the actual heir. You have to reconstruct everything step by step. You also need to have detailed knowledge of the law that was applicable during the war and of the restoration of rights.”
Aside from the fact that this is legally a tough nut to crack, most plaintiffs come away empty-handed in Europe because of the period of limitation. That is why most looted art procedures take place in the United States. “According to present-day Dutch law, the period is twenty years, starting on the day of the theft.” There is a lot to be said in favour of a period of limitation, Van Vliet reckons. “There has to be an end at some time or other. It is important to obtain legal certainty when things have dragged on for so long. On the other hand, you also want to do justice to the victims. One could think of having a period of limitation run from the time the owner has the opportunity to make a claim, as is the case in the United States.”
Van Vliet appreciates the way in which Holocaust claims are dealt with there, but this raises the question whether the same rules should also be applied to art that was looted by other regimes in different times. And where should we draw the line? Should it be possible to reclaim a painting that was stolen in 1720? The problem is that good arguments can be found for both points of view.
|This blog is a repost and part of Myth busters, a series published by The Observant in which academics shoot down popular myths on complex topics. Written by Wendy Degens Myth buster Lars van Vliet, Assistant Professor at the Faculty of Law, specialising in looted art. Reposted on Law Blogs Maastricht|