7 March 2018

Looted art in a moral twilight zone

When it comes to the restitution of looted art, things are never black and white. The procedures are often lengthy and complex, and the dividing line between law and morals is paper-thin. Moreover, emotions and national sensitivities quickly come into play. Peter van den Brink knows the game like no other. In recent years, he has gained a reputation as the director who was able to trace nine lost canvases and bring them back to his Suermondt-Ludwig Museum, where they had hung before the war. Van den Brink will be a keynote speaker at the annual MACCH conference at the TEFAF on 18 March.

Tug of war

According to Van den Brink, the restitution of looted art from Jewish collections is more difficult when governments are involved. You often come to a compromise faster when it’s between individuals. “Because if it turns out that individuals own a work of art from a Jewish collection from before the war, they are often prepared to return it to the heirs, or to offer compensation like we do.” It is more difficult for governments. “For example, the Austrian government initially refused to cooperate with the return of a painting by Gustav Klimt, which had been stolen from Jewish owners. Even though the heirs were in the right, they only got the Portrait of Adèle Bloch-Bauer back after years of tug-of-war.”

In the Netherlands, the so-called Goudstikker affair took place in the decades around the turn of the century. Van den Brink is still amazed at the turnaround of the Dutch government, which initially refused to return the collection of the Jewish Dutch art dealer to the heirs on the basis of legal arguments, but later relied on the recommendation of the Restitution Committee and did an about-face. “The artworks had to be returned on moral grounds, but who exactly verifies those grounds, and how?”, Van den Brink asks rhetorically.

Once stolen, always stolen

In European countries, restitution claims are often made after the statutes of limitation have passed. This is less of a problem in the US. There, according to the museum director, there is an army of lawyers who are actively searching for possible heirs of stolen art from the Second World War. The restitution of looted art as a business model—Van den Brink is concerned by this. “Please understand me: I’m not in favour of a statute of limitations for stolen art—once stolen, always stolen. But most of the pieces that are being returned to Jewish heirs are auctioned off by them so they can pay the lawyers.”

The latter is often unavoidable, because both the plaintiff and the defendant will have to dig deep into their pockets to have legal research and fact-finding done, says Lars van Vliet. He is an assistant professor at the Faculty of Law, specialising in looted art and is also scheduled to speak at the MACCH conference. As an expert witness for the Norton Simon Museum in Pasadena, he is directly involved in legal proceedings initiated by the Goudstikker heirs in California. He explains that a difficult trade-off must be made between doing justice to victims of art looting and their heirs on one hand, and legal certainty on the other hand. “With art looting, the extra complication arises that the victims often didn’t have a chance to file a claim within a reasonable amount of time. Is it then morally right to stick tightly to a very short statute of limitations?”

MACCH - Crossing Borders in Arts & Heritage’ is the title of the two-day conference that is being organised this year at the TEFAF by the Maastricht Centre for Arts and Culture, Conservation and Heritage. The aim of the annual MACCH conference is to bring together academic, professional and policy expertise relating to art and cultural heritage and to make this knowledge accessible to a wider audience. This year, the focus is on issues surrounding ‘cross-border’ art and cultural heritage.

MACCH is an interdisciplinary research centre for art and culture, conservation and heritage that combines diverse knowledge from different areas. The centre derives its strength from bringing together economic, legal, art historical, philosophical, sociological and practical expertise. It initiates joint research projects with researchers, professionals and students from different backgrounds. MACCH is a collaboration between four UM faculties, the Social Historic Centre Limburg (SHCL) and the Stichting Restauratie Atelier Limburg (SRAL).

Need for documentation

Without a statute of limitations, defendants can be forced to conduct extensive and costly archival research to check whether a claim that goes back to the French Revolution, for example, is actually valid. Van Vliet: “Not everyone can afford that. Witnesses are no longer alive and, furthermore, archives are sometimes destroyed, incomplete or damaged by fire. But if you can’t contradict the claim with documentation, you run the risk of losing the case. That’s why we have statutes of limitations for this. You can argue about how long this time period should be for works of art, but should you be able to reclaim an artwork that might have been stolen hundreds of years ago?”

In the meantime, Van den Brink is driven by his sense of justice. He is currently working on the restitution of a painting by Marten Rijckaert that was sold by Christie's in 2014, even though it had been on the Lost Art Database since 2001. The work belongs in Kiev, and that should have been checked by the auction house. They did check with Van den Brink about a similar work by Nicolaes van Verendael, a Flemish floral painter. “When we confirmed that we had a claim, Christie's offered to serve as an intermediary between the heirs and the museum. The whole restitution process went smoothly.” But in the case of the Rijckaert, Christie's failed to do any research at all into the origin. In 2014, the popular uprising against the pro-Russian government began in Kiev. “The Ukrainians at that time had other things on their mind than art. Christie's then auctioned the painting under a different name. They probably thought: we’ll get away with this. I find that morally reprehensible.”

The importance of provenance research

Provenance research is what it is all about when it comes to the restitution of stolen art. For this reason, Van den Brink advocates for establishing a training facility for professional provenance research in the Netherlands. MACCH could play a role in this. “This type of master's programme for Provenance Research shouldn’t be exclusively about war art, because provenance research is more than that. It must combine art history with law and train people to find the route the painting has taken.”

This idea ties in with a new programme for professionals in the art world, the Executive Master in Cultural Leadership, which is being set up by the UM School of Business and Economics in collaboration with the Royal Academy of Arts in London. The programme will cover various areas, according to Lars van Vliet: collection building, management, and economic and legal aspects, to which members of both the Faculty of Arts and Social Sciences and the Faculty of Law will contribute expertise. “The subject of provenance research will definitely play an important role in this.”

By: Theo Tamis

Lars van Vliet, assistant professor at the Faculty of Law at Maastricht University