House of Commons - Culture, Media and Sport

Select Committee on Culture, Media and Sport Seventh Report

VI. SPOLIATION

167. The period from the Nazi seizure of power in Germany in 1933 to the end of 1945 saw the most widespread and systematic process of forced transfer of cultural property in world history. It is a dark chapter in the history of cultural property. In the context of the history of that period as a whole, the forced transfer of cultural property is often and understandably overshadowed by worse events of that era. However, it was an episode whose true dimensions are only now being recognised and whose consequences affect this country today. Very belatedly and at long last, actions are now being undertaken that could go some little way to right wrongs of that period and its aftermath.

168. The looting of art in war is a process almost as old as war itself. Allegations of wrongful taking lie at the heart of many of the claims for the return of cultural property with which museums are increasingly faced. There are several reasons, nevertheless, why the transfer of cultural property in the period from 1933 to 1945 deserves to be considered as a separate and special case.

169. The scale of the forced transfers of cultural property that the Nazi régime initiated was staggering and unprecedented.[433] Professor Petropoulos estimated that between 1933 and 1945 the Germans stole 650,000 works of art.[434] These are defined as including paintings, sculpture, objets d'art and tapestries, but do not include other cultural property such as furniture and books which were systematically stolen by the Nazis.[435] The vast majority of art plundered by the Nazis was not of museum quality, but the type of objects owned by successful but not wealthy families.[436] Attention has focused on the small minority of art objects which are individually identifiable and where, accordingly, there is still hope of recovery. Most of the objects that were lost will remain lost.[437]

170. Nazi seizures were not simply a war-time activity. That régime's determined acquisition of cultural property began with forced sales and seizures from political opponents and Jewish citizens of Germany and Austria.[438] Victims of persecution were often forced to sell their cultural property in return for exit visas.[439] Jewish families were sometimes obliged to sell art at greatly reduced prices in the face of threats of a visit from the Gestapo.[440] It has been estimated that the Nazi régime stole more works of art in Germany and Austria than in the whole of occupied western Europe, even though much analysis has concentrated almost exclusively upon looting in the occupied countries.[441]

171. The looting of occupied states in war-time was expressly illegal under international law at that time. The 1907 Hague Convention Respecting the Laws and Customs of War on Land, of which Germany was a signatory, outlawed pillage of certain public and private property in war-time.[442] Professor Petropoulos argued convincingly that that "watershed" rendered the transfers of World War Two different from many previous dubious transfers of ownership of cultural property in war-time.[443] There is evidence that some Germans involved in those activities were aware of the illegality of their actions and there were occasions when German officials, most notably in the army of occupation in western Europe, sought to question or resist seizures of cultural property.[444] In January 1943, in the "London declaration", the Allies stated unequivocally the illegality both of seizures and of transfers in occupied territories which purported to be legal.[445] Involvement in looting formed part of the accusations against several leading Nazis at the Nuremberg war trials.[446]

172. The cultural policies of which looting and forced sales were a major element were inextricably bound up with the expansionist and racist ideology of the Nazi régime.[447] In the words of a recent official report to the French Government, "artistic pillaging did not arise out of the conditions brought about by the Reich's victory, but was rather based on a well-planned and nurtured intention, one which was contingent on Nazi expansionism".[448] The process of stripping Jews of their property was part of the process of depriving them of a place in normal society and obliterating an entire cultural heritage.[449] According to Professor Petropoulos:

"Spoliation was connected to the genocidal project ... expropriation was part of the process of dehumanisation ... you took the objects belonging to victims and it made them seem less human, less cultured, less like you and me; that expropriation preceded deportation, and deportation led to murder; it was a very important turn on the twisted road to Auschwitz."[450]

Post-war responses

173. Those who have studied the efforts of the western Allies to collect and document stolen cultural property, to investigate the Nazi structures for looting and to facilitate return have paid tribute to the scale and rigour of that work, as a result of which it is estimated that 2.5 million objects, including 468,000 works of art, were returned.[451] However, the process of restitution has been seen increasingly as flawed and incomplete. British policy arose specifically from concerns about looting outside Germany in war-time: works of art seized or stolen by the Nazis before 1 September 1939 were not considered within the definition, thereby excluding direct consideration by British forces of cultural property seized from Jewish owners in Germany and Austria prior to the outbreak of war.[452] Also, the aim of British and United States policies was to return objects to the Governments of the source countries, rather than to the individuals concerned. Responsibility for determining rightful ownership and securing restitution was devolved upon the relevant national authorities.[453]

174. The processes established by the national authorities of the formerly occupied western European countries did not facilitate a full process of restitution. For victims or their heirs, the process was costly, emotionally very difficult and beset with bureaucratic obstacles.[454] Claimants were asked to provide information to support their claims against quite unrealistic deadlines given the massive disruptions which there had been to their lives.[455] In many countries, avenues for claims were closed in the late 1940s or early 1950s.[456] Many unclaimed objects were auctioned off with what in France has been termed by an official study "surprising haste"; other objects entered museums and other public institutions.[457] In France, for example, 2,000 selected objects were distributed for display in museums and Government offices and, between 1954 and 1996, no attempt was made to research the provenance of those objects.[458]

175. Many objects did not return to the country where they were wrongfully taken. Works taken to Germany were smuggled out to be sold in the art markets of neutral countries such as Spain, Portugal and Argentina.[459] Most notoriously, geographical proximity, established links and legal provisions made Switzerland the favoured destination for looted objects from which the Germans sought to profit through sale on a legitimate art market.[460] After the war, the Swiss Government rebuffed Allied suggestions of a general investigation or restitution procedure; for identified works, individual cases had to be pursued in the cantonal courts; other items remained hidden, gradually reappearing on the Swiss art market in the late 1940s after Allied pressure had subsided.[461] According to Professor Petropoulos, "there are thousands of works that went through Switzerland ... Switzerland has been the great laundering centre for spoliated art".[462]

176. Despite Allied awareness of the failings in attempts to pursue looted art that had seeped out through the neutral States, there were few effective measures taken to prevent the onward transfer of looted art to the London and New York art markets. The United States Government warned American museums and art dealers about the implications of looted works being offered for sale, but lifted import controls in 1946 and did little to see if that warning was heeded.[463] As early as November 1945, a British Government official noted that, in the absence of specific legislation, there might be difficulty in returning items that were subsequently purchased in the United Kingdom. The official went on:

"Bearing this in mind, it might be as well, before we become too vehement with the Swiss, to be quite sure of the state of the law and procedure for recovering looted property in this country and among the Allies".[464]

Despite that warning, there is little evidence of public policy initiatives to alter the law and procedures for possible spoliation cases in the United Kingdom.

177. In the post-war period evidence emerged of looted art on the London and New York art markets, but there were no signs of special measures being introduced by auction houses and dealers to detect such items.[465] There were instances when auction houses in London and elsewhere marketed works of art even when there was evidence that those objects had been stolen and not returned.[466] In the view of some, the procedures of the art market which permitted vendors to remain anonymous contributed to the process whereby looted works were reintegrated into the normal art market.[467] Ms Anne Webber, Co-Chairwoman of the Commission for Looted Art in Europe, characterised the position as one in which "it is more difficult to buy a stolen car than it is to buy a painting which was stolen from a family who may have been murdered".[468]

178. The procedures of the art market have contributed to a situation in which some looted art has found its way into museums and galleries across the world. In the past, research by museums and galleries prior to acquisition has focused on authenticity rather than ownership; provenance in its fullest sense has been neglected or has proved too difficult.[469] In the United States, Professor Petropoulos identified that problem as particularly acute in the context of donations, quoting curators who had never asked about the provenance of gifts on the principle that "one does not count the teeth of a gift horse".[470] The art world chose to forget about the problems associated with looted art in an act of what Professor Petropoulos termed "volitional amnesia".[471]

The revival of concern and research

179. For almost fifty years, the implications of spoliation were forgotten or "shrouded in silence".[472] Little research was done and claimants were left to continue their search alone or gave up hope.[473] The 1990s saw a dramatic revival of interest in and awareness of spoliation for several reasons. More and more relevant archival sources have become available, in part due to the end of the Cold War.[474] Academic study of the issues has increased, led by a book entitled The Rape of Europa by Lynn Nicholas published in 1994. There has been a wish to look afresh at criminal activities in the period, including art theft, which were not prosecuted in full in the immediate post-war period.[475] The critical scrutiny of gold from the Nazi era still held by Swiss banks and by the former allies, that led to the London conference on Nazi gold early in 1998, encouraged wider concern about other aspects of property seizures in the period 1933 to 1945 that had not resulted in full restitution.[476]

180. In December 1998, the United States State Department organised the Washington Conference on Holocaust-Era Assets which brought together delegations from 44 countries and 13 non-governmental organisations. The "Washington Principles" agreed on that occasion were seen as crucial to subsequent developments.[477] The Principles included a general commitment to identify confiscated art that had not been returned, to publicise the whereabouts of such art to assist claimants, to seek to reach "a just and fair solution" in the event of relevant owners or their heirs being identified and to develop national processes accordingly.[478]

181. Even before the Washington Conference, the National Museum Directors' Conference agreed in November 1998 a statement of principles and actions for research into provenance for the period 1933 to 1945.[479] In April 1999, comparable principles were issued by the Museums & Galleries Commission for non-national museums.[480] Those guidelines suggested a broad definition of wrongful taking for the period in question and provided advice on appropriate scrutiny of loans and acquisitions as well as current holdings and on the accessibility of research in progress and research outcomes.[481]

182. The initial results of research by the national museums and galleries were made publicly available on the Internet at the end of February 2000.[482] That detailed and accessible research effort has been praised and seen as an example to other countries.[483] It indicated that there were 350 objects in national museums and galleries with doubtful provenance for the period 1933 to 1945 and many more without any known provenance for that period.[484]

183. That study is only the beginning of work on an "enormous task".[485] The published report reflects work in progress and research will continue.[486] Research in non-national museums is at an earlier stage and the complex provenance investigation required is time-consuming and expensive.[487] As Professor Petropoulos suggested on the basis of United States experience, it is important that the publication of results is co-ordinated by museums to simplify the search procedure for potential claimants and others.[488] The Commission for Looted Art in Europe argued that future published research on the Internet should include images of objects to make searching easier.[489] We recommend that the Department for Culture, Media and Sport set out its strategy for assisting non-national museums with provenance research relating to the period 1933 to 1945 and for ensuring that the results of research by national and non-national museums is made available in a common and accessible format in its response to this Report.

The Spoliation Advisory Panel and legislative change

184. The relatively low importance attached to records of ownership history by the art market and museums in the past means that there are and will be a great many cultural objects in museums in the United Kingdom and elsewhere whose provenance for the period 1933 to 1945 cannot be known with certainty. It does not follow that there will be a flood of claims relating to works allegedly wrongfully taken in that period. Professor Petropoulos thought that the total number of spoliated objects in United States museums was in the hundreds rather than in the thousands and he thought that the number might be similar in Europe. He added that the number of looted paintings in British or United States museums "could be low as dozens or twenties".[490] The Commission for Looted Art in Europe also considered that the many difficulties meant that the number of claims throughout the world would be "in the hundreds".[491]

185. As part of the statements of principles of November 1998 and April 1999, British museums are committed to the principle of seeking to resolve matters relating to those claims which are received in "an equitable, appropriate and mutually agreeable manner".[492] It was also a principle agreed at the Washington Conference that national "alternative dispute resolution mechanisms for resolving ownership issues" should be established.[493] The Commission for Looted Art in Europe strongly supported the principle of non-legal settlement of disputes and there are signs that such an approach is increasingly being adopted in other countries.[494]

186. The Department for Culture, Media and Sport has now established a Spoliation Advisory Panel to consider and advise on claims for cultural objects lost during the Nazi era and now held by museums in the United Kingdom. Concern was expressed by some at delays in establishing that body and the lack of consultation over its precise remit.[495] The decision to create such a Panel was announced in principle in November 1999; draft terms of reference were announced in February 2000; the membership and terms of reference were finalised in April. The first meeting of the Spoliation Advisory Panel took place on 8 June 2000 at which the Panel agreed rules of procedure that appear to reflect a desire to deal with claims expeditiously.[496]

187. The Commission for Looted Art in Europe was concerned about the extent to which the Panel would proceed on the basis of purely legal considerations or whether it would take account of wider issues of justice.[497] The final terms of reference stress that the Panel shall "take into account non-legal obligations, such as the moral strength of the claimant's case".[498] There was also concern about the evidential standards to be adopted by the Panel and the level of proof required.[499] One of the Washington principles was that, "in establishing that a work of art had been confiscated by the Nazis and not subsequently restituted, consideration should be given to unavoidable gaps or ambiguities in the provenance in the light of the passage of time and the circumstances of the Holocaust era".[500] Professor Petropoulos viewed that to be an important principle and considered that "the benefit of the doubt should go to the claimant".[501]

188. The greatest concern about the Spoliation Advisory Panel was that the Government has not committed itself to restitution as the principal remedy for claims that are upheld by the Panel.[502] It was argued that restitution ought to be the key purpose of the Panel and ought to be made available as an option for all successful claimants.[503] That view was endorsed by Professor Petropoulos:

"This is one thing we can do for [the victims] ... we can recover their cultural property, and cultural property is very special; it has sentimental value; it is tied to their lives and their family lives, and it is important that it go back to them in this way. So I think that the victim should always be able to reclaim their objects."[504]

Ms Webber also stressed the huge emotional and symbolic value of particular items to particular families: "these paintings mean a huge amount to them; they are not impersonal art objects; they are not objects of financial value to them at all; these are paintings which hung on the walls as they were growing up".[505] She gave the example of a man in his eighties whose family had had a large collection of paintings, but the only one he was seeking was a portrait of his mother who had been murdered by the Nazis.[506] In addition to the possible wishes of a claimant, it was also questioned whether it was appropriate for looted art to be hanging on the walls of a museum.[507]

189. Several potential problems with restitution have been raised. First, Ms Page of the Tate Gallery noted the possibility of an institution not being "able" to return an object "if it had full legal title to the item in question".[508] Second, it was argued that a museum has to balance its responsibilities to individual claimants against its broader responsibilities to the public who may be deprived of access to an object by restitution.[509] In the one case that it is currently being considered by the Spoliation Advisory Panel—relating to Jan Griffier's View of Hampton Court Palace in the Tate collection—it is understood that "the requesting party would be happy for the painting to remain in the Tate's ownership, subject to receiving satisfactory financial compensation".[510] The source of compensation remains to be clarified, although the Tate's view was that the Government ought to fund compensation.[511] This is a matter on which the Government is keeping its counsel.[512]

190. As we noted earlier, there are significant legal barriers to restitution by national museums and galleries. Trustees are only permitted to dispose of objects in very narrowly-defined circumstances, none of which would permit return in the likely circumstances of a case considered by the Spoliation Advisory Panel. It was argued that the Government should make a commitment to bring in legislation to enable restitution by national museums and galleries where a claim has been upheld by the Panel.[513]

191. The British Museum also considered that claims relating to the period 1933 to 1945 were a special case. Dr Anderson stated:

"The enormity of what happened over that period is such that, if it were shown that we held an object which had been looted, had been the result of a forced sale, we would not be unhappy if legislation were passed which might result in the change of status of that object".[514]

Mr Graham C Greene CBE, the Chairman of the Trustees of the British Museum, was even more straightforward in his view: "There is no doubt that we would wish to return anything we found in those circumstances".[515]

192. Mr Howarth viewed the British Museum's statement as "extremely constructive and altogether welcome".[516] However, Mr Howarth himself was unwilling to make a similar statement. He noted that the Spoliation Advisory Panel had been empowered to give advice on the case for new legislation and felt that he would be better placed to make a judgement when he had had the benefits of the Panel's thoughts on the principles that ought to apply.[517] He considered it wrong to come to a decision without the benefit of the views of an "extremely distinguished" group of historians, lawyers and philosophers.[518]

193. We consider that the case for special treatment of cases of alleged wrongful taking during the period 1933 to 1945 has been convincingly established. It is appropriate that the Spoliation Advisory Panel has been created to ascertain the facts of individual cases and to recommend an outcome for claims which are upheld. While there are merits to a solution which secures continuing public access to an object in a museum, that interest must be seen as subordinate to the interests and wishes of a rightful owner. Where a claim has been upheld and restitution is seen as appropriate by all parties, it is essential that legislative barriers to such restitution be removed. It would be absurd if restitution were not possible in these circumstances due to the dilatoriness of Ministers in the Department for Culture, Media and Sport.

194. We very much welcome the lead taken by the British Museum in making clear and unequivocal statements that it would wish to return objects looted during the period 1933 to 1945 and not subsequently returned. We recommend that Ministers in the Department for Culture, Media and Sport begin cross-party consultations as a matter of the utmost urgency with a view to securing agreement for early and expedited legislation to permit the trustees or boards of national museums and galleries to dispose of objects which, in the view of the Spoliation Advisory Panel, were wrongfully taken during the period 1933 to 1945.

Spoliation and the British art market

195. The procedures which we have examined apply to those objects that were looted during the period 1933 to 1945 and that are now in public museums in this country, but museum holdings represent only a tiny proportion of looted property. The vast majority is in private hands.[519] As times goes on, it is quite possible that many of those objects will re-enter the art market, which means that dealers and auction houses can play an important role in the identification and return of looted cultural property.[520]

196. There are signs of increasing activity by auction houses and others to identify looted art. The Art Loss Register, which has a database of art looted between 1933 and 1945, said that it now received more enquiries from art dealers about looting during the Nazi era than it did about the contemporary theft of art.[521] Christie's and Sotheby's described their efforts to research the provenance of objects for that period, including consultation with researchers.[522] Sotheby's stated that, in respect of objects created prior to 1933, it was its policy "to disclose in its catalogues the fullest possible provenance for the war years".[523]

197. There was some scepticism about how widespread and accepted such an approach would become in a trade, in the words of Professor Petropoulos, "historically characterised by secrecy and anonymity".[524] The Commission for Looted Art in Europe was concerned with difficulties in obtaining access to records of past sales and purchases on the art market.[525] The Commission was also "most concerned that auction catalogues and other sales information continue to contain very little data on provenance, especially for the years 1933-45".[526]

198. It is evident that a different approach is needed for looted art in private hands as opposed to that in public institutions.[527] It was suggested that it was important to seek reconciliation between the legitimate and conflicting interests of claimants and of those who have subsequently purchased looted art in good faith and that there were advantages in avoiding the need for legal action.[528] If mechanisms are not devised which seek to reconcile these interests, there is a danger that objects will be withdrawn from the legitimate and respectable art market to the disadvantage of all concerned.[529] We recommend that the Department for Culture, Media and Sport undertake discussions with representatives of the British art market, claimant representatives and other interested parties to explore the extent to which the Spoliation Advisory Panel or a separate body could be engaged to investigate issues relating to cultural objects currently in private hands which may have been wrongfully taken during the period 1933 to 1945 and not subsequently returned and to propose outcomes reflecting the legitimate interests of claimants and of current possessors.

433 Q 371. Back

434 Evidence, p 110. Back

435 Ibid; R Z Chesnoff, Pack of Thieves: How Hitler and Europe Plundered the Jews and Committed the Greatest Theft in History (London, 2000), passim. Back

436 Evidence, pp 110, 113-114; Q 372. Back

437 Q 379; Evidence, pp 113-114. Back

438 I Locke and S Ward, Nazi Looted Art: Britain and Post-War Restitution, Holocaust Educational Trust, November 1998, p 6; J Petropoulos, Art as Politics in the Third Reich (London, 1996), pp 84-94; Evidence, p 132. Back

439 L H Nicholas, The Rape of Europa: The Fate of Europe's Treasures in the Third Reich and the Second World War (London, 1994), p 39. Back

440 J Petropoulos, The Faustian Bargain: The Art World in Nazi Germany (London, 2000), pp 28-29. Back

441 Evidence, p 110; Q 373. Back

442 L M Kaye, "Laws in Force at the Dawn of World War II: International Conventions and National Laws", in E Simpson, ed., The Spoils of War: World War II and its Aftermath: The Loss, Reappearance, and Recovery of Cultural Property (New York, 1997), pp 100-105; Ibid, Appendix 3, pp 278-279. Back

443 Q 371. Back

444 The Rape of Europa, pp 123-125. Back