Impression of the Symposium 'Fair and Just Solutions?'
Fair and just
At the symposium, the overall message was that, even if it is late, we have to do our best to find justice – not least to serve as an example for handling other future injustices.
In his word of welcome, the chair of the Dutch Restitutions Committee Willibrord Davids reminded his audience of the reasons underlying the need for fair and just solutions and for a conference of this kind. As the Dutch Minister of Culture, Jet Bussemaker, who officially opened the conference, pointed out in her speech: we owe it to the location of the conference, the Peace Palace. Others noted that it is a matter of reconciliation and moral obligation.
In his keynote speech, Professor Norman Palmer explored the question as to whether we can do better, whether there is a need for a co-ordinated approach. He reminded us of some key concepts in this regard. For one, 'hard cases make bad law': law that is laid down for 'normal cases' might not be the best answer here. According to Palmer, this is ultimately a 'moral and ethical issue calling for a moral and ethical solution'. He also reminded us of the perils of insularism: 'this is a cross-border issue calling for a cross-border solution'. According to Professor Palmer, we should ask ourselves what the fundamental principle is. Is it the restitution ‘in principle’ of all objects taken from victimised subjects, as the only true means of reversing the evils of that era, or should it be the upholding and preserving of museum collections to the fullest extent that is conscionably possible as some museum directors maintain? Or should the fundamental principle be the adaptation of the remedy to the specific facts of the case in order to ensure, in the terms of the Washington Principles (1998), the attainment of a ‘just and fair’ solution – in other words one that is fact-sensitive and does not, by imposing a ‘one size fits all’ solution, commit the error of treating unlike cases alike? In an urge to move on, Palmer concluded with the quote 'The day is short and the work is great. You are not required to complete the work, but neither are you free to desist from it’ (Rabbi Tarphon, First Century AD, Palestine).
Where do we stand now? (Morning session)
During the rest of the morning session, several speakers elaborated on the present situation with regard to Nazi-looted art disputes.
Five European Panels
The (vice)-chairs of the five advisory panels in France (Michel Jeannoutot), Austria (Eva Blimlinger), the UK (Sir Donnell Deeny), Germany (Wolf Tegethoff) and the Netherlands (Willibrord Davids) shed light on the work of these panels. Each country has its own approach, given the differences in history and legal system. All panels were established around the year 2000 as a response to the need for restorative justice and as an alternative to litigation, which is generally no longer possible under the law in these countries. The committees expect their work to continue for some considerable time to come, the UK being the only committee not expecting many more cases. The importance of this work from the point of procedural justice was tellingly illustrated by a quote from a letter from a claimant in one of the countries in which she explained, ‘where the memory of my family consisted only of ash, now they have faces’.
Some notable characteristics of the committees that were discussed were:
- The main objective of the French CIVS is compensation for lost items (no ownership claims), whenever these were lost within the territory of France and in the Nazi period. Mr Jeannoutot explained that this can in fact result in a situation that a claimant could at the same time have a compensation claim in France for the loss of an item and a claim for restitution of that same item from a museum in another country. The CIVS dealt with 877 claims regarding art works, and advised restitution of the item in 2 cases.
- The Austrian Committee decides ex officio whether the specific loss of possession of a work of art that now is part of a federal collection has to be seen as void according to the Austrian Art Restitution Law of 1998. In that case, Mrs Blimlinger explained, a claim is not necessary and restitution will be advised, this advice not depending on the acquisition or position of the present possessor. The Beirat advised in 284 cases.
- The German Beratende Kommission acts on the basis of the United Declaration of 1999 and deals with public collections. The Kommission has made five recommendations. Mr Tegethoff explained that this relatively low number is a consequence of the fact that many disputes in Germany were resolved after the war and nowadays also bilaterally.
- The Spoliation Panel, having dealt with 11 cases regarding artworks in public collections, takes into account the moral strength of a claim and asks itself whether any moral obligation rests on the institution. Sir Donnell Deeny pointed out that also parties in disputes regarding artworks that were lost in the aftermath of the war – in other words not Nazi loot in the strict sense - are coming before the Panel.
- The Dutch Restitutions Committee has dealt with 130 restitution claims, most of them regarding the Dutch state collection. The Dutch Committee differs from the other committees in that it also offers a procedure for binding expert opinion in all types of cases including the private sector. This procedure is voluntary, the parties agreeing beforehand to accept the outcome of the procedure as binding. This task is getting more important. The Dutch Museums Association has advised its members to refer disputes regarding Nazi-looted art to the committee
[Please click here for more information on the five committees]
The United States
Ambassador Douglas Davidson, Special Envoy for Holocaust Issues, addressed the difficulties that governments (with a federal state organisation) encounter in trying to find mechanisms for alternative dispute resolution. They are limited in their authority. The more remote the work of art or collection is vis-à-vis the national state, the more difficult it is to set the rules. He explained that the United States Government is still aiming at the creation of a committee, and is at this moment exploring 'an alternate means of creating an alternate dispute resolution mechanism for art displaced before and during the Second World War, examining options for a public/private partnership. At this point it does not appear that we could ever apply binding arbitration to such disputes – or even that interesting innovation of the Dutch Restitutions Committee, a 'binding opinion' – but, where two or more parties were willing to subject their differences of opinion to a mediator’s guiding hand, this might well be the next best thing.'
Marc-André Renold from the University of Geneva presented a comparative analysis of international practice and an overview of solutions that had been found. Litigation is sometimes possible, more often in the US than in Europe, but as a rule alternatives such as negotiation, mediation and conciliation are necessary. Different and creative ad-hoc solutions are found, varying from restitution, with or without conditions, ex-gratia payments and sale with division of the selling price, to loans and co-ownership. He argued that it is time for further international co-operation, for example through the establishment of an international platform, and reminded us of earlier declarations in this regard.
How can we do better? (Afternoon sessions)
In the afternoon, the programme focused on the question of how we can do better.
Matthias Weller addressed the question as to whether, from the academic point of view, it is possible to identify key elements for a fair and just solution. He set out to find common ground on substantive justice regarding what constitutes a 'fair and just solution'. He concluded there is little common ground here, apart perhaps from the notion of the injustice of double compensation. Inconsistency in outcomes – which, as he demonstrated, exists in this field – is injustice. We should work on principles of elements of 'fair and just', however this work should be done by people other than those who decide or advise on a claim. Since common ground for the answer as to what exactly constitutes a fair and just solution is very limited at this moment, rules of procedure (on 'how to get there') are of the utmost importance. Transparency, clear explanation of the grounds for decisions and treating like cases alike were some of the aspects Weller identified as necessary for a 'fair and just' solution. The full text can be downloaded in pdf-format.
After that, Wouter Veraart argued that the main role of the law in cases of injustice from the past is to develop legal frameworks to enable and encourage parties to find binding solutions on a more voluntary basis in order to avoid ad-hoc solutions in every case. He reached this conclusion by identifying three ways of dealing with past injustices: to forget (in a desire to establish order after a period of serious conflict), to remember the injustice (by trying to redress past wrongs as far as possible), and thirdly, reconciliation. Veraart explained that conciliation is of particular importance here. The law’s principal contribution seems to consist in offering (international and or national) general legal and ethical guidelines which contain elementary rules and principles of due process and provide for an acceptable structure in which parties can operate on an equal level of mutual respect. For this reason, Veraart concludes – with Matthias Weller – that we should focus on key elements of procedural justice. The full text and slide can be downloaded in pdf-format.
Panel discussion between the parties
In the panel session discussions we were presented with a wide range of views of what is 'fair and just'. Much food for thought.
In the discussion about the special status of Nazi-looted art, the word genocide is considered to be of key importance. What is clear is that Nazi-looted art disputes do deserve a special status in relation to 'normal' cases of looting. Earlier in the day, in his keynote speech (and this was echoed in the responses to the questionnaire), Norman Palmer had pointed out that a parallel could be drawn with solutions deployed in the field of restitution of indigenous people's cultural heritage and human remains.
In the discussion about the circumstances that should be of importance to a 'fair and just' solution, there appeared to be little common ground.
- That there should be a distinction between private current possessors and public entities seemed to be the opinion of most, but certainly not all participants. For those advocating this distinction, this did not per se mean that the norm fair and just should not apply to privately-held artworks, but more as one 'plus' on the balance for a private owner.
- All panel members seemed to agree on the importance of good faith and proper provenance research on the part of the current possessor. However, the view that the original wrongdoing should be the sole focus was also expressed. For some participants this meant restitution is the only feasible solution, without taking the position of the current possessor into account.
- That compensation previously received by the former owner should be taken into account in some way, seems to be common ground.
All panel members seem to be convinced of the importance of independent factual research – and of the difficulties of this research. What 'independent' means in this context is trickier to define. One might wonder whether, aside from the question of relevance to a decision, the element of telling the story (and providing a history that was not there) could not serve as a 'fair and just solution' in its own right.
On the question of time limitations, the views of the participants varied widely, as did the respondents to the questionnaire. This might well be a function of the difference in the approach of the common law (US and UK) and civil law systems, the latter being much clearer in opting for time limitations in favour of the present possessor. Some argued that, taken the seriousness of the crimes committed, no time limitation should ever be applied. The opinion was also put forward that the time limitations as they apply under the national laws should always be respected, since these issues should in fact be settled between the original wrongdoer and the deprived former possessor.
On the procedural level (how to get there) all parties seem to share a wish for disputes to be settled. Closure – as we also learnt from Veraart – is important. And there seems to be agreement on the need for more international unity. How this norm should be further developed, through some kind of international advisory panel or ‘clearing institute’, remained undecided in the panel discussion. Arguments against such an organisation varied from unrealistic because of the time it would take to organise such a forum (too long), to 'vive la différence'. Arguments in favour varied from advocates of an international court, as an example procedure for other cases, too, to a call for an international expert platform. This echoes the responses to the questionnaire that were received: the question as to whether there should be an international forum elicited some critical comments, but also some enthusiastic reactions.
In the concluding session, Nico Schrijver addressed the audience on the question of the possibilities for international cooperation. He explained that there is a range of possibilities for this, from an international platform for exchanging ideas for all parties, to a kind of Ombudsperson, whom parties could turn to with their questions on research and other related issues, to an international committee to which parties could turn on voluntary basis for research, mediation or advice in disputes (binding or not), to an institutionalised intergovernmental form, which Schrijver dubbed the United Nations Restitutions Organisation (UNRO). All these forms could exist with or without a permanent location and secretariat.
The conference was concluded with a gift from the Ministry of Culture. Marjan Hammersma, the Director General of the Dutch Ministry of Culture, offered to finance the conference proceedings, expected to be published next year.
A final note: further international cooperation
In the field of Restitution in particular, where each case has to be evaluated on its own merits, justice is being defined by procedures. This is why the question of how to get there was the main theme of the day. Opinions about the norm itself and the right procedures for implementing this norm are divided. So much is clear. Besides, there are many grey areas where parties cannot have their dispute reviewed on its merits by a neutral third party. The danger of this situation is 'insularism', as Norman Palmer warned, and this might easily cause injustice since cases are seldom not international in character.
We could leave things as they are and allow disputes in the grey areas to be resolved by market forces. There is nothing wrong with commercial interests, but they are not a guarantee of a fair and just solution. Or we could opt for another path, in which we try to create the opportunity for all parties to have access to a neutral organisation and a fair procedure. This not in the last place as an example for future other injustices of the kind. It would, however, require specific measures and effort on all sides.
Please give your input for this discussion here
Director Restitutions Committee,
The Hague 3 December 2012
(All photos: Sander Stoepker)