Lost Treasures and the Law

Besides mass-murderer and despot, we might need to add “world’s biggest art thief” to Joseph Stalin’s list of epithets. While we’ve known for years that the Soviets stole art from Germany that was originally expropriated from European countries by the Nazis, the exact scale of the theft and value of the stolen artwork hasn’t been made public.

An editorial in The International Herald-Tribune notes (h/t The Marmot’s Hole) that “From Russia,” a new art show in London, will feature these lost masterpieces on the proviso that no action will be taken to return the art to its rightful owners. So how much is this art worth?

What is at stake is approximately 10 to 15 percent of the world’s great art treasures that were well catalogued in 1939, but disappeared from sight at the conclusion of World War II.

That was the subject of a recent conference at the Harvard Law School, “Spoils of War vs. Cultural Heritage: The Russian Cultural Property Law in Historical Context.” Experts who attended agree that Russia is hiding works valued at $10 billion to $15 billion, perhaps even more[.]

The Russians assert a right to possess the art as a “spoil of war,” and have even passed a law to this effect, but according to the author, Allan Gerson, such claims are illegal:

But even assuming that Russia has a valid claim for restitution-in-kind on the grounds that what it possesses offsets the plunder of the Soviet Union by the Nazis during World War II, this argument cannot justify retention of private property.

The 1998 Russian law draws an exception for private property of victims of the Holocaust and those whose property was taken as part of the Nazi persecutions based on race, religion, or ethnic identity. But there have been no claims by Holocaust survivors or their families for the simple reason that Russia has not come forth with an accounting of what it possesses.

Moreover, beyond victims of the Holocaust, there is no justification – and the international law community is unanimous on this point – for confiscation of any privately held art property. Its continued retention is simply unlawful. Actions by museums that profit from exhibiting these works and countries that accept such exhibitions are complicit in enabling Russia to hold on to stolen art.

The immediate thought I had was that, in addition to the laws cited by Gerson, the legality of the art seizures could also be addressed in part by looking at the terms of German reparations following World War II. Was it legal at that time for the Soviets to take properties not specified as restitution or are the seizures extralegal according to terms agreed on by the Allies and defeated Axis powers?

A larger point looms in all of this. The loss of cultural treasures following conflict, and the need to reclaim them, seems more relevant today after the looting of Iraqi Museum and the secession of Kosovo, with the former an ongoing mission for archaeologists and international police alike, and the latter a new and pressing concern, as hundreds of important Serbian cultural sites face the prospect of annihilation or no hope of reconstruction* if the the new Kosovar government fails to restrain militants in the Albanian population.

In light of these situations, the Russian art dispute, as well as the Taliban’s attempt to “cleanse” Afghanistan of of its Buddhist past, perhaps the world community should work together to add some legal teeth to UNESCO’s mission to preserve our common cultural heritage. The WTO could similarly be involved, with allowances for trade-based punishments in cases of expropriated cultural treasures. For instance, if the Chinese discovered that, say, the French were holding on to Chinese artifacts, then China would be allowed to raise tariffs against France until the artifacts were returned.

* Consider this list of Orthodox churches destroyed or damaged in Kosovo since NATO’s occupation began in 1999. Will they be lost forever?

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