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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How Does One Say Troll in Albanian?

My post on Kosovo invited thoughtful commentary from “John” (74.72.91.158), who shares the namesake of my favorite Albanian but apparently not his sense of humor. Among other things, it convinced me that removing my comment policy from the sidebar was a mistake. As for what John actually wrote, I’m not going to litter my comment database with his “writing,” but I have reprinted the entire comment below.

John begins,

Kosova has never been Albanian dick?

At first I wondered if John was trying to call Kosovo the male member of Albania, then I realized he just forgot a comma. For his efforts, we’re sending John a complimentary copy of Eats, Shoots, & Leaves.

But wait, there’s more–

Kosovars have been there 5000 years ahead of the time Serbs came from Mongolia.

Two things here: first, in the words of Robert Plant, it really makes me wonder, when did 5,000 years become the gold standard for historical legitimacy? Those of us in Asia have heard it from Korean and Chinese nationalists for the last decade, so perhaps there was a secret meeting of hypernationalists from around the world in the late 90s — a sort of Davos for Evil — that encouraged them to all start using the words “5,000 years” in their propaganda. Anyways, it will come as news to most historians that there was anything like a “Kosovar” (read: Albanian) identity 5,000 years ago or that the Serbs came from Mongolia. (The Slavic peoples were historical victims of the Mongolians, not Mongolians themselves.)

This brings me to the second point: the ruthless way that both sides have sought to “orientalize” their enemies. For example, on the Serb side we hear such rhetoric as recognizing Kosovo “grant[s] new legitimacy to centuries of Ottoman violence,” thus making the Albanians Turks-by-association. John’s attempt to smear the Serbs as Mongol interlopers is, I suspect, a popular meme on the Albanian side, yet just as ridiculous. Though both sides are ultimately wrong, in this fight the Serbs may have the stronger side of the argument, since the Albanians really do have a link to the Muslim invaders of the region. (I eagerly await John’s next comment where he proves that “Mohamed” and “Ibrahim” have been Albanian names for 5,000 years.)

Returning to John’s correspondence, he gives us this little non-sequitir:

Do you think the whole world reads the history with your ass eyes?

I’m not sure what “ass eyes” are, but if plastic surgeons can give Asians double eyelids, they can surely correct my condition. Note that John’s use of “the history” suggests English is his second language, which, given that his ISP is in New York, makes me rethink my liberal stance on immigration.

We are left with John’s parting shot:

Don’t try to teach the world how to read idiot!

I don’t know how to read idiot but I can read English and some Chinese. Oh, wait…

Kosovo’s Dangerous Statehood

When most Americans are introduced to the international media’s chosen narrative about Kosovo, that of ethnic Albanians overcoming oppression and securing their right to self-determination, they are likely to feel proud that America served as midwife to the birth of the newest country in the world. They are no doubt doubly proud to see all the American flags being waved by jubilant Kosovar Albanians . Wow, they must think, here are some Muslims who actually love us for a change. On top of this, some Serbs had to come along and burn the US Embassy in Belgrade in response to the Kosovar independence vote, thus cementing the perception that America has truly been on the side of the angels in the Balkans.

Kosovar Albanians

My suppositions may seem exaggerated, but they have some basis in fact. The backstory of Clinton’s war in Kosovo was that of America returning to the heart of Europe to defeat a new, would-be Hitler — Slobodan Milosevic. After Milosevic’s forces retreated from the province and the bombs stopped falling in Belgrade, the story of Kosovo quickly disappeared from public consciousness. The media subsequently downplayed such developments as ethnic cleansing perpetrated by the Albanian side after the war, since that would have complicated the black and white politics of the Balkans. Still, Kosovo came roaring back to the front pages this week, and it seems many young Americans still subscribe to the storyline first drafted in the 1990s.

Just consider the results of this ABC News/Facebook poll on the subject. 54% of the respondents are between the ages of 18 and 24.

Facebook poll on Kosovo

While at first I was going to chalk this result up to the overexuberance of Obama supporters who flood Facebook polls, support for Kosovar independence in the poll is in fact broad across the ideological spectrum. (A caveat: the Facebook polls do not give statistics to separate American Facebook users from foreign Facebook users, so there’s a chance, however slight, that anti-Serb foreigners could be rigging the poll.) If accurate, this poll can only mean that the media has one again downplayed the risks of supporting the Kosovar Albanians in favor of a feel-good morality play. But those risks are real, and we have only begun to feel the effects.

The most immediate fallout from Kosovo’s vote on Feb. 17 is the mortal blow dealt to the project of Westernizing Serbia proper. Paradoxically, this means that American policy, insomuch as it encouraged Kosovar independence, has utterly undermined American policy, insomuch as it supported Serbian liberalization.  After all, the US and the European powers had several key goals at war’s end: first, removal of Milosevic and his nationalist clique, and second, the cultivation of liberal values in Serbia, leading perhaps to the ultimate goal of Serbian accession to the European Union. Unfortunately, after the Kosovar vote, the Serbian tilt towards the West has ended for the foreseeable future and Pan-Slavic ties between Serbia and Russia have strengthened considerably. As Serbia’s patron, Russia can be counted on to block Kosovo’s integration into the world community, contributing to the possibility that Kosovo will be a failed state in the years to come. Beyond these troubles, there remains a very real possibility of a new war in the region.

One would have hoped that the West had learned its lessons after statebuilding experiments in Iraq and Yugoslavia — two historical fictions held together by the centripetal force of dictatorship — but our present situation suggests otherwise. Kosovar statehood, like the British creation of Iraq and the Euro-American creation of Yugoslavia, is a perfection sought at the expense of the good. Our loss will come in the form of the dangerous precedent established by the West in Kosovo, which threatens to embolden a myriad of separatist factions around the world, all of which have clamored for a state of their own, yet who, until now, have lacked the legal and political standing to make their desires a reality. However, by recognizing Kosovo, the West has unwittingly aided these factions by rewriting the rules of statehood.

Let’s now look at how the West has decided in favor of statehood for Kosovo and what that means to the rest of the world. To begin with, Kosovo meets only a few of the traditional requirements for statehood. Points in favor of Kosovar statehood include the fact that province is territorially contiguous and internationally recognized by the United States and most — but not all — of the European Union. The Palestinians will tell you that the former is a necessary but not sufficient condition for statehood. The latter, while a classical rule of international politics, is a matter of relativity; Taiwan certainly functions like a state despite the fact that few countries dare recognize it as such.

Points against Kosovar statehood are numerous and include the fact that Kosovo, in a Weberian sense, does not have a monopoly on the use of force; the fact that the territory is not economically independent from Serbia, or, in the place of Serbian ties, Western aid; the fact that the present-day population of Kosovo is the product of a relatively recent demographic shift and not a “permanent” situation; and the fact that Kosovo qua state has no prior historical reality. Taking these points one by one,

  • the Weberian criticism is the weakest, since Kosovo has, since the declaration of UN Resolution 1244, continued to be administered by NATO and the UN, and the Kosovar government has had no chance to exercise its full powers. As such, Kosovo’s stability in the absence of foreign presence remains a giant question mark.
  • Next, the poor Kosovar economic situation will necessitate either long-term support from Western powers, thrusting Kosovo into a semi-colonial situation, or else invite economic union with Albania. Neither of these options is good for Kosovar sovereignty, and a federal arrangement with Serbia would have been more conducive to economic growth and regional stability
  • Moving on, rather than being Albanian all along, Kosovo has become Albanian thanks in part to internal migration within the former Yugoslavia and World War II era Nazi policies which saw Kosovar Serbs expelled en masse and replaced by Albanian allies of the Nazi regime. Admittedly, some in the United States may be bold enough to argue that recent demographic changes deserve to be honored by new political arrangements, but few Americans would support this logic being applied to the benefit of Mexicans living in the American Southwest.
  • Lastly, the biggest strike against Kosovar statehood is that it has never historically been its own country. For hundreds of years it was either controlled directly by the Serbs or by the Ottomans (who controlled the Serbs). Unlike East Timor, Kosovo wasn’t an independent territory violently annexed by its neighbor. Nor was Kosovo part of historical Albania seized by the Serbs the way Israel seized the Sinai Peninsula. Yet historians and the media have worked together to create the fiction of Kosovar nationhood since the breakup of the former Yugoslavia, and like the story of demographic change noted above, the political history of Kosovo is rarely discussed in the Western media, much to the detriment of the public and decisionmakers alike.

Given that many of the strongest rationales for Kosovar statehood are nonexistent, Western foreign policy elites have had to invent new reasons to make Kosovo an independent country, and it’s these reasons that pose the greatest dangers to piece.

First, there is the idea — which is seemingly an outgrowth of identity politics — that ethnic homogeneity within a particular territory is enough to justify separatism. That is to say that if a country’s population is 85% group A and 15% group B, but 90% of group B is concentrated within a single enclave, then that enclave has the right to declare itself a state. Many people will accept this idea at face value without considering what it means. If, for example, group B is distributed throughout several small enclaves within a country, it may decide to engage in ethnic cleansing for the sake of unifying those enclaves and earning the “right to statehood.” In effect, this is what the Kosovar Albanians did by pushing out as many Serbians and Montenegrins as they could from 1999 to 2008. Although self-determination is a cherished right, many Westerners take for granted the fact that other cultures do not share our belief that our right to self-determination ends where another man’s face begins.

Second, it is suggested that the Kosovar Albanians be given a state thanks to their years of oppression at the hands of the Serb majority. This is of a piece with the Serb and Orthodox belief that Kosovar independence is another punishment visited upon Serbia for Milosevic’s misbehavior. (And that the US is furthermore an “enemy” of Orthodox peoples.) This idea is not objectionable outright — it is, after all, a basic tenet of Zionism and therefore a founding principle of the state of Israel — but it begs the question of just how long and how severe the oppression must be to warrant the creation of a new state as the remedy. (When the oppression happened is also an important factor to consider. Is there a statute of limitations on such grievances?) If applied equally, this principle would lead to a splintering of countless states in the international community, not to mention emerge as a grave threat to the very American concept of pluralism, which addresses the issue of oppression through the rule of law.

Lastly, many Western observers and diplomats argued that Kosovo deserved to become a state because it wanted to. (That any parties could object was inconceivable, inconceivable!) This makes sense after a fashion. If you were a diplomat tasked with bringing peace to the region, Kosovar independence would appear to be an appealingly simple solution to a complex problem, and so, like the doctor who encourages amputation instead of chemotherapy in every case of cancer, allowing Kosovar Albanians such an extraordinary degree of self-determination was the easy way for the West to get out of the Balkan morass. What they don’t take into account, though, is how exactly these three new rationales for Kosovar independence will resonate outside of the Balkans.

Starting with the ethnic Russian militants in Georgia’s Abkhazia and Ossetia regions and continuing with DPP rabble-rousers in Taipei, the recognition of Kosovo has emboldened separatists who will attempt to leverage these new standards of statehood to their own advantage. We close now with a brief survey of several internal conflicts worldwide and a look at how they will be affected by the Kosovo precedent.

regional conflicts

As the table suggests, the independence of Kosovo stands to have a strong impact on India should the Kashmiri Muslims coalesce into an effective separatist group. Likewise, the Tamil Tigers will have new strategies in their war for statehood and Tamil nationalists in India’s State of Tamil Nadu might follow suit. Overall, however, Kashmir is the most dangerous territory since, besides an internal conflict, it could lead to a regional conflagration between Pakistan, India, and China.

For its part, China will probably be minimally affected, though Xinjiang “terrorist/separatist” groups will remain a factor, and in general, China will stay “gravely concerned” about Kosovar independence. Taiwan could declare itself independent tomorrow but such a move would only further isolate Taiwan rather than invite the full embrace of the international community.

Like Taiwan, Chechen independence would likely go unrecognized owing to the resurgent strength of Russia within the international system. That doesn’t mean, however, that militants wouldn’t look to Kosovo for inspiration and begin another round of fighting.

As it stands, the Russian-dominated regions of Georgia, the Muslim regions of Mindanao in the Philippines, the Spanish Basque Country, and Kurdistan have the greatest potential to erupt into conflict. These conflicts might be civil wars and/or increased terrorism in the Philippines and Spain or they might be full-scale regional conflicts, such as a Russo-Georgian war on behalf of independence for Abkhazia and Ossetia. And if Iraq fails to make significant progress towards a stable government in the coming years, the Kurds will be extremely tempted to take the Kosovar route, and the West — specifically the US — will have to dangle a very large carrot to prevent Iraq from fragmenting.

In conclusion, as nationalist groups around the world begin to learn and apply the lessons of Kosovar independence to their own irredentist and separatist claims, they will not only renew their conflicts with increased vigor but also force the West into a corner. Will we take the hypocritical position of creating one set of rules for Kosovo while requiring other regions to play by the old rules? Will we encourage a thousand democratic flowers to bloom, or will we recognize the danger state fragmentation poses to world peace? Advisers to the next president should take a long, hard look at the Kosovo situation right now, because what they might be seeing is the next president’s war.