Cultural Losses and Cultural Gains: Ethical Dilemmas in WWII-Looted Art Repatriation Claims against Public Institutions

Erin L. Thompson

Abstract

Alongside their campaign of physically exterminating the Jewish population of Europe, the Nazis carried out a highly organized plan of cultural genocide which involved the confiscation or forced sale of hundreds of thousands of pieces of art. Although a sizable number of these works were returned to their owners or their heirs by the Allied forces after the war, many disappeared into the hands of private possessors. Many remain hidden in private collections, but a number of these artworks were given to or purchased by museums or other public institutions. In recent decades, the heirs of Holocaust victims have been using the American court system to make claims for the return of these artworks. This article examines one little-examined, but ethically problematic aspect of these claims: the fact that the vast majority of them are made against public institutions rather than private collectors.

The article begins with a short survey of the history of scale and organization of the looting of art during World War II, and then explains why the legal claims for looted art gathered momentum only in the late 1980’s. The majority of these claims for restitution are made against public institutions, and the remainder of the article is a discussion of two conflicting sets of ethical goods that come into play during the recovery of stolen art from public museums, which in most cases have come into possession of the works long after the war and from owners far removed from the Nazis or looters who removed the works from their original owners. The first good is the right of heirs to recover a personal benefit to compensate for their personal losses caused by the Holocaust. The second is the right of the public to retain the public good of art displayed in museums. The article explores this conflict through descriptions of claims made against the Israel Museum of Jerusalem and the Jewish Museum of Prague.

Part II of the article then discusses the public interest in keeping art in museums, including a survey of scholarly positions on this issue. Part III lays out the current state of relevant statutory and case law, leading to an analysis of the reasons which explain why claims are easier to make against museums and other public institutions than against private collectors. A key portion of this section is an analysis of museums’ responses to claims, both in individual cases and in official responses to the situation propagated by international and domestic museum associations.

The article continues with a exploration of the goals and attitudes of both claimants and their attorneys, looking at interviews and other statements to determine whether the ethical dilemmas inherent in making claims against public institutions can be mitigated while still achieving the goals of claimants. Finally, Part V concludes with a proposal of a better means for heirs, their attorneys, and museums to work together to preserve both the private and the public good, using models of past cases in which a claimed artwork has remained on public display.