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posted by Christopher Howard — May 03, 2011

Lucille A. Roussin is an attorney-at-law who earned a PhD in art history and archaeology from Columbia University. She is the founder and director of the Holocaust Restitution Claims Practicum at the Benjamin N. Cardozo School of Law in New York from which she earned her JD. Roussin introduced the conference and served as moderator of one panel, “Nazi Era Looted Art: Research and Restitution.”

A Conference Report on “Human Rights and Cultural Heritage”

Paul Cézanne, Madame Cézanne in the Conservatory, 1891, oil on canvas, 36¼ x 28¾ in. Metropolitan Museum of Art, New York (artwork in the public domain)

The Benjamin N. Cardozo School of Law at Yeshiva University in New York hosted an all-day conference, entitled “Human Rights and Cultural Heritage: From the Holocaust to the Haitian Earthquake,” on March 31, 2011. The program brought together experts in both human-rights law and Holocaust-era restitution law. Its organizers also invited specialists in the same areas who had not previously engaged this important topic.

The program commenced with opening remarks by Allan Gerson, chairman of AG International Law PLLC, a Washington, DC–based law firm specializing in complex issues of international law and politics. During his talk on “Civil Litigation to Secure Cultural Property as a Human Right,” he spoke of the continuing debate over the existence of a recognized human right to secure restitution of cultural property and, when a victim is deprived of actual possession, the right to just compensation. Gerson included news about his current litigation against the Metropolitan Museum of Art over Paul Cézanne’s Madame Cézanne in the Conservatory (1891) and Yale University over Vincent van Gogh’s The Night Café (1888). Both cases involve major issues in international law, including the Act of State Doctrine and the Foreign Sovereign Immunities Act.

 

The first morning panel, entitled “Natural Disasters: Haiti and Beyond,” comprised leaders in the law-related nonprofit world. A former officer of the United States Army, Corine Wegener has witnessed cultural-heritage catastrophes firsthand in Sarajevo, Iraq, and, most recently, Haiti. In 2006 she founded the US Committee of the Blue Shield—the “cultural equivalent of the Red Cross”—and serves as its president. Her illustrated presentation addressed what has been, and is being done, to preserve the many cultural monuments of Haiti since the devastating earthquake in January 2010. Wegener stressed that, because of current law, the US cannot provide aid to endangered nations on its own initiative: the country suffering the disaster must first request assistance. Her current efforts focus on training local communities to conduct preservation work themselves.

As executive vice president and chief operating officer of the New York–based World Monuments Fund, Lisa Ackerman helps lead an organization dedicated to protecting and preserving threatened ancient and historic sites around the globe. Using a wonderful PowerPoint presentation, she demonstrated the evolution of heritage-protection efforts in which she has been involved. Ackerman commented that when floods ravaged Venice in 1966, operations rallied around the city as a cultural icon and saved many important works of art. After Hurricane Katrina in 2005, however, community building took precedence over art and architecture. She drove home her point with images of the preservation efforts at the Greater Little Zion Baptist Church in the Ninth Ward, which is not just an architectural gem but the heart of a community. Her two-fold message was a powerful one. First, nonprofits so accustomed to operating on shoestring budgets should not be afraid to think big. Second, widespread public perception that cultural-heritage preservation during times of crisis occurs at the expense of helping humans is a false dilemma. The two-pronged effort in Haiti is an excellent example of how disaster relief led by medical and humanitarian organizations can work side by side with specialists in cultural heritage.

Lucas Cranach the Elder, Adam, ca. 1530, oil on panel, 75 x 27½ in. Norton Simon Art Foundation, Pasadena (artwork in the public domain)

Tess Davis, the executive director of the Lawyers Committee for Cultural Heritage Preservation who has significant preservation experience, particularly in Cambodia and Sri Lanka, summed up the panel. She observed that the public does not realize how important cultural heritage becomes until after the dust settles, floods recede, and immediate humanitarian needs are met. She also emphasized how cultural-heritage preservation should be an up-front part of postwar and disaster-management planning.

The second morning panel concerned “Nazi Era Looted Art: Research and Restitution.” Marc Masurovsky, a leading scholar in this field and the cofounder of the Holocaust Art Restitution Project, led with an historical overview of the restitution of artworks looted during the Holocaust. Inge van der Vlies, a member of the Dutch Restitution Committee in Amsterdam and a professor of constitutional law and of art and law at the University of Amsterdam, considered the workings of Dutch project, its processes, and recent successes. Lucian Simmons, vice president and head of the Restitution Department at the New York branch of Sotheby’s, informed us about the process used at his auction house to determine if a work of art has a questionable provenance. He then illustrated recent restitutions and settlements, discussing research efforts and the outcomes. Lawrence M. Kaye, partner and cochair of the Art Law Group at Herrick, Feinstein LLP, spoke of recent major recoveries to the heirs of the Amsterdam art dealer Jacques Goudstikker. Kaye also addressed the current lawsuit against the Norton Simon Museum for two notable pieces from the former Goudstikker collection, Lucas Cranach the Elder’s Adam and Eve (both ca. 1530), in which a petition for certiorari has been filed with the US Supreme Court. He then detailed other art cases that his firm had handled, most importantly the restitution of several paintings in the Stedelijk Museum in Amsterdam to the heirs of the Suprematist artist Kasimir Malevich.

One program highlight was the midday keynote address by Howard N. Spiegler, also cochair of the Art Law Group of Herrick, Feinstein LLP, who provided an overview of many aspects of and results in cases involving Holocaust-era looted art. He related several examples, including the recently settled case of United States v. Portrait of Wally, in which the firm represented the heirs of Lea Bondi Jaray, the rightful owner of the Egon Schiele painting, Portrait of Wally (1912). Spiegler referenced a haunting testimonial by Rabbi Israel Singer, who once related that: “Himmler said you have to kill all the Jews because if you don’t kill them, their grandchildren will ask for their property back.”

Moderating the first afternoon session, “Libraries and Archives: Restitution of Recorded Cultural Heritage,” was Lynn Wishart, Cardozo’s associate dean for library services and professor of legal research. Her three panelists examined the many difficult issues with the restitution not of art but of written documents. Jeff Spurr, secretary and board member of the Sabre Foundation (based in Cambridge, Massachusetts), deliberated contesting arguments for the restitution of the ancient Jewish books, papers, and manuscripts rescued from the looting and burning of the Iraq National Library and Archives after the American incursion in 2003. Library representatives contend that the holdings belong to their country’s history, but a Jewish community no longer exists in Iraq. With some support from the American government, former Iraqi Jews in Israel and the US argue that the documents should be given to a living Jewish community. Nathan Lewin, a partner at the Washington, DC–based firm Lewin & Lewin LLP, represented the successful plaintiff, Agudas Chasidei Chabad, against the Russian Federation, discussed the case from the viewpoint of international law, under which the Russian Federation is obligated to return books and documents to the Chabad in New York but has refused. Patricia Krimsted, senior research associate at the Harvard Ukrainian Research Institute in Massachusetts, provided a history of looting by the Einsatzstab Reichsleiter Rosenberg (ERR) in Western Europe. She noted that the three largest ERR concentrations of books contained works that came from both West and East—but far more originated in the West. Grimsted also highlighted how looted collections (an estimated 600,000 books) that came to rest in the Soviet sectors of postwar Berlin, taken as part of the Soviet trophy brigades. Prospects for restitution today largely hinge on whether the archives ended up in the Soviet or Allied sectors. Six years ago the Russians admitted for the first time that collections were taken to Minsk in November 1945; Grimsted had found scraps of evidence in card catalogues that matched ERR confiscation lists. She questioned how the Russians could view the cultural materials, taken from Jews and published in languages few people in Russia can read, to be compensation for their World War II–era losses and then demand their own compensation to return them.

The second afternoon panel on the Foreign Sovereign Immunities Act (FSIA) presented a lively discussion on the applicability of the law. Jennifer Anglim Kreder, a professor in the Salmon P. Chase College of Law at Northern Kentucky University, conducted a roundtable with four experts on FSIA litigation to explore the intersection of cultural property, human rights, and the War on Terror. The panelists, all based in Washington, DC, were Mark N. Bravin (partner, Winston & Strawn LLP); Lisa Grosh (deputy assistant legal adviser, US Department of State); Laina C. Lopez (attorney, Berliner, Corcoran & Rowe LLP); and Stuart H. Newberger (partner, Crowell & Moring LLP). Bravin has represented both plaintiffs and defendants in FSIA litigation, including McKesson v. Islamic Republic of Iran (plaintiff), ongoing for twenty-five years, and Orkin v. The Swiss Federation, concerning a van Gogh drawing allegedly sold by a Jew under Nazi duress to a Swiss collector in 1933 (defendant). Grosh, who spoke in her individual capacity, was heavily involved with litigation under the FSIA’s Terrorism Amendments, which expressly authorized litigation against nations identified as State Sponsors of Terrorism. Lopez’s firm represents Iran, included in the McKesson case and proceedings brought by plaintiffs who obtained default judgments against Iran under the Terrorism Amendments; the plaintiffs seek to seize and sell Persian antiquities currently held in US museums to partially execute their judgments. The panelists engaged in a fascinating discussion of the mechanics of FSIA litigation, exploring such questions as: Should forced seizure and possible auction of cultural objects be fair game to compensate victims of terrorism? Is litigation or mass-claims resolution a better course to secure justice for terrorism and genocide victims—and for public safety?

In conclusion, “Human Rights and Cultural Heritage,” which brought together new voices in cultural heritage and human rights, was dynamic, informative, and thought provoking.

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