A NEW APPROACH IN DUTCH RESTITUTION CASES.
| Author | Oost, Tabitha |
Binding Opinion regarding Stern-Lippmann/ Eindhoven City Council II, RC 5.178 12 September 2022
This paper will discuss the most recent decision of the Dutch Restitutions Committee (1) (RC) in respect of a claim for the return of Nazi-looted art. This opinion of the RC (2) in the dispute between the Stem Lippmann-heirs and Eindhoven City Council concerning a Kandinsky by the name of Blick auf Murnau mit Kirche, is a reconsideration of a first assessment of this claim by the RC in 2018. The recent 2022 binding opinion merits a closer look, not only because of the different and now favourable outcome for the claimants, the Stern-Lippmann heirs, but also in light of the recent policy changes in the Netherlands relating to Nazi-looted art claims based on the so-called Kohnstamm report which was issued in December 2021. As these changes appear to have had some bearing on the case at hand, they will be discussed first, before addressing the Stern- Lippmann/ Eindhoven City Council II claim.
BACKGROUND TO THE CASE: DEVELOPMENT OF THE DUTCH RESTITUTION POLICY OVER THE PRECEDING DECADES
Whilst the Dutch Government has officially denied that this was the motivating factor, the recent revision of the Dutch restitution policy must be seen against the background of international criticism that ignited in relation to another 2018 binding opinion issued by the RC, also concerning a Kandinsky, Painting with Houses. In its decision on the claim brought by the Lewenstein heirs against Amsterdam City Council, the RC held that the interest of the City Council in keeping Painting with Houses accessible for the public outweighed the interests of the Lewenstein heirs. The RC concluded in this case that such a weighing of interests was appropriate since one of the other key notions of the Dutch restitution policy, that of "involuntariness of loss [due to] circumstances directly related to the Nazi regime" could not be sufficiently established. The international dismay was caused by the reasoning of the RC which, while acknowledging that the Lewensteins' loss of possession "could not be seen in isolation from the Nazi regime" nevertheless held that the circumstances of the loss were "unclear". The RC concluded that it was equally plausible that the loss of the painting could be attributed to the former owners' deteriorating financial circumstances which they had been experiencing since well before the German invasion of the Netherlands. In situations such as this, where the circumstances of loss were unclear, the substantive Dutch policy framework allowed for a weighing of interests to settle claims. In the Dutch context this meant amongst other things that, by considering the relative "significance" of an object to a current owner and to a claimant, the interest of a museum in keeping an object on display could be weighed against the emotive interest of heirs of former owners. In the case of the Lewenstein heirs this weighing of the interests worked to their disadvantage. The RC held that the significance of the object to the Museum, the Amsterdam Stedelijk Museum which housed the Kandinsky at that time, outweighed the interest of the Lewenstein heirs as they had "no past emotional interest or emotional bond" to the claimed object. The RC's decision was heavily criticised and was characterised as a "step back" in the "leading role" the Netherlands played in the international field of Nazi-related restitution issues. Ultimately, the Dutch restitution policy was fundamentally questioned as to its fairness: weighing the interests of the case at issue based on interests such as the conservatory interest of the museum that did not play a role at the time of the dispossession, gives the impression that the interests of victims of grave injustices are being haggled over. Especially when, considering the atrocities that befell persecuted groups during the Second World War, such interests can outweigh the interests of victims where they are found to lack an intimate connection with a claimed object. (3)
In the wake of these criticisms, the Dutch Minister of Culture set up a committee under the chairmanship of Jakob Kohnstamm. (4) The Committee's remit was to examine and evaluate the Dutch restitution policy and its report was published in December 2021. (5) It concluded that the RC's practice of balancing the interests of museums as against those of claimants "did not serve the goal of providing legal redress for the injustice done to victims." (6) When looking at the Kohnstamm Committee's report, the importance of recognising past injustices is clearly visible as a leitmotiv. The report and recommendations of the Kohnstamm Committee were very soon endorsed by the responsible Minister and were then reflected in a new Establishing Decree for the RC of 22 April 2021, (7) Based on the new Establishing Decree, the task of the RC is now limited to establishing "highly plausible" ownership and "sufficiently plausible" involuntariness of the loss, which will then lead to restitution as a result. The exception would be when a current owner asserts a good faith acquisition. In those cases, the RC can still award "unconditional restitution" but "may" also resort to mediation-based solutions (i.e. solutions other than restitution). (8) Another new feature in the 2021 Establishing Decree is that it explicitly provides for a general escape clause in the event that the standards of ownership and or involuntariness of loss are not met. This means that in "exceptional" cases, the RC can deviate from the new policy framework to come to a just and fair solution if the specifics of a case provide "substantial reason to do so". Generally speaking, the Kohnstamm Committee's recommendations for a revision of the substantive policy reflect the attempt to bring the interest of the victim to the fore.
Overall, the Kohnstamm Committee's report was heralded for its findings and recommendations, but it did lead the then chairman of the RC, Fred Hammerstein, to resign. In an article that I will translate as 'Four years of restitution (mis)management?' (9) Hammerstein rather vividly defended the former Dutch practice arguing that the Kohnstamm Committee's focus solely on the victim completely disregards the complexity of these claims and that the proposed assessment framework effectively deprives the RC of its discretionary power in deciding these cases. His argument in this regard is interesting because it alludes to the still ongoing international (scholarly) debate on the issue of Nazi-looted art: there is still no uniform opinion on whether a weighing of interests should be an inherent part of the decision-making process in these cases and if so to what extent. (10) Hammerstein pointed towards cases in the "grey zone" where the loss of possession was not caused by outright Nazi confiscation but, for example, resulted from a sale in safe territory to provide for one's subsistence, or in short, claims where the causal link between the loss of possession and events during the Nazi regime is weak(er). In such grey cases balancing the interests at hand in which the circumstances and facts of the case are considered in full would be, according to the former chairman of the RC, the only road to an equitable solution for all parties involved. That this is not a unique thought is more or less reflected in a 2012 claim dealt with by the UK equivalent of the Dutch RC, the Spoliation Advisory Panel ('SAP'). In the British Museum/Koch claim in 2012 the SAP held the loss to be on the "lower scale of gravity" as the sale was made after the owner had successfully fled Nazi persecution and she then sold the objects (fourteen clocks and watches) in the UK for the purposes of financing her son's university tuition fees. As the owner received a "fair price", the moral weight of the claim was considered insufficient to warrant a return. The SAP recommended instead that a commemorative plaque be placed next to the objects to explain their tainted provenance.
The former chairman of the RC furthermore emphasised that the RC did no more than...
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