The Virtues of Comparing: between Early Jewish Restitution Campaign and Contemporary Post-Colonial Restitution Debate.

AuthorBilsky, Leora

In this essay I propose a comparative framework between two restitution campaigns: the early Jewish campaign after the Second World War and the contemporary postcolonial campaign as envisioned in the Sarr-Savoy Report. (1) This framework will allow us to distill common points of criticism, discursive moves and reform proposals of existing restitution law advanced in the two struggles. I suggest that notwithstanding the temptation to compare the current post-colonial campaign to the 1990s campaign to restitute Nazi-looted artworks, (2) the more fruitful comparison is with the earlier Jewish restitution campaign of the 1940s that revolved around the restitution of books, archives and religious artefacts. (3)

The Holocaust art restitution campaign of the 1990s adhered to a private-property paradigm, divided into two types of claims. One was class-action claims brought against business corporations such as insurance companies and banks. (4) The other focused on rare works of art with huge economic value, was brought forward by private individuals (family descendants and heirs), and involved complicated provenance research and case-by-case, incremental restitutions. (5) In contrast, the campaign for post-colonial restitution, as epitomised by the Sarr-Savoy Report, advances a 'collectivist ' paradigm of restitution. It is brought by African States, demanding the return of their 'cultural heritage' from European museums. It envisions a massive return of African collections, and articulates its demands in holistic terms--the return of 'culture' (including human remains and religious objects), thus resisting the narrower focus on rare 'works of art'. Human Rights at Tel Aviv University. I would like to thank Alexander Herman, Orit Lev-Segev, Vered Lev Kenaan, Liat Kozma and Rachel Klagsbrun for their helpful comments. The Israel Most importantly, although the post-colonial struggle is over 'objects' its real aim is the rehabilitation and reconstruction of the colonised community by reconnecting it to its lost cultural heritage. In other words, it sees restitution through the prism of 'memory', as the 'return of memory' and understands it as part of a healing process of dealing with a traumatic colonial past.

The Early Post-War Restitution Campaign

The persecution of the Jews by the Third Reich involved the methodical confiscation and plunder of Jewish assets throughout Europe, including religious and cultural objects. This was not a byproduct of the genocide, but rather an integral part of the systematic efforts by the Nazis to eradicate the Jewish people. Accordingly, during the 1940s and 1950s, Jewish organisations attempted to shape the emerging legal concept of genocide to include the attack on economic and cultural life, alongside the physical and biological attack against the Jewish people that resulted in mass-murder. (6) Facing the limitations of criminal law to address the crime of genocide, in particular, the marginalisation of the Holocaust in the Nuremberg trial, they undertook a complementary way. Jewish organisations argued that the law of restitution, in particular, cultural restitution, should be re-imagined in order to serve as a counter-response to genocide and the reconstruction of the victim group. Accordingly, Jewish organisations fought for the collective restitution of libraries, archives and religious objects to the emerging Jewish centres in the United States and Palestine. (7) The early campaign for cultural restitution sought to adjust the law of restitution to the crime of genocide suffered by the Jews as a collectivity. This early campaign for 'collective restitution' reveals strong affinities with contemporary postcolonial restitution struggles.

The Jewish activists feared that the Allies' restitution policy was ill fitted to address the Jewish reality of a huge category of 'heirless property' left in the wake of the Holocaust. Moreover, from a Jewish perspective the main difficulty emanated from restitution law's fundamental principle of 'return to the status quo ante', to which the Holocaust posed a major challenge, as only a few diminished and devastated Jewish communities remained in Europe, and international Jewish organisations did not see a future for Jews in Europe. (8) To overcome this difficulty, Jewish jurists set out to modify the law by creating a link between cultural restitution and the crime of genocide. They argued that restitution should not be understood solely through the lens of private property, as ordinary compensation for wrongful taking, but rather as a counter-measure to cultural genocide.

Faced with formidable legal difficulties, this Jewish struggle aimed to transform three core premises of restitution in international law:

from individual restitution of private property to collective restitution to the victim group;

from a backward-looking return to the status quo ante to a forward-looking restitution as a means for cultural rehabilitation and reconstruction;

and finally, from a conception of 'property' focused on the economic value of the cultural objects, to a more holistic understanding of cultural objects as aspects of a Jewish culture that was to be reconstructed and rehabilitated.

Books stood at the centre of this early Jewish cultural restitution struggle. (9) They carried a dual symbolic meaning as both 'carriers' of memory and transitional objects for the future reconstruction of a group's culture and identity.

I argue that a comparison of the current post-colonial restitution campaign with the early post-war wave of Jewish cultural restitution, a campaign that is mostly forgotten from the annals of international law, can provide a better model to evaluate the contemporary post-colonial campaign. This comparison can highlight similar characteristics such as a call to understand the novelty of the crime as one targeting a group by pillaging and destroying its culture; or the resistance to a private-property paradigm. In both cases, advocating for collective restitution stems from understanding it within a reparative justice framework, meant to rehabilitate the group by way of reconstructing its culture. In both cases, there is a deliberate attempt to avoid a legalist approach in favour of a transitional justice approach focused on the return of memory and history.

Beyond the 'Uniqueness of the Holocaust' Thesis

However, advocating for the usefulness of a comparative framework goes against the current. The 'uniqueness of the Holocaust thesis' and the fear that every comparison might end up relativising the Holocaust have produced great resistance to comparing the Holocaust with other genocides, recently triggering a heated debate. Critics of the uniqueness thesis argue that the hegemony of the Holocaust occludes the recognition of indigenous or post-colonial forms of suffering, and undermines our structural understanding of colonial genocide. (10) For example, Dirk Moses called to investigate the conceptual blockages between Holocaust and Genocide Studies and how they ensure that the suffering of some victims of mass violence and genocide is perceived to be more recognised and thereby more valued than the suffering of others. (11) Common to these critiques is the understanding that using the Holocaust as a model can be inhibiting, lead to marginalising certain groups, and distort our understanding of history. (12)

In contrast, the framework that I propose is meant to point to the fruitfulness of the comparison between the two restitution campaigns, post-Holocaust and post-colonial restitution. Under a comparative framework, certain moves, such as the advocacy of 'collective restitution', can be understood as stemming not from any cultural predilections, or legal limitations (such as the absence of private property) but as connected to the nature of the crime of cultural genocide. If the crime aims to alienate a group from its culture, destroy its identity and present its culture as inferior, collective restitution is required as a counter-response to the crime. Similarly, the comparative framework helps identify the central role of law not only in facilitating such a crime but also in ensuring the durability of its results...

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