The Hague, 10 December 2018
Response to insinuated criticism of Dutch looted art policy that is not underpinned by facts posted on the Opinie opinion and debate platform
The opinion of Wesley Fisher and Anne Webber (Van leider naar paria? Nederland herzie beleid roofkunst! [English text by authors: pdf-file]), as published on the Opinie opinion and debate platform in the NRC on 8 December 2018, demands a response because it is riddled with inaccuracies.
Let no one be in any doubt that the interests of victims of the Nazi regime always have top priority. The Committee acknowledges and respects those interests. Works of art that were taken from these victims by Nazis or as a result of Nazi terror should be restituted. The Committee unfailingly applies the recommendations of the Ekkart Committee and the Washington Principles as guidelines.
On these grounds, the Committee assumes that a sale by a private individual during the occupation from May 1940 onwards was involuntary unless there is evidence to the contrary. It was concluded, when formulating the binding opinion that is the subject of this criticism, that the sale at auction cannot be considered in isolation from the Nazi regime.
Clearly, however, not every involuntary loss of possession is the same. In some cases, an artwork was literally stolen or taken by force, while in others there was a transaction that would have been a routine sale anyway, whether or not there was a war going on. It is also important that the buyer acted in good faith. If that were the case, this transaction would be unassailable under the normal rules of law. The Dutch museums that conducted such transactions have consented to restitute should the Committee nevertheless conclude in a binding opinion that they should do so. And that is exactly what they have done in many cases.
In accordance with Dutch government policy, the Committee must take all circumstances into account when formulating its conclusion. If the sale is deemed to have been involuntary, it may be the case that there were personal circumstances that make it probable that the sale would have taken place without pressure from war-related factors. Failure by the original owner to take advantage of the opportunity to contest the transaction after the war might indicate that this was so. Finally, in assessing a case, the Committee is entitled to take into account that the party claiming the painting has had no connection with it, for example, and is only interested in restitution because of the proceeds arising from selling it.
There may, therefore, be circumstances that lead to the conclusion that the art historical value and the interest in retaining a painting for a Dutch museum collection outweigh the interests of the claimant in question. At some point in the process of weighing up interests, the balance tips in favour of a museum which, had the Committee concluded the opposite, would undoubtedly have accepted that opinion. In cases concerning the Netherlands Art Property Collection (NK collection) the Committee always gives the greatest weight to the claimant’s interests. As regards binding opinions, the conclusion was in favour of the claimants in seven out of the ten cases. The state of affairs described in Opinie is therefore incorrect.
It is not correct that Dutch policy has now been changed to the disadvantage of claimants. In all cases, the party requesting restitution is accommodated by not imposing the burden of proof on it and by not permitting the lack of information resulting from the passage of time to count against it. It can nevertheless be the case that involuntary loss of possession during the Nazi regime is not established or is not sufficiently plausible. This may not be interpreted as denial of the victims’ distress. It only happens after extensive research and after long and careful assessment, as was the case when this binding opinion was formulated. Obvious cases (mostly concerning objects in the NK collection) will now be less frequent than they were during the first ten years. The figures can be found in the Committee’s annual reports (available on the Committee’s website). They reflect a different picture from that painted by the authors of the opinion published by the NRC. Those authors also suggest that the claimant who was recently denied restitution had a close connection with the painting concerned. That was not so.
On behalf of the Restitutions Committee,