On the occasion of the tenth anniversary of the Dutch Restitutions Committee, an International Symposium titled ‘Fair and Just Solutions? Alternatives to Litigation in Nazi-looted Art Disputes, Status Quo And New Developments’ was held in the Academy Building of the Peace Palace on November 27, 2012.
One of the guest speakers during this Symposium was Wouter Veraart, Professor of Legal Philosophy from VU University in Amsterdam, The Netherlands. The paper he presented for this special occasion is titled ‘Between Justice and Legal Closure. Looted Art Claims and the Passage of Time.’ You can read it now on our website!
Between Justice and Legal Closure. Looted Art Claims and the Passage of Time
By Wouter Veraart
1. In this paper I argue that there are three basic ways of dealing with past injustice. First of all, we can try to forget the past; that is, to ignore or to deny what has happened, in a desire to establish order after a period of serious conflict. Secondly, we can endeavour to remember the injustice of the past and commit ourselves to justice by trying to restore past wrongs as far as humanly possible. And lastly we can take a more reconciliatory attitude in a quest for enduring peace. In that case we try to deal with the past in order to overcome it; that is, with an eye to a common future. These three attitudes are very human and reflect the vicissitudes of everyday life. However, phenomena such as forgetting, remembering and reconciling not only play a role at a mundane, individual level, but also figure prominently at a collective (or state) level in post-conflict contexts.
2. It is interesting to note that, at this macro or collective level, one of these attitudes always seems to dominate over the other two. In their collective outlook, all three have their strengths and weaknesses. They operate as paradigms tied to specific historic eras and to specific social, political and economic circumstances and, as such, are relatively difficult to influence. Moreover, each has its own specific relationship with the past, present and future. In a context of collective forgetting, for example, there is a clear focus on the present, while the connection to the injustice of the past is somehow suspended. An era marked by public remembering, on the other hand, is preoccupied by the past and generally aspires to correct past wrongs, preferably by punishing the perpetrators (retribution) and by undoing (if possible) the wrongs committed. In such a backward-looking approach, restitution-in-kind is the preferred way to do justice to former owners (or heirs) who have been deprived of their property rights in a context of extreme injustice. Lastly, in a context of reconciliation, the dominant timeframe is clearly the common future. In an era of reconciliation, restoration of the status quo ante is not the primary goal. The injustice of the past will usually be addressed in a way that helps lay the foundation for a common future, in which the past injustice can be overcome. In this future-oriented approach, redistribution rather than restitution of property rights is seen as more appropriate (although a restitution process may also form an integral part of this). There is no need, in such a process of redistribution, to stick rigidly to the past as other factors, relating both to the present and the future, can also be brought into play.
3. This conference is discussing the opportunities for fair and just solutions in looted art cases. As a legal philosopher, I am inclined to specify this question in the following way: if we understand the legal order as a collection of judicial and semi-judicial bodies, and regulations and practices at national and transnational levels, what role can this legal order play in achieving fair and just solutions? What possible contribution can law (in this broad definition) offer? First of all, we should certainly not overestimate law's ability to offer perfect solutions in looted art cases. In my view, law's contribution is important, but by necessity modest and limited. Secondly, I believe that law's contribution varies according to the broader context of the cases at hand.
4. Let me try to clarify these core ideas with the help of the slide on the screen, starting with the most notorious form of dealing with injustice of the past; that is, by way of public forgetting. The idea that re-establishing order after warlike, often religious conflicts is impossible without forgetting is still widespread and deeply ingrained in world history, and particularly in the history of Europe. A classic example is the Edict of Nantes of 1598, which ended a religious civil war in France by imposing a collective duty to publicly forget the horrors of past events in its very first article. Current-day rules on prescription and statutes of limitation, as we know them from looted art cases and similar cases in other fields, also reflect this concept. The underlying idea is that, at a certain point, seeking to renew the memory or start new disputes about past events can constitute a threat to legal certainty, and indirectly to the legal order itself.
5. Nevertheless, other examples from recent decades demonstrate that judicial and semi-judicial institutions are capable of providing recourse for those opposing the idea of forgetting. In other words, by offering legal access in appropriate, local forms – somehow resisting prevailing statutes of limitation that reinforce the urge to forget. Lifting time barriers and other obstacles in order to create a place in which at least certain categories of cases can be heard, and at least some claimants can tell their stories, in the presence of an independent commission is an important mission of the legal order in a context in which an unjust past has been ignored or deliberately forgotten, sometimes for a very long time. This is especially true in cases related to what I would call extreme injustice, in which specific categories of people were deliberately deprived of their rights and thereby their capacity to take part in legal, political and economic life.
6. If offering at least some form of legal redress is an important mission of the legal order in a context of forgetting, what about the role of law in a context of collective remembering? In the post-Second World War period, the remembrance of Auschwitz, as a symbol of the greatest evil, has replaced the duty to forget the past of early modern times. Whereas the Edict of Nantes largely buried the possibility of litigation for past wrongdoings under the legal duty to forget events of the past, deciding to make remembrance of past injustice our absolute guiding principle in law means also having to confront other problems. Being called on not to forget past injustices, but instead to keep them alive and constantly seeking to enforce claims arising from them, including those of previous generations, can potentially result in court decisions being subject to review time and time again because such decisions can never be sufficiently just. This is a matter of principle: earthly forms of justice (court rulings and legal settlements, for example) are incapable of "truly" putting right the indescribable and incomprehensible acts of injustice committed in the twentieth century. In other words, for those demanding the highest form of justice, earthly forms of justice (with their periods of limitation and limited opportunities for appeal, and the fact that those taking the decisions are human beings) can constitute more of a hindrance than the start of a solution. And that means having to come to terms with the paradox that claimants sometimes continue demanding justice within the existing systems of law, but at the same time reject the binding force of the court decisions and settlements that those systems produce.
7. In a context of collective remembering of the injustice of the past, it is important that legal institutions are prepared to offer legal closure by enabling parties to settle their disputes in a legally binding and timely fashion. When there is an urge to remember and "never to forget" past injustice, it is important that legal institutions and legal practitioners clearly acknowledge that legal solutions cannot be perfect from a viewpoint of perfect justice – and can never be the final word – but nevertheless deserve acceptance and respect.
8. In addition to what has been said above, there are also other reasons for modesty among legal institutions. As has been so well explained in the introduction to the conference programme, national panels and committees have only partially dealt with claims for the restitution of Nazi-looted art. Claims relating to works of art that were not part of national collections usually fall outside the committees’ scope and, in a number of cases, remain unsettled. It is doubtful whether these claims can still be resolved within national legal systems. So what could a "fair and just" solution, as referred to in the Washington Principles, actually mean in these and similar cases?
9. It is at this point that the third collective method of dealing with extreme injustice of the past – reconciliation – may be helpful. In a context of reconciliation, citizens and organizations are encouraged to deal with past injustice on a more voluntary basis by looking for forms of alternative dispute resolution, such as that engaged in by the Netherlands Restitutions Committee. Guided by a much more flexible, future-oriented approach (where redistribution may be more important than restitution as a common goal), it may be possible to find creative solutions to the satisfaction of all parties involved, some examples of which have already been mentioned in Marc-André Renold’s paper.
10. Reconciliation as an answer to an unjust past has its own problems and dark side. Current owners may be "forced" into "voluntary" transfers by powerful, aggressive claimants. Claimants may be disappointed when powerful current owners, notwithstanding long discussions, ultimately do not take them seriously. For this reason, from a perspective of voluntary alternative dispute resolution in a context of reconciliation, law’s principal contribution would seem to consist in offering general legal and ethical guidelines, both nationally and internationally, that contain elementary rules and principles of due process and that provide an acceptable structure in which parties can operate on an equal level of mutual respect. For this reason, I agree with Matthias Weller that, specifically in the context of reconciliation, more research into key elements of procedural justice could be particularly helpful.
11. Conclusion. In this conceptual lecture I have tried to explain that law's primary mission in looted art cases varies over time, and from place to place. Although the role it has to play is modest, it is nevertheless very important. By offering legal access, legal closure and due process at the right moments and at the right places, law's answer to extreme injustice of the past always involves managing time and keeping the wheel of restoration in motion by perpetually moving between the interests of order, justice and peace, and thus keeping open our relationships with the past, the present and the future.