From ancient times victors in war would appropriate movable artefacts and cultural symbol of conquest and as trophies of war as well as for economic purposes. Such spoils of war and destruction and acquisition of monuments and artefacts from conquered territory have extended throughout antiquity including from the ravaging and destruction of Carthage at the end of 3rd Punic War in 146 B.C.to the looting by of Nazi Germany from 1933 to 1945.
Throughout history with the passage of time there gradually emerged general provisions and principles stressing proportionality in the conduct of war restricting the targets of war to military imperatives. Particular respect been given for places of worship, establishments of learning, schools, observatories, universities, and museums of fine arts and of science. This also included classical works of art, scientific collections and libraries (U.S. Army 1863: Leiber Code: Articles 34 and 35).Article 36 states that if works of art, libraries, and collections are seized ownership issues are settled during the peace treaties and negotiations and that under no circumstances should they be destroyed injured or privately appropriated. The Hague Conventions in 1899 and 1907 on the Laws and Customs of War reiterated principles of conduct towards objects of artistic value and heritage, however, during the First World War, 1914-1918, cultural property was subject to bombardment and acquisition and both private and state sponsored looting. Though in 1939 President Franklin D. Roosevelt negotiated terms of agreement between France, Poland, Great Britain and Germany to protect cultural property there was nevertheless a proliferation of both state and private organised looting, requisitioning and plunder during the Second World War. The 1954 Hague Convention Article 1 sought to define cultural property including works of art, manuscripts, objects of artistic interests and scientific collections and centres containing such cultural properties with Article 2 protecting such property with Article 4 prohibiting the theft and misappropriation of such property. Article 28states that parties to the convention use the framework of the criminal jurisdiction to penalised and sanction breaches of the convention. However these impositions were left to the national rather than the international level ofjurisdiction.The International Criminal Court 1988 Article 8 holds that pillaging and plundering the town including the direct assault on buildings of education, art, religion and science not focus on military objectives to be a war crime.
Some of the paintings had been seized during the Bolshevik Revolution by the Communist.The United Kingdom new anti- seizure law was enacted early in order to enable the Royal Academy’s From Russia exhibition to proceed. The exhibition was to exhibit French and Russian paintings from 1870 to 1925 from St Petersburg and Moscow and included a hundred and twenty Impressionists and Modernists masterpieces by Picasso, Van Gogh, Cézanne and Renoir. Thirteen of these paintings were originally owned by Morozov, a Russian tsarist era collector and twenty three originally come from the last collection of Sergey Shchukin and confiscated in 1918 by Lenin during nationalisation Brown (2008).
In Dusseldorf, Germany, the exhibition of these paintings had attracted in excess of 200,000 visitors. Russia had withdrawn permission of the granting of the loan of these paintings because of insecurity relating to the return of these artistic works. They feared that the descendents of the original owners might institute legal proceedings seeking ownership and restitution. Before granting permission for the loan of the artistic masterpieces the Russians demanded the implementation of legislation which would ensure the painting immunity from seizure. Only after the British government extended “maximum possible assurances” and fast tracked new legislation protecting art from the process of seizure did the Russian’s agree to proceed with the exhibition. The Tribunals, Court and Enforcement Act 2007(Immunity from Seizure Act), received Royal Assent in July 2007. The act provides that “immunity from seizure to objects which have been lent to this country from overseas to be included in a temporary exhibition at a museum or gallery.” Part Six of this legislation holds that the descendants of the original owners of art works would be estopped from processing claims of ownership and restitution on British soil. This legislation forecloses the descendents of Morozov and Shchukin from making any claims against the art works from the “From Russia” exhibition. The purpose of the legislation was to safeguard cultural objects which are the subject of exhibitional loans from forfeiture and seizure from the hitherto indelible rights derived from ownership and inheritance to redeem through legal process looted works of art in Britain.
The legislation was to combat the increasing reluctance of other countries to accede to requests for loans of their artistic works for international exhibitions in galleries and museums, exhibitions which introduce important knowledge of culture and civilisation within frameworks of movements and specific artists, the works of which might otherwise remained scattered across the globe.( Guardian 10/1/ 2008).In 2006 in a Parliamentary debate in the House of Lords, Lord Howarth Newport has already argued that antiseizure legislation was vital if London were to retain its position as an important world cultural centre and it was in the public interest to generate cultural well-being through art exhibitions. He stated that the “difficulties in organising exhibitions are multiplying and the number of refusals of loans are multiplying” (House Of Lords 2006). Indeed anti-seizure legislation has been enacted in several countries such as France, Germany and the United States hence such protection is becoming established as an international norm. Nevertheless, Lord Janner of Braunstone (2006) argued the Bill to be incompatible with the principles of the1998 Washington Conference on the Holocaust which Britain had supported and provided insufficient safeguards and considerations for the true owners of the property of art works and cultural objects stolen by the Nazis. Stephens (2008) maintains this legislation is” morally reprehensible and…in fundamental breach of the domestic and international standards.” He holds it is against cultural and civilised norm enshrined in international law and established by declaration as and treaties such as UNESCO and UNIDROIT.
On the ninth of January 2008, as a result of the legislation and intense negotiations, the Royal Academy received formal approval from Mikael Shvydkoi, the director of the Cultural and Cinematographic Federal Agency that the paintings would be permitted to be exhibited at the Royal Academy from January 26th, 2008 until April the 18th 2008.on the 11th of January 2008the paintings arrived at the Royal Academy, where the chief executive, Charles Saumarez Smith stated that this was the result of “close cooperation” the four Russian state museums, the federal agency ,the department for Culture, Media and Sport , the British Embassy in Moscow and the Russian Embassy in London and that the Royal Academy were “absolutely delighted” ( Guardian 10/1/ 2008),(Bailey 2008) .
Despite the “delight” of the Royal Academy, and of art lovers to be able to view the artistic masterpieces, there are grave concerns over the legislation which permitted the immunity. The British government have been confronted with allegations of complicity and acquisition in the retention of appropriated to property as a result of this legislation.
The UNESO Convention (ratified by the United Kingdom in 2002) holds the importance for all states both nationally and internationally to be cognisant to the moral obligations towards cultural heritage and protect cultural property against illicit export and theft. The paintings in the From Russia exhibition which were subjected nationalisation in the absence of compensation were unlawful appropriated from the Shchukin and the Morozov families and their descendants ,and hence according to the principles, adhered to by the Convention, the Russian export of the paintings to Great Britain with the illicit.
there is an exception to the immunity from seizure when there is a “Community obligation or any international treaty” hence the United Kingdom is subject to the obligations under international or European Community law (The Tribunals, Court and Enforcement Act 2007).The European Convention of Human Rights Article 1states “The High Contracting Parties shall secured to everyone within the jurisdiction the rights and freedoms defined in section 1 of this convention.” Deloque-Fourcaud the grandson of Sergei Shchukin has French citizenship hence could bring an action under this Convention on the grounds that “In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”(The European Convention on Human Rights Section 1 Article 6) the deprivation of property rights is a deprivation of civil rights and gives entitlement to a fair hearing.
As Gerson (2008:1) states, concerns extend beyond the exhibits temporarily on loan to the Royal Academy, and could have pernicious ramifications beyond the context of the paintings on temporary exhibition at the Royal Academy. Russia is host to the multitude great and priceless art treasures which disappeared from Soviet held territory at the end of the Second World War and that this trove has been valued at up to $15 billion motivating variables of these “extraordinary measures” of protection. Hitler and the German Nazi Party systematically, from 1933 to 1945, through military personnel and private individuals, were responsible for the widespread state plunder and looting in war zones and occupied territory. This included not only forced sales and widespread confiscation from extensive and valuable private collections across Europe but also the comprehensive pillage and theft and destruction of the great European museums and institutions.
In 1945 Stalin continued Hitler’s plunder, with his immense appropriation of “trophy art” extradited from “liberated” regions and sent in vast trainloads to Stalinist Russia, regardless of their signing of the 1907 Hague Conventions on the Laws and Customs of War. This prohibits the plundering of heritage and cultural property and reiterated principles of conduct towards objects of artistic value and heritage, stressing proportionality in the conduct of war towards establishments of learning, schools, observatories, universities, museums of fine arts and science and included classical works of art, scientific collections and libraries. It also reiterated that seized works of art, libraries, and collections issues are settled during the peace treaties and negotiations and that under no circumstances should they be destroyed injured or privately appropriated. Though the Soviets returned over a million artworks to East Germany in the 1950s they have retained many more art treasures, which only surface when they are the subject of exhibition loans, and these are done under the strictest conditions of legislative protection of their art from the process of seizure from the lawful owners. Loans help at least to unprize the comprehensive inventory of Russian looted art kept in its repositories. This particularly could help the Holocaust victims and others persecuted by the Nazis for reasons of ethnic identity, religion or race and their descendants in the reclamation of the property, which the Russians exclude from the determination to legalise their possession of “war trophies” (Gerson 2008). Krichevsky (1999)holds that since the end of the Second World War “Russia has so regarded information about the details of the art taken from Nazi Germany[and that]about 200,000 pieces of this trophy art and now reportedly stored in Russian museums and private collections.”
Stephen (2008: 25) insists that by showing the “From Russia” Exhibition, the Royal Academy is in fact exhibiting looted art .he holds that the Cultural Secretary, James Purnell, had “bounced into law with unseemly haste” the necessary “immunity from seizure” legislation to enable the exhibition to go ahead. In fact the Tribunal, Courts and Enforcement Act 2007was implemented with unprecedented speed outside a period of National Emergency leading the presumption that “legislation was (wrongly) prepared in advance of concluding the consultation.” Stephen argues that the artistic works, the subject of the exhibition, were acquired through criminal malfeasance incapable of transferring good title, hence the heirs of the legitimate owners retain good title and therefore full entitlement. Stephen holds that by the British government allowing looted art into its museums and institutions it becomes complicit in the illegal activity generated from the looting.
Russian law prevents the proclaiming of looted art which is in possession of the government, and in Russia most of the cultural artefacts and property is in the government session, having been subjected to the government’s tendency for spoliation, going back from 1917 and becoming particularly prolific at the end of World War II. At the end of the Second World War the Russians in the age and looted many cultural spoils from Nazi Germany, both artworks and artefacts already subject to looting by the Nazis and also the contents of German cultural institutions and museums. Property acquired without compensation within the Russian legal system is fraught with the moral complexities, however, the extension of the estoppel of restitution in areas beyond the jurisdiction of the Russian borders of the legal questionable premise. It is the collusion of the British government with the Royal Academy which has been seen by many as an area of dubious moral and legal propensity and having troubling possible parameters. As Stephens (2008: 25) states, this legislation, the Tribunals, Court and Enforcement Act 2007, “fundamentally undermines the commitment of the British government and our National Institutions to right past wrongs.”
Rosenthal (2008a,b,)former exhibition secretary of the Royal Academy, advocates a revisitation to the 1998 Washington DC agreement which committed forty four countries to resituate looted artworks to the original owners or their descendants. Rosenthal holds that “history is history” and that historical events be discarded and the justice concentrate for a creative present and future and that great masterpieces should be available for public heritage and visual culture and available for everyone. Descendants “distanced by two or more generations” from the art work should not be entitled to claim an inalienable right to reclaim the property. He holds that museums must be permitted to retain possession of art looted by the Nazis regime, and extraordinary clam some held because of his parents being Jewish refugees. He states “I believe grandchildren and distant relations of people who had works of art or property taken by the Nazis do not now have an inalienable right to ownership, at the beginning of the century.” Rosenthal (2008a) argues that a vital variable in bringing the Russian exhibition to the Royal Academy is the “Giving pleasure and instruction to thousands of visitors from London, Great Britain and all over the world.” He prays- in- aide that the Elgin Marbles remain in the British Museum and holds that “no one owns Matisse and Picasso, Botticelli or Caravaggio any more than they own Shakespeare, Chekhov, Beethoven or Shostakovich.”
The Tribunals, Court and Enforcement Act 2007, remains subject to challenge under a Declaration of Incompatibility under the jurisdiction of the English court system, which may see the acquisition of the works of art as state-sponsored theft.
This is a matter of priorty.History is subject to an outrage which cannot be expunged. It is also a lesson for our children. There is no reason why restitution cannot be paid, the brutal loss of life and property cannot be papered over as if it is a crack. Historical integrity should be the paramount tradition of our civilised society and culture traditions . we are temporary guardians, not only of precious cultural and artistic heritage but also of morality, humanity and traditions of civilization. We should, I submit, preserve cultural heritage within in its vital contexts of morality and civilisation. In this is our humanness in this is our true culture.
