The Restitution Law of Unintended Consequences
In late 2005, the Knesset passed Israel’s first Nazi-era restitution law. The legislation was the work of the Parliamentary Inquiry Committee for the Location and Restitution of Assets of Holocaust Victims, which had been set up by Knesset member Colette Avital after reports that Israeli institutions held bank accounts and real estate belonging to Jews who perished in the Holocaust.
To ensure that no Nazi victims’ assets would be overlooked, the Knesset restitution law broadly defined property to include real estate, financial instruments and other “movables.” By default, the definition includes artworks, ceremonial objects, books and artifacts.
Earlier this year, an important provision of the law went into effect — with unintended consequences, thanks to that vague definition of property.
The provision mandated an independent company to locate the owners or heirs of all assets in Israel that had belonged to Jews last known to have been in Europe in 1945. As of January 26, ownership of these Holocaust assets belongs to the company, which operates under the lengthy name of the Hevra for Locating and Returning Assets of Those Who Perished in the Holocaust. Any heirless assets are now to be sold by the company to aid survivors and to assist Holocaust memorial and documentation centers.
Having failed to exclude artworks and artifacts from the definition of property in the 2005 restitution law, the Knesset transferred ownership of these assets to the new company — a result that Avital herself admits was not intended by the law.
“During almost five years of work, no one brought up the issue of artworks, because the terms of reference of the committee covered only property acquired in Israel, or bank accounts opened in Israel,” Avital said. “To the best of our knowledge, Jews in Europe did not send their art collections to Palestine.”
This, however, is a specious distinction. The underlying basis of restitution laws, including the Israeli law, is very simple: European Jews owned properties before the Holocaust. Through theft, displacement or abandonment caused by the owner’s persecution or death, Jewish properties went unclaimed or became heirless.
It does not matter how the assets arrived in Israel. Whether they were deposited or purchased by European Jews before World War II, or donated to the Israel Museum, or acquired by Yad Vashem, they are all legitimate candidates for restitution.
The Israel Museum — which received artworks both from donors and from the Jewish Restitution Successor Organization, the predecessor to the Claims Conference — was astonished to find some of its treasures now owned by the new company. And Yad Vashem could in theory find itself compelled to relinquish artifacts of destroyed Jewish communities on the grounds that these pieces of documentary evidence last belonged to Jews in Europe in 1945.
Such developments clearly call for a revisiting of the restitution law. Some are already calling on the Knesset to amend it to exclude artworks and artifacts.
Inadvertent as it may have been to include artworks within the framework of the new law, however, it would be a grave mistake — indeed, it would compound the original one — to exclude them by amendment.
One cannot cherry-pick which Jewish properties should be restored. The State of Israel should not imply through its legislation that restitution should be limited to bank accounts and real estate and that cultural properties are off limits. It would send the message that Holocaust survivors are entitled to recover their bank account but not the painting that hung in their family home.
Instead, the Knesset should take this opportunity to encourage Israeli museums to do what every other museum in the world has been prodded to do by Israel and Jewish organizations: Undertake systematic provenance research about their collections, with every effort made to find owners or heirs of plundered properties.
If the Knesset amends the new restitution law, it should make provisions to retain in museums those Holocaust artworks and artifacts whose owners and heirs cannot be identified. Otherwise, we could face an unfortunate irony: The Knesset-mandated independent company may one day take custody of artworks and artifacts in Yad Vashem and other Israeli museums, auction the heirless assets — and then give back the proceeds to Yad Vashem and other Holocaust memorials.
Marilyn Henry is the author of “Confronting the Perpetrators: A History of the Claims Conference” (Vallentine Mitchell).