41 Spring 2023 condition of the persecuted persons. Switzerland very rarely issued a residence permit, and it was almost impossible for those without one to earn a living. In cases dealing with the principle of “escape art,” the contractual parties are seen to be negotiating partners of equal standing who are free to agree to a price at the time of the sale. The claimant bears the burden of showing that the actual circumstances deviated from this and must show that the principles of freedom to contract and private autonomy under the law do not apply. The primary issue in these cases is that the courts view the circumstances that ultimately led to the sale of the artwork as separate from the claimant’s status as a persecuted person. Appraisals of “Persecution-Related Withdrawal of Assets” Manipulate the Facts to Omit the Effect of Persecution on the Sale and Focus Only on the Concrete Transfer To be able to reject claims to restitution, it is sufficient for many museums to prove that the former owner had already offered the work of art for sale at least once before 1933. Furthermore, every detail from private relationships is resurrected to weaken, if not completely eradicate, the causal relationship between the persecution of the vendor and the specific sale. This process of “cherry picking” is presented under the auspices of “searching for the truth,” and leads to a minimization of the vendor’s persecution at the time of the sale. One vendor was accused of having sufficient wealth at his disposal to finance his survival and escape, meaning that a sale “was not really necessary for him.” In another case, the fact that a vendor even wanted to negotiate a price to possibly make a small profit was seen as evidence that they had freedom to contract. In another case, the collector lost his wife and all hope and “therefore just wanted to sell.”14 The pressure to flee and the constant threat of deportation hardly play any role whatsoever in such considerations. Those involved in such discussions allow themselves to make appraisals that one can only describe as presumptuous. The result cannot do justice to the requirements of the Washington Principles and their aims. Switzerland Moves Toward a Context-Based Provenance Research and an Independent Commission There is, nevertheless, reason to be optimistic. The parliamentary initiative of Jon Pult, a member of the Nationalrat (National Council) from December 9, 2021, states: The Bundesrat is instructed to establish an independent commission to make recommendations for “just and fair solutions” in cases of Nazi-confiscated cultural assets in accordance with the “Washington Conference Principles on NaziConfiscated Art” from December 3, 1998 (Washington Principles 1998) and the “Terezin Declaration on Assets from the Holocaust Era and Related Matters” from June 30, 2009 (Declaration of Terezín 2009). It should also be examined whether the Commission should make corresponding recommendations for cultural assets from other, specifically colonial, contexts as well.15 The part of his motion cited was affirmed by the Swiss government on February 16, 2022, by the Nationalrat on May 11, 2022, and by the Ständerat (Council of States) on September 26, 2022. Earlier, it was said that the lack of an independent commission was due to the lack of cases. But how can there be cases when the claimants have no hope of successfully asserting their claims? We must therefore wait and see what guidelines and scope for action a Swiss commission will be granted. Cases pertaining to art sales between 1933 and 1945 that resulted from Nazi persecution will no doubt turn up. In this regard, Kunstmuseum Bern has adopted a leading role in the wake of a dispute arising from the bequest of Cornelius Gurlitt of his controversial collection of Naziera art to that institution. Gurlitt, who died in 2014, had inherited the collection from his father, a dealer for the Nazis who bought art plundered from the Jews. The question was under what conditions the Kunstmuseum Bern should accept Gurlitt's bequest and what standards should be used to check the provenance of the works of art. It was decided, deviating from the Swiss standards that were common at the time, to use context-based indepth research according to German standards. Harshly criticized for its dissent of the Swiss position just a year 14. “Although Glaser emigrated and auctioned off a considerable part of his art collection as a result of Nazi persecution, the extent of the duress to sell his goods (instead of exporting them) is unclear.” Decision of the Kunstkommission in the Matter of Curt Glaser, pp. 27-29, available at https://kunstmuseumbasel.ch/fr/recherchescientifique/recherche-de-provenance/curtglaser 15. https://www.parlament.ch/de/ratsbetrieb/suche-curiavista/geschaeft?AffairId=20214403, parliamentary motion of the deputy Jon Pult, Dec. 9, 2021.
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