Books: Restitution justice, American style

Two books reveal the complexities involved in restitution


One of these books is an insider’s account of the diplomatic struggles undertaken to reach settlements, and the other details the legal process of the various restitution battles, arguing that the American justice system is the reason these cases succeeded.

In Imperfect justice: looted assets, slave labor, and the unfinished business of World War II, Stuart Eizenstat, the US Under Secretary of State for Economic, Business and Agricultural Affairs, details his role in the negotiations of assets looted during World War II. Under Secretary Eizenstat and his team at the US State Department played a pivotal part in establishing settlements with the Swiss, French, German and Austrians in relation to dormant bank accounts, slave labour, confiscated property, looted art, and unpaid insurance policies. Throughout his accounts, we learn about the various parties involved in the settlements and the complexities that arose from these groups contending for their own interests. Never losing his focus, Mr Eizenstat peppers his accounts with testimony from victims persecuted during the war who sought restitution.

The negotiations in Switzerland between the Swiss banks, class-action lawyers and Jewish organisations were fraught with conflicting restitution goals in a political climate that saw a rise in anti-Semitic sentiment. After many heated sessions, Mr Eizenstat was able to broker a settlement of $1.25 billion in August 1998. Unfortunately, not a penny of this reached the victims until November 2001.

His details of the talks with the German government are just as complicated as the sessions with the factions in Switzerland and involved many of the same players. The negotiations with both the French and Austrian governments were complex and made even more intense by the fact that Mr Eizenstat’s team was fighting against the political clock. The Austrian government reached a settlement on 17 January 2001 and the French government on 18 January 2001, just two days before the Clinton Administration, including the Eizenstat team, were to leave office.

The chapter on the looting of works of art examines the subject from a policy perspective. Mr Eizenstat discusses how the American Association of Museum Directors (AAMD) created restitution guidelines in June 1998 with the hope that other countries would adopt them as international principles during the Washington Conference on Holocaust-Era Assets the following December. Throughout the conference, Mr Eizenstat and his team lobbied the delegates, but, in the end, France, Italy, Germany and Switzerland refused to do so. In order to reach an agreement, Mr Eizenstat had to include a statement that “among participating nations, there are differing legal systems and that countries act within the context of their own laws” to ensure the guidelines’ acceptability. They were eventually adopted by consensus and, although the principles are not legally binding, they represent a significant step forward in the identification and restitution of looted art. Under Secretary Eizenstat’s account also heavily underlines the fact that compromises must be made by all parties involved if any level of justice is to be achieved.

Michael Bazyler’s Holocaust justice: the battle for restitution in America’s courts describes the restitution claims from a legal perspective and contends that their successful outcomes are wholly due to the American legal system. Professor Bazyler maintains that the US system is in the best position for handling these claims because of its unique qualities, which he specifies as the ability of foreign citizens to file suit in the US over atrocities committed overseas, the recognition of class-action lawsuits, and the fact that lawyers can undertake costly cases on a contingency basis. The restitution cases he cites in support of this thesis are thoroughly researched and Professor Bazyler’s argument is provocative. He places, however, too much emphasis on the American legal system and not enough on the parties involved in shaping the restitution settlements, or the work that other governments have done to resolve these issues internally. The Belgian government, which, for example, has made great strides in the formulation and implementation of Holocaust restitution law, has done so without the aid of American lawyers, yet merits only the briefest mention.

The chapter on looted art provides a comprehensive legal survey of several key cases in recent years and the effects of their outcomes. Cases that were successfully resolved without litigation are also pointed out, which is followed by a discussion on alternative ideas for resolving claims that do not involve taking legal action.

Professor Bazyler concludes with a discussion of how Holocaust restitution settlements are being used as a model for other historical injustice claims, a further demonstration of the wide-ranging effect the settlements are having already.

o Stuart Eizenstat, Imperfect justice: looted assets, slave labor, and the unfinished business of World War II (Public Affairs, New York, 2003), 400 pp, $30 (hb) ISBN 158648110X

o Michael J. Bazyler, Holocaust justice: the battle for restitution in America’s courts (New York University Press, New York, 2003), 352 pp, 12 b/w ills, $34.95 (hb) ISBN 0814799035

Originally appeared in The Art Newspaper as 'Justice, American style'