The Duty to Research Provenance
Provenance research is a customary practice in the vast majority of museums around the world, and is required as a condition of several international treaties. The subject of such research is a rigorous investigation of the chain of ownership of an artwork, an investigation which has become essential in light of the widespread looting of artworks by the Nazis during the Holocaust.
The Israel Museum and other institutions in Israel, which are supposed to provide leadership and set an example for museums and institutions around the world, are not performing as necessary the investigations mandated by provenance research for those artworks for which there is a suspicion of ownership transfer during the Nazi period.
We believe that, in Israel, this duty is derived primarily from the Museum Regulations, which prescribe a requirement that museums document all of the items in their collection, and which ought to be understood as requiring provenance research. Israeli law does not specifically explicate that museums must engage in provenance research, despite the fact that prima facie such a requirement exists in consequence of the treaties to which the State of Israel is a signatory. Despite this, there are tools in Israeli jurisprudence that are likely to be useful as sources of inspiration and even as sources mandating a duty on museums to engage in provenance research as a legal requirement, or at the very least as a customary practice.
Lost Artworks, the Israel Museum and the Responsibilities of Museums
The Nazi regime, shortly after coming to power in 1933, and until the end of the war in 1945, looted artworks and other cultural property in a systematic manner and to an unprecedented degree – in what has come to be known as the largest “art heist” in the history of the world. Hundreds of thousands of artworks were taken from their legal owners, illegally and through the use of force. Among the dispossessed were victims of the Holocaust, public and private museums, galleries and religious and educational institutions. Following the end of the war, several organizations were established by the various Jewish communities around the world, including Israel, the United States and Europe, and which were mandated to collect the Nazi-looted property and return it to its owners. The primary organizations so tasked were the Jewish Restitution Successor Organization (JRSO), Jewish Cultural Reconstruction (JCR) and in the British Zone of post-war Germany, the Jewish Trust Company (JTC).
Between 1949-1953, these organizations endeavored to bring to Israel a large quantity of artworks and cultural properties that had been collected by the allied forces after the war, and deposited them in trust at the Bezalel Museum and other institutions. In 1965, the Israel Museum was founded, and most of the items from the JRSO collection were transferred to it. Additionally, there are looted artworks and other artifacts distributed in the collections of other institutions and museums throughout Israel.
The law regulating museums in Israel today is the Museums Law. Prior to its legislation, there was a conflict between various parties in the Knesset regarding the question of whether a law was necessary to regulate museum operations and enforce the procedures therein, or whether to allow museums to operate freely without any regulation and without any financial support from the government. In order to pursue this question, the Knesset established a committee dedicated to this issue. The committee reached the conclusion that the lack of regulation was likely to result in anarchy, leading to the museums being unable to meet even the minimum standards required: adequate supervision of their holdings of valuable cultural property, central administration of their collections, and proper record-keeping. Thus, the committee recommended legislating criteria for legal recognition of museums.
Following the committee’s recommendation, the Knesset passed the Museums Law. From the authority contained therein, the Minister of Culture promulgated the Museum Regulations, which require museums to follow various instructions regarding their operations, including the requirement to administer a record and description of all items contained in their collections, including the manner in which the item came to the collection. Alongside this requirement, the Museums Law also sets a mechanism for sanctioning museums that do not comply with these regulations, and allows the Ministry of Culture’s Director General, in consultation with the Museum Council, to direct that half of the government’s annual financial support for the museum be withheld.
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