War and Passion: Who Keeps the Art?

By Miles, Margaret M. | Case Western Reserve Journal of International Law, Spring 2017 | Go to article overview

War and Passion: Who Keeps the Art?


Miles, Margaret M., Case Western Reserve Journal of International Law


The summer of 2016 saw significant new legislation passed or proposed that affects restitution and repatriation, and sets new limits on the antiquities market. On July 8, the Bundesrat in Germany ratified new, wide-ranging legislation on the sale of art that (among various provisions) limits the sale of antiquities by requiring export licenses from the country of origin, and a 20-year history of provenance. (1) In the U.S., on June 7, the Senate Judiciary Committee considered bi-partisan legislation that would set a federal statute of limitation on restitution claims over Nazi-looted works of art. (2) The impact of these new German and American laws, passed and proposed, is under debate, but both are remarkable for extending controls on ownership of art well beyond existing legislation in each country, resulting in a greater ethical awareness.

Here, I would like to recall how and where ideas about repatriation, restitution, and proper ownership of art got started, a subject I have explored in detail elsewhere. (3) The long experience of Classical antiquity in dealing with ownership of art, and ancient reaction and reflection about ownership, remain potent and applicable today, and deserve continuing discussion. What is striking about the history of these issues is how little the questions and arguments have changed: should all spoils of war go to the victor? Does art have a national or religious identity that should keep it in one place? Are there circumstances in which the victors in war would find their own advantage in allowing the defeated to keep their art? In more recent years we must also ask, does art have global (or "cosmopolitan") significance that should transcend local claims? Is there a right to destruction of privately or publicly owned artistic property? (4) How does the sale and purchase of art encourage looting of antiquities? Illicit acquisition of antiquities, by war or commerce, is an urgent, ongoing problem, on every continent, that contributes to forgery, fraud and most importantly, loss of historical context. (5) Archaeological sites are not renewable resources.

Ethical concerns about taking what belongs to someone else begins with what happened to humans in warfare: in the Mediterranean, Egypt, and ancient Near East, human captives were typically either killed, sold into slavery, or ransomed. Ancient accounts single out for special comment instances when a conqueror exhibited magnanimity--noble generosity and loftiness of spirit--when dealing with captive opponents. Cyrus the Great of Persia, active in the mid-sixth century BCE, is remembered in the Hebrew Bible for allowing the return of captive Jews, brought to Babylon by Nebuchadnezzar II, back to Jerusalem, and he even sent along 5,400 gold and silver vessels from the original Temple. (6)

Two centuries later, history remembers Alexander the Great for his humane treatment of the family of the defeated Darius III of Persia, particularly Darius's mother Sisygambis. (7) Darius had fled the battlefield at Issus, abandoning his family there, but Alexander addressed Sisygambis as "mother" and treated her well. (8) The personal magnanimity of a conqueror was best illustrated by his humane treatment of captives, not only because of the implicit renunciation of revenge, but also because the human captives were the most valuable part of the booty, both materially, if they were to be sold or ransomed, and psychologically, if defeated opponents were to be exhibited to the public. (9) Examples in antiquity of magnanimity toward a defeated enemy are rare. Augustus had hoped to show to the people of Rome the defeated Cleopatra in his Triumphal procession after the battle of Actium in 31 BCE, but she forestalled this by committing suicide, and he had to be content with exhibiting her waxen image instead. (10)

Taking defeated peoples' property, as well as the people themselves, was the norm in antiquity, and the norm until quite recently. …

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