Even decades after World War II has ended, the phenomenon of that period, and holocaust-looted art still deeply upsets many people around the globe. The enormous scale of art looted from Jews, and other private and state property plundered by the Nazis in the occupied zones is well-documented and common knowledge. The vast transfer of German cultural property (so-called Beutekunst) out of Germany to the former Soviet Union as a result of ruthless pillaging should not be forgotten either.
The experience of litigation before public courts has shown that there is a reasonable need for alternative dispute resolution mechanisms to obviate the need for drawn-out cases. Such court cases tend to be protracted with (largely) innocent parties on both sides endeavouring to cope with very specific problems created by the focus, ranging between public and private international law. In addition to this, well known legal issues such as the time bar imposed on a claim, acquisitive prescription and bonafide purchase are not to easy to deal with against a backdrop of war crimes and crimes against humanity.
For this reason, the international law seminar "Resolution of Cultural Disputes", held at the Permanent Court of Arbitration in The Hague on 23 May 2003, discussed new perspectives for the restitution of World War II and holocaust-looted art by means of alternative dispute resolution methods, in particular arbitration. It has to be mentioned straightaway that the program of this seminar failed to concentrate sufficiently on arbitration issues. In fact only two presentations dealt with it directly.
The chairman of the PCA, Tjaco van den Hout, welcomed the participants who came from all parts of the globe and introduced Lyndel V. Prott, former director of the UNESCO Division of Cultural Heritage. She gave a special presentation on "Looting in Iraq: The Legal Remedies". The systematic plundering of museums in Iraq bore witness to yet another chapter in the history of looting. It is hard to accept that although the Hague Convention of 1954 and the Protocols of 1999 are quite clear and well-defined, neither the United States nor the United Kingdom have ratified it. Iraq has been a party to the Hague Convention since 1967. The world heritage of the early Mesopotamian civilizations is under grave threat. At the same time, not all western civilizations seem to apply all the remedies necessary in order to protect this unique cultural property, and what can, at the very least, be considered to be the common heritage of mankind.
What are the dogmatic differences between restitution, repatriation and return? In his general observations, Professor Woijech Kowalski, from the University of Silesia, introduced the audience to the relationship between factual background and legal concepts. Whilst restitution as a term of public international law reverses the effects of looting, repatriation represents the close connection (correlation) with an ethnic group as part of the territorial affiliations of cultural property. Moreover, cultural property that was illegally exported from former colonies was not transferred against a backdrop of war and persecution, therefore it should be returned too.
