Since the 1990s there have been momentous and hotly debated Nazi-era restitutions from museums. These involved the restoration of property stolen from Jews by the Nazis between 1933-1945 to their original owners and their heirs. This article focuses on the three-decade-long claim of Dina Gottliebova Babbitt (‘Dina’) against the Auschwitz-Birkenau State Memorial Museum (ABSMM) for the return of watercolour portraits she painted under the orders of Doctor Josef Mengele to document his brutal pseudo-scientific theories of racial inferiority against Roma and Sinti people. Most studies focus on multi-million-dollar, high-profile cases seeking the return of fine art. What about the monetarily ‘low-value’ objects? Items, which constitute ‘property’ and consequently fall victim to property rights obstacles, were given up or created under duress. The following looks into the inadequacy of governing frameworks that influence restitution of property based on ownership rights, with lack of honouring ‘rightful’ ownership of objects subject to restitution dispute. In consideration is Polish national biases, antisemitism, and victimhood identity. This obscured the ABSMM’s response to Dina’s claim.
Discourse on Polish restitution is individualistic. In Restitution as a Means of Remembrance, Stanislaw Tyska refers to a ‘nationally specific restitution programme’. Tolerating a specific programme implies leniency to Poland’s disregard of the Jewish experience during the years 1939-1945. However, in The Polish Debate on the Holocaust and the Restitution of Property, Dariusz Stola proposes Polish reluctance is only a ‘political bone of contention’ because restitution is simply ‘one aspect of the more general question of restoring property rights in Poland’ – namely, the reprivatisation of property in the post-communist country. Brian Porter-Szücs’ recent history of Poland: Poland in the Modern World: Beyond Martyrdom suggests the opposite. Unlike Tyska, Porter-Szücs sees Poland ‘beyond martyrdom’, to paraphrase his work. The Polish lachrymose worldview is absent in his study. This is representative of a Polish nationalism which sees its historic suffering as an asset; that Poles have suffered more than anyone else over the past hundred years. Polish responses to restitution of Jewish property is in fact dominated by this worldview, as the following consideration of secondary-antisemitism and victimhood identity aims to reveal.
Polish restitution of Jewish property is a strand of efforts to restore property rights in general. However, Poland remains the only post-communist European country without any effective law on restitution of Nazi-looted Jewish property. Reprivatisation dominated the political agenda in 1990, and the motivations of right-wing groups in favour thereof point to a xenophobic prevention of Jewish restitution. Their proposals were governed by references to the significance of private property rights, but this was only necessary in the context of ‘the scandalous injustice of nationalisation by the communists’ (Stola). This seemingly plays into Polish victim-identity.Polish nationalism dictates that ethnic-Poles stripped of private property rights under communist rule was far worse than the same removal of rights from Jews by the Nazis. Restitution programmes in Eastern Europe emerged as responses to nationalisation; their character was greatly determined by the memories of communism. Hence, issues relating to memory of the Holocaust in the restitution debate were determined by the extent Poland had come to terms with its communist past. Allowing Tyska’s ‘special treatment’ for the restitution of Jewish property purely because of Poland’s unique Holocaust context risks omitting conflicting claims to property by Jews and Poles who had all private property rights removed, and relative victimhood.
The Polish public demonstrates secondary-antisemitism as a ‘reaction to debates on national identity and National Socialism’. Michal Bilewicz et al conducted a fascinating study of antisemitism in Poland, revealing anti-restitution attitudes. Based from a nation-wide survey of adult Poles, they uncovered a ‘link between antisemitic beliefs and declared behavioural intentions towards Jews’. A ‘restitution bias’ was exposed, indicating an ‘unwillingness to support material restitution for Jewish people who lost their property in Poland’. On average, participants supported restitution to Polish owners more than Jewish owners. Participants who believed in a Jewish conspiracy also demonstrated restitution bias. According to Bilewicz et al in Antisemitism in current Poland: economic, religious, and historical aspects, Polish belief in a Jewish conspiracy insists that ‘Jews hold secret agendas, have too much influence…and work collectively to achieve their goals’. Albeit, when linked directly to post-Holocaust antisemitism, secondary-antisemitism in Poland is rife, predominantly amongst younger generations. Secondary-antisemitism ‘focuses on negating the historical significance of the Holocaust’. Secondary-antisemites are thus disposed to forget about the Holocaust and actively oppose compensation or restitution to Jews.
Restitution necessitates an acknowledgement of the past. While not forgetting the Holocaust per say, the ABSMM failed to remember the individual experience of Dina, and actively opposed her restitution. This indicates the museum’s ethical fault: as an institution memorialising the Holocaust, its response to Dina’s claim, whether consciously or not, was predisposed to secondary-antisemitism.
In January 1943 Dina and her mother were transported to Auschwitz-Birkenau. With her fine arts training and illegal ‘Snow White’ painting in the children’s barracks, Mengele noticed Dina. She was forced to paint portraits of Roma and Sinti prisoners to document his deranged theories of racial inferiority. Dina recalled painting between nine and eleven portraits; one woman in particular, Celine, who had lost her two-month-old baby to starvation and illness. Especially tragic is Dina’s memory of ‘drag[ging] out’ the painting for an extra week, ‘to slip Celine rare pieces of white bread’. It was solely due to Dina’s artistic talent that she was able to assure ‘better’ treatment for herself and her mother, whom was on the list for gassing. Dina refused to paint unless her mother was safe – unusually, Mengele agreed. This sinister coincidence granted their survival.
Dina’s claim was more than an ownership issue: it was her and her mother’s survival story, and a last clutch to friends she made in formidable circumstances. Dina’s fight to retrieve her portraits began in 1973 when an ABSMM employee recognised her signature from a book of illustrations from her successful career as a cartoonist and animator. The museum contacted her, and she travelled to Auschwitz with a case to carry the paintings home, much to her dismay when the museum refused to return them. The Guardian reported Dina’s torment and heartache: ‘I feel helpless against these people… it’s part of my soul, part of my being, part of me that they have’. Before her death in 2009, Dina felt the utter lack of regard for her experience and rights, was ‘exactly like when [she] was an inmate in the camp’; even her daughter suggested to the Las Vegas Review that the Polish government was holding her freedom hostage by not returning these portraits as they are the story of her survival. The ABSMM ignored Dina’s survivor story; reducing her to the powerlessness she experienced while incarcerated.
In its 2006 Report, the ABSMM suggested it had been sued for property by a Jewish claimant for the first time. In Antisemitism in current Poland, Bilewicz refers to a Polish ‘victimhood competition’, which is the stance adopted by the ABSMM. Polish ‘relative victimhood’is the perception that Poles were more victimised than Jews throughout history. It is unsurprising that museum officials shifted the victim narrative to fault Dina for making the claim in the first place. In a letter dated October 12, 1980, the art supervisor for the museum avowed that Dina had ‘no legal claim to the paintings and her attempts to recover them were ‘something shameful’’. This supervisor went as far to suggest the only legal claimant would be Mengele, given he commissioned the portraits.
The ABSMM’s attack on Dina’s legal merit to claim the portraits by arguing in favour of Mengele being the rightful claimant was flawed. It indicates that the museum attempted to lend itself into the safety-net of copyright law. Put simply, if Dina was given the portraits, the museum would be infringing upon Mengele’s copyright status of the original portraits. Albeit, if Dina’s claim to the portraits was to be settled in court, no court today could successfully argue against her rightful ownership using copyright law. Doing so would see intellectual property prioritised above international human rights. This would neglect the universal criminal outlaw of slavery and forced labour. Furthermore, Patrick Boylan, Chair of the International Council of Museums (ICOM) legal affairs committee posited ‘normally the artist would have the copyright and any other rights unless they actually sold it or were state employees’. Nonetheless, the ABSMM hinged itself upon the argument that the paintings never truly belonged to Dina.
Museum director, Piotr Cywinski, argued the portraits ‘have never been her property. They were made on the order and for the use of… Mengele’. The irrational insensitivity of this can be linked to Polish secondary-antisemitism; especially Winiewski’s aforementioned suggestion that it predisposes people to actively oppose any compensation or restitution to Jewish victims.
The ABSMM’s reliance on ownership is alarming given Poland’s agreement as a signatory of Resolution 1205 of the Council of Europe, calling for the restitution of looted Jewish property in Europe. Article 2 states all ‘bodies in receipt of government funds which find themselves holding looted Jewish cultural property should return it’; Article 3 totally refutes the ABSMM’s rigid defence based on ownership stating all ‘subsequent expropriation and nationalisation of Jewish cultural property, whether looted or not, by communist regimes was illegal’. This, and the museum’s breach of the ICOM Code of Ethics which is vehemently adhered to by museums involved in Nazi-era restitution cases, proves its ethical fault.
ICOM Principle 2.13 is related to the deaccessioning from museum collections. It maintains it is permissible, not to the detriment of public education, as long as ‘a full understanding of the significance of the item, its character (whether renewable or non-renewable), legal standing, and any loss of public trust might result from such action’. This is the fundamental issue in the ABSMM’s response. It failed to meet ICOM principle 2.13. First, the paintings are ‘non-renewable’ because they humanise the 1.1 million who were killed at Auschwitz. Second, the specific portrait of Celine preserves her life before, and experience in, Auschwitz. Lastly, despite the museum’s position that the paintings are vital in the museum’s collection, it would have been more successful in educating international audiences of Holocaust atrocities if it had returned the paintings.
We can conclude that the ABSMM’s hiding behind tenuous legal ownership claims actually fractured the public’s trust in the museum’s dedication to victims. It seems what was important to the museum is the fact that Poland ‘owns’ the Auschwitz site and its contents. The museum adopted a hysterical response to Dina’s claim; an antisemitic one at that. The ABSMM’s 2006 Report states ‘the pictures constitute unique proof of the genocide committed against the Roma and Sinti, and the pseudoscientific experiments carried out on them’. However, this neglects Dina’s experience of being forced to paint for Mengele, the brutal scenes to which she was subject, and her personal relationships with those lost. Likewise, Igor Bartosik – a senior curator at the museum – took an aggressive stance about its future crack-down on international loans to prevent Jews from making any future claims, playing into the ‘greedy’ and ‘revengeful’ Jew stereotype. This distorted its institutional mission of Holocaust education. Bartosik endorsed an antisemitic response that the ABSMM should irrefutably be aiming to eradicate, given it was the site of murder of millions of Jews based on antisemitic ideas such as those he extorted.
The ABSMM’s ethical fault is obvious from the international outrage at its refusal to return the portraits. The David S. Wyman Institute of Holocaust Studies (DWI) organised a petition to the museum, including signatures of prominent members of congress, art dealers, museum curators, and former Executive Director of the Unites States Holocaust Memorial Museum. According to correspondence between DWI and Piotr Cywinski, dated 20th August 2006, these prominent figures in American restitution discourse wrote to express their ‘deep concern’ of the museum’s ‘refusal to accede to [Dina’s] request’. They argued she ‘produced these works on pain of death at the command of the notorious war criminal…Mengele’. The petition insisted nobody can ‘reasonably question’ Dina’s moral right to the paintings. On justifying a moral argument, American pressure was based entirely on Dina’s reclamation of humanity. These paintings are more than an historic artefact, they represent Dina’s refusal to allow the Nazis to ‘steal from her the very essence of her humanity’, according to the petition. The issue is that the ABSMM’s function clashed with rigid Polish attitudes towards property rights. Indeed, as the petition concluded, ‘reuniting [Dina] with her paintings would be a sign of the museum’s dedication not only to history…but to humanity’.
By 19th September 2006, the DWI produced a mass petition with the signatories of over 450 cartoonists and artists from around the world concerning the return of Dina’s paintings. Professionally, Dina was renowned for the ‘Snow White’ mural she painted in the children’s barracks to preserve their childhood imaginations. According to correspondence between Rafael Medoff (Director of the DWI) and Counsellors Artur Orzechowski and Zbigniew Przybylski of the Polish Embassy in the US, ‘many of the most important and influential figures in their fields’ were signatories. Stan Lee, (then) head of Marvel Comics; Paul Levitz, president and publisher of DC Comics; Pulitzer Prize winners Art Spiegelman and Michael Chabon; and the animators from classic movies such as ‘The Little Mermaid’. Medoff impeccably concluded to Orzechowski and Przybylski that ‘the signatories represent the leaders of an extremely significant part of American popular culture. Their concerns cannot be ignored.’ The petition also tactfully appealed to Polish nationalism, reasoning that the ‘principle that art belongs to the artist…is recognised everywhere except in totalitarian countries. One would hope that Poland, having been liberated from totalitarian rule, would not…regard everything as the property of the state.’ Returning to the moral approach by understanding Jewish suffering, which the ABSMM failed to recognise, the 450 signatories ‘implore[d] [the museum] to do the right thing’ and return Dina’s paintings.
While Dina’s claim and the ABSMM’s response cannot represent the entirety of Polish restitution discourse, the museum’s response fell short of international codes of ethics and was riddled with secondary-antisemitic undertones. The museum believed itself the victim, and the claimant ‘shameful’. This is undeniably reflective of the aforementioned Polish lachrymose worldview and secondary-antisemitic tendency to forget about the severity of the Holocaust, resulting in active opposition to Jewish restitution. Governing frameworks were inadequate to the extent that international mass petitions voiced their grievances at the museum’s lack of moral duty to Dina – contending it was behaving as a totalitarian state would. Furthermore, the museum defended Mengele over Dina by advocating his copyright over Dina’s human rights. Certainly, Polish national biases, antisemitism, and victimhood identity contributed to the lack of honouring Dina’s ‘rightful’ ownership of the portraits. The paintings remain unreturned to this day. In 2017, Dina’s daughters maintained their ‘greatest hope’ is to locate an international attorney willing to take their case to The Hague (International Court of Justice), to fight for ‘humanity’. It will be interesting to see if any intellectual property and human rights lawyers ever tackle this case on a pro-bono basis.