From “Leader to Pariah”? On the Dutch Restitutions Committee and the inclusion of the public interest in assessing Nazi-spoliated art claims

Abstract

This article considers the recent and vigorous critique of the Dutch restitution policy on Nazi-looted art in connection with the inclusion of what has been termed the “public interest” in the applicable substantive assessment framework. This assessment framework is entirely based on morally induced policy rules, and it allows the Dutch Restitutions Committee to advise on requests for restitution based on a weighing of interests, including the significance of the work to a museum or public art collection. Although one might question the appropriateness of such interests in a framework designed to remedy historic injustices, it remains to be seen whether this critique is entirely justified. Recent recommendations issued by the Dutch Restitutions Committee indicate that it takes a generous, rather than strict, approach when dealing with requests for restitution. All in all, it seems that both institutional and substantive vulnerability are inevitable if one embarks on a morally induced framework based on mere policy rules rather than legal rules.

Introduction

Ever since the Dutch Restitutions Committee (RC) was established in 2001 (formally known as the Advisory Committee on the Assessment of Restitution Applications for Items of Cultural Value and the Second World War), the Dutch restitution policy on Nazi-looted art has consistently received international praise for its results in dealing with restitution requests. ¹ Over the past few years, however, (international) public opinion has begun to change. At a conference held in November 2018 to mark the twentieth anniversary of the Washington Principles, former US Ambassador Stuart Eizenstat, the spiritual father of those Principles, expressed rather critical views of the Dutch restitution policy on Nazi-looted art. ² These critical comments were prompted by the RC’s binding opinion issued just a month earlier in the case of the Lewenstein heirs, which concerned a painting by Wassily Kandinsky owned by the municipality of Amsterdam and on display at the Amsterdam Stedelijk Museum. ³ The RC decided in favor of the municipality on the basis of a weighing of interests; the significance of the painting to the collection of the museum outweighed the interest of the heirs. ⁴ According to Stuart Eizenstat, this binding opinion was a “step back” in the leading role that the Netherlands played after 2001 in the field of restitution of Nazi-looted art. ⁵ A vigorous debate followed not only within, but also beyond, Dutch borders, which focused on the inclusion of the interest of the museum and the relevance of a particular work to public art collections within the applicable substantive policy framework. ⁶ It is underlined here that, in the context of this article, the public interest is understood to encompass either the interest of the museum in terms of retaining its collection or the relevance of a particular work to public art collections and/or the culmination of the two. Since museums, whether private or public, serve the essential functions of preservation and allow public access to cultural objects, their interest coincides with the public interest. ⁷ The public interest thus aligns with John Merryman’s argument on the existence of a public interest in cultural property in terms of preservation and access. ⁸

With respect to the debate, the claimants, their legal representatives, the claimant organizations, and members of the Jewish community assert that the Netherlands, over time, lost sight of the interests of the victims. ⁹ Proponents of the current arrangements – Fred Hammerstein, for one (that is, the now former chairman of the RC) – have argued the exact opposite, emphasizing that the interest of the victim is paramount in dealing with these claims. ¹⁰ The critical voices have by no means faded into the background. ¹¹ Recently, an advisory committee created to evaluate the Dutch restitution policy, also known as the Kohnstamm Committee after its chair, Jacob Kohnstamm, also expressed critical views. ¹² When this article went to press, the minister of Education, Culture and Science gave an initial response stating that government would adopt the Kohnstamm Committee’s recommendations, heralding a more favorable approach for claimants. A definitive reaction will follow this summer, but a “renewed” assessment framework has been announced. ¹³ It is emphasized here that this article’s focus is on the currently applicable policy, not in the least since the exact ramifications of this renewed policy are yet unknown. ¹⁴ However, it is pointed out that the public interest and the weighing of interests, for that matter, will be largely excluded from the “renewed” assessment framework. ¹⁵

I have argued elsewhere that the above-mentioned criticism relates to a predicament that committees such as the RC find themselves in, caused by a paradigm shift in dealing with Nazi-related injustices in general. ¹⁶ At around the turn of the millennium, renewed attention for the atrocities of World War II and its detrimental effects on those persecuted by the Nazis was increasingly considered to “challenge” the traditional legalist paradigm. ¹⁷ The legalist paradigm – marked by a statute of limitations, rules on prescription, and evidentiary standards, guided by principles of legal certainty and foreseeability – fell short when it came to remedying the injustices of the past. Throughout Europe, a shift in dealing with these Nazi-related injustices was visible, where the traditional legalist paradigm moved to the background to make way for a morally induced approach where “mere” membership in a category of victims could lead to “lump sum” compensation. ¹⁸ For the specific category of Nazi-looted cultural assets, therein lies the rub. As restitution is still considered the primary remedy in connection with looted cultural assets, ¹⁹ the advisory committees established to deal with claims relating to cultural assets still have to provide an individualized, semi-legal assessment on the possible restoration of ownership of a formerly owned specific object, although now in a low-threshold procedure governed by open norms, while restitution is situated as a means to right past wrongs and is ascribed a broader meaning than simply restoring the situation ex ante. Rendering decisions in a context aimed at undoing grave injustices has proved difficult over time in the absence of clear substantive rules in an open procedure, as doubts about these committees are easily raised in terms of a general lack of transparency in the decision-making process, their independence, and their impartiality. It therefore makes these committees vulnerable to criticism, which touches upon the very essence of their raison d’être: remedying historic injustices for victims of the Nazi regime.

This article is intended to build on this argument. The focus lies specifically on the critique and consequent discussion emanating from the Lewenstein/Amsterdam City Council claim. To this end, the article will start by addressing the mandate of the RC, with an emphasis on the origins of the inclusion of the public interest in the RC’s assessment framework. Then the Lewenstein/Kandinsky case will be considered. The two main questions that this article seeks to answer are subsequently discussed: Is Dutch restitution policy in regard to the position of the claimant worse than in certain other countries and has the claimant’s perspective indeed been forced to the background over time in Dutch restitution policy? To answer these questions, the Dutch restitution policy will be considered from an international comparative perspective. A closer look into a few recent cases dealt with by the RC will then follow, again, where possible, from a comparative perspective. It turns out that the claimant’s situation in the Netherlands is not as dire as some have claimed.

The Dutch restitution policy: A patchwork of rules

The origins of the RC are closely connected to the renewed international and national attention for the fate of Jewish assets during and after World War II. ²⁰ In regard to the specific category of Nazi-looted art, the so-called “heirless collections” ²¹ or objects residing in public hands led various European governments including the Dutch government to (re-)open the possibility for former owners and their heirs to claim those objects. ²² In doing this, most European countries recognized the fruitlessness of litigation for claimants due to legal barriers such as statutes of limitation and evidentiary standards, which is emphasized in the 1998 international, but legally non-binding, document known as the Washington Principles. ²³ In November 2001, the Dutch government made the pragmatic decision to embark on a policy-induced approach rather than a strictly legal one. ²⁴ It was the RC that came to embody this decision. ²⁵

A flexible policy shaped by its national history and context

It is important to realize that the RC’s mandate and its rationale emanates, for the most part, from the perceived need to act on the so-called Nederlands Kunstbezit Collectie (NK Collection). ²⁶ In the years prior to the establishment of the RC, much of the discussion on the fate of Jewish assets focused on this NK Collection residing with the Dutch state, “inherited” from a special legal system of restoration of rights enacted in the Netherlands in the years immediately following World War II. ²⁷ The collection consisted of roughly 4,000 objects that could not be, or were not, returned in the course of this first “round” of restitution ²⁸ that was designed to undo the adverse impact of the years of German occupation on the Dutch economy and citizens. ²⁹ The renewed attention for the persecuted groups, particularly those of Jewish descent and their belongings, increasingly caused the NK Collection to be considered “tainted” due to a possible Nazi-looting background. ³⁰ At that point in time, the NK Collection was indeed cloaked in a “haze of secrecy” ³¹ as it was unclear whether, and to what extent, objects in the collection had been formerly owned by individuals belonging to Nazi-persecuted groups.

Around the turn of the millennium, a government-installed advisory committee, known as the Ekkart Committee after its chair, Rudi Ekkart, played an important role in clarifying the provenance of this NK Collection. ³² The main conclusion of the Ekkart Committee was that the NK Collection resulted from the “formalistic, bureaucratic, cold, and often even heartless” ³³ manner in which the Dutch post-World War II system of restoration of rights was executed. The Ekkart Committee’s conclusion played an important role in triggering a different approach to the matter of Nazi-looted art in light of the perceived need to take account of the victims’ perspective. A strict, legal approach, as applied in the first “round” of restitution, which was infused with egalitarianism such that every individual was treated the same regardless of the atrocities endured during World War II, was increasingly considered undesirable when addressing historic injustices of the past. ³⁴

When the RC’s Establishing Decree, a mere ministerial order, was presented to Parliament in 2001, it demonstrated that the Dutch government had let go of its initial narrow focus regarding the NK Collection. ³⁵ The Dutch government acceded to Parliament’s wish for a generous and comprehensive approach. ³⁶ This resulted in a two-pronged task. The first task of the RC was to issue basic advisory recommendations to the minister on requests for restitution concerning the entire Dutch national art collection. ³⁷ At that time, this task was subject to relaxed governmental guidelines, which largely depended on the three sets of recommendations issued to that end by the Ekkart Committee. ³⁸ These relaxed guidelines implied, among other things, a reversal of the burden of proof on the involuntariness of the loss and relaxed standards regarding proof of ownership. ³⁹ It should be emphasized here that, as part of this generous approach, not only the “tainted” NK Collection, but also all objects in the Dutch National Art Collection, were made eligible for restitution based on the renewed and liberalized government guidelines, despite their disparate provenance. ⁴⁰

The RC’s second task was to issue opinions on ownership disputes between the “original owner” and the “current possessor which is not the State of the Netherlands.” ⁴¹ This second task, now frequently referred to as the binding opinion procedure, was a second iteration of the generous approach. ⁴² The task was added to the RC’s mandate based on the request of Parliament to provide for a committee that could act as an “independent mediator in ownership disputes,” following the English example set by the Spoliation Advisory Panel (SAP) in 2000. ⁴³ At that time, it was thought that the binding opinion procedure would be relevant for disputes between private individuals. ⁴⁴ Although both the RC’s tasks are founded in the “involuntary loss of possession due to circumstances related to the Nazi regime,” ⁴⁵ a different set of substantive rules was to govern this second task: the principles of “reasonableness and fairness.” The Establishing Decree of 2001 remained silent, however, on what such an assessment-based approach might entail, although it did give the RC, in Article 4(2), the possibility to “draw up regulations for further working methods.” ⁴⁶

The overall aim of the decision of the government to change tack in 2001 was to provide for a claimant-friendly, low-threshold, and flexible procedure to facilitate former owners and their heirs, given “the advanced age of many of the interested parties.” ⁴⁷ A “strict legal approach” was “no longer acceptable.” ⁴⁸ Instead, an approach based on moral considerations was chosen to facilitate the restoration of former ownership rights, given the past atrocities during the years of the Nazi reign. ⁴⁹

Introducing the “public interest”: The 2007 Regulations for the Binding Opinion Procedure

The choice for low-threshold and loosely structured proceedings to facilitate claimants has the obvious advantage of flexibility. And it is this flexibility that catalyzed a certain lack of clarity in the Dutch context. The fact is that, in the Netherlands, the applicable procedure, as well as the applicable substantive assessment framework, has been subject to various changes over time. ⁵⁰ There was an important change relating to the RC’s second task in the binding opinion procedure, with the public interest being introduced as an element of the committee’s assessment yardstick. The rules relating to this procedure were published in 2007, six years after the establishment of the RC, in the so-called Regulations for Opinion Procedure. ⁵¹ Only in 2006 were two cases brought before the RC concerning objects that were not held by the state, thus prompting further clarification of the principles of reasonableness and fairness. ⁵² In 2007, therefore, the RC asserted the possibility granted in Article 4(2) of the Establishing Decree. Based on the Regulations for Opinion Procedure, claims relating to the second task of the RC were to be dealt with on the basis of a weighing of interests between the former and the current owners. The opinions resulting from this weighing of interests would be issued in the form of a legally binding settlement agreement based on Article 7:900 of the Dutch Civil Code. ⁵³ In regard to the relevant interests, the RC elucidated in Article 3 of the Regulations for Opinion Procedure that, among other things, it not only may take into account the “significance of the work to the former owner” but also consider the position of the current owner. Here, the possible good-faith acquisition of a work, the “significance” of a work to the current owner, and, generally, the “significance of a work to public art collections” may be included in the RC’s weighing of interests. This weighing of interests went hand in hand with flexibility in terms of potential remedies. Whereas for the NK Collection a positive recommendation could only lead to restitution, based on the Regulations for Opinion Procedure, the RC could award any possible solution it deemed fit. ⁵⁴

It should be noted that the Regulations for Opinion Procedure were drafted in a time marked by “questions” that “gradually started emerging in the media about the legitimacy of returning looted items of cultural value.” ⁵⁵ These questions related to the course of events in one of the renowned Dutch high-profile claims, concerning the heirs of Jacques Goudstikker and the RC’s Goudstikker Recommendation, ⁵⁶ which was issued in December 2005, giving rise to critique in the Netherlands. ⁵⁷ Based on the Goudstikker Recommendation, restitution of over 200 artworks was awarded to Marei von Saher, the rightful heir of art dealer Jacques Goudstikker. Marei von Saher consequently auctioned off large parts of the Goudstikker collection. ⁵⁸ Furthermore, von Saher had no consanguine relationship with the Goudstikkers, nor had she even known Jacques Goudstikker. She was the wife of Jacques Goudstikker’s only son Edouard. ⁵⁹ In short, within the Netherlands, the moral value of restitution of looted artworks was publicly challenged because it led to the deaccessioning of artworks of value not only because of the financial consequences but also in view of Dutch cultural heritage. ⁶⁰ This concern about the latter’s interest was consistent with, and enshrined in, the then applicable Cultural Heritage Preservation Act and, therefore, in the broader context of the protection of cultural objects, certainly no novelty. ⁶¹ However, as mentioned above, the RC’s second task was rather explicitly situated in the context of a dispute between private individuals and the guidance sought in the sphere of private law principles of reasonableness and fairness, which are also therefore logical. ⁶² It thus remains to be seen whether the inclusion of this strong public connotation in the explanation of the principles of reasonableness and fairness was foreseen at the time of the establishment of the RC.

The inclusion of the “public interest” in a changing landscape of applicable rules ⁶³

The choices made in the Regulations for Opinion Procedure did not give rise to concern; nor did the first binding opinions that were rendered on the basis of the Regulations in 2008. ⁶⁴ The binding opinions issued in 2013 in the case of the heirs of Jewish businessman Richard Semmel led to the first critical questions regarding the weighing of interests and, particularly, how the assertion of the public interest could play out. The criticism of the Semmel case was due, in part, to the fact that two separate assessment frameworks were in effect side by side. Already in 2009, the RC had issued its first positive recommendation for restitution to the Semmel heirs, who had requested restitution of an object in the NK Collection. According to the RC, Semmel had involuntarily lost possession of the object in 1933 in order to finance his flight from Germany to the Netherlands. ⁶⁵ When the Semmel heirs asked for restitution of four other objects a few years later, these requests were dealt with under the binding opinion procedure since the objects were not included in the Dutch National Art Collection but owned by foundations (museums) and municipalities. ⁶⁶ In two of these bindings opinions, the Semmel heirs’ requests for restitution were rejected despite the fact that the circumstances of the loss of possession, which led to the 2009 positive restitution recommendation, were exactly the same. Since the RC had to weigh the relevant interests, it came to the conclusion that the objects in question were too vital to the collection to be returned; the interests of the heirs were superseded due to their weak emotional link to the claimed objects. ⁶⁷ This conclusion was not well received by the Semmel heirs; ⁶⁸ the mere location of an object meant that the work’s significance to a publicly accessible art collection could outweigh the conclusion that a loss had been incurred due to Nazi persecutory measures. ⁶⁹

The confusion about the two separate assessment frameworks was an important factor in another substantial change being made to Dutch restitution policy. In 2012, the state secretary announced that there would be a phased unification of the policy ⁷⁰ to end the coexistence of two separate assessment frameworks and the differing treatment of objects merely depending on their location. ⁷¹ As of 19 July 2012, the objects in the Dutch National Art Collection that were not designated as part of the NK Collection were to be assessed on the basis of the principles of reasonableness and fairness. Whereas, in 2001, the wish for a generous policy led the government to decide to expand the range of eligible objects from only the NK Collection to the entire Dutch collection, this decision was now reversed to account for the differences in the provenance of the objects. The state secretary stressed that, unlike the NK Collection, other objects in the Dutch National Art Collection had been acquired via “normal channels” such as auctions and bought in good faith. ⁷² The liberalized government guidelines were now considered less suitable for dealing with claims concerning these objects, as they left no room to consider the differences in the provenance of these objects nor any flexibility in terms of the available remedies.

The second tranche of unification was set for 30 June 2015, which meant that the NK Collection was also to be dealt with on the basis of the principles of reasonableness and fairness. Here, the motivation given was that the liberalized policy did not “need to be drawn out indefinitely,” thus implying that a conclusion of involuntary loss due to the Nazi regime would not necessarily lead to a recommendation for restitution. ⁷³ That said, the state secretary generally emphasized at the same time that a weighing of interests was less suitable when the current possessor could have or should have known about the “tainted” provenance of the claimed object. It was however left to the discretion of the RC to deal with this in individual claims. ⁷⁴

On a final note, it should be mentioned that the necessity of these considerable changes originated in certain assumptions that had currency around the time of the establishment of the RC. As time passed, those assumptions proved to be wrong. For one thing, it was thought that the liberalized restitution policy was only a temporary measure. The expectation was that the RC would remain in function for about three to five years; it was estimated that it would deal with perhaps 30, but no more than 50, cases. ⁷⁵ The choice for a flexible, low-threshold procedure guided by open norms tallied well with this expectation, given the claimants’ perspective. In 2012, when the unification of the restitution policy was announced, 10 years after the establishment of the RC, it became clear that discussion of a possible end term for the policy had been given up on. ⁷⁶ In the meantime, the flexible nature of the policy allowed a constantly changing set of rules to be applied, which, as the Semmel case showed, marked the Dutch policy, as such, with “blind spots” and, accordingly, with confusion. ⁷⁷ Besides, the “increased legalization” of claims, which meant the increased involvement of lawyers working on a no-cure-no-pay basis, only added to the confusion. Restitution has remained the sole focus of the procedures at the RC despite the flexibility in terms of remedies and a possibly anticipated mediatory role, which was an important rationale for the changes in 2012. ⁷⁸ The procedure is increasingly thought to be litigious and has been criticized for lacking in traditional legal guarantees such as independence and impartiality. ⁷⁹ The previous discussion of the origins of the RC has shown, however, that the procedure at the RC was explicitly not intended to provide a venue comparable to traditional legal adjudication.

Also, whereas in 2001 it was assumed that the RC’s second task was to issue opinions relevant to disputes between traditional private parties, of the 20 binding opinions, ⁸⁰ only one concerned a dispute between two private individuals. ⁸¹ The RC’s duty to issue binding opinions has mainly been exercised vis-à-vis museums (legally organized as foundations, which are entities governed by private law), ⁸² municipalities, and provinces whenever the public interest has been asserted and factored into the RC’s considerations. ⁸³ The substantive difference in assessment frameworks between objects that all have a public connotation has proven hard to explain, as illustrated by the Semmel case. The fact that, due to the unification of the restitution policy, the Regulations for Opinion Procedure now has the upper hand in dealing with claims, only adds grist to the mill and confusion for claimants. In addition, since the RC itself drafted these Regulations, the democratic legitimacy of the document can rather easily be argued as being weak. ⁸⁴

Given this preponderance accorded to the public interest, one last development needs to be mentioned here, and it only adds to the confusion about the Dutch restitution policy. In 2016, the new Dutch Heritage Act came into force, which contains a protective system meant to preserve Dutch cultural heritage. ⁸⁵ When the disposal of an object held in a public collection is being considered, a recommendation from the Protection Worthiness Assessment Committee (Toetsingscommissie Beschermwaardigheid, or TCB) must be sought to assess the indispensability and irreplaceability of the object. ⁸⁶ It seems that this law does not need to be a liability for the effectuation of a positive recommendation on restitution, due to the non-legally binding status of the recommendation and the discretionary power of the public actors involved. During the parliamentary debate on the Heritage Act, the minister indicated that a recommendation from the RC would constitute a guiding principle in the assertion of the discretionary power. ⁸⁷ However, the omission of the legislator in this regard caused haziness on the possible implications for the Dutch restitution policy. It would have been more clear-cut if the legislator had at least included the RC’s recommendations and opinions in that legal framework. ⁸⁸

Current critique of the Dutch restitution policy cannot be seen as being separate from the almost constantly changing rules. Zeroing in on the weighing of interests could open up a Pandora’s box for claimants, although perhaps not intentionally. Public interest works like a boomerang when it outweighs the interests of the claimant, especially when the involuntariness of the loss, in all likelihood, was caused by the Nazi regime. The 2018 Lewenstein/Kandinsky case and the subsequent international commotion serve as an illustration, even though the 2012 unification was meant to provide clarity. ⁸⁹

The 2018 Lewenstein/Amsterdam City Council claim

As mentioned in the Introduction, the Lewenstein/Kandinsky case involved a restitution claim by the Lewenstein-Klein heirs concerning a Kandinsky entitled Painting with Houses, owned by the Amsterdam municipality and on display at the Amsterdam Stedelijk Museum. It should be stressed here that the case concerning the Kandinsky is illustrative of the multiple difficulties that committees such as the RC have to deal with, as it was marked by highly fragmentary evidence. ⁹⁰ This made both the decision on ownership by the former owner as well as the involuntariness of loss not an easy one to tackle. That said, how the weighing of interests takes place and its result seem to have at least in part provoked the still ongoing international critique. ⁹¹

Initially, the Kandinsky belonged to Emanuel Lewenstein and his wife Hedwig. Their two children Robert and Wilhelmina Lewenstein were their legal heirs. Robert, who took over the family business Lewenstein NV, married Irma Klein in 1933, four years before the death of their last surviving parent, Hedwig, in 1937. The marriage of Robert and Irma did not last. Robert left Irma “around mid-August 1938” and left for France in 1939 with his new partner. Robert and Irma were granted a legal separation on 27 June 1940, but the actual division of their matrimonial estate was set seven years later by a notarial deed dated 7 June 1947. With respect to the matter of ownership, the heirs of the three possible former owners, Wilhelmina, Robert, and Robert’s ex-wife Irma Klein, were the claimants in this case. ⁹² Based on the last will of the mother Hedwig, the RC deemed it highly likely that the object had been assigned to Robert and was accordingly included in the property of Irma and Robert, as they were married in a community of property. ⁹³ Although the Kandinsky was not explicitly mentioned in the 1947 deed that divided their possessions, the committee was of the opinion that the Kandinsky should be assigned to Irma Klein. The RC referred to the deed, which stated that the matrimonial belongings had already been divided up to the satisfaction of both parties and that there was no need for a retrospective settlement. ⁹⁴

The heirs’ discontent and the consequent international commotion originated in the following remark in the binding opinion of the RC, which relates to the RC’s assessment of the nature of the loss by Irma Klein:

[T]he sale of the painting cannot be considered in isolation from the Nazi regime, but it was also in part the consequence of deteriorating financial circumstances in which Robert Lewenstein and Irma Klein found themselves well before the German invasion. In the Committee’s view, this provides a less powerful basis for restitution than a case in which there was theft or confiscation. ⁹⁵

The fact that two separate assessment frameworks remained was once again relevant, as it had been in the case of the Semmel heirs, and there was confusion about which of those rules should prevail in this case. Based on the relaxed governmental guidelines, a sale in the Netherlands after 10 May 1940 by a private Jewish individual was considered involuntary unless there were factors that expressly proved otherwise. Many of the circumstances of the sale by Irma Klein, how the sale occurred, and what happened to the sales proceeds remained unclear, whereas the sale occurred after 10 May 1940. And, thus, from the claimants’ perspective, this was a clear-cut case: the loss occurred after 10 May 1940; therefore, the reversal of proof should apply, and restitution should be awarded.

The RC nevertheless stressed that these government guidelines are not “directly applicable to binding opinion cases.” ⁹⁶ The “determining factor” in this case was therefore a weighing of interests. ⁹⁷ Although not ruling out an involuntary loss, the RC pointed out several factors suggesting that Robert Lewenstein and Irma Klein were having personal financial difficulties and that the sale was therefore most likely voluntary. ⁹⁸ Not only did these circumstances of loss provide a “less powerful basis for restitution,” but there were also no indications that Irma Klein undertook efforts to reclaim the work after World War II. There was furthermore no evidence to suggest that the painting was acquired in bad faith. In addition, the Lewenstein family had loaned objects to the Stedelijk Museum on various occasions between 1933 and 1960, indicating a good relationship between the parties. Therefore, as the Kandinsky held a significant position in the Stedelijk Museum’s collection, this outweighed the interests of Irma Klein’s heir, who, apart from being the rightful heir, had “no past emotional interest or emotional bond” to the claimed object. ⁹⁹

The “public interest” from a comparative perspective

Both the Dutch government and the RC have repeatedly reiterated the stance that the choices made regarding the task in the binding opinion procedure are in keeping with the 1999 Washington Principles, ¹⁰⁰ which, given the actual content of those Principles, are not necessarily wrong. Principles IV, VIII, IX, and X call for a “just and fair solution.” Nations are encouraged to establish “alternative dispute resolution mechanisms” to resolve ownership issues while considering the “unavoidable gaps and ambiguities in the provenance” of these objects due to the passage of time as well as the atrocities committed during the Holocaust. The Principles do not stipulate by any means how this just and fair solution should be achieved. ¹⁰¹ Moreover, they recognize that a just and fair solution “may vary according to the facts and circumstances surrounding a case.” ¹⁰²

The Dutch assessment framework: A note of discord?

A quick peek across Dutch borders shows that a differing array of choices have been made in this regard, whereas the Netherlands seems to be at the outer end of the spectrum in both its explicit inclusion of the public interest in the applicable framework as well as the RC’s caseload. ¹⁰³ The system provided for by Austria’s Kunstrückgabegesetz (Art Restitution Act) resides at the exact opposite end of this spectrum. ¹⁰⁴ The Kunstrückgabebeirat (Beirat) is called to identify former owners and advise the responsible minister in this regard. The Kunstrückgabegesetz designates three categories of objects eligible for restitution provided certain conditions enumerated therein are fulfilled. ¹⁰⁵ The public interest is not one of these conditions. ¹⁰⁶ Article 4 of the Kunstrückgabegesetz furthermore provides an exemption from the export ban in the Denkmalschutzgesetz (Cultural Heritage Act) 1923, the Austrian instrument for the protection of national cultural heritage. ¹⁰⁷ Whenever the conditions of the Kunstrückgabegesetz are met and objects are transferred to their owners or their heirs based on a recommendation of the Beirat, the export ban is inapplicable for 25 years after the actual transfer of the object. ¹⁰⁸

For the French Commission pour l’indemnisation des victimes de spoliations (CIVS), the primary question is whether a loss was caused by anti-Semitic legislation and had occurred on French soil. ¹⁰⁹ As in the Austrian situation, the public interest does not appear to play any role in the recommendations of the CIVS. That said, the public interest – via the French legal system for the protection of the national cultural heritage – has been seen to bring about potential legal difficulties when a restitution claim depends on the categorization of the object at hand. ¹¹⁰ In France, the Musées Nationaux Récuperation (MNR) Collection ¹¹¹ is entirely composed of artworks recuperated after World War II. ¹¹² It is governed by a different regime than non-MNR works. The MNR Collection enjoys a special status within the French public collections, as the French state never became its owner ¹¹³ and acts as a mere guardian or “detenteur provisoire.” ¹¹⁴ In 2014, the French Conseil d’État confirmed this special status and made it clear that, in keeping with the CIVS mandate, those MNR objects with a Nazi looting-related provenance are eligible for restitution, given that France has enacted no law or legal rule on the basis of which prescription could preclude restitution. ¹¹⁵

This special status of the MNR Collection, resulting in objects being eligible for restitution if a Nazi-looting background can be established, does not apply to objects that ended up in French public collections through acquisition, gifts, or bequests. The strict French legal regime protecting cultural heritage through the principle of the inalienability of public collections applies to such objects, thus posing a legal barrier for restitution. ¹¹⁶ In a 2018 report drawn up on behalf of the French Ministry of Culture, it was pointed out that pragmatic solutions are sought when these inalienable objects prove to have a tainted provenance. Sometimes an administrative adjustment is possible – that is, changing the entry of an object to “inscription indue” (improper registration), thus allowing the work to be released. ¹¹⁷ In other cases, monetary compensation has been the solution, while the disputed object remains in the museum. ¹¹⁸ As a final note on the French situation, a renewed effort for restitution was launched in 2018; it aims for the restitution of objects that were spoliated during the German occupation of France and objects spoliated between 1933 and 1945 that are now located on French territory. ¹¹⁹ To this end, a so-called Mission de recherche et de restitution des biens culturels spoliés entre 1933 et 1945 was established within the Ministry of Culture to facilitate provenance research not only into the MNR Collection but also into the French public collections. The mandate of the CIVS was also changed. It now explicitly refers to the possibility for the CIVS to make recommendations regarding Nazi-spoliated cultural objects, “particularly” relating to those objects in the MNR Collection, either amounting to restitution or financial compensation. ¹²⁰ The “ad hoc” provision – recommended in the 2018 report and meant to exempt Nazi-spoliated objects in French public collections other than the MNR Collection from the principle of alienability to facilitate the restitution of objects with a Nazi-looting provenance – has not been followed up yet. ¹²¹ It has been said that the CIVS in these cases will most likely resort to a recommendation for financial compensation, irrespective of a claimant’s possible preference for restitution as the remedy. ¹²²

Similar legal hurdles in the sphere of the protection of the national cultural heritage were addressed in Germany in 2016 when the Kulturgutschutzgesetz (Cultural Property Protection Act) came into force. ¹²³ And yet it appears that the German Beratende Kommission ¹²⁴ in a recent recommendation moved toward the Dutch RC’s assessment framework and practice. ¹²⁵ In recent years, due to ongoing criticism relating to, among other things, a lack of substantive reasoning and motivation in the Beratende Kommission’s recommendations, ¹²⁶ action has been taken to clarify and improve the procedure as well the substantive factors in dealing with restitution claims. ¹²⁷ This led, in 2016, to the promulgation of the Verfahrensordnung (Rules of Procedure) by the Beratende Kommission ¹²⁸ as well as a revision by the German federal government’s commissioner for culture and the media, in 2019, of the Handreichung (Guidelines) on provenance research and restitution for German public institutions. ¹²⁹ Amongst other things, it has been clarified that the Beratende Kommission shall take “particular account of” the circumstances of the loss, the circumstances of acquisition, and the conducted provenance research. ¹³⁰ Still, the situation in Germany on the public interest remains somewhat opaque. ¹³¹ The Handreichung 2019 states that one of the aspects to consider in deciding on a “just and fair solution” is whether an object has been preserved with considerable effort on the part of the museum over an extended period and has been made accessible to the public. ¹³² This formulation leaves room for doubt on its exact rationale; it appears that a conception along the lines of unjust enrichment in terms of the costs made in relation to the object rather than the importance of the object to a museum’s collection was meant. ¹³³ The Beratende Kommission nevertheless referred, in a 2020 recommendation on the dispute between the Carl Hagen heirs and the Bayerischen Staatsgemäldesammlunge, to the (lack of any) significance of the object to the latter museum or, in the wording of the Beratende Kommission, the “curational interest,” ¹³⁴ in an effort to weigh the interests at hand in favour of the claimants. ¹³⁵ Interestingly the Beratende Kommission did arrive at a weighing of interests in spite of the fact that the disputed object – the painting The Lemon Slice (Das Zitronenscheibchen) – was never legally owned by Carl Hagen; rather, it was the subject, along with 20 other paintings, of a security agreement between Hagen’s bank and Carl Thüring (the painting’s owner and debtor to the bank). ¹³⁶ The paintings served as collateral for a loan in 1927, ¹³⁷ whereby Hagen’s bank was granted ownership rights as a form of security (“Sicherungseigentum”) and, thus, the right to sell the objects in case the owner did not fulfill his financial obligations. After Hagen’s death in 1938 and in the course of Nazi persecutory measures against his bank and the bank’s liquidation, the paintings were indeed sold. Thüring’s remaining debt after liquidation was paid in full to the Carl Hagen heirs by 1950. ¹³⁸

While acknowledging that, from a legal perspective, Carl Hagen had never obtained full ownership rights to The Lemon Slice, which rendered a full restoration of ownership rights legally impossible, the Beratende Kommission nevertheless recommended restitution on the condition that, if the Hagen heirs were to sell within 10 years, 50 percent of the sales proceeds would have to be reimbursed to the State of Bavaria. The Beratende Kommission emphasized, given its task to provide a just and fair solution, that its assessment was not limited to the legal aspects. Rather, its task, to a great extent, was defined by the inclusion of ethical and moral aspects, upholding the heirs’ argument stressing the importance of restitution, as the painting symbolized their suffering and fate during the years of the Nazi reign. ¹³⁹ Restitution would thus amount to recognition and compensation of the historical injustice in light of the family’s tragic fate, which also caused them to suffer substantial economic losses, including the loss of the family art collection. ¹⁴⁰ On a final note, the Beratende Kommission stated that the Bayerische Staatsgemäldesammlungen had no similar weighty interest capable of opposing the Hagen heirs’ interest in restitution; the Bayerische Staatsgemäldesammlungen had received the painting as a mere part of a collection without having any specific curational interest in buying this particular work and that the work had not yet been put on display. Although the Beratende Kommission’s policy framework is formulated less clearly than comparable rules in the Netherlands, the Hagen case demonstrates that the public interest is taken into account in the German context. In this particular case the public interest did not carry enough weight to tip the scales in favor of the Bayerische Staatsgemäldesammlungen. On the contrary, it added weight to an otherwise quite weak claim. ¹⁴¹

Whereas, in Germany, the public interest has recently been introduced in the Beratende Kommission’s recommendations, it seems that such a development is unlikely in the United Kingdom (UK). It is interesting in this regard that the SAP, like its counterparts in Germany and the Netherlands, can assess claims on the basis of a weighing of interests. ¹⁴² The SAP’s “paramount purpose” is to achieve a just and fair solution for both the claimant and the public institution (museum), ¹⁴³ where the emphasis lies on establishing the “moral weight” of a claimant’s claim. Moral rather than legal considerations set the tone in proceedings before the SAP. ¹⁴⁴ Although the SAP’s recommendations have not been legally binding on the parties involved, ¹⁴⁵ the recommendations do nonetheless have legal bearing since the enactment of the Holocaust Act 2009. ¹⁴⁶ The various statutory regimes governing the UK’s public collections contain strict rules on the deaccessioning of objects, which in a few cases heard by the SAP before 2009 prohibited the Boards of Trustees of the institutions in question from actually restituting the objects. In these cases the SAP had to resort to a monetary award, by way of a so-called ex gratia payment to express a moral rather than a legal obligation. ¹⁴⁷ The Holocaust (Return of Cultural Objects) Act 2009 now puts discretionary power into the hands of these Boards of Trustees in the event of a recommendation for restitution by the SAP and subsequent approval by the secretary of state. ¹⁴⁸ The norms contained in the SAP’s Terms of Reference do not prohibit consideration of the public interest. Up until the present, however, the SAP has repeatedly confirmed that an object’s importance to the national collections cannot be a paramount consideration in advising on a restitution request. If it were, it “would almost certainly defeat any claim for restitution against any of the national collections within our remit, and thus frustrate the Panel’s primary role as laid down in our terms of reference.” ¹⁴⁹ In short, according to the SAP, an emphasis on the public interest would call into question the “very principle of restitution of important works.” ¹⁵⁰

Clearly, this comparative perspective in terms of the substantive assessment frameworks displays a variety of choices made in regard to the public interest. Both in the Netherlands and Germany, the public interest is included in the assessment of claims. What is different, however, is of course the long-standing Dutch policy and consequent decisions, whereas, in Germany, the public interest has only rather recently and in a single case been included in the Beratende Kommission’s reasoning. Additionally, in this recent German case, unlike Dutch cases such as Semmel and Lewenstein, the claimants’ interest prevailed. In France, the public interest, via the French system for the protection of cultural heritage, plays a more passive role in the sense that the principle of inalienability may limit the CIVS’s leeway in awarding remedies regarding claims on non-MNR objects. In Austria, public interest cannot be invoked against a claimant, and, in the UK, those chances are very slim in light of the SAP’s repeated stance in this regard.

Several authors have nevertheless argued that when restitution results in the deaccessioning of objects from public collections, especially when the reinstated owners subsequently sell an object, the public interest can or should be taken into consideration. In such cases, a monetary award might be more appropriate. ¹⁵¹ Although it is not the aim of this article to stake out a definitive position in this debate, both the Lewenstein/Kandinsky and Semmel cases illustrate the difficulties that arise when the public interest is included as a paramount consideration. ¹⁵² The inclusion of the public interest in an assessment framework that is unmistakably connected to the idea of remedying World War II-related past injustices could create the impression that said historic injustices are being haggled over, especially when the public interest outweighs the interest of the claimant, for example, in the presumed absence on the claimant’s part of an intimate connection to the object. ¹⁵³ When a broadened restitution policy serves as a tool to remedy historic injustices despite the passage of time, it seems odd that this same passage of time ¹⁵⁴ would establish a new equilibrium in which the interest of undoing systematic dispossession occurring in the context of genocide is considered to be of comparable weight to a current interest that was not relevant nor played any part at the time of the dispossession. The inclusion of the public interest as well as the nature of the relationship between the claimant and the object therefore seems to detract from the effort aimed at fundamentally acknowledging the atrocities of the past, despite the passage of time. ¹⁵⁵

The claimants’ position in the Netherlands

To continue with the criticism of the Dutch situation, it should be noted that the RC, after 30 June 2015, has not applied the balance of interest test and thus did not take the public interest into account in its reasoning regarding NK Collection recommendations. ¹⁵⁶ A recent case dealt with by the RC might give further cause for a more nuanced take on things. This case is relevant not only in light of the current critique but also from a comparative perspective in light of the SAP’s stance on the public interest. The RC awarded restitution in 2019 in the claim of the heirs of Herbert Gutmann, invoking the criticized yardstick of reasonableness and fairness. In 2010, the same case involving the same heirs yielded a negative recommendation from the SAP. The differing results in the Gutmann case will be discussed below, along with a few other Dutch cases on the basis of which one could easily argue that one is better off at the RC than at the SAP.

Comparing the Herbert Gutmann claims

In 2010, the SAP dealt with a claim from the heirs of Herbert Gutmann, a renowned Jewish banker/art collector, concerning an oil sketch entitled Coronation of A Virgin by Peter Paul Rubens, in the collection of the Courtauld Institute. ¹⁵⁷ The financial crisis of 1931 affected Gutmann severely. His own Deutsche Orientbank was subsumed by the Dresdner Bank, where he was also a board member, and the Dresdner Bank was nationalized in 1931 due to the crisis. Gutmann was fired that same year and lost his income while being substantially in debt to the selfsame Dresdner Bank. ¹⁵⁸ Once the Nazis came to power in 1933, the Dresdner Bank was Aryanized.

The case centered on the question whether Gutmann’s decision to auction off his art collection in 1934 had been forced by the Nazi regime. The SAP answered this question in the negative. According to the SAP, the debts to the Dresdner Bank had already accrued by the time the Nazis came into power, which caused Gutmann to sell his art collection. The demand for repayment of Gutmann’s debt was not thought to have any Nazi connotations, as other shareholders of the bank, including an “Aryan,” had received demands for similar amounts of money. ¹⁵⁹ The SAP did acknowledge that Gutmann lost his earnings as a result of Nazi anti-Semitism but concluded that this was not the primary motivating factor for the sale of his art collection. ¹⁶⁰ The SAP, therefore, concluded that the moral “strength” of the claimant’s case was “insufficiently strong” to award restitution. ¹⁶¹

On 14 October 2019, the RC issued a positive recommendation for the restitution of objects that had been lost under identical circumstances. ¹⁶² The claimed objects covered by the RC’s recommendation were 14 pieces from a Meissen porcelain service that had been acquired by the Dutch state after World War II via a regular sales procedure, then becoming part of the Dutch National Art Collection. ¹⁶³ Based on the unification of the Dutch policy, the claim was reviewed on the basis of the principles of reasonableness and fairness. Therefore, the Dutch minister argued that the importance of the objects to the Netherlands consisted of their exceptional quality and uniqueness, with an emphasis on their “historic topographical significance.” ¹⁶⁴ In regard to the position of the claimants, much of the RC’s recommendation was devoted to the circumstances of the loss. In this context, the RC referred to the Ekkart Committee’s recommendations on the reversal of the burden of proof for private Jewish individuals in Germany from 1933, barring evidence to the contrary. According to the RC, there was no such evidence in the Gutmann case. Contrary to the SAP’s advice, the RC held that Gutmann’s decision to sell had been involuntary “due to circumstances directly related to the Nazi regime.” Interestingly, the RC held that there was already evidence of Nazi targeting of Herbert Gutmann before 1933, referring to a 1932 Nationalsozialistische Deutsche Arbeiterpartei’s election pamphlet that evidenced that “Gutmann was publicly pilloried for his role in the 1931 banking crisis because of his Jewish descent.” ¹⁶⁵

This assumption was important to the RC’s different weighing of the available evidence and facts related to Gutmann’s debts. For one, the fact that the Dresdner Bank was nationalized in 1931 meant that the Nazis had “rapidly acquired major influence” over the Dresdner Bank, thus putting Gutmann in a “vulnerable position” due to his debts to the bank and the Nazi’s labeling him as one of the persons responsible for the 1931 bank crisis. Furthermore, the RC found evidence that Gutmann’s debts were at least partially “fabricated – documents were found indicating that the Dresdner Bank had initially calculated Gutmann’s share of debt to be four times higher than it should have been and there was no indication of a subsequent correction. Additionally, it could be “deduced from the available documents” that, although Gutmann had enough possessions to cover his debts at the time, he was not allowed to sell them. Finally, whereas the SAP held that Gutmann and the “Aryan” shareholder were treated equally with the demand to repay the debts, the RC found that this was not the case. According to the RC, the “Aryan” shareholder was offered a favorable repayment arrangement by the Dresdner Bank. Among other things, the “Aryan” shareholder was granted a payment postponement, only needed to repay part of his total debt to the bank, and was given years to do so. ¹⁶⁶ Gutmann’s decision to auction off the objects should therefore be considered a forced sale “in accordance with the Ekkart Committee’s third recommendation.”

The RC then emphasized that it was obliged to issue a recommendation on the basis of the yardsticks of reasonableness and fairness. In weighing up the interests, however, “very great weight [was] given to the way in which possession was lost and to the need to right wrongs committed during and as a result of, the Nazi regime,” which outweighed the state’s interest in retaining them. ¹⁶⁷ Lastly, Gutmann did use the proceeds of the sales to pay off his debts to Dresdner Bank, but the RC did not attach a condition for repayment of the sales proceeds to the award of restitution. Gutmann’s debt had been exaggerated by a factor of four, meaning that it could not be assumed that the proceeds were disposed of freely. ¹⁶⁸

The claimants’ position as reflected in recent Dutch cases: A “step back” indeed?

One cannot draw definitive conclusions based on one or even a handful of cases. ¹⁶⁹ A comparison of these two cases, however, does suggest that a conclusion to the effect that the Dutch restitution policy has lost sight of the victims’ perspective is not entirely justified. The generous governmental guidelines, which aimed to facilitate former owners and their heirs, continue to reverberate through the recommendations of the RC. ¹⁷⁰ In the case of the Gutmann heirs, this led to a rather unequivocal and novel emphasis on the need to right wrongs, with the RC even widening the scope of the government guidelines by taking the course of events before 1933 into consideration when deciding on the involuntariness of the loss of Gutmann’s possessions.

The reasoning in the Gutmann case is not an anomaly if one considers other similar recent cases such as the binding opinion in the claim of the Kirstein heirs, a German family of Jewish descent. That claim concerned a Max Liebermann drawing that featured a Jewish neighborhood in Amsterdam. ¹⁷¹ The claimed object was owned by the Amsterdam municipality, and, like Lewenstein/Kandinsky, the case was decided on the basis of the principles of reasonableness and fairness. Although it could not be established with absolute certainty that the claimed object was still in the possession of the Kirstein family at around the time of the loss in 1939 – let alone the exact fate of the object in terms of how and when it had been lost – the claimants prevailed. ¹⁷² In the absence of any indication that the Kirstein family had themselves sold the object, greater weight was given to the evidence of the family’s persecution under the Nazis starting in 1938 (when the family’s publishing business was placed under the control of a Nazi administrator). ¹⁷³ The RC considered it “sufficiently plausible” that the object had been lost due to circumstances directly related to the Nazi regime, expressly referring to Washington Principle IV, which, for the assessment of such claims, makes a plea for consideration of any “unavoidable gaps or ambiguities in provenance.” ¹⁷⁴ The RC concluded that restitution should be granted since “considerable weight” should be given to the heirs’ interests despite the public interest argued by the Amsterdam municipality in keeping the object due to its unique subject matter in light of Amsterdam’s Jewish history. ¹⁷⁵

One could easily argue, in light of the Liebermann case, that the disparate treatment of the Gutmann claim by the SAP and the RC hinges on the more favorable consideration accorded to the claimants’ position in the Netherlands since the founding of the RC in 2001. Here, the contrasting assessments of the two panels about 10 years ago in the case about the art collection of Kurt Glaser can serve as an illustration. ¹⁷⁶ Although the SAP concluded that Nazi persecution was the predominant motive, it was not decisive. The “causation” argued by the Courtauld Institute was considered more convincing. ¹⁷⁷ Particular weight was given to Glaser’s letter to his friend, the famous artist Edvard Munch, in May 1933, in which Glaser attributed his decision to sell his art collection not only to Nazi persecutory measures resulting not only in the loss of his office and eviction but also to his desire to start a new life after the death of his wife. ¹⁷⁸ Also, whereas the heirs argued the involuntariness of the loss in part based on the fact of the German monetary compensation received post-World War II, the SAP felt that the sales proceeds of the auctions accurately reflected the prevailing market prices at the time. ¹⁷⁹ In the Netherlands, the Glaser claim concerned an object from the NK Collection, which meant that the case was dealt with based on the generous government guidelines. Since Glaser sold his collection in Germany after 1933, this meant the reversal of the burden of proof, and, thus, the sale was considered involuntary. Contrary to the SAP, the RC did not conclude that there was evidence “expressly” proving otherwise. ¹⁸⁰ Neither did the monetary compensation received post-World War II constitute an impediment to restitution since the settlement was not considered to be a waiver of the rights to the lost objects and the Dutch state was not a party to the settlement. ¹⁸¹ Hence, the RC issued a recommendation for restitution.

Conclusion

The establishment of the RC in 2001 was a decision motivated by the wish to facilitate claimants who would most likely come up empty-handed if their cases were approached in strictly legal terms. Motivated by a new victim group-oriented approach in which the emphasis was on righting extreme wrongs of the past as grounds to supersede legal barriers, the Dutch government decided to provide the opportunity to once again claim objects that had been long since involuntarily lost. It appears, however, that current critique is rooted in that same new paradigm, which paved the way for addressing the issue of Nazi-looted art in the first place. Over time, the way in which this deliberate choice was constructed in the Netherlands became a source of confusion. For the most part, this confusion resulted from the well-intentioned choice for a generous approach, resulting in two separate assessment frameworks. The choice for low-threshold and flexible proceedings to facilitate claimants resulted in a changing set of applicable substantive rules, which over time made the Dutch restitution policy and its RC vulnerable to critique. Changing the rules of the game in the Netherlands has brought about a lack of clarity regarding the predictability of the outcome of the procedure. ¹⁸² The fact that these changes incidentally work to the disadvantage of the claimant has only reinforced this critique.

The 2012 unification of policy failed to provide the desired clarity, as demonstrated by the recent Lewenstein/Kandinsky case and consequent developments. Again, as in the case of the Semmel heirs in 2013, the legitimate aim of the RC was – and still is – publicly questioned, primarily because of the inclusion of the public interest in the applicable assessment framework. ¹⁸³ Although the inclusion of the public interest in the assessment framework and the current application thereof by the RC, both from a comparative view as well as from a more principled stance, may give reason to doubt the fairness of the Dutch policy framework, the Lewenstein/Kandinsky case was a highly complex case to begin with. There were just too many inconclusive aspects to this case, which made it impossible for the RC to construct a chain of plausible inferences in the absence of hard evidence. A simple answer to the effect that the circumstances of the loss of possession were too vague, in this case, to render a positive decision on restitution might have been more satisfactory to all parties involved.

Also, the comparative view as applied to the Gutmann claim and the Glaser cases, which yielded different results at the SAP and the RC, and the other RC cases cited in this article, suggest a more nuanced conclusion on the merits of the Dutch policy. On the contrary, the Dutch policy rules and their application by the RC – for example, the presumption of involuntary loss – indicate a more favorable approach to claimants in comparison to the English model. This is interesting given that the SAP has repeatedly refused to consider the public interest a paramount factor, as it would otherwise infringe on the very principle of restitution. Therefore, it remains to be seen whether one can indeed fully substantiate the “step-back” criticism. One thing is clear: the Dutch policy as it now stands reveals a certain vulnerability, which is primarily due to its rather “lightweight” and flexible institutional framework. The victim’s perspective is still taken into account by the RC, but the patchwork of applicable substantive rules easily clouds a more nuanced conclusion. That said, changing the rules of the game, even with proper motivation, has led to a sense of arbitrariness, and raises questions about the legitimacy of the undertaking, as such. It seems therefore that the current discussion primarily demonstrates the downfalls of a policy that is entirely based on flexible policy rules. ¹⁸⁴ The resulting vulnerability affects the legitimacy of the Dutch policy framework’s aim to provide just and fair solutions with due consideration of the claimant’s perspective.