A new press statement from a death camp memorial in Poland reads very odd to me because it’s so obviously immoral. Here’s the logic the spokesperson is floating:
Pawel Sawicki, speaking for the Auschwitz Memorial, told the AP that the watercolors Gottliebova Babbitt was forced to paint for Mengele “must remain in the Memorial” as documentation of crimes. He said they must stay out of the category of Nazi-looted art, because she painted them against her will as a prisoner and therefore had no ownership of them.
Well, that’s entirely backwards on the face of it.
I mean, “looted” means something you owned was taken from you. Sawicki says she painted them against her will as a prisoner and so could never claim ownership, which means nothing was taken, which means they don’t count as looted. That transfers slave work to the enslaver: SS-commissioned records made with SS materials, belonging to the camp administration from the moment they existed.
With that in mind, I’m guessing he insists on the category because the daughters’ lawsuit relies on a 2024 California law (Code of Civil Procedure § 338.2) covering art taken or lost as a result of political persecution. If the paintings were never hers, nothing was taken from her, and the Memorial can argue the law stops applying. The Memorial exhibits her coercion as evidence of Nazi crimes, and then cites that same Nazi coercion as why they too should deny her title? The same coercion serves as the exhibit and then the defense against restoring rights to the enslaved. What are we doing here?
Let’s run through the problems with the memorial logic:
- The Auschwitz Memorial just voided the victims’ rights. They invert how duress normally works. Coercion usually voids the taker’s claim. Here it’s used to void those who experienced loss. It’s effectively work-for-hire doctrine with Mengele as the employer, where the product of slave labor belongs to the enslaver (or the people now running the memorial to the victims of the enslaver). Poland took over the site in 1947. The UNESCO record gives the sequence: the museum bought her paintings in 1963 and 1977, and identified her as the living painter in 1969. It acquired the seventh in 1977 anyway. By her family’s account she had already come to Poland in 1973 to take them home and was turned away, as if she didn’t have rights to her own work. The museum has kept all seven through every request since. By its own published account it claims purchase was legal as set under Polish law, with a copyright conceded to her. Sawicki’s line is old. The daughters’ complaint alleges museum officials called her Mengele’s worker and told her that legally only Mengele might have a claim to the paintings. Sawicki says it now about a Jewish survivor while the Memorial, by its own account, already concedes the copyright is hers.
- From the premise of step one, the Memorial’s title runs through the Nazi perpetrators. If the victim never owned her own work, the SS did, and everything downstream inherits from the SS. The documentation is brief. It is the museum’s own account. Three days after liberation a boy from Oświęcim came to the camp to take in a Jewish orphan from the horrific Hungarian transports. A freed prisoner handed him a roll of seven watercolors signed “Dinah 1944”. The girl grew up in that family and sold six of them to the museum in 1963. The museum acquired the seventh in 1977 and identified Babbitt as the painter in 1969. It has known for 57 years whose work it holds under dubious logic.
- So far it’s a failure of morality, but there’s also just a simple logical disaster. The memorial contradicts itself. The Memorial says it fully respects the rights of the people who created these documents right after arguing she had none. The negation of full rights comes from their own loud denial of a victim’s rights.
- The US House of Representatives rejected the premise in 1999 when H.Con.Res. 162 urged the museum to transfer the seven originals to her. A Senate resolution introduced in 2001 called her unquestionably the rightful owner. In 2002 Congress made it law. Section 705 of the Foreign Relations Authorization Act (Pub. L. 107-228) recognized her moral right to the paintings and urged the President to make all efforts necessary to retrieve them. The museum has held the same position through all of it. Why? Poland has a record here. In August 2021 it enacted a thirty-year limit on challenges to administrative confiscations (Dz.U. 2021 poz. 1491). The law covers every claimant, and its effect was to close the cases of Holocaust victims’ heirs seeking property nationalized after the war. The US Secretary of State said he deeply regretted it. Israel’s foreign minister called it antisemitic. The Memorial is a Polish state institution and, after Babbitt died still asking, its answer to her daughters lands in the same place: the victim gets nothing.
The museum could make a much more logical argument instead, which proves the ownership claim is unnecessary.
A Polish state institution chose to answer a Jewish survivor’s daughters by saying that enslavement to Nazis cost her the title to her own work, which turns the crime against her into the ground for keeping her work. They could have said that the portraits are among the few surviving records of Mengele’s experiments on Roma and Sinti victims, the subjects were murdered, and there’s simply a case that evidence of genocide is needed at the site and that the Roma have a stake too.
That’s an argument about custody and public interest, which doesn’t need the argument that a victim of Nazis never owned her own work. Think about the people who today run a site drawing attention to a victim of Nazism. The Polish administration tells visitors the Nazis forced her to paint. It tells the press that some other force, not them, is why she never owned the paintings, while it keeps them from her family.
How convenient to point a finger at the Germans as the bad guys while Poland denies victims’ rights. Germany ran the camp, with SS men recruited from across Europe, ethnic Germans from Poland among them. The town around it knew. Poland took over the site in 1947 and has refused to give the enslaved artist her own paintings through every request since. Poland wrote this into law twice. The decree of 8 March 1946 (Dz.U. 1946 nr 13 poz. 87) gave the state title to property its owners failed to reclaim in time. Three million of Poland’s Jewish citizens were murdered, their homes and businesses classified by Poland under the word abandoned instead of looted and stolen. The 2021 law blocked challenges. The Memorial’s refusal is just that.
It’s not very hard to figure out. By its own account the museum already concedes the estate controls reproduction, so a licensed copy is a deal it has the legal footing to make today. Make a copy of the art, license it from the victim’s estate, and then present the replica at the site. Give the original back to the victim’s estate, where it belongs.
Apply the Memorial’s rule to the very ground it stands on today.
The SS seized the barracks from the Polish army and the fields from expelled Polish villagers. If what the SS took by force became SS property, the site itself belongs to Germany today. Poland rejects that rule to reclaim rights over its land. It should reject that rule for her paintings, because it’s the same rule.
