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Nazis Art Plunders: All That Belongs to the Past ? by PATRICK HOWLETT-MARTIN

A late consensus regarding the search for works of art stolen from Jews during WWII and their return to their legitimate owners appeared, with varying degrees of conviction, in the 1990s. States‘ anxieties regarding past complicities encouraged national legislation in returning Holocaust assets. Further incentives were generated from the establishment of the World Jewish Congress Commission for Art Recovery, and the adoption by forty-four countries in 1998 of a non-binding text known as the Washington Principles. It recommends that any art object sold by Jews for less than its fair value during the period Jan. 30, 1933 through 1945 could be considered as a candidate for restitution. Adherence to these principles is strictly voluntary. The Washington Principles cover only artworks in the possession of public institutions, and not items in the possession of private individuals. A database of the Conference on Jewish Material Claims Against Germany (Claims Conference), with technical support provided by the United States Holocaust Memorial Museum, reveals the fate of more than 20,000 art objects taken from more than 200 private Jewish collections in German-occupied France and Belgium between 1940 and 1944. Interpol has created an online database with 34,000 works of art stolen from Jewish families and art dealers and administered by the German government. The Commission for Looted Arts in Europe, operating under the auspices of the London-based European Council of Jewish Communities, is assisting museums.In June 2009, the International Holocaust Era Assets conference was held in Prague, seeking to follow up on the decisions made in Washington (1998) and at the Vilnius Forum (2000), which took place under the auspices of the Council of Europe. The 47 countries present made a commitment (the Terezin Declaration) to implement the restitution process. In response to the Washington and Prague conferences, various countries in Europe have set up art commissions to investigate Nazi- looted art claims. The members of the commissions are appointed by the government. With the exception of Binding Opinion cases submitted to the Dutch Restitution Committee, all of the committees give non-binding recommendations. Belgium created the Godeaux Commission (presided by Baron Jean Godeaux) in 1997. However, the Commission‘s remit was limited to researching and clarifying what happened to Jewish properties with no powers of compensation. The program was closed in September 2003. The Presidential Advisory Commission on Holocaust Assets in the United States was created in June 1998 to study and report to the President on issues relating to Holocaust victims’ assets in the United States. The United States, where museums are mostly private, takes the position that claimants and museums should work out the issue of whether the art at stake is Nazi looted art and, if they cannot do so on their own, they should resolve the matter in the courts The Dutch Restitution Committee (Ekkart Committee), an advisory commission composed of lawyers, historians and specialists to assist museums facing claims for restitutionIn was established in 2001. Between 1996 and 1998, Dutch journalist Pieter den Hollander denounced how the post-war restitution of stolen art often ignored the rights of the legal owners, eventually documenting it in his book De zaak Goudstikker (The Goudstikker Case), published in 1998. Some of the greatest Dutch, Flemish and Italian paintings from the collections of at least 17 national museums were returned to the heirs of Jacques Goudstikker in 2006. The remaining 1,200 paintings of Jacques Goudstikker´s gallery are still out there, and the hunt continues. Dozens of artworks have been located in museums throughout the world including two of the most important works from the Goudstikker collection: Adam and Eve by Lucas Cranach the Elder at the Norton Simon Museum in Pasadena, California, and The Temptation of St Anthony by David Teniers the Younger in the Wallraf-Richartz Museum in Cologne, Germany. In 1998, the Austria parliament enacted the Federal Art Restitution Act, and established the Austrian Art Restitution Committee requiring restitution of Jewish property plundered by the Nazis. It was passed after the Leopold Museum of Vienna had spent more than a decade fighting in Jewish heirs in court. Austria transformed the Leopold Museum in Vienna into a private foundation in 1994 in order to more easily evade restitution claims by heirs. Most notable among them are the descendants of Walter Westfeld, a Jewish art dealer and collector who died at Auschwitz in 1943, those of Heinrich Rieger, murdered with his wife Berta at the Theresienstadt concentration camp in 1942 and of Fritz Grünbaum arrested by the Nazis as he fled Vienna in 1938 and died at Dachau concentration camp in 1941. Grünbaum ‘s collection disappeared during Nazi time and part of it appeared on the art market in the early 1950, through Swiss Art dealer Eberhard Kornfeld.The Leopold Museum possesses a number of works from these looted collections such as the Austrian Gallery at the Belvedere, the Albertina, the Kunsthistorisches Museum. They have been authoritatively researched and published by the art historian Sophie Lillie, whose work detailed the machinery of expropriation and destruction that culminated in genocide. In 2003, the German Federal Government took the initiative to establish the Beratende Kommission also known as the “Looted Art Commission” (“Raubkunstkommission“). The Commission invites claims concerning cultural property looted during the Nazi time currently in the possession of public institutions in Germany, and it acts as a mediator. The Kunstmuseum Bern in Switzerland which received the trove of Nazi-era art found in March 2012 in the Munich flat of Cornelius Gullitt, son of a Nazi art dealer, pledged to return looted works to the heirs of the original owners. But after a two-year and nearly $2 million investigation the German panel of thirteen experts in art history set up to determine ownership announced in January 2016 it had identified the rightful owners of only five of the works. Almost 500 works require further research. The works are listed in the Lost Internet Data Base (Gurlitt Art Trove). But why have German authorities remained silent about the find for nearly two years? And given Hildebrand Gurlitt’s known work for the Nazis, how was it possible for his son to auction off works, as he did without raising suspicions? How could Hildebrand Gullitt loan in 1956, the year of his death in a car crash, 23 works to a New York exhibition of German art on paper, sponsored by the West German government and organized by the American Federation of Arts? Most museums and governments have done little to live up to the international agreements. Germany ignored or actively frustrated restitution for decades despite the commitments made in 1998 at the Washington Conference on Nazi-Confiscated Art. Under current law former owners cannot seek the return of their property more than 30 years after it was plundered. For the Jewish heirs this means that the window for legal restitution closed in 1975. The German Federal Government Commissioner for Culture and the Media, Monika Grütters, has proposed the creation of an independent center to search the nation‘s museum collections for stolen art and the Bavarian justice minister presented in February 2014 a draft law to the upper house of the German parliament to suppress the 30-year statute of limitations. Germany has gone to great lengths to pay reparations and acknowledge its wartime crimes. But the Gurlitt case proves the country still hasn’t done enough. The British Court of Justice, ruling in May 2005, sustained the British Museum Act of 1983 (which forbade restitution for any reason), emphasizing that no moral obligation to return a work of art could be imposed on an institution. But in December 2009, the British parliament adopted a specific piece of legislation concerning works of art stolen from Jews in the period 1933-1945 (Holocaust Stolen Art Restitution Act). This act contains a sunset clause which provides for the committee to continue to exist until the year 2020. A Spoliation Advisory Panel was created to consider claims from anyone who lost a cultural object during the Nazi era (1933-45) The British Spoliation Advisory Panel (SAP) considers both the moral and legal strength of the claimant‘s case and the institution‘s moral obligations. Return to the claimants is debarred in any case under present statute law, which prohibits the disposal by the Tate and other major national collections of objects vested in them (section 4 of the Museums and Galleries Act of 1992), The Spoliation Advisory Panel favored compensation or ex-gratia payment to the claimants so that the paintings would remain displayed in the museum and seen by the public.The first claim concerned a Tate-held Jan Griffier the Elder painting. The Tate had good legal title but the SAP upheld the claim on its moral strength, and recommended an ex gratia payment, which was awarded. In 1998, Italy created the Anselmi Commission to study whether Italian museums and galleries still hold looted Jewish property. It finalized a summary report in April 2001. But a 16th-century painting by Girolamo Romano (Christ Carrying the Cross Dragged by a Rogue) was seized in 2011 by the U.S. attorney general while it was on loan to the Mary Brogan Museum of Art and Science in Tallahassee from the Pinacoteca di Brera in Milan, an institution owned by the Italian state, which acquired the painting in 1998. The painting had been confiscated by the Nazis in Paris with over 70 other works from the household of Frederico Gentili di Giuseppe, an Italian Jew and then sold by the French Vichy government in 1941. In April 2012, a federal judge ruled on the ownership of the painting in favor of the heirs, who gave it to Christie‘s for an auction at Rockefeller Plaza on June 6, 2012. Legislation was adopted that stipulates that the assets stolen from Jewish citizens which could not be returned to their rightful owners or their heirs, and which are still retained or held by the Italian state for any reason shall be assigned to the Union of Italian Jewish Communities. This law has been applied in few cases. France created the mission Mattéoli (Mission d´étude sur la spoliation des Juifs de France) in 1997. In the early 1950s, France prematurely began selling objects that did not belong to it, and the museums receiving the 2,143 works of art have shown little enthusiasm in identifying their legitimate owners. Since 1951, only 103 works of art have been returned to their owners or the owner‘s heirs. In 2008, the principal French museums organized an exhibition at the Paris Musée d‘Art et d‘Histoire du Judaisme with some fifty paintings stolen from Jewish families by the Vichy collaborationist government. The exhibition was titled To whom did these paintings belong? This is only a small part of France’s collection of unreturned works of art, known as the Musées Nationaux Récupération (MNR), which is a specified classification. But each museum has created its own internal classification and it is not easy to discover the history of the work, specially when the original name has changed slightly. In fact, the French never made any serious attempt to find the rightful owner‘s heirs. Corinne Bouchoux, the leader of the Green party in the French Senate, who had issued a legislative report particularly critical of the lack of public access to French archives, which prevents descendants from gathering evidence to press claims. Some records, including those of the Louvre, are closed to the public, and there is limited access or none at all to many of the other archives, which are held by museums and government or military agencies. Ms. Bouchoux, who published a book about Rose Valland, a French historian who secretly recorded details of the Nazi plundering of National French and private Jewish-owned art from France during the occupation said that, in addition to the 2,000 works known to have been turned over to museums, there may be another 4,000 with murky provenance that have been donated to museums since the war. The donators were listed as anonymous in order to give the works some legitimacy. No effort has been made to conduct a comprehensive audit of any of those works, she said in an interview[1]. Police raids on the Wildenstein Institute, an art research center, in Paris in January 2013 found 30 artworks that had been reported missing or stolen, some from Jewish families whose property was looted by the Nazis. Julie Reinach, a member of the French Resistance during the war whose husband died in Auschwitz, has searched for years for works plundered from her collection in 1941 by the Nazis. Guy Wildenstein, the billionaire international art dealer, from a family that has traded art for five generations since the 1870s, told the Police that the Institute he presides over never inspected the vault, which lacked an inventory record, despite the fact that all art galleries carefully monitor works to comply with tax and insurance requirements. In 2001, the Wildenstein Gallery arranged the loan of a Van Gogh painting stolen from Julie Reinach‘s collection to the exhibition Van Gogh and Gauguin: The Studio of the South (September 22, 2001 – January 13, 2002) at the Art Institute of Chicago, listing the provenance only as private collector, the Wildensteins denying they own the painting.The Metropolitan Museum of Art in New York owns a work by Monet Torrent of the Petite Creuse at Fresselines, said to have been purchased by the Wildensteins in 1958 from a private collector. The work belongs to Max Heilbronn and vanished in 1941 after a Gestapo raid. Heilbronn was a member of the Resistance. He was imprisoned in Buchenwald. The work is not on display, though the museum has posted a copy online with a cynical notation that says briefly: “This view of the shallow rapids near that confluence is nearly identical to another painting (private collection)” ! Mr Wildenstein is a former close political associate of former French president Nicolas Sarkozy. The ex-president decorated him with the Legion of Honour, France’s highest award, in 2009. In March 2014, France returned three oil paintings found in the vault to Jewish families who had been pressing claims for years. The announcement was timed to coincide with the French premiere of George Clooney‘s movie The Monuments Men about an American organization (the Monuments, Fine Arts and Archives Section) that helped recover Nazi-looted art. The Monuments Men remained in Europe for up to six years following the conclusion of fighting to oversee the complicated restitution of stolen works of art. Upon returning home, many of the Monuments Men and Women had prominent roles in building some of the greatest cultural institutions in the United States. They became directors and curators of world renowned museums such as the Met, the MoMA, the National Gallery of Art, the Cleveland Museum of Art, the Toledo Museum of Art, and the Nelson-Atkins Museum of Art. Thanks to records-keeping by the German Shenker transport company, they were able to prove that Paris dealers, Swiss collectors, German experts and museums, in particular the Museum Folkwang in Essen, were deeply implicated in the looting of Jewish property. The restitution of property and assets is an important part of trying to partially resolve the incalculable injustices perpetrated by the Nazis. Dispossession was a form of persecution preluding to extermination. But most governments have done little to support Jewish post-war restitution, and at times actively conspired to deter such efforts. Some countries still show reluctance to critically evaluate the collections of their principal public museums (Poland, Hungary and Lithuania). Karl Luger, the notorious Austrian anti-Semite and able mayor of Vienna, referred to the Hungarian capital as “Judapest.” By the time Soviet troops arrived, more than 500,000 of Hungary‘s pre-war Jewish population of 825,000 were dead. Baron Mor Lipot Herzog assembled one of Europe‘s great private art collections, the largest in Hungary, with more than 2,000 pieces. Paintings from the Early Renaissance, Flemish primitives, and canvases by Bassano and Tiepolo, and Dutch painters of the 17th century formed the core of the collection. It was the richest private collection of El Greco outside of Spain. The art was looted by occupying Nazi Germany forces and by the Hungarian government. Herzog died in 1934. His son, András Herzog, as a Jew was drafted for service in a forced labor battalion on the Eastern front, where he perished in 1943. Hungary pledged to return property confiscated from the Jews, yet kept the vast majority of the Herzog Collection. The heirs filed suit against the Republic of Hungary in the U.S. District Court of Columbia in January 2011, seeking the return of more than 40 works from Budapest museums (the Museum of Fine Arts, the Hungarian National Gallery and the Museum of Applied Arts). Museums, galleries and collectors in the United States have shown reluctance in observing a procedure which, without any fixed deadline, would weaken, in their opinion, their catalogs, collections and vocations. The guidelines of the American Alliance of Museums and the Association of Art Museum Directors do not mention that museums are not supposed to bring suit against claimants who may come forward with their morally based claims under the Washington Conference. However, that is just what some U.S. museums have done. U.S. museums have continued to bring declaratory judgment actions against Nazi-era victims who have come forward with their morally based claims under the Washington Conference, although no other country which is a signatory to the Washington Conference has permitted its museums to initiate such suits. Museums use the statute of limitations and laches (unreasonable delay and prejudice) as a shield against the claimant‘s replevin counter-claims. In June 2015, the World Jewish Restitution Organization published a report condemning U.S. museums for using the legal system to dismiss rather than resolve cases where previous owners request restitution for Nazi-era looted art. In January 2006 two museums, the Toledo Museum of Art and the Detroit Institute of Art, filed suit against the heirs of Martha Nathan. Martha Nathan’s family was persecuted by the Nazis who wanted to take over their bank, the Dreyfus Bank, one of the largest private banks in Germany at that time. The bank was seized and Martha Nathan was forced to flee Germany. The MoMA and Guggenheim museums filed suit in New York to quiet title against historian Schoeps, an heir of the Jewish Berlin banker Paul Mendelssohn-Bartholdy. It is the position of the American Alliance of Museums, dedicated to promoting excellence within the museum community, that museums should take all reasonable steps to resolve the Nazi-era provenance status of objects before acquiring them for their collections whether by purchase, gift, bequest, or exchange. Oklahoma lawmakers unanimously passed a resolution in May 2015 instructing the Fred Jones Jr. Museum of Art at the University of Oklahoma to step up provenance research to determine whether any works in its collection were looted by the Nazis during the Second World War. The University has been criticized in the past for not performing due diligence on 33 works of Impressionist art that Clara and Aaron Weitzenhoffer left to the Fred Jones Jr. Museum in 2000, among them Camille Pissarro‘s La bergère rentrant des moutons (Shepherdess Bringing in Sheep), seized by Nazis in 1941, registered in the Einsatzstab Reichsteiter Rosenberg (ERR) Database, which contains over 20,000 works that the Nazis confiscated from French and Belgian Jews during the occupation of those countries. Léone Meyer — whose entire birth family died in Auschwitz — now holds the full title to the piece, as announced by her lawyers in February 2016. The Swiss banks never made a diligent effort to find the heirs of Jewish assets stolen during World War II. They had agreed to a $1.25 billion settlement with Holocaust survivors only after being sued and boycotted by several U.S. states, included California, New Jersey, New York, and Pennsylvania, after refusing to return assets deposited for safekeeping during the war. In 2009, the Swiss Bank Corporation sold a painting by Degas for nearly $11 million through a foundation the bank claimed was the heir of Ludwig and Margret Kainer, German Jews whose vast art collection was seized by the Nazis. But the foundation was a sham to cheat the rightful heirs. Not having been one of the belligerents, Switzerland was not occupied and the Allies had no real way of monitoring the country‘s practices as regards stolen art. In fact, the Swiss authorities have done nothing to prevent the sale or concealment of stolen art during the war. The Swiss bureaucracy stifled postwar investigations by evasion and stalling tactics. Swiss law protects a buyer of stolen goods who is unaware of their history. Under Swiss law, a good-faith purchaser of stolen property acquires title superior to that of the original owner. Moreover, all purchasers of property, stolen or not, are presumed to act in good faith, and a claimant seeking to reclaim such property bears the burden of establishing otherwise. The Swiss Musée des Beaux Arts in La Chaux-De-Fond does not dispute the fact that the painting by John Constable (1776-1837), From Dedham to Langham, was looted but they say the museum accepted it in “good faith” in 1986 from a donor (the art collector, René Junod). The city of Zurich spent $208 million to better display in Zurich‘s Kunsthaus Fine Arts Museum the collection of mostly French Impressionists and Post-Impressionists works amassed by a German citizen, turned Swiss, Emil Georg Bürhle, an arms manufacturer and a Nazi arms dealer whose collection is sheltered in a Foundation Following the findings of an Independent Commission of Swiss Second World War Experts, Bührle, who died in 1956, had to return 13 paintings of French-Jewish origin to their former owners or their heirs. He bought back nine of them, including a Degas that had once been acquired by his friend Hermann Göring. Some 300 paintings are privately owned by the heirs and not by the Bührle Foundation and are not yet accessible. The Swiss government published the Bergier Report in 2001 trying to explain the role the nation played in the sale of Nazi-seized art during World War II. Artworks stolen by the Nazis mostly from Jewish families, artworks considered as degenerate‖ seized in Museums or in the artist´s own atelier, and masterpieces taken from German Museums to be sold to raise foreign currency, all passed through Swiss galleries. Many museums in Switzerland have yet to conduct provenance research on their collections in order to identify which works could have been stolen by the Nazis. And of course even less can be expected of Swiss private collectors or Geneva‘s free-port storage. Berlin Street Scene (Berliner Strassenszene) by the painter Ernst L. Kirchner, restituted by the Brücke Museum of Berlin in July 2006, was sold by Christie‘s in November of that year for 38 million dollars. The sale triggered a parliamentary debate in Germany because the family of Alfred Hess, collector and owner of the work, who had taken refuge in Switzerland during the war, had already sold the work in 1936 for an impressive sum. The Brücke Museum received from the heirs the price it had paid in 1980 (one million dollars), which, it turns out later, had been advanced to the heirs by Christie‘s. The debate over Berlin Street Scene shows the grievance against the growing profit motive in the moral universe of art restitutions. Legal and moral aspects of restitution issues are clearly intertwined but money is always behind the scenes. The opponents of restitution insinuate that the art market is the true catalyst of the cynically-termed “Shoah business”. As a result of the strong increase in value of works of art after the Second World War, some public museums have asked for the creation of a fund that would allow them to negotiate compensation agreements and keep the works. Museum directors wonder where and when to draw the line for these agreements. Should restitution still be possible as long as children, grandchildren or great-grandchildren are still alive? Even longer? Prices on the art market have exploded in those last 20 years, triggering greed and the « Shoah business ». In most recent cases, a work is sold immediately after restitution, and some attorneys are collecting 30 to 50 percent of the proceeds. Corporations such as the Canadian Mondex Corporation established in 1993 specialize in tracking down and recovering looted works of art. Norman Rosenthal, the former exhibitions secretary at the Royal Academy in London (1977-2008), son of Jewish refugees, called for a unilateral statute of limitations to inhibit Holocaust-restitution claims, arguing that “each person should invent him or herself creatively in the present, and not on the back of the lost wealth of ancestors.” The past belongs to the past ? David Toren, born Klaus-Günther Tarnowski, filed a lawsuit against the Federal Republic of Germany and the State of Bavaria in March 2014 trying to rescue two paintings belonging to his great uncle David Friedman, a wealthy Jewish collector  from Breslau whose unique child, Charlotte, was deported Auschwitz where she was murdered in October 1942. The young David Thoren managed to escape to Sweden on August 23, 1939, as part of the Kindertransport, the organized operation to save Jewish children from the Nazis. He was only fourteen years old, and would never see his parents. They were gassed at Auschwitz in March 1943. More than 1400 of Breslau´s Jews were deported to Auschwitz and 809 of them were gassed. Nearly 3000 were taken to Theresiensdat camp, only 24 survived. In Breslau´s Jewish population numbered 23 000 Jews in 1930; when the war ended only 160 Jews were alive. David Toren, now aged 90 and blind, lives in New York. Two Riders on the Beach by the German-Jewish Impressionist painter Max Liebermann finally returned to Toren in 2015. It went under the hammer at Sotheby’s in June 2015 for £1.865 million ($2.92 million). The past belongs to the past..or is it ? In spite of the non-bending Washington Principles on Holocaust-Era Assets (1998), hundreds of thousands of artworks and other objects looted from victims of the Holocaust have yet to be returned to the owners or their heirs. Nearly 20 years since the Conference, much of the momentum for art restitution embodied in the Washington Principles has been partially lost. In the United States, where the vast majority of museums are privately owned, museums have turned to technical defenses in dealing with claims and have taken preemptive action to prevent potential claimants from seeking restitution (Norton Simon Museum, Yale Museum of Art, Detroit Institute of Arts, Toledo Museum of Art, Museum of Fine Arts in Boston, Museum of Modern Art in New York etc..). The general approach of the main U.S. museums is to take claimant to court to end provenance disputes rather than trying to settle them privately or through binding arbitration. Margaret Doyle, a spokeswoman for MoMA, mentions “an obligation to the public to defend our ownership appropriately” in trying to justify the Museum’s refusal to return three works in the Museum to the family of the artist George Grosz that were the subject of a forced sale after Grosz fled the Nazis in 1933. Several museums in the United States have backtracked on their pledge to settle Holocaust recovery claims and have resorted to legal action. “The response of museums has really been lamentable” according to Jonathan Petropoulos, the former research director for art and cultural property of the Presidential Advisory Commission on Holocaust Assets. It therefore befits the museums to be observant and alert as regards the provenance history of their collections. This applies equally to artworks they intend to acquire in the future. Although the Nazi period is more than half a century behind, the museum world should be confronted with its sad consequences every day. Nazi looting regarded all sorts of assets, works of art merely being a small part, albeit the most publicized by the media: sale or liquidation of industrial or commercial enterprises, real estate, seizure of bank accounts, confiscation of cash at the entrance to the concentration camps, theft of furniture and goods belonging to Jewish families and their shipment to Germany. Museum curators and art dealers should always keep the immensity of this tragedy in mind./.