THE SCRAMBLE FOR LOOTED ART
In a special JC investigation, Rachel Lasserson reports on how descendants of Holocaust victims are sending shockwaves through the art world by winning back stolen paintings worth millions
he art world is in for a shock. The recovery of Nazi-looted art has only just begun.
Museums and private collectors are still reeling over the £20.5 million windfall last November received by Anita Halpin, the London-based chair of the Communist Party of Britain, when Christie’s in New York made her a multimillionairess by selling her family’s restituted painting, Berlin Street Scene by Ernst Ludwig Kirchner. Now experts in London and abroad predict the floodgates have opened for a slew of similar cases. According to a JC investigation, scores of artworks, carted off two generations ago from their original owners under the Nazi regime, are soon likely to be handed back to the owners’ families for resale.
The process will not be straightfoward. Families will have to spend months, if not years, confronting tortuous legal processes. But Anita Halpin’s successful legal claim — for a painting looted over 60 years ago — and other recent high-profile restitutions are likely to herald a wave of new returns, experts suggest.
Unlike other spoils of war, the systematic looting of property, including art, was an integral part of the Nazis’ programme to wipe out Jews and Jewish culture. But now several forces are at work to create what could be the perfect storm for families to lodge successful claims.
Prices at fine-art auctions have hit record highs, thanks to City bonuses and new money from Russia and the Far East. This has raised awareness among families of the value of missing art taken from their mostly Jewish ancestors, many of whom never made it out of Nazioccupied Europe alive. This in turn has spawned a generation of art detectives and lawyers whose business it is to track down these artworks. Sources involved in the recovery of Nazi-looted art have told the JC on condition of anonymity that lawyers in Germany have started to work on cases under their own initiative before approaching families, hoping to win their business.
A recent US ruling may have tipped the balance in favour of individual claimants. In 2004, in a landmark ruling, the US Supreme Court allowed 92- year-old Maria Altmann to sue the Austrian government for the return of her family’s stolen Klimt. Her successful lawsuit, and the work’s subsequent sale to Ronald Lauder for $135 million — the highest sum ever paid for a painting — has encouraged other claimants to lodge lawsuits in the US courts against foreign governments in their quest for justice.
TKaren Sanig, a leading London art lawyer with Mishcon de Reya, said: “The propensity for claims may have increased with the perceived success of other cases.” It has all been quite a shock for the Austrian museums, still recovering from returning 250 works from the Rothschild collection. Maria Altmann’s Klimt, Portrait of Adele BlochBauer, was one of the great tourist attractions of the Austrian National Gallery. The Dutch government’s decision in February 2006 to return 202 paintings, worth an estimated $100 million, to the heirs of Jacques Goudstikker, a famous Jewish collector, raised the bar further still. Some art-world insiders called it a “bloodletting” for the Dutch museums.
Another new factor is the easy availability of information on internet databases and museum websites. Since the Washington Conference of 1998, at which 44 nations agreed principles for dealing with Nazi-looted art, museums have publicised historical details of their collections. Suddenly, lost art has become simpler to trace.
“The majority of claims came through over the last seven years,” said Mark Stephens, an art lawyer for 30 years at Finers Stephens Innocent in London. “Now claims are doubling year on year with concomitant levels of restitution. We are looking at large amounts of compensation. Every year we are going to see bigger cases as governments formalise their positions on this issue and put their national collections in order. It’s much less clear what’s going to happen to those paintings in private collections, as detection isn’t as good at private sales and auction houses.”
There are plenty more paintings by Schiele, Klimt and Kirchner to come, experts suggest. Most remain in Austria, where they were originally looted. However, with the Austrian government itself now a target for claimants, the future looks grim for its museums. The JC understands that the Albertina Museum in Vienna is currently dealing with around 4,000 claims, and the Leopold Museum is “rammed with stolen Schieles”, according to sources. Switzerland, too, is vulnerable. But it is the US lawyers who are the winners in this story, thanks to their country’s lack of any statute of limitations, and a willingness to expose and halt the trade in stolen art. “Anyone with any brains is going to the US to sort out their claims,” Mark Stephens said. “Where possible, I push cases there as their law is so much better than ours.” US lawyers have become adept in prosecuting cases in European courts together with local lawyers, as in the case of the Goudstikker restitution. They take greater risks, offering no-win-nofee pay structures to attract families who could not afford legal costs without winning back their artworks. After paying the auction house’s commission and her lawyer’s fees, it is estimated that Maria Altmann was left with less than half her $135 million.
Hanging over Elizabeth Taylor’s sofa is a Renoir allegedly looted from a Jewish family during the Second World War. She bought it at a London auction in 1962, when the art world had little interest in a painting’s provenance. Times have changed, as Andrew Lloyd Webber found out last year when he tried to sell a Picasso which had belonged to the Mendelssohn family (who also owned Van Gogh’s Sunflowers), German Jews who “sold” their collection to Hermann Goering’s art dealer. Valued at £30m, the painting was removed from sale. It may now be unsellable.
An estimated f i f t h of the world’s art treasures was taken by the Nazis in the greatest art robbery ever. Hi t l e r d r e a me d o f a gallery, the Linz Gallery, that would house the world’s masterpieces. So the Nazis sought to locate and acquire many of Europe’s most important paintings and artefacts. Private collections — many Jewish-owned — were seized and museums plundered. Some owners managed to exchange priceless collections for passports. Others were forced to sell at a token price. By the mid-1930s, art collectors from around the world, not to mention the wider German
public, were snapping up bargains at regular “Jew auctions” where e v e r y t h i n g f r o m Kl i mt s t o candlesticks were sold to raise funds for the regime.
At the end of the war, the Allied forces stumbled across 2,000 caches of Nazi-looted art. Where possible, a painting was returned to its country of origin. In 1949, the French government offered its museums first choice from unreturned looted works. More than 2,000 of these stolen paintings have been displayed ever since in French museums; 13,000 remaining works were auctioned off, proceeds going to the French government. Other countries adopted a similar procedure. To complicate matters further, the Russian army in Berlin also helped itself to art treasures stashed by the Nazis.
Art experts were flown in to help redistribute the post-war art mountain. A few years later, when these same paintings came back on the market at low prices, many of these same experts became buyers. “Many of the curators from major US museums were involved in the post-war sorting-out of looted art,” according to Jonathan Petropoulos, author of a book on Nazi looted art, The Faustian Bargain. “But the chance to build up collections was too persuasive and many chose to not look a gift horse in the mouth.” Private collectors and auction houses also did a roaring trade in stolen art.
Gradually, survivors began demanding their paintings back. They met with bureaucratic deadends and obfuscation. Although claims procedures were set up across Europe, their time limits ensured that many claimants were too late.
Some survivors, or their heirs, embarked on a lifetime’s search — a painful and fruitless combing of galleries, collections, catalogues and books — in a bid to reclaim what they had lost. In response, the art world cloaked itself in silence. Art historians knew which collector had which painting. Auction houses knew who had bought what from whom. Publishers of art books knew where they could find images for publication. Curators knew who to contact to borrow paintings for exhibitions.
This changed only in 1998, when the Washington Conference, o r g a n i s e d b y t h e US S t a t e De p a r t me n t , d r e w u p “ t h e Washington Principles”. These identified a fair and just solution for all Holocaust-era claims, which in practice meant restitution. Museums were urged to research and publish the provenance of every painting acquired since 1933. Some have complied; many have not.
Doing battle with the courts
You might imagine t hat having successfully traced a painting and proven original ownership, a family might be reunited with its stolen art. But while museums may well be convinced of a painting’s provenance, they are often prevented from returning it to the family by law. In the UK, statutes governing many of the museums prevent the return of paintings (“deaccessioning”).
The London-based Commission for Looted Art in Europe negotiates policy and assists families worldwide to recover their looted art. Its cochair, Anne Webber, says: “The remedy of restitution is not generally available from our national museums and a number of others, because the law prevents the deaccessioning of works of art except under certain limited circumstances, of which Nazi spoliation is not one.”
When four looted works were found in 2002 in the British Museum, the museum “agreed the claim immediately”, says Webber. “But it was unable legally to return the works of art in question, despite its stated desire to do so.” In 2005, the museum took its case for return to the High Court in London but lost. The British Museum and the claimant then went to the UK’s Spoliation Advisory Panel, set up in February 2000 specifically to assess claims and advise on restitution. The claimant gave up his wish for restitution and in May last year was awarded compensation. The British government issued a consultation paper recently to bring in a law to enable restitution, but says it is unlikely to find legislative time for it.
“This is very disappointing for families,” says Webber, whose organisation has led the way on this issue, “particularly as since 2000 the government has repeatedly committed to changing the law. The failure to enable restitution underlines Britain’s otherwise excellent record since Washington in researching its collection and publishing the result.”
Britain is not the only country which does not have a restitution law. Around the world there are Kafkaesque loopholes ensuring that most of the 44 signatories to the Washington Principles cannot in practice return stolen paintings to rightful heirs. The case for returning looted art is usually moral rather than legal. The European Parliament recognises Nazi-looted art as “a moral and ethical issue calling for a moral and ethical solution”.
But without legal remedies, families may be no further forward. In Britain, the restitution on which the Spoliation Advisory Panel has so far advised has not occurred. In fact, the UK is introducing a new “antiseizure” law which will effectively give museums immunity from claims when they display looted works.
Professor Norman Palmer sits on the Spoliation Advisory Panel. He says: “If the UK adopts an antiseizure statute, other countries are likely to follow. The result will be to disqualify more and more national courts as competent tribunals before which title claims can be brought.”
He continues: “An anti-seizure statute could tempt museums
to become less vigilant in the monitoring of loans. Museums might be inclined to think that, because no legal proceedings can be taken against them during the loan period, there is no compelling reason for them to make positive inquiries about the origins and history of the objects they borrow.
“It would subordinate ethics to law and undo much of the good that has been achieved in recent years. To deny a Holocaust survivor access to justice is an austere and arguably disproportionate response. The denial may be particularly distressing where the object is the only tangible reminder of a lost family or home. Not every observer would regard the public interest in promoting international exhibitions, reassuring lenders that works will be returned and reducing the costs of tracking title, as justifying such denial.”
Elsewhere, claimants face equally vast legal challenges. Russia has passed a law to protect masterpieces brought back by the Red Army: all art taken from the Germans is “trophy art”, compensation for the 20 million Russian lives and property lost. To ensure these treasures remain on Russian walls, they will now be lent to museums only where there is anti-seizure legislation in place.
The situation in the US is a little more hopeful for claimants. “Good title” is not available to a painting that was once stolen. But Stuart Eizenstat, convenor of the Washington Conference, believes that progress is being held back. “Art restitution has not been a focus of the Bush administration,” he says. “Legislation to establish a ‘ memory foundation’ to help victims and heirs has stalled, despite sponsorship that would create and fund this institution. And even many museums now feel that it is best to let their lawyers handle the cases that come up, rather than conduct proactive research themselves.”
Proving a work’s provenance
Ev i d e n c e o f a p a i n t i n g ’ s provenance will usually determine whether i t i s returned t o a family. So museums and auction houses are facing increasing pressure to ensure that they can document the history of the works they handle.
Many museums were shocked into action in 1997, when two paintings by Egon Schiele, on loan from Austria’s Leopold Foundation to New York’s Museum of Modern Art, Portrait of Wally and Dead City, were subpoenaed and seized under America’s National Stolen Property Act. The works were said to have been stolen by a Nazi from a Jewish art dealer, Lea Bondi. In response, many museum directors appointed teams of provenance researchers to ensure that they knew the precise history of every painting.
But not all institutions have taken the issue seriously. According to Stuart Eizenstat, “German museums have performed and published disappointingly little provenance research. Many German museums seem much more interested in getting back art looted by the Red Army after the war than in implementing the Washington Principles. Only about 30 museums of a possible 600-plus have published their research.”
The problem with provenance research is that it is often inaccessible or incomprehensible. Holocaust victims and their families need clear and detailed documentation to trace their lost art. Information frequently appears in museum code, a typical example being that of the State Museum of Baden-Wuërttemberg in Karlsruhe. It has identified 37 looted objects but the only information provided is “Karlsruhe 1941”.
France, “the most looted of all countries”, according to looted-art expert Hector Feliciano, has not undertaken any provenance research into its public collections for works acquired since 1933. Nor have Italy, Spain, Switzerland and a host of other countries in Europe.
The auction houses also take differing approaches. The trade in looted artworks continues in some auction houses, although Sotheby’s and Christie’s refuse to sell stolen art and provide detailed provenance. Their experts look for key gaps in provenance, and check lots against published lists of looted art.
Yet auction houses are still bound by client-confidentiality clauses. This obliges them to return a looted painting to sellers with the explanation that they cannot sell it, which usually means that it will disappear again and be “cleaned up”. Cleaning up is the simple process of selling dodgy art to a dealer in a country like Italy or Japan, where stolen goods acquire good title when purchased honestly. “We see a lot of auction houses cleaning titles up,” says Mark Stephens.
Heirs also find problems gaining access to art-trade archives or state archives to research their families’ looted works. “It is very difficult to gain access to Holocaust-related state archives,” says Stuart Eizenstat. “For example, the archives of the post-war restitution agency in Italy are closed, as are the state archives in France and Belgium, on grounds of privacy laws, unless they are requested by representatives of heirs in restitution cases. But at this stage, it is unclear whose privacy the laws are protecting. It is much the same situation that was finally resolved only a few months ago, by the opening of the massive Nazi concentration-camp records at Bad Arolsen after decades of effort, due to the intervention of the US Holocaust Memorial Museum, and the US government. There, too, the argument was privacy, but those whose privacy was supposedly being protected were dead.”
As a generation of survivors passes away, many without heirs, who should inherit the enormous backlog of unclaimed Nazi-looted paintings? Local Jewish communities? Israel? In 2000, Colette Avital, a member of the Israeli government, proposed that Israel was the true heir of unclaimed Jewish property. But at what point can a painting identified as looted be declared heirless?
“It would compound the injustice for a looted work of art to be declared heirless when no effort to locate the heir has been made,” says Anne Webber. This was exactly what happened in the Mauerbach Auction of 1996, when the Austrian government auctioned 8,000 paintings and objets d’art deemed “heirless”.
The auction raised over $14 million, which was distributed among the Jewish communities of Austria and Holocaust charities. But the items on sale were not verified as heirless and were simply unclaimed. Neither the Austrian government nor Christie’s, which spent a year organising the auction, made any attempt to trace original owners. The handsome profits of the auction and its beneficiaries may go some way to explain the current unseemly rush by Jewish organisations for works of art to be declared heirless without any effort being made to trace the owner.
Portrait of Adele Bloch-Bauer, by Gustav Klimt, returned to 92-year-old Maria Altman and subsequently sold for a record $135 million
Top: US soldiers load up a truck with stolen Nazi art in 1945. Above left: Dead City, by August Schiele, which was seized by the US government. Above right: Berlin Street Scene, by Ernst Kirchner, which was returned to Anita Halpin