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

The Jewish Chronicle - - Features -

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.

The back­ground

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.”

The fu­ture

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

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