Looted Art In Museums & The Restitution Cases Setting Them Free
The Parthenon Marbles (Elgin Marbles) and Benin Bronzes have precedence from cases like Klimt’s Lady in Gold and Egon Schiele’s Portrait of Wally.
“There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.”
Art restitution litigation resulting from looting during times of war has proven to be strenuous and murky. There is no set legal framework for individuals to file claims of rightful ownership and generally, the economic motivation behind purchases lead to reluctance, on the side of defendants, to amicable arbitration. These cases are then an intersection of international, local and foreign laws; thus the lack of a framework makes it even more difficult for claimants to pursue their rights to restitution. There is a need for an international structure that addresses directly the issues arising from individual claims of cultural property theft during times of war, and which protects the rightful owners.
In the past few years two high profile cases of WWII looted art restitution have been resolved in the United States court system, Austria v. Altmann and US v. Portrait of Wally. Both of these elapsed through years of extensive litigation and surmounting obstacles for the plaintiffs. However, they have established a precedent for U.S. Courts to hear cases of art restitution and to hold foreign governments accountable for the illicit appropriation of art.
There are national interests present in both landmark cases of Nazi-looted art restitution, the precedent the outcomes of these cases have set give us a direction for future application of these cases on art restitution litigation and its overall impact on international law. Additionally, in support of the analysis of each case, we’ll highlight the major influencing parties in WWII-era art restitution pertinent to each case including but not limited to government projects, associations, conferences, and non-governmental agencies.
First, let’s review the legal context of post-WWII, and then more recent law enacted to facilitate the process of provenance research, replevin and ultimately restitution. Utilizing the United States civil litigation system and these cases as a backdrop for the application of international law, treaties and conventions on the restitution of Holocaust-era looted art. Finally, we’ll discuss the efforts towards creating a self-regulatory system to facilitate restitution, the entities involved and this system’s advantages and disadvantages. Including whether self-regulatory, participatory and legally un-enforceable agreements have any material impact or act as effective deterrents in transactions involving art with unclear provenance. It will do so in an attempt to apply this nascent legal framework to a more recent claim of art restitution case such as in the civil individual dispute over a cultural artifact transposed during a time of war.
Restitution Litigation
Restitution is defined here as not only the return of stolen property but of reinstating status and legitimacy to those who had their property seized and ownership rights denied. The 2005 UN principles and guidelines that cover international human rights law and serious violations of international humanitarian law defined restitution as including the return of identity and family life. Restitution encompasses not only the return of physical property taken but also of the symbolic return of ‘normalcy’ ‘family’ and ‘identity’.
Cultural Property, Art and Objects of Interest/ Importance
As defined by The Hague Convention cultural property includes movable property of great importance to the cultural heritage of every people, including art, whether religious or secular; of historical or artistic interest; works of art; and other objects of artistic or historical interest among several other specifications.
This definition, therefore, covers the artworks plundered during WWII not only as works of art but also as central to the Jewish people’s cultural and historical identity. This is suitable as the Nazis seized and forced the transfer of artworks by claiming they were “corrupting” and “degenerate”. This labeling of art purchased by, patronized by and depicting Jewish individuals is symbolic of the Nazi’s ethnic cleansing ideology and crimes against humanity. The seizure of artwork effectively strips people of their cultural lifestyles and familial environment.
Legal Context Post-WWII
Although property was seized through the establishment of prejudicial laws or was transferred under duress during occupation, once the Nazi regime was defeated these supposed legal acts became null and void. The Allied governments and the French National Committee agreed in 1943 that they would not recognize any property transfers, which occurred in occupied territory, the London Declaration. However, due to the overwhelming amount of property seized by the Nazis, at this point being managed by Allied troops and Russia at the end of the war, researching individual provenance was unfeasible. For this reason, artworks were sent to their country of origin and the responsibility of restitution was transferred over to local governments.
Looting was qualified as a crime against humanity and as a war crime during the Nuremberg trial of Alfred Rosenberg, who was the head of a major Nazi looting body. The explicit illegality of appropriation, looting, and acquisition through duress, of art and cultural objects was established in international law by the generally accepted and signed protocols of the Geneva Convention (1949). Article 53 of Protocol Additional to the Geneva Convention expands on this by prohibiting reprisal and the use of such objects for military funding. This was done in direct response to the Nazi’s systematic sale of artworks for military funding. The topic of Nazi acquisition of foreign currency through the sale of appropriated art is further discussed later in this document.
Once the looted artworks were within their respective countries of origin and local laws ruled over restitution, it was deemed necessary to push further for the return of private property acquired illegally during the war. This is where the first Protocol to The Hague Convention (1954), which “provides for the return of cultural property illicitly removed from occupied territory” stems. It requires the return of all art appropriated during WWII. Although, this measure functioned in pressing states to restitute artworks it did so within a wide scope and did not provide for individual claims.
Many victims of property seizure faced local governments unwilling to return appropriated works. Austria, for example, had such blatant practices of begrudging restitution that can be evidenced in Austria v. Altmann. The government was notorious for ‘negotiating’ export licenses for art collections in exchange for ‘donations’ of valuable works “a restitution compromise.”
The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property then narrowed this scope by obliging
“states to ensure earliest possible restitutions of illicitly exported cultural properties and to admit actions for recovery of lost or stolen cultural property brought by or on behalf of rightful owners.”
However, this convention also leaves the resolution of restitution up to individual states.
International court systems like the International Criminal Court (ICC) and International Court of Justice (ICJ) were created and given jurisdiction over war crimes against cultural property, in 1998 through the Rome Treaty, and over violations of human rights, respectively. These then can act as platforms for claims but with limited resources, the ultimate outcomes are generalized and overarching decisions intended to cover many rather than the individual.
This then brings the question of the United States Court System and its role in cases involving restitution of WWII looted art. Many persecuted individuals sought asylum and settled in the U.S. during and after the war; these individuals could now bring their replevin and restitution claims in District Courts. Much of the art auctioned off by the Nazis found it’s way to American private collectors and henceforth galleries and museums. The two landmark cases, U.S. v. Portrait of Wally and Austria v. Altmann, discuss issues brought forth by restitution claims brought in the U.S. court system.
Landmark cases & self-regulatory systems
USA vs. Portrait of Wally
In one of the first cases of WWII art restitution to be tried in the United States, common law was applied and determined that stolen property can cease to be stolen. This conclusion was derived from Circuit Court decisions on cases pertaining to the use of stolen property by authorities for the purpose of entrapment. Internationally it depends whether the judicial system operates under common or civil law to establish whether a thief can transfer title to a good faith purchaser. Due to these circumstances, the decisions were to declare that goods once intercepted by the owner or an owner’s agent it ceased to be considered stolen. This was done to prevent the conviction of purchasers of stolen property who would be entrapped in criminal activity.
Now in U.S. v. Portrait of Wally, the application of these decisions were erroneous as cultural property law differs from common stolen property law. In 1939 the artwork was appropriated from Bondi by a Nazi-party member and through sales and auctions entered the Leopold Foundation in Vienna. As part of a loaned exhibition, the Portrait of Wally found its way to the Museum of Modern Art in New York City in 1997. During this exhibition, the heirs of Portrait of Wally claimed the artwork as stolen property and filed a forfeiture claim.
The District Court of New York, seeing as the painting had been processed by the United States military post-war, defined the painting as no longer stolen since the army had acted as the rightful owner’s agent in processing it. Although erroneously managed by the military, through the application of common law Portrait of Wally was now not considered stolen when transferred to Leopold. It was not even properly managed therefore not establishing the American military as a proper agent of Bondi.
The historical context of the artwork’s theft and subsequent mismanagement by the U.S. military should have been taken into consideration. This decision negatively affected all WWII restitution litigations. However, major museums played a strong influence in this case. Nine New York museums and two museum associations joined the MoMA in an amicus brief moving for dismissal. Their main concern was the impact this ruling would have on the international art market, the profitability of the museums and international art loaning. Realizing that through the application of common stolen property law all WWII art appropriation would be legitimized, the court reconsidered. A seizure warrant was issued for Portrait of Wally, under the National Stolen Property (NSPA) and the proceedings for a forfeiture claim began. It was acknowledged that the Leopold transported stolen property in foreign commerce knowing the converted property had hidden provenance. Only after years of back and forth, litigation was a court date set with the outcome leaning towards Bondi’s heirs. At this point, the defendants moved to settle and paid $19 million to the Bondi estate. This case clearly demonstrates the lucrative art business’ effect on restitution litigation. The economic stakes involving a majority of art restitution litigation are high and the parties involved do not want to negotiate risking losing possession. This turns the entire process adversarial.
Republic of Austria vs. Altmann
In one of the most well-known restitution cases of looted art Maria Altmann, seeking the return of a Klimt portrait of her aunt, sued the Austrian government in California. The Nazis had liquidated the painting, which was patronized by her uncle in Vienna, along with the rest of her uncle’s estate.
The painting ended up hanging in the Belvedere in Vienna when she attempted to file her claim in Austria. Due to fees and impossibility of litigation in Austria, she then turned to the United States courts to resolve the issue. The Republic of Austria’s defense moved to dismiss the claim through the application of the Foreign Sovereign Immunities Act (FSIA) of 1976 and forum non-conveniens. The case made it all the way to the Supreme Court indicating direct national and international importance. The final decision was proper and established that Altmann did have a right to file suit against Austria in the U.S. court system. In the end, after the court ruling, Altmann settled utilizing outside arbitration and regained possession of Adele Bloch-Bauer I. She then went on to sell it to Lauder who placed the painting in the Neue Gallery in New York. This further weakened Austria’s public claims that the artwork was being ‘taken from society’ since it is in public exhibition, just no longer in Austria.
Through this landmark Supreme Court Of The United States (SCOTUS) ruling in Austria v. Altmann, a precedent was established for U.S. Courts to hold jurisdiction over restitution litigation with foreign governments and their entities. The major international impact of this case was the determination that nations and their instrumentalities or entities are held accountable under United States court jurisdiction for restitution claims.
Chief Justice Marshall observed (1812),
“that foreign sovereign immunity is a matter of grace and comity rather than a constitutional requirement.”
It determined that sovereign immunity claims are inapplicable in these cases under the expropriation exception and that the activity associated with the exhibition, transfer, and exchange of artworks constitute commercial activity in connection to the U.S. Forum non-conveniens was quashed by this commercial activity and ties Austria had with the U.S. during this time. More importantly in the international law perspective was that this case’s SCOTUS decision of applying the exception to the Foreign Sovereign Immunities Act, retroactively, since it was being applied to actions that occurred before the FSIA was enacted. In this particular case, Austria’s violation of international law continued past the enactment of this act through the concealment of provenance and deliberate misrepresentation of ownership. However, the court’s opinion of retroactive application has a profound impact on international art restitution litigation.
It effectively permits U.S. courts to hold jurisdiction over cases involving Nazi-looted art. This new restrictive theory of sovereign immunity, which excludes private acts of foreign governments from immunity, exemplifies the U.S. expression that the
“principle purpose of foreign immunity has never been to permit foreign states and their instrumentalities to shape their conduct in reliance on the promise of future immunity from suit in the United States courts.”
The assertion of the U.S. court system as an acceptable forum for restitution litigation lays the groundwork for other individuals to file claims and have their cases heard. This willingness of the United States government to preside over cases involving the restitution of Nazi-looted art is important, especially because so much art was funneled to the U.S. private collections during the war. Although there are valid claims that the threat of litigation may hamper the international art market and the practice of art sharing through loans the historical context of these cases must be taken into consideration. While artworks have importance and cultural value of for society as a whole, it also important to highlight the importance, specifically to Western societies, of the protection of private ownership rights. The remediation of restitution cases has generally culminated in the continued public exposition of the artworks in question.
Self-Regulatory System
After the resolution of these cases, the threat of litigation, government and international pressure for the research of provenance many museums have opened their collections to public scrutiny. The museum associations, Association of Art Museum Directors (AAMD) and American Alliance of Museums (AAM), have promulgated guidelines to set standards, lobby and regulate the return of appropriated art.
The question is whether these self-regulatory, participatory and legally un-enforceable agreements have any material impact or act as effective deterrents in transactions involving art with unclear provenance. There have been databases created and the renewed efforts in returning appropriated art render a hopeful outlook on prevention, rectification, and restitution.
Past attempts at commissions include President Clinton’s Presidential Advisory Commission on Holocaust Assets, which with the participation of the AAM and AAMD that influenced the Washington Conference on Holocaust-Era Assets. This conference created the Washington Principles, “an eleven-point plan to aid claimants in recovering Nazi-looted art.” The museum associations gave their approval to this plan and guidelines in an effort to push museums to abide by these rules.
Modern-day international principles and understanding seek to improve the position of those who had their cultural objects appropriated during WWII. The UNESCO Draft Declaration of Principles Relating to Cultural Objects Displaced in Connection with World War II for example “requires states which had been responsible for losses either to return objects or if no longer being location states, to search for them and negotiate for their return.” This is one step in not only facilitating but also removing the burden of due diligence and pursuit of claims from victims of appropriation. It also indicates an international awareness of the importance of provenance in art and cultural object dealings. This relates directly to the earlier definition of restitution as encompassing more than property, but also a groups cultural identity and essence.
Functionality
The efficacy of museums self-regulatory practices is directly dependent on outside scrutiny and pressure. Private organizations that aid claimants with restitution litigation also effectively pressure museums to abide by the guidelines. This along with both positive and negative pressure from the government, press, interest groups and potential litigants gives the self-regulatory system force. However, this only covers researching past provenance and litigation.
The 1972 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property“requiring the U.S. to implement domestic legislation to protect cultural heritage” was much more effective in its goal of creating a preventative measure. State ratification of international law is more likely to prevent the transfer and commerce of appropriated art. Like the retroactive application, this preventative measure would only be effective once punitive measures are held. The outside threat of law application and litigation is the only way to hold personal accountability for actions involving appropriated art.
“[C]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”
It is crucial that the United States government act as a platform for litigation and have a strong emphasis on the resolution of restitution because a majority of the art sold at auction by the Nazis was sold to US private collectors, who then, in turn, donated to museums and galleries among others, effectively monetizing the Nazis for their invasion, occupation, genocide and the weaponizing of artwork. Some like Joseph Pulitzer Jr. who bid at this auction claimed he did so in order to protect the artwork as world cultural heritage. The legitimacy of these sales at auction has never been directly addressed and this excuse for validation of purchase of protecting the art was never questioned.
The way forward
Property restoration is central to mending the cultural identity of groups and considering the moral obligations of justice legal proceedings should protect the plaintiffs’ rights. Museums and private collectors commonly claim lack of due diligence and statute of limitations as defenses in cases where original owners lay claims. It therefore also concludes that the statute of limitations for looted art should be tolled utilizing the demand and denial model thus providing protection to the claimant. In this way, maximum protection is given to the rather than the purchaser or current holder.
Furthermore, an owner’s due diligence cannot be objectively interpreted in art looting cases as it effectively forces upon victims of a war crime, under the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, which the U.S. is a non-participant, the burden of proof.
Although the U.S. legal system provides for good faith purchasers, in cases of art and cultural object restitution claims containing tainted provenance, questionable transfer or indication of ownership masking, the courts should permit proceedings to continue in order to establish rightful ownership. Although the due diligence and laches defense intend to protect good faith purchasers, the historical context must be taken into consideration. The imposition of due diligence upon post-war victims effectively blames them and is not the intended use of limitations statutes. Therefore in these cases, due diligence and laches defenses act as punitive measures against plaintiffs rather than their intended purpose.
Purchasers need to be recognized as voluntary agents with a wealth of time and resources. For the sake of justice in cases of art restitution, the burden of proof should fall upon the respondents and protection should be given primarily to the claimants. As well as acknowledge that through proper provenance research and recognition of seemingly illicit transactions, the trade of looted artwork entails a conscious involvement in criminal activity and crimes of war. For these reasons, due diligence requirements should not be stringently applied to restitution cases.
The importance of art and cultural objects in the scope of world heritage, scholarship and communal identity make the efficient and just resolution of restitution cases crucial to society as a whole.
“[It is a] theme of central importance to civilized society; that the cultural heritage of a people is not something subject to erasure by callous disregard, or even by brute force.”
Presently there are cases cropping up still involving artworks looted during WWII and many more are sure to follow as the resources, legal groundwork and support available to original owners and their heirs has increased exponentially.
Recent Developments in Art Restitution Claims
It will be interesting to follow the progression of international legal proceedings in art restitution as high profile individuals become ensnared in litigation and criminal investigations. Recently with the release and analysis of the “Panama Papers”, Nazi-looted art, which has been directly associated with shell companies based in Panama, can now be traced to their current owners, enabling restitution plaintiffs to bring their claims against these individuals rather than faceless offshore institutions.
One such case recently in the news regards Modigliani’s “Seated Man with a Cane” which for the past four years a French man, Philippe Maestracci, has been laying claims to in the New York court system. Prior to the “Panama Papers” revelation of the shell company’s owner, David Nahmad, this restitution claim remained unlikely to succeed. However, now that an individual owner has been identified, regardless of the fact that he has mirrored past cases by rejecting the plaintiff’s claims and referring to them as “irrelevant”, there is now enough precedent to give this case traction.
Also, back in March, another painting looted by Nazis was finally returned to the rightful heirs. The Kraus family has received “View of a Dutch Square,” attributed to Jan van der Heyden back into their possession after eight years negotiating the restitution. While its return is a move towards the right direction it is only one of about 160 looted from the family in 1941.
The Allies retrieved these works and returned them to the Bavarian State where the government actually sold the pieces back to the heir of the Nazi official who during the war had acquired them. This scandal came to light in 2016 after the Commission for Looted Art in Europe conducted research. It’s an example of the long way we still have to go in art restitution. Mr. Graykowski, the American great-grandson of the Krauses, put it simply:
“It took 80 years, but it shouldn’t have even taken eight, since the first time we presented the incontrovertible evidence and that it belonged to my family.”
The legal landscape is fertile for the establishment of a streamlined process in dealing with these highly individualized cases of art restitution in the U.S. civil litigation system. Examples such as the one discussed above demonstrate the importance of a framework to facilitate reestablishing a people’s cultural identity, history and rectifying the only action that still has possible remedy post appropriation, theft, and economic exploitation. Regardless of how cumbersome this process may be, it moves towards easing the fight against appropriation and therefore of future injustices against individuals and cultural groups.
The issue of colonial looted art has also been brought into question. Particularly notable are African artifacts held in European museums. From the Benin Bronzes to Ethiopian statues the claims for restitution from cultural groups are widespread across the African continent. There are British (and other government) laws that prohibit the return of artifacts. As in the case of Ethiopian artifacts suggested solutions such as long-term loans have been explored. However, in light of the injustice and conditions under which these cultural heritage items were taken laws will have to be changed in order to fully restitute pieces. Afework, the Ethiopian ambassador said,
“My government is not interested in loans, it is interested in having those objects returned,”
Last year, the French government also moved to restitute sub-Saharan African art detailed in the Savoy and Sarr Restitution of African Cultural Heritage report. President Macron commissioned the economist and art historian duo to prepare the report in advance of his public address. The art world is at odds with some claiming that the artifacts need to be protected and safeguarded in Europe, and others pushing for the rightful restitution of the cultural objects.
There are also other treasures at the center of restitution claims outside of Africa — the Elgin Marbles for one which were taken from Greece to the British Museum and the Kohinoor ruby that is currently still part of Queen Elizabeth’s crown jewels. The return of pre-Colombian and indigenous art from around the world has also been requested.
Beyond the cultural value, these objects have also created economic wealth for the countries holding and displaying them in prominent museums. An important feature to note particularly in cases where not only restitution but also reparations are being sought.
Beyond restituting prized cultural objects, these are also opportunities for governments to build new relationships. They can be starting points for transitional justice and the work of rebuilding countries post-colonialism. The precedent set by the restitution of Nazi-looted art (and other cases UNESCO has documented here) can be the framework for reestablishing cultural groups’ ownership rights.
Further, it helps make headway to facilitate these returns. As current wars are waged particularly in the Middle East we must be aware of looted and stolen works to prevent lengthy restitution cases and further attacks on cultural identity.
“There may be times when we are powerless to prevent injustice, but there must never be a time when we fail to protest.
Let me know below what your thoughts are on art restitution and the platforms available for litigation. Do you think the protections of private ownership can also be applied for cultural groups? Can these landmark cases be used as precedence for modern litigation?
