• Investigations

    The Restitution Struggle: Malaise, Indifference, and Frustration

    Decades after the effort began, 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

    Once again this summer, a controversy over the restitution of artworks looted during World War II erupted into headlines across Europe. The occasion—a gala opening at the State Hermitage Museum in Saint Petersburg—was supposed to demonstrate the cementing of relations between Moscow and Berlin, with Russian President Vladimir Putin and visiting German Chancellor Angela Merkel presiding.

    The gala opening was cancelled, but Hermitage director Mikhail Piotrovsky (back to camera)  led Russian President Putin and German Chancellor Merkel through the Bronze Age exhibition. PRESIDENTIAL PRESS AND INFORMATION OFFICE

    The gala opening was cancelled, but Hermitage director Mikhail Piotrovsky (back to camera) led Russian President Putin and German Chancellor Merkel through the Bronze Age exhibition.PRESIDENTIAL PRESS AND INFORMATION OFFICE

    At the last minute, though, the Russians cancelled the grand opening when it became clear that Merkel planned to give a speech reminding the Russians publicly that they still held artworks looted from Germany after the war by Red Army Trophy Brigades. Some of the stolen art, in fact, was in the exhibition—most notably the Bronze Age Eberswalde Hoard, formerly in a Berlin museum. The Germans consider it a part of their national heritage.

    With Merkel determined to speak, the Russians pulled the plug. After hours of diplomatic maneuvering, the two leaders did agree to make an appearance, but Merkel didn’t give her speech. “We will continue dialogue on all questions regarding valuables brought from Germany,” she told the press. “This is a very touchy question for the societies of both countries.” Putin responded, “We need to look for solutions rather than inflating the problem.”

    This high-level contretemps once again cast a spotlight on the restitution issue. A six-month ARTnews investigation into the state of restitution policies and practices in Europe and the United States confirms that decades after the restitution effort started, hundreds of thousands of artworks and objects looted from victims of the Holocaust have yet to be returned to the owners or their heirs. Indeed, many of the experts interviewed in the United States and Europe are wondering if hundreds of millions of dollars worth of art stolen by the Nazis will ever be returned to its rightful owners.

    The experts agree that a turning point in the long effort to restitute stolen art occurred in December 1998, when representatives of 44 nations and 13 non-governmental organizations came together at the State Department–sponsored Washington Conference on Holocaust-Era Assets. After three days of meetings, the participants agreed to eleven non-binding principles, known as the Washington Principles. At the top of the list was this: “Art that had been confiscated by the Nazis and not subsequently restituted should be identified.”

    “On the issue of the spoliation of art in the World War II/Nazi era, the genie is, at last, out of the bottle,” proclaimed Philippe de Montebello, then the director of the Metropolitan Museum of Art, “and no resistance, apathy, or silence can ever fit it back inside again.”

    Nearly 15 years later, however, much of the worldwide momentum for art restitution embodied in the Washington Principles has been lost and replaced by malaise, indifference, and frustration, experts say.

    Stuart E. Eizenstat, the Clinton Administration’s Special Representative and Secretary of State for Holocaust-Era Issues, organized the Washington Conference and negotiated the endorsement of the eleven Principles. Where Eizenstat once saw promise on the question of art restitution, now he sees obfuscation. In an interview with ARTnews, Eizenstat reiterated the points he had made in a speech in September 2011 at Kenyon College in Ohio, which was launching a year-long examination of the status of Holocaust restitution. Eizenstat, now an attorney at Covington & Burling, observed: “In the 1990s, researchers began to draw attention to looted, and un-restituted Holocaust art, and the U.S. government took the lead on the art restitution issue. . . . Progress began to be made in surveying museum collections for looted art and restituting it to rightful owners.

    “But in the last decade, progress has stalled, and museums that were once on board with restitution have begun to assert technical defenses against claimants. Progress has been made abroad, but the U.S. has lost the leadership role on art restitution.”

    As Eizenstat suggested, some countries have a better record than others in dealing with the return of stolen artworks. Somewhat paradoxically, although far from flawless, it is Germany and Austria that are at the forefront of art restitution these days. Many of the largest and most important museums in these two countries, where much of the looted art was stolen and/or deposited, are state owned or financed. This makes it somewhat easier for these institutions to follow legislative directives to study their collections and identify artworks with questionable provenances and then, despite the passage of time, to take the steps necessary to return the works to their rightful owners.

    After years of litigation, the heirs of Martha Nathan of Frankfurt-am-Main dropped their claims for Gauguin’s Street Scene in Tahiti, 1891, in the Toledo Museum of Art (left), and van Gogh’s The Diggers, 1889, in the Detroit Institute of Arts (opposite). The heirs and the museums disputed the circumstances in  which Nathan sold the paintings in 1938. TOLEDO MUSEUM OF ART

    After years of litigation, the heirs of Martha Nathan of Frankfurt-am-Main dropped their claims for Gauguin’s Street Scene in Tahiti, 1891, in the Toledo Museum of Art (left), and van Gogh’s The Diggers, 1889, in the Detroit Institute of Arts (right). The heirs and the museums disputed the circumstances in which Nathan sold the paintings in 1938.LEFT: TOLEDO MUSEUM OF ART RIGHT: DETROIT INSTITUTE OF ARTS

    Also working in favor of these institutions is a seemingly genuine interest on the part of the current generation of leaders to make amends for the behavior of previous generations. Germany and Austria are two of the five European countries—the others being Holland, Britain, and France—with state-mandated advisory committees designed to provide a sanctioned, legal way for victims and other potential claimants to seek restitution of what was stolen.

    After the Washington Conference, Eizenstat said, Austria passed art restitution laws and then reviewed the art collections of every federal museum. More than 250 artworks stolen from the Rothschild family were returned, and another 2,000 stolen artworks were identified.

    In December 1999, the German culture minister promised that the government would “exert its influence to return confiscated art to former owners or their heirs,” Eizenstat said. Provenance research would be undertaken at German museums and the results posted on Internet databases. Yet, as a recent four-part article in Der Spiegel reported, hundreds of thousands of artworks and artifacts whose provenances have not been investigated remain in museums and depositories.

    “Sweden established a commission to locate art,” Eizenstat continued. “France undertook research into the provenance of more than 2,000 works returned from Germany after the war. Italy published a catalogue of art treasures lost during the war, including those from the collections of Holocaust victims.”

    But, Eizenstat added, the momentum has slowed in the last decade. “[M]any countries have not even begun provenance research,” while “others have substantially circumscribed the research, and others are not investigating acquisitions after the early 1950s, even though looted artworks have been in the art market for decades after that.”

    Russia, the country with “perhaps the greatest repository of looted art that has not been restituted” made a promising start but then “utterly failed to follow through,” Eizenstat said. He noted that, in 2001, the Russian minister of culture signed an agreement with Ronald Lauder, founder and then-chairman of the Commission for Art Recovery, a nonprofit organization established in 1997 to seek justice for victims of Nazi art theft. The signatories pledged to publicize provenance research of stolen artworks. “Little has been done, no claims process has been established, and the whole project has stalled,” Eizenstat said.

    He noted that “Britain, Italy, Hungary, and Poland do not have restitution laws that permit the return of looted Holocaust-era art and cultural property.”

    “Now is the time to act,” Eizenstat told ARTnews. “I really do believe we can restore the spirit that led to the Washington Principles. Yes, there has been a major step backward in the United States, ironically at a time when there are significant steps forward in Europe. We’ve lost high-level U.S. government attention that we had before and it needs to be restored again . . . high-level State Department, high-level White House. . . . What we need is to get a senior-level blessing from the State Department. They don’t have to take it on but just give a blessing that, ‘Yes, this is important and we want you to take this on and you have our blessing to do it.’”

    Charles Goldstein, an attorney with the New York law firm Herrick, Feinstein, and also counsel to the Commission for Art Recovery, summed up the current state of art restitution as nothing short of depressing. “We have not made progress in getting countries to examine their collections,” he said in an interview with ARTnews. “The only country that is doing that systematically is Austria. Other countries are waiting for claims to be made, and they are more or less cooperative in researching them. There is some research being financed by the government in Germany, but aside from that it’s passive. It’s reactive. The goal is to have countries examine their collections.”

    Italy, he said, claims not to have “any evidence of Holocaust loot in their collections, but they’ve never examined their collections. They merely base that on the absence of claims, but the absence of claims is due to many factors, not the least of which is the difficulty in obtaining records.”

    Goldstein said that the French commission set up to handle art restitution has also been reactive. “It’s been a long time since they made an affirmative attempt to locate Holocaust loot in their collections,” he said, although in recent months that attitude has slowly begun to change, thanks to the efforts of Corinne Bouchoux, a French art historian turned senator, who has been proactively urging the return of stolen art in France. England is reactive too, Goldstein said. “It waits for claims to be made, and there is no evidence that the museums are continuing to examine their collections,” he continued. “Some say they have, but it’s dubious.”

    Anne Webber, co-chair of the London-based Commission for Looted Art in Europe, said that despite the seeming progress made in Germany since 1998, the subject of art restitution remains “very problematic, particularly with so many thousands of looted artworks in German public collections still unresearched and unidentified.” Some museums that hold looted artworks are helpful and proactive, she said, but others are passive and obstructionist.

    Webber said that federal culture minister Bernd Neumann has encouraged German museums to undertake provenance research of their collections and to publish their findings so as to provide a fair and equitable basis for restitution. In 2008, in the face of widespread inaction, he set up a Bureau for Provenance Research, and federal funding is now €2 million ($2.6 million) a year. As a result, more provenance research is being done than in the past—57 museum projects have been funded in total—but this represents only a fraction of museums, and often the findings are not published despite an obligation to do so.

    “There is a worrying lack of transparency which impedes the pace and possibility of restitution and defeats the purpose of the work,” Webber says, “Restitutions are also not published and those would provide a good indicator of how real progress is in Germany.”

    She pointed out that there is only one person currently researching several thousand artworks in the Bavarian State Painting Collection, who says it takes her 18 months to research one painting. These paintings include artworks acquired between 1933 and 1945 and others handed over to Bavaria by the Allies in the late 1940s and early ’50s from the collections of the Nazi leaders and organizations of the Nazi party. Hardly any have yet been restituted.

    “Both research and restitution in Germany are a matter for serious concern,” she added. “There is no consistency in the way claims are dealt with, and museums often show great reluctance to return. There is little evidence of efforts being made to share information and records or to contact the rightful owners even when they are identified.” Some states and museums remain completely unresponsive. The Kunstmuseum Stuttgart has some 15,000 works of art, but when asked earlier this year about restitution, the museum stated that “there’s no systematic provenance research in our museum . . . and there’s no inventory either.” They know of no single case of restitution nor which works would be ”relevant.”

    Isabel Pfeiffer-Poensgen , secretary-general of the Kulturstiftung der Länder, was not available for comment.

    Sophie Lille, a Vienna-based art historian and author of Was Einmal War: A Handbook of Vienna’s Plundered Art Collections, who has been involved in litigation on behalf of claimants for years, is cautiously optimistic about the outlook for restitution in Austria and Germany. “I think we’re somewhere totally different compared to 15 years ago,” Lille said, “because I think it is on people’s minds. People are aware of restitution, and I think it’s probably a broader spectrum of people that are aware of it than there ever would have been. But I think one of the problems with restitution and provenance research is that it’s such a long process, and then you have museums to deal with or auction houses to contend with. It takes a long, long time.”

    The situation in the United States is somewhat different because the vast majority of museums are privately owned, which makes it difficult for federal or state authorities to mandate restitution. No central body exists through which claimants can pursue restitution.

    In a speech delivered last November at a symposium in The Hague devoted to alternatives to litigation in disputes about Nazi-looted art, Douglas Davidson, special envoy for Holocaust issues in the U.S. State Department, explained that the United States has no ministry of culture, and only a few museums are under the direct control of the federal government.

    In the United States, say experts, restitution has become a hit-or-miss prospect, largely dependent on the goodwill of the museums that possess stolen artworks and a judicial system that has been increasingly willing to accept the legal argument that time has expired on these claims. This has occurred although the signatories of the Washington Principles pledged that the statute-of-limitations defense would not be part of the legal equation in restitution claims.

    Jonathan Petropoulos, chair of the department of history at Claremont McKenna College and the author of several books on Nazi cultural policy, also spoke at the Kenyon symposium. He painted a “bleak picture of the current state of affairs” when it comes to art restitution, “largely because museums have now turned to technical defenses and highly aggressive tactics in dealing with claims and potential claims.”

    Among the museums he cited are the Museum of Modern Art in New York (in a case involving claims by the heirs of the German painter George Grosz), the Museum of Fine Arts in Boston (in a case involving a claim by Claudia Seger-Thomschitz regarding a 1913 painting by Oskar Kokoschka), and the Norton Simon Museum in Pasadena (in a case involving Marei von Saher’s claim to a diptych by Lucas Cranach the Elder once owned by her father-in-law, Jacques Goudstikker).

    Petropoulos also pointed out what he called another disturbing trend: museums have taken preemptive action to prevent potential claimants of stolen art from seeking restitution. Museums in Toledo and Detroit have used this legal tactic successfully, as have the MFA and the Yale University Art Gallery in New Haven. “Far too often, cases are not being decided on their merits,” he said.

    The value of the disputed artworks has increased exponentially in recent years, making the economic stakes especially high, Petropoulos added.

    Charles Goldstein thinks that the promise of the Washington Principles is being squandered in the United States. “In general, museums do not examine their collections,” he said. “If they were complying with the Washington Principles, they would put on the Internet art that had a dubious provenance, or questionable provenance, but there’s no evidence that they’ve allocated any resources for looking into it. . . . On the subject of dealing with claims, the major museums in the U.S. still look for excuses not to deal with them, using primarily technical defenses, on the excuse that they’re so sure that they’re right, that there’s no need to go to court, so they make judgments for themselves as to their own liability.”

    Goldstein cited the Norton Simon Museum’s use of the “time has run out” defense as being particularly egregious. (Herrick, Feinstein—but not Goldstein—is representing von Saher in her claim against the museum.)

    “This board of directors looks at it as a commercial dispute,” Goldstein says. “Why should we give up any property if we have a legal defense? And they can’t claim it’s because of a so-called ‘trust’ in which they hold the art, which is a PR gimmick. It has nothing to do with law. They say ‘we hold our art in trust for the public.’ Those are words. That’s not law. There’s no trust. There’s no concept of that. . . . It’s nonsense. There’s no legal or ethical obligation to hold on to stolen property just because you can. . . . It’s not a moral thing as far as they’re concerned.

    “So what are museums’ ethical responsibilities? I say you’ve got an ethical responsibility, because you claim that you hold art in the public trust, for the public interest. You are not-for-profit, a specially created entity with tax exemption and real estate that’s not taxed.”

    A dissenting view comes from attorney Thaddeus Stauber of Nixon Peabody in Los Angeles, who has represented museums in art restitution cases. He believes that the Washington Conference Principles are working exactly as Eizenstat envisioned. “I think we’re making, and have made, incredible progress,” Stauber told ARTnews. “I think that the provenance research that is now being done, and can be done, both by prior owners, current owners, and prospective owners, is unprecedented, and very often resolves age-old questions as to how a particular artwork may have left a family, whether the family had the ability to or opportunity to seek either restitution or compensation for that particular work, or whether or not the current owner is the rightful owner of the property.”

    Stauber said his clients, which include the Detroit Institute of Arts and the Toledo Museum of Art, have won court judgments after a thorough review of the facts. In other instances, he said, when claimants have done their homework and have been able to prove that the artwork in question had been stolen from them, his clients decide to settle. “We’ve settled those claims,” he said “and we continue to settle those claims very promptly, often confidentially, at the request of the claimant, and when the claimant doesn’t request it to be confidential, very publicly. So from my perspective, I think that we’ve made incredible progress.”

    Regarding the preemptive claims made by the MFA and the Yale Museum of Art, both of which were Stauber clients, against potential claimants, he said that in both cases, prior to the filing of the lawsuit, there was extensive, independent provenance research on the merits of the claims. The research was then shared with the potential claimant and counsel, including the relevant historical documents.

    “It was only after being presented with that research and having a meeting with the claimants that, after the claimant or their counsel said, ‘We are going to continue to pursue this claim, even though the research does not support the claim,’ that those institutions then decided to put the work before the court and expose the work to the legal system,” he said. “Only after that. That’s not a preemptive action. That is exactly what the Washington Principles call for. . . . That is, do the research, share the research, discuss alternative resolutions, and when the parties are not able to resolve them, it is only at that point in time that they went to the court.”

    In the absence of a national commission in the United States, a place where American claimants have turned with increasing success in getting help to resolve cases of Nazi-looted art is the New York Holocaust Claims Processing Office, run by Anna Rubin, under the auspices of the New York State Superintendent of Financial Services. While New York State declined to allow Rubin to be interviewed, Monica Dugot, international director of restitution at Christie’s, and a former deputy director of the Holocaust Claims Processing Office, applauded the office because it “has avoided litigation by promoting a climate of cooperation. . . . Because of its success in providing a centralized venue for Holocaust survivors, their heirs, and the heirs of Holocaust victims over the years, [Rubin’s office] has become a recognized authority on matters relating to Holocaust-era losses, compensation, and restitution.”

    In testimony before the House of Representatives in 2010, Rubin said that while “no system—be it a voluntary program or the courts—can resolve all the wrongs done during the Holocaust,” she has learned, by working with claimants for nearly 15 years, “that not every resolution of a claim depends on the recovery of an asset or monetary settlement. Success can consist of obtaining closure for a claimant, for example, by providing documentation that shows earlier compensation of the property.”

    If an amicable solution cannot be reached through the Holocaust Claims Processing Office or through negotiations, civil litigation remains the path open to museums and victims alike. Litigation, of course, is expensive, time-consuming, and—for the victims, anyway—particularly unsatisfying.

    Anne Webber points out that the five national claims processes created in Europe since 1998 have brought a measure of consistency for claimants. “It’s important that these national claims processes have been set up, but one has to look at them all individually and see what they have achieved and are achieving,” she said. “What’s essential is that they provide clear terms of reference and rules of procedure, as well as transparency of operation and decision-making. The British claims process, for example, fulfills those criteria. The Dutch Restitution Committee sets out clearly the basis on which it makes decisions. People may not agree with the decisions, but at least one can know the reasoning behind them and understand how they’ve been reached.

    “The same is not true for Germany’s Advisory Commission. It has no rules of procedure. It has no terms of reference. It publishes a few paragraphs about each decision it has made. It doesn’t explain the principles by which it reaches those decisions, and the decisions anyway have no consistency from one to the next. So it doesn’t provide any confidence for claimants or expectation of fairness, and that’s very serious. This, after all, is the situation the Washington Principles were created to remedy.”

    Webber cited Italy and Poland as nations that are notably unwilling to restitute looted artworks. “Like Poland, Italy is a country whose government adamantly refuses to agree to restitution of looted artworks in public collections,” she said. “Again like Poland, Italy at the same time is very happy to avail itself of the commitments to restitution made in other countries, so it is able to recover works of art that were seized from Italy from countries which are committed to restitution.

    “There is an enormous amount of work yet to be done,” concludes Webber, and other experts agree. “It’s 80 years after Hitler came to power and this still has not been dealt with. I think that’s a sign of the problem. I think it shows how much it means to people,” Webber says. And “it’s an indication of how much resistance there still is to providing justice after all these years.”

    William D. Cohan, a contributing editor at Vanity Fair and at ARTnews, is the author of the forthcoming The Price of Silence: The Duke Lacrosse Scandal, Wall Street, and the Power of the Elite.

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