09 April 2011

Historical backdrop of postwar restitution politics

The following is an excerpt from a November 18, 1998, presentation on looted art given at Clark University, Worcester, Massachusetts. A bit dated and dusty but still relevant...

There is ample precedent in recent history for the United States government to engage in a policy of restitution of looted works of art. It is rooted in wartime experiences and rejection of the Nazis' genocidal program and policy of wholesale plunder. At its heart stand the principles enacted in Article 3 of the Hague Convention of 1907 which condemned wartime plunder of cultural property from public and private collections in times of war and made the governments of those responsible for the thefts liable for compensation. In the throes of the Second World War, the beleaguered Allied powers denounced through the so-called London Declaration of January 1943 all acts of dispossession in occupied territories by the German occupation forces and their local acolytes. In February 1944, American Treasury Secretary Henry Morgenthau, flanked by representatives from a dozen nations, warned the Nazis not to steal gold from occupied countries and promised full retribution at war's end. The statement was a not so veiled warning aimed at the complacent neutrals only too eager to benefit from Axis transactions in fungible assets stolen from occupied Europe. In the summer of 1944, at Bretton Woods, where economists and government planners from around the world met to lay the foundations of the post-war international financial system, a Resolution passed known as Resolution VI which condemned all transfers of plunder from the Third Reich to neutral nations and warned the neutrals--Sweden, Switzerland, Spain, Portugal, and Turkey--that they would be held liable for harboring such ill-gotten wealth, including stolen cultural property. At Chapultepec, Mexico, similar pronouncements were made in March 1945 to sensitize Latin American nations that hoarding of illicit wealth was anathema to the Allied nations and would be viewed as an attempt to aid and abet the Nazis in the post-war era. The Potsdam declaration of August 1945 confirmed the Allies' pledge to ferret out loot in neutral countries, whereby the Soviet Union ceded all such assets found in Western and Central Europe to the Americans, the British, and the French. The Soviets' jurisdiction extended east of the Oder River, wherein all looted works of art were looked upon as in-kind payments and absorbed into State collections, a predicament which reverberates ever more intensely today.

At the onset of the International Military Tribunal in Nuremberg in 1946, the Allies enshrined as a crime against humanity all racially, politically, and religiously, motivated acts of spoliation and dispossession aimed at civilian populations. Therefore, the act of plunder was placed on par with the commission of atrocities and not subject to any legal prescription in the post-war era. However, the governments of recently liberated countries of Western and Central Europe faced the politically unsavory task of ferreting out collaborators, and punishing them, while trying to compensate their own citizens for wartime losses. The short-lived and grossly inadequate purges of wrongdoers in the private sector failed to cleanse the ranks of the art world of the men and women who fueled the bustling, Nazi-sponsored art trade of the occupation years. Kinship ties, business and political relations between those who plundered Jewish collections, those who benefited from the plunder, and those officials who achieved a remarkable transition from collaboration to post-war reconstruction governments because they played the resistance card at the opportune moment, made any effective overhaul of the art market an impossible goal to attain. To deal with the question of restitution, post-war governments passed laws requiring claims to be filed within a 3-year period, and, by 1947-1948, most claimants were shut out of any attempt at recovery.

In the United States, museum directors and art dealers alike were exerting substantial pressure on the State Department to eliminate wartime measures aimed at preventing loot from entering the country illegally. Arguing that there had been few documented cases of actual loot being intercepted by Customs agents, museum officials and their allies in the private art market, worried about the consequences of these regulatory measures on the art trade, succeeded in persuading the State Department to lift all existing barriers that screened the flow of art into the United States. The real nut of the argument lay in the following rhetoric put forth by Lamont Moore, a government official who presumably worked at Customs: "Hundreds of works of art are coming in at present and they are increasing all the time. And is it proper to exert government control over a private industry? Is it right to put that much control over private business? ... to maintain such controls is bad business.,, The Germans have not transferred any hoards of art to foreign countries; the situation has been met; and the Treasury Directive is no longer necessary..." Obviously, this official echoed the back-to-business mantra of the art world and its conservative allies in the Federal bureaucracy.

The Treasury Department balked but conceded and on June 30, 1946, cancelled the relevant Directive #51072 that prevented works of art that had been confiscated from Nazi victims or illegally acquired by the Nazis from entering the United States. Restitution experts at State and Treasury who had lobbied against the lifting of these regulatory instruments, complained that the elimination of the directive contradicted America's international commitments to ferret out and restitute looted works of art. They also worried that the inflow of looted works into the United States would grow exponentially in the coming years, since the American market was the only one that had the resources and the infra-structure to absorb high-quality, museum-quality works from Europe. These same officials resorted to secret audits of importations of works of art and antiques by New York galleries like Wildenstein and Brummer, between 1946 and 1954, in order to smoke out suspicious shipments. There is no information on the outcome of these investigations, but they do cover several thousand objects. French cultural officials even warned their American counterparts in 1946 that the outflow of art from France to the United States had grown at an alarming rate since the fall of 1944. In a number of cases, Liberty military transport ships were used to smuggle paintings from France into the US. Although officials at State and Treasury pressed for a new set of directives aimed at thwarting the importation of loot into the United States, their efforts went largely unheeded in the changing climate of the post-war, where restitution gradually took a back row seat to geopolitical containment, European reconstruction, and business-as-usual.

In Europe, Allied officials in the occupation zones of Germany and Austria, already burdened with returning thousands of works to governments that placed competing claims on them, had to contend with American dealers and museum officials bidding for works with suspicious provenances on the black market or lobbying local government and military officials to relax export licensing laws and allow dealers to gain access to the thousands of works of art that had not been claimed by survivors or their families. Sadly enough, a number of notorious German art looters and Nazi purchasing agents like Bruno Lohse and Gustav Rochlitz who belonged in the defendants' dock at Nuremberg were shielded by the very museum directors and curators in charge of Allied restitution efforts who later on lobbied for a general relaxation of the international art trade. By the late 1940s, local laws in Germany and, to a lesser extent, in Austria, were liberalized to allow gallery owners and art dealers to resume trade with the outside world, and, especially with the United States.

Confronted by the realities of post-war business opportunities presented by thousands of high-quality works of art of dubious provenance available for sale at unbeatable prices, American restitution officials worked out a legal and political framework that would preserve the American government's commitment to the identification and restitution of stolen works of art to their rightful owners, A treaty was signed to that effect in July 1946, called the Tripartite Agreement. The co-signatories were the United States, Great Britain, and France. 14 nations endorsed the agreement, Its purpose was to uphold the principle of restitution as policy and for each government to ensure that looted works of art would not reach safe harbor on their shores and that every effort would be deployed to return these works to their legitimate owners. As part of its obligation under the Agreement, the State Department sent to 72 American museums, 57 New York galleries and 2 Boston-based galleries, and close to 40 colleges and universities, a series of consolidated lists of art losses compiled by various European governments. These lists served as the only bulwark of defense against looted works of art entering private and public collections in the United States. Whether or not they were ever consulted is subject to debate. In the words of Ardelia Hall, Arts and Monuments Adviser to State: 'The Tripartite Agreement is an outstanding contribution of our Government for the eventual recovery of objects lost in World War II and still missing. It is important that this policy be effectively carried out in the United States, as this country is, today, the chief market for valuable objects. Enormous sums of money might be involved ... this policy will contribute to the good name of our country, to the foreign policy of the Department, and win the gratitude of foreign nations, for cultural objects are always cherished." She went on to say the policy was "founded on international law and international agreements to which this Government is obligated.." But above all, she argued, it is based "upon the principle of respect for the inviolability of art and the integrity of cultural institutions, upheld by this country long before there were any formal obligations to require it." Alas! No one today comes close to Ardelia Hall's commitment to art restitution.

The American government also issued a directive aimed at restituting objects brought into the United States by returning servicemen. This directive, called SWNCC 322, barred servicemen from bringing back to the United States any items that had been illegally obtained in Europe, or, if acquired legitimately, had been plundered from Nazi victims. The War Department was charged with the investigation of these cases, in collaboration with State and other Federal agencies. Before putting itself out of existence in the spring of 1946, the American Commission for the Protection and Salvage of artistic and historic monuments in war areas--known as the Roberts Commission--staffed by luminaries of the museum world like Francis Taylor, director of the Metropolitan Museum of Art, had issued in support of SWNC 322 a strong reminder to museums, art and antique dealers and auction houses, with respect to looted works of art, that "It is, of course, obvious that no clear title can be passed on objects that have been looted from public or private collections abroad. We believe, therefore, that it is to the advantage of both public institutions and the trade... that any specific examples of looting of works of art or cultural materials be brought to light as soon as possible."

With the able assistance of Ardelia Hall, the Arts and Monuments Adviser at State, but actually, the pillar of art restitution in the post-war era, several hundred items were eventually found and returned to their rightful owners, including a Durer print taken to the US by a young Brooklyn College student named Raul Hilberg. Whether or not we are speaking of the eminent Holocaust historian, I do not know. But this peppy graduate student insisted that the work not return to Germany, but be placed in an Americn museum. The State Department threw the book at him and the Durer print was promptly returned to the depository from which Mr. Hilberg had removed it. 

The American commitment to art restitution lasted for as long as Ardelia Hall remained at the State Department. After her departure in the early 1960s, which was bemoaned by French restitution officials, and in particular her counterpart, Rose Valland, the American government essentially forgot about its post-war commitments towards potential art loss claimants as did most other nations. Without Ardelia Hall, government-sponsored art restitution in the United States came to a screeching halt, but the principles remained and live on to this day. Principles, that is. Not policies.

Meanwhile, the Allied military authorities and their several hundred Monuments and Fine Arts advisors were busy collecting close to 2 million looted works of art from Germany and Austria, sorting them and trying to match them with a prewar owner. The task was made all the easier by ascribing the main responsibility of restitution to the governments of the countries from which the items were forcibly removed or illegally acquired. By 1948, the American occupation authorities had decided to close down the bulk of its investigations, and by 1951, the main collecting points closed their doors and the residual works still in place were shipped to governments requesting them as part of their national treasure. By the mid-1950s, all avenues for claimants were effectively closed and the only hope of recovery lay in the cash settlements offered by the Federal Republic of Germany, which released the German government from any future claims filed by an individual for material losses.