19 November 2019

Backdrop to the 20th anniversary celebration of the existence of the CIVS

by Marc Masurovsky

[Editor's note: This is the first of three articles on the November 15, 2019, one-day colloquium convened by the CIVS in Paris, France]

As is the case with all celebratory anniversary conclaves, the organizers are those who know more about what needs to be feted than the attendees to the erstwhile fiesta. After twenty years of existence, the “Commission pour l’indemnisation des victimes des spoliations (CIVS)” shared their 20-year odyssey through the wreckage of the Second World War exemplified by the staggering material, financial, and emotional losses suffered by the Jews of France during four endless years of persecution at the hands of a pseudo-legal French authority and German occupation forces.

A host of speakers were invited to share their thoughts with an audience of at least 400 participants who mostly hailed from the United States, the United Kingdom, the Netherlands, Belgium, Germany, Austria, Switzerland, and, of course, France. Much to my surprise, about one fourth of the participants were researchers, a pattern that has emerged over the past several years around similar international gatherings in London, Bonn, and Berlin, to name a few. The usual NGOs connected with art restitution matters were also in evidence—the Holocaust Art Restitution Project (HARP), the Commission for Art Recovery (CAR), Mondex, the Claims Conference, the Commission for Looted Art in Europe (CLAE)—as well as perennial personalities operating on the fringes of the art restitution community and constantly fighting for what they perceive is their rightful share of the “business.” An ugly thought.

As seen from the outside in, the proceedings began with a predictable self-congratulatory tone, where speakers highlighted the many accomplishments recorded by the valiant civil servants working tirelessly to restore a symbolic sense of justice to families broken and torn asunder by the horrors imposed upon them by those who despise Jews and covet their property. All of this in a country which has a terrible time facing its recent past in an open manner. Much has been done since 1945 but far more needs to be done still.

It is with that in mind that my cynicism was quickly checked when speaker after speaker articulated self-critical thoughts, most of whom belong to a coterie of—now—dignified, erudite, skilled elderly gentlemen and gentlewomen responsible for creating the CIVS and for shepherding it through the torturous and treacherous waters of accountability for crimes committed against the Jews of France and their possessions.

To be quite frank, I left satisfied that I had witnessed a historical event and been given a fairly reasonable balance sheet of two decades of activity on behalf of Jewish victims. In France, that counts for a lot.

The proceedings took place not too far from UNESCO in a building which houses administrative offices subordinate to the Prime Minister’s cabinet. It was miserably cold and wet outside, which made it easier to allow ourselves to be penned inside an auditorium which, although comfortable, gradually became stuffy and unbearable. But the high concentration of human-generated heat only exacerbated the situation. I am digressing….

To be continued…

16 November 2019

Historians vs. lawyers

by Marc Masurovsky

The past two decades have witnessed hundreds of restitution cases whose purpose is to reclaim the return of objects looted during the Nazi era. Although the claimants are located around the world, the legal actions are concentrated in so-called market nations, namely in North America, Europe and occasionally in Japan.

These cases set out to fix, to repair historical wrongs. Ambassador Stuart Eizenstat came up with what turned out to be an enduring catch phrase to describe such actions: “just and fair solutions”. It’s anyone’s guess, frankly, what constitutes “fair” and “just” solutions. They vary greatly whether you are the current possessor or the victim’s heir/heiress.

Still, the wrongs being repaired took place during a historical act of genocide that spanned the greater part of 12 years, from 1933 to 1945. It was aimed principally at the citizens of European countries of Jewish descent. Thus, art restitution is an act of justice seeking to repair a historical wrong.

To establish the facts and circumstances surrounding the “historical wrong”, lawyers—who are not trained historians—rely on those who have made it their career to examine the historical past, understand its many sinews and meanders and interpret it for a larger public. Hence, lawyers need historians to compile evidence and build a persuasive case to convince a current possessor of the looted object either through mediation or before a judicial authority that the looted object should be returned to his/her client.

If lawyers need historians, historians do not need lawyers.

And yet…

The variegated ways by which art objects were forcibly removed from the ownership and control of their rightful Jewish owners can give us pause. Here are some, not all by any means:

-forced sales
-duress sales
-sales while fleeing the site of persecution (flight sales or fluchtgut).

These complex “transactions” were deemed illicit by Allied powers fighting the Axis (Germany, Italy, and Japan) in a series of declarations during and after WWII making it clear that those responsible for aiding, abetting and/or provoking such illicit acts of forcible removal would be held accountable after the Allied victory over the Axis.

These illicit acts, in the eyes of those who study them—the historians—need to be clearly defined and all of their possible variations fully delineated and outlined so that their many permutations can be factored into legal proceedings.

By some perverse twist, American lawyers have increasingly opposed historians’ efforts to come up with clear definitions and delineations of these historical wrongs because any definition might impair their ability to successfully prosecute a claim against a current possessor.

The world is a strange place especially when, in order to repair a historical wrong tied to an act of genocide, a historian is asked to be silent on the exact details of these illicit acts.

Let’s be very clear here: historians need to do their jobs which is to apprehend the complexities of the past and explain them to the public in order to promote greater knowledge and enlightenment about what human beings do to other human beings so that, hopefully, we might not repeat such heinous acts in the future. Nice thought, I know.

Likewise, lawyers must do their job and protect their clients’ interests. For that, they need historians and other specialists to help them harness the facts of a case.

One thing they cannot do is order historians to censor themselves, just like historians do not ask lawyers to censor themselves.

Therefore, historians and researchers steeped in the tangled webs of persecution and exploitation of Jewish members of national communities between 1933 and 1945 will continue to study, examine, share in public and in private their findings and publish them where appropriate so that the many can have access to such knowledge.

Lawyers are intelligent people; they will surely find a way to adapt to such a state of affairs. After all, they cannot control the dissemination of knowledge anymore than governments can. And should not, under any circumstance.

Facts, ma’am, just the facts.

Some of the main Allied declarations:
"Inter-Allied Declaration on Axis Acts of Dispossession" (London Declaration) of 5 January 1943
Bretton Woods Resolution VI of 20 July 1944

13 November 2019

Torso of General Psamtik, Governor of Upper Egypt

by Marc Masurovsky

MA-AEGY 1, front

This Torso is one of the more stunning Egyptian antiquities looted by the Nazis and their French collaborators from Jewish collectors living in Paris.

Described by the Nazis as "A torso of a man (Männlicher Torso)", it was inventoried at the Jeu de Paume museum in central Paris on 1 October 1943 as one of many objects confiscated from Jewish owners under the aegis of Möbel-Aktion. The person responsible for the description of this torso was Ernst Adalbert Voretzsch, a German archaeologist and specialist with the Einsatzstab Reichsleiter Rosenberg (ERR) in Paris. He actually oversaw the description of all ancient Egyptian antiquities rounded up during M-Aktion in the Paris region in 1943. 
ERR card for MA-AEGY 1

The ERR, when it inventoried the Torso as MA-AEGY 1, had originally mis-identified it as dating from the 13th dynasty in an earlier inventory dated 16 September 1943. Indications on the inventory show that the item had also been miscast as an “Asian” object. Lots of confusion at the Jeu de Paume. Apparently, there were no Egyptologists on hand, although Paris had its fair share of experts still on duty during the German occupation period. The Torso was ultimately dated to the 26th dynasty. 
Back of ERR card
ERR inventory page for MA-AEGY 1

mention of torso in Bernheim-Jeune restitution file
Shortly therafter, the ERR packed up the torso and sent it to one of its depots in Seisenegg, near Amstetten (Austria) on 18 November 1943. The looted objects stored at Seisenegg were eventually repatriated to France. As a M-Aktion piece, it was not obvious to identify the rightful owner. But eventually, the torso was restituted on 14 June 1950 to Jean Bernheim-Jeune, the heir of the Bernheim-Jeune gallery and inventory.

Fast forward 60 years…

On 5 June 2013, the Torso came up for sale in a Paris auction house, Boisgirard-Antonini, as a 30th dynasty piece, thus contradicting earlier appraisals of the object performed by French and German specialists. It allegedly broke a record. The Torso was then shown at TEFAF-Maastricht Art Fair in March 2014. Throughout this period, questions about the status of the object came up. Although the Paris auction house was aware that the object had been looted during WWII, those showing the piece at TEFAF wanted to be certain about its entire history.

The Paris-based Bernheim-Jeune family of art dealers and collectors had owned the Torso in the early part of the 20thcentury. The question then became: did they own the piece at the time of its confiscation by Möbel-Aktion agents?

Further research was necessary to ascertain that, in fact, the victim was Bernheim-Jeune. The family’s own restitution claim and recovery documents confirmed their ownership of the piece. The Torso had been on view atop a fireplace mantle at the Bernheim-Jeune residence in Paris up to the time of its seizure. The complication resided in the fact that those responsible for the seizure were French Fascists who had taken over the Bernheim-Jeune residence. The Torso was transferred at some point to the Nazi authorities in Paris and catalogued as a Möbel-Aktion piece. All of this makes little sense but the events speak for themselves.

This story of a restituted object being sold on the art market decades after its confiscation and restitution attests to the diligence exercised by those who handled the Torso in 2013 and 2014 in ascertaining the proper facts surrounding the object’s history prior to selling it.


Bundesarchiv B323 series, Koblenz

Publications where the Torso appeared:
L'Art moderne et quelques aspects de l'art d'autrefois: cent-soixante-treize
planches d'après la collection privée de MM. J. & G. Bernheim-Jeune: poèmes de
Henri de Régnier, I-II, Galerie Bernheim-Jeune, Paris, 1919, p. 5 (vol. I),
pl. 173 (vol II).

J. J. Clère, `Autobiographie d'un général, gouverneur de la Haute Égypte à
l'époque saïte', Bulletin de l'Institut Français d'Archéologie Orientale, 83,
1983, pp. 85-100, pls IX-XII.

H. de Meulenaere, `Un général du Delta, gouverneur de la Haute Égypte',
Chronique d'Égypte: Bulletin périodique de la Fondation Égyptologique Reine
Élisabeth, 61, 1986, p. 203-210.

Shorter, The Journal of Egyptian Archaeology, 11, 1925, pp. 78-79.
H. Kees,`Der angebliche Titel "Vorsteher der südlichen Türöffnung (von
Elephantine)"', Zeitschrift für ägyptische Sprache und Altertumskunde, 70,
1934, p. 86, n. 5.

E. Otto, Die biographischen Inschriften der ägyptischen Spätzeit, Leiden,
1954, p. 92 and p. 128.

Wörterbuch Die Belegstellen, II-V, 1937-1953 where the inscription is cited
several times; for the references, see Clère op. cit., p. 86.

07 November 2019

The “heirless” game update.

by Marc Masurovsky

One would have thought that this matter of who owns what object stolen during the Nazi era would have been settled by now. After all, either one can identify the owner or not.

Simple? Not quite.

The identification process of the rightful owner of an art object which was looted between January 30, 1933 and May 9, 1945, requires research. That effort is tedious and laborious in personnel days stretching into months and in other ancillary costs—travel, lodging, and other related indirect expenses associated with the collection of information located in remote sites far away from the site of discovery of the looted object.

When there are umpteen thousand objects whose owners are not readily identifiable, the problem becomes compounded and requires a political solution at the international level.

During the worst humanitarian tragedy of the 20th century, namely the Holocaust and the genocidal campaign against the Jews of Europe, every Jewish household on the European continent which lay in the path of the Nazis and their local henchmen was subjected to plunder, seizure, and, oftentimes, destruction. Where did the contents of these Jewish households go? Everywhere.

When the Second World War ended, Jewish-owned property was strewn all across Europe. The more appealing items, those with acknowledged value, could be found in commercial outlets everywhere. Those with appreciable value because of their authorship and aesthetic quality entered private and public collections, crossed international borders, and became fully incorporated into the cultural heritage of numerous nations (read State-owned museums) and a host of private and public collections.

On 3 December 1998, at the Washington Conference on Holocaust-era assets, a set of 11 non-binding principles were put forth, largely inspired by the American museum community, to guide nations and their cultural sector in the treatment of objects shown to having been displaced during the Nazi era.

Principle #9 addressed the unidentifiable ownership issue:

“If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, cannot be identified, steps should be taken expeditiously to achieve a just and fair solution.” I referred to this as “diplomatic hogwash.”

We are now nearing the end of 2019 and, still, there is no comprehensive approach to the disposition of art objects deemed “heirless.”

First, let’s go back to the wording. An object is “heirless” if there is no one around today to claim it as his/her rightful property by descent. To determine that the object is “heirless”, one has to conduct extensive research into its pre-Holocaust ownership. No research, no “heirless” verdict. The object remains in limbo land. After all, you have to prove, beyond a reasonable doubt, that a person of Jewish faith owned the object. How can you tell if an object was owned by someone Jewish? Does it exude some mysterious aura which is reminiscent of something “Jewish”? That is preposterous. We saw this egregious behavior with the Gurlitt scandal. And yet, intelligent people walk into German museums and proclaim that all objects in their collections with uncertain ownership which were accessioned after 1933 are, most likely, the property of Jewish owners. To that, I say categorically: “No!”.

What to do?
Back in June 26-30, 2009, I attended the official follow-up conference to the Washington Conference on Holocaust-era Assets. There, I spoke and suggested that the international community should establish “an international entity responsible for the return of such objects to their rightful owners and to dispose of so-called heirless objects in a manner that is of ultimate benefit to the families of victims, and which underwrites and promotes further research into the fate of such objects.”

Much ink has been spilled since June 2009. Looking back, it is clear that a proper resolution of the “heirless” problem is to conduct systematic provenance research in public and private collections worldwide. The likelihood of art objects with uncertain provenance which might have been the property of a Jewish owner is high in European, Israeli, and American collections. That’s where the research focus should be placed. To conduct such research, funds are required. A timeline should be established to research these objects and determine, once and for all, whether or not they are heirless. Once that decision is made, all concerned groups and governments should hammer out an acceptable solution to the final disposition of these objects.

I am clearly opposed to the following:
1/ wholesale liquidation through auction sales;
2/ wholesale transfer of these objects to Israeli institutions.
Point 2 is not feasible simply because it places an unacceptable burden on Israeli cultural institutions to welcome a potential tens of thousands of objects affected by this process. No institution can absorb them. And what good does it do to place these objects in warehouses? And, in any event, they do not belong to Israel. To apply the language of international pronunciamentos on cultural rights, they belong to “humankind.”

The solution that I favor is to ask museums which host these objects, most likely to tell their story as accurately as possible in order to educate the public. Their mission is in part to educate and share knowledge with their visitors, rather than cherry pick which objects should be discussed, at the expense of those objects with tortured histories. This reasoning also applies to looted antiquities, indigenous objects, ritual and sacred artifacts plundered from communities worldwide.

There are many other ways by which to honor “heirless” objects and their unknown owners. But the first step is to stop the political posturing and to come up with a scientific, rational approach to clear up the ownership issue. For that to happen, it requires a substantial investment, but it is an investment that all concerned nations need to share.