Richard Colnaghi is undeniably one of the most important dealers in the global art market for museum-quality Old Masters. In going through one of his catalogues, one painting stands out because of its problematic provenance: “La Bonne Nouvelle,” by Marguerite Gérard, painted most likely in or around 1804.
The history of the painting hits a snag when it enters “the Seligmann Collection” in 1937. The issue here is simple: although there are many people with the name Seligmann, there are few who collect such distinguished works. They belong to the extended family of Jacques Seligmann whose antique and Old Master business dominated the Place Vendôme in Paris up until its complete dispossession at the hands of the Germans and their Vichy colleagues. Another branch of the family set up shop in New York, running several art and antique businesses—namely, Georges and Germain Seligmann, and Arnold Seligmann and Rey.
The ownership of this painting is written in such a way that one can only deduce a seamless stream of ownership from 1937 to the “anonymous” sale of the painting at Galerie Charpentier in Paris on 10 June 1954, before it entered the Bruni-Tedeschi collection, a name that should resonate since it is similar to that of the family name of the current wife of French President, Nicolas Sarkozy.
Question: Is the Seligmann in the provenance the same as that of the Place Vendôme Seligmann? If so, everything that was owned and managed by that family was forcibly removed by the German authorities between June 1940 and 1941--first off by Goering’s men, secondly, by German police under the control of the German Embassy in Paris, thirdly, by the Einsatzstab Reichsleiter Rosenberg (ERR).
Georges Bernheim was a noted gallery owner and international art expert in pre-1940 Paris. Working under the label of the ‘Galerie Georges Bernheim,’ he had exhibited works by Francis Picabia, Raoul Dufy, and many others. Don’t be fooled, though. The number of Bernheims in the Paris art world is impressive. Although they are not related to one another, people often make that mistake and think it’s one big happy family. We have Georges Bernheim, Marcel Bernheim whose galerie ‘Galerie Marcel Bernheim’ was owned by Levy-Hermannos. And let’s not forget Bernheim-Jeune. These fixtures of the bustling avant-garde pre-1940 Paris art scene all have one thing in common: their galleries, apartments, secondary homes, bank safes, storage facilities were targeted for plunder in the early months of the German occupation of France. The man behind their combined losses: Bruno Lohse, deputy chief of the ERR, whose main offices were at 54, avenue d’Iéna, in the tony section of Paris, not too far from the Arc de Triomphe.
From a forensic standpoint, the Georges Bernheim case is frustrating, to put it mildly. According to the carding system used by the ERR at the Jeu de Paume, only 5 items were processed by Lohse’s colleagues in December 1942. If we go by the three crates that contained the items belonging to Georges Bernheim (G. Bern), the number of items rises to 18 and includes furniture and early Renaissance objects. To confuse matters a bit more, Georges Bernheim’s belongings were seized two years earlier in December 1940 and placed in one of the rooms set aside at the Louvre in November 1940 to accommodate the first major incoming shipments of plunder transferred to the ERR by the German Embassy in Paris. In other words, three crates containing Georges Bernheim objects d’art sat around at the Louvre for two years before being ‘processed’ further down the road at the Jeu de Paume.
The story would not be that complex if it ended here. However, a closer look at Georges Bernheim’s inventory of stolen art which he submitted to French authorities in 1946 perplexes and daunts, providing an alarming look at the full breadth and scope of the plunder. Since the Germans had seized his gallery records, inventories, photographs, and reference books, Georges Bernheim was forced to remember what he had lost and describe each item to the best of his ability. He managed to provide detailed descriptions for about 20 paintings, including prices and measurements, no small feat. But for the vast majority, he could only identify the names of the artists and the number of works he owned for each of them and provide a generic idea of the format of the paintings.
As it turns out, the total number of works seized from Georges’ apartment and gallery exceeds 210! In other words, 18 items were inventoried at the Jeu de Paume and 200 others simply fell through the cracks. Where are they? What are they? One thing is certain: they were never returned. If Georges Bernheim’s heirs recovered anything from that ‘invisible’ lot, no one is aware of it.
Here is a list of some the artists whose works Georges Bernheim owned and were apparently not recovered:
Marc Chagall, André Derain, Jean Dufy, Raoul Dufy, Othon Friesz, Mané Katz, Per Krogh, , Adrian, Moïse Kisling, Albert Marquet Francis Picabia, Chaim Soutine.
One painting that he recovered in October 1948 was an iconic work by Giorgio de Chirico: “Two Horses”
Two Horses, Giorgio de Chirico
Source: NARA via ERR Project
(You'll note that Hermann Goering desired this painting, thanks to the H.G. marking in the top right corner)
Although I am not a lawyer, I am a trained historian on issues pertaining to the Holocaust, the Second World War, the mass plunder of all categories of assets by the Axis Powers and their allies in continental Europe and Asia, as well as the complex construction and enforcement of Allied restitution policies in the post-1945 world.
I also advocate for justice to Holocaust victims and their families in their efforts to receive either the rightful return of their stolen property or compensation for assets forcibly removed by Nazis and their agents.
With thirty years of focus on these and related issues, I feel well-equipped to address the concerns and points raised by this Prospectus.
My purpose is to respond point by point.
Marc J. Masurovsky
Co-founder, Holocaust Art Restitution Project
cc: Ori Z. Soltes, Chairperson, Holocaust Art Restitution Project
Willi Korte, co-founder, Holocaust Art Restitution Project
Although, in principle, such a uniform act might be viewed as feasible, its implementation would have untold negative consequences on those seeking the return of their cultural property, writ large, to include Holocaust-era losses, objects illegally removed from archaeological sites, as well as nations seeking to repatriate items which were illicitly removed from their territory and transferred to other countries. It would also destabilize current Federal and Congressional mandates governing the illicit traffic in stolen goods on US territory by producing what some have called an end-run around the National Stolen Property Act (NSPA).
2. Past art ownership disputes
Although it is always desirable not to go to court to obtain satisfaction and even some measure of justice for a historical wrong perpetrated decades ago in faraway lands, the idea that art ownership disputes used to be resolved out of court is not borne out by case law, by the history of the art world, and by the quest of theft victims for the return of their property. That might have been true in a bygone world where museum officials, art dealers, and art collectors discussed their problems over cognac and cigars. However, if you delved a bit deeper into the aggressive techniques used by art owners to settle scores even amongst themselves, they always invariably ended up in a courtroom.
3. Uncertainty and the Uniform Act
Uncertainty is a mathematical principle premised on the notion that there will always be a state of imperfection whereby results depend on the variables that are entered into an equation. For a geographer, the only certainty is a fixed point defined by longitude and latitude. When one injects the concept of scale into the location of a geographical point, uncertainty enters the picture. Therefore, uncertainty can be measured but it does not lead you to certainty. In terms of art restitution cases, even the concept of theft is subject to uncertainty. Was the object actually stolen? What constitutes theft during the Holocaust? During the Nazi era? Is a forced sale the same as theft? In the case involving the "Portrait of Wally" by Egon Schiele which pitted the heirs of Ruth Bondi Jarai against the Museum of Modern Art of New York, the New York State Court of Appeals was certain that Wally had been restituted because it had been ‘found’ by the US Army.
How would the Uniform Act establish certainty in a restitution case when all that is known is that the object disappeared from a home in Dusseldorf in March 1938 and resurfaced in a US museum in 1951? Likewise, how certain can you be that an object was not properly restituted after 1945 before its sale decades later? In the case over the restitution of a Degas pastel filed by the Goodman family against Daniel C. Searle, billionaire trustee of the Art Institute of Chicago (Goodman v. Searle), part of the battle hinged on the Goodman (then Gutmann) family’s intention to sell or to store the object in Paris, France, from which the Degas was stolen by elements of the Einsatzstab Reichsleiter Rosenberg (ERR). Despite the fact that the ERR removal constituted theft, the defense cast a doubt by intimating that the item was being offered for sale.
4. Stability into the national and international art markets
As of now, there is no indication that the art market is unstable and that it would be stabilized should there be a uniform act. The notion that standardized procedures on matters pertaining to art restitution in all 50 states would inject stability in the national and international art markets is ludicrous. The art market not only is impervious to the upswings and downswings of art restitution but it has succeeded in monetizing and increasing the value of restituted works of art, as demonstrated by the extraordinary prices commanded by Maria Altmann’s Klimt paintings, by the ‘Sunflowers’ of Egon Schiele, to name a few. The art market is more likely to be destabilized by the vagaries of speculation from key players, international fluctuations in currency rates, and fundamental disruptions in the supply of art brought about by mass conflicts, protectionist laws, and natural disasters.
5. Forum shopping
Oddly enough, forum shopping favors both sides of the art restitution debate and is a legal strategy that has always had its pluses and minuses. The elimination of such a strategy can only serve one constituency—the museum and art dealer community. Without an ability to ‘shop,’ claimants might be forced to rely on extremely unfriendly jurisdictions in their quest to obtain the return of their property. It is not clear that the so-called nonjudicial resolution of art ownership disputes would provide a level-playing field for claimants, in view of the complex nature of these historical cases.
6. Nonjudicial resolution of art ownership disputes
The emphasis given by this prospectus on this legal strategy is well-intentioned but misguided. As in a court of law, there are no guarantees that nonjudicial proceedings constitute a more favorable environment for claimants to obtain restitution of their stolen property. Museums, art collectors and dealers alike in the United States have been unusually stubborn in their belief that they are the rightful owners of the property being sought by claimants, as the good faith purchasers of those objects. Since the American legal system leans more favorably towards the good faith purchaser, the onus invariably is on the claimant to disprove the legitimacy of the current possessor’s title to the object sought for restitution.
Nonjudicial resolutions will deter restitution and encourage financial settlements. Again, in the case of the Portrait of Walli, the resolution of the case was viewed as a success, despite the fact that the painting was returned to the Leopold Foundation in Vienna, Austria, against a fee of 19 million dollars. The heirs of Ruth Bondi Jarai initially desired the restitution of the painting, not its return to the very people who had refused to restitute it to the family for over four decades. One can argue that a decade of protracted legal battles wore down the heirs and perhaps even the Leopolds into reaching a financial settlement. The settlement was also predicated on the insistence of the Leopolds not to return the painting. That is the cardinal principle at work here and in most art restitution cases filed in the United States: refusal by the current possessor to restitute. In civil proceedings, there is no legal mechanism that can compel the current possessor to restitute an item except on moral grounds, which is the predicate for all Holocaust-era restitution cases.
7. Inconsistencies among the States
The national art market in the United States is defined by two States—New York and California. What would be the consequence of resolving inconsistencies among the States through the adoption of uniform standards? How would such standardization affect art ownership disputes in those two States where there is a higher level of awareness on issues pertaining to art restitution, although not proven to have served claimants well in recent years? It is in New York, after all that, in 1998, months before the Washington Conference on Holocaust-era Assets, museums and art market groups such as the Art Loss Register led the charge to enact stringent statutory limits on restitution cases and press for the adoption of a single registry to fulfill due diligence requirements for those acquiring, selling, borrowing, lending, or donating cultural objects. The current strategy favored by the ULC to adopt a uniform standard might actually provide a belated victory to those entities by reducing, if not eliminating, most legal remedies that have given claimants greater flexibility in obtaining justice in the American legal system.
a. “Theft does not convey title”— this sentence has been and continues to be the battle cry of those seeking art restitution. When uttered by an American brigadier general in the summer of 1945 in the face of the staggering breadth and scope of Nazi-ordered plunder across Europe, the phrase resonated more sharply as he tried to comprehend how plunder had become an integral component of a war of aggression against civilian populations because of their status, race, creed, ethnicity, political or religious beliefs. Unfortunately, that sentence does not mean much in the eyes of current possessors of art objects which have been repeatedly recycled in the postwar art markets. Current possessors have been shielded by a barrage of laws that provide them with the benefit of the doubt as to their possession of good title. All formerly occupied or annexed nations of Europe passed such laws so as to prevent a wholesale purge of the art market. The only transactions that could be scrutinized were those directly engaged in between seller and current possessor where the possessor was fully aware that the seller was persecuted owing to his or her religion and beliefs. Put another way, postwar governments gave a conditional pass to all wartime transactions regardless of how works and objects had been acquired, despite international pronouncements on plunder and accountability of those who abetted acts of looting through profit and recycling.
b. In the United States the Roberts Commission, staffed by eminent museum directors, art historians and experts, was put into place by the Roosevelt Administration to address the magnitude of cultural thefts in war-torn Europe and, in part, to assess the impact of those thefts on the US market. In July 1946, the Roberts Commission concluded, despite the total absence of reliable data, that there were too few stolen or illegally acquired objects entering the United States, to warrant the maintenance of wartime prohibitions or restrictions against such imports. The end result was that any mechanism to filter illicit imports of art objects disappeared and the only legal instrumentality left to Federal monitoring agencies was the National Stolen Property Act (NSPA). Needless to say, without any lists in hand or methods by which to identify these objects, there was no possible way that Customs or any other law enforcement agency could readily identify how one painting by Tiepolo could be ill-gotten as opposed to another painted by the same artist. In other words, the United States opened its doors wide open to all cultural imports without providing the needed resources to its monitoring agencies to filter illicit imports. The United States government’s initial commitments to restitute stolen objects to their rightful owners quickly faded as the Cold War heated up, while the art market grew exponentially over the coming decades. The occasional art theft cases rooted in wartime thefts garnered headlines on a periodic basis but did not influence museums and art dealers to change their ways.
Although it is true that “a thief cannot transfer title to another regardless of the other’s good faith,” the art world operates in a different manner by relentlessly upholding the rights of the current possessor against claimants’ assertions that the current possessor acquired title in bad faith. This problem brings up several points: transparency and due diligence.
c. Transparency: In an art world where transparency reigns supreme, there is full disclosure from all parties regarding the ownership history of the contested object being claimed for restitution. However, due to the unregulated nature of the art world, there is no obligation for any museum, art dealer, art collector, or any other individual or entity involved in the commerce of art to publish full provenances on objects in their possession or under their care. A brief survey of current auction catalogues, museum collections—private and public—art gallery inventories and other listings where art objects are featured, in the worst cases, the provenance is non-existent, in most cases it is minimal, and in a small minority, it provides more details which allow for the reader or potential buyer to be educated about the history of the object.
Since the act of producing a provenance is not regulated, there is no oversight mechanism in place to confirm or infirm the veracity of the content of that provenance. In other words, an element of blind trust goes hand in hand with the acquisition or trade of art objects. In short, there is more opacity than transparency in today’s art world, despite laudatory efforts on the part of leading auction houses like Christie’s and Sotheby’s and certain museums to be more forthcoming and systematic about the ownership histories of the pieces that they either sell or acquire or display. These efforts are especially noteworthy in specific markets—namely, New York, London, and Paris—and in larger so-called Tier One museums.
And yet, we are continually plagued by provenances which include a single transfer of ownership or several owners, despite the fact that the item in question is 200 or 300 years old. The practice of opacity continues unabated. Hence, transparency without regulation is a fantasy.
Before there is a legal debate over who should “be required to investigate the provenance of an item,” let us consider what due diligence entails. The act of due diligence is on par with the act of purchasing an automobile or acquiring a house: one must do one’s due diligence, by law, before acquiring good title to a car or a house. However, there is no full guarantee that one has good title because of various schemes used to cloak true ownership of assets. Those techniques evolved in the wake of the First World War and the Versailles Treaty and were fully brought to productive use during the Second World War in order to evade government restrictions on trade and transfers of ownership.
The act of purchasing an art object, writ large, to include antiquities requires a certain amount of research on the part of the person acquiring the object as a show of ‘due diligence.’ Part of the due diligence process involves obtaining as full a disclosure as possible from the current possessor regarding the history of the object. It is up to the potential buyer to decide whether or not to acquire the object if the seller cannot produce a fleshed-out provenance. More often than not, the absence of provenance does not deter a buyer from acquiring the object and thus title to that object. Once the transaction is sealed, the new possessor is assumed to have good title, unless otherwise proven wrong. The question is: by whom?
With billions of dollars at stake in a global market that is both covert and overt, the issue of due diligence shrinks in the presence of the goliath that is the marketplace of art. While much progress has been made in the trade about due diligence and provenance research for certain classes of objects that have been readily identified with Holocaust-era thefts—Old Masters, Impressionist works, Secession artists (Schiele and Klimt)—the same does not hold true for the vast majority of art objects, including, but not limited to, furniture, medieval two- and three-dimensional objects, works on paper, bronze objects (the origin of Rodin castings can be complicated to trace because private anonymous owners own the moulds. The same goes for engravings when private owners possess the original copper plates or stones in the case of lithographs or woods for woodcuts.) Short of regulation, there is no mechanism that can ensure even an iota of compliance and transparency on the part of current possessors, exhibitors, borrowers, lenders and donors of art objects to reveal the full provenance of the object.
Therefore, the long answer is that the due diligence duty befalls both seller and purchaser.
a. Accessibility of information on the Internet: The wealth of information on the Internet provides greater opportunity than ever before for individuals and organizations to obtain ownership information on a very limited category of objects. I wish to emphasize the word “limited”. The Internet may provide you with sufficient information on the ownership history of 1/10 of one per cent of those objects that are in the open market, whether on sale or on display. For some categories of objects, it is nigh impossible to obtain anything on the Internet. Therefore, due diligence begins with the Internet, but does not end there. One moves on quickly to a limited number of databases that are available for consultation. While most are proprietary or fee-based, a database like the “Database of Art Objects at the Jeu de Paume” contains fairly complete information on more than 20000 stolen objects which are fully-accessible and fully-searchable. But that number does not even scratch the surface of the total number of art objects in the market. Art-historical resources are difficult to consult if one does not live near well-endowed museum reference sections, art libraries, or institutions devoted to art research. Hence, due diligence takes on a very different meaning whether one lives in the Midwest, the New York area or in Oregon or even Alaska.
b. Value and due diligence: From 1944 to 1950, the so-called “Monuments Men” including a handful of women, consisting of curators, art historians, art experts, and museum directors, were detailed to the European Theater of Operations (ETO) and also the Far Eastern Theater of Operations to do what they knew best. They brought with them their baggage of taste and esthetics to war-ravaged continents and worked hard to facilitate the location, recovery, identification, repatriation, and restitution of untold numbers of looted objects. Because of time constraints, they invariably focused on the great names of classical art history and the most recognizable and expensive items with which they were familiar. Few were versed in the arcana of second-tier artists whose works were of high-quality but not sufficiently high to warrant inclusion in the collection of the Metropolitan Museum of Art or similar institutions in North America and Europe. Therefore, due to prejudice and time constraints, justice was denied to the overwhelming majority of victims of art thefts ever since the inception of Allied restitution policy. Those who happened to collect works by ‘minor’ Impressionists or artists whose appeal was regional—as in Central, Eastern, Western, Southern, or Northern European—saw their claims cast aside because of their ‘LESSER’ value than works by Bellotto, Cézanne, Pissarro, Leonardo Da Vinci, Ruysdael, and the list goes on and on and on.
Invariably, the art world argues time and time again that it is counterproductive and not cost-effective to do one’s due diligence on lesser valued items. And therein lies the rub. This debate about due diligence and transparency masks some of the inherent biases built into the restitution debate. Indeed, there is far less interest even for auction houses and gallery owners to waste their time on a work by Foujita of Paris, or Felix Nussbaum of Brussels, whose works are valued in the tens of thousands of dollars or perhaps low one hundred thousands, than they would on that cherished idol, Pablo Ruiz Picasso, or Marc Chagall. Even with those icons of the art world, there is discriminatory ‘due diligence’ depending on whether we are working with works on paper or oils or three-dimensional objects/sculptures.
Due diligence must apply to everyone and everything regardless of the market in which the objects are traded, with the notable exception of flea markets and garage sales.
10. Statutes of limitation
a. Commencement of statute: The theft occurs in 1941. The owners are gone. Some come back after the war. Their objects have disappeared. They don’t have an inventory but they do remember what they owned. They put together an inventory based on what they remember and file it with the proper authorities who handle restitutions. Nothing surfaces. These people are already middle-aged. They might have children. They keep this restitution issue to themselves. They die. Their children inherit the few possessions that they have as well as the inventory of what was once owned before the 1941 theft. We are now maybe in the 1960s or 1970s. Their children have their own families. Depending on their level of interest in the matter, they may make some inquiries. But they have day jobs and are not independently wealthy so as to afford full-time investigators. Meanwhile, their stolen possessions have gone through several owners. Perhaps, one or two or more may have been part of exhibits in different parts of the world. But they don’t know because they are not focused on the art world. Then one day, one of them walks into a museum and says: that looks like the painting that our parents talked about when we were kids. Question: does the statute begin at that moment?
Let’s say for now that the kids do not inquire further about this particular object. One of them eventually decides to look into it and makes an inquiry at the museum where the painting is displayed. Depending on how rude or cooperative the museum official is, there might be very little or no information for this potential claimant. If the object is on loan for the exhibit, the museum official would not be bound to say anything. Because the potential owner is ill-equipped to move the process forward, in more cases than none, he or she will stop inquiring at that moment. Hence, an opportunity is lost to promote the identification and possible return of a looted object. This story is repeated time and time again, for the following reasons: opacity of information denies the opportunity to families of despoiled owners to make informed decisions about whether to pursue a claim or not. With respect to due diligence, the onus of research is on the institution that harbors the piece for exhibition purposes as well as the current possessor. It should not be left to the victim to provide detailed information when such information may be non-existent or fragmentary at best. Therefore, instead of dismissing the question out of hand as groundless or unfounded, the institution must do its part, regardless of whether an individual walks in to an exhibit and believes that he/she has spotted an item that belonged to his/her family.
If we use the above example, let’s apply the different commencement dates:
i. The date the theft occurs or is discovered—in the above case, the statute would commence either in 1941 or in 1945.
ii. The date the whereabouts of the property is discovered—in the above case, it was not a confirmed discovery. But if we presume that it is the same object, it would have been in the 1980s or 1990s.
iii. The date the whereabouts of the property reasonably could have been discovered—this concept is heinous, to put it mildly, because it implies that every victim is an art historian, art connoisseur, art expert, and spends hours every day consulting art magazines, auction house catalogs, has access to a myriad of flyers, brochures, clippings, and illustrations about exhibits in collections around the world. How absurd an idea! The art market is all too happy to foist this ridiculous standard at claimants. It is irresponsible to expect a claimant to be so omniscient about the art world. There is not a single collector on this planet—I defy anyone to find one—who, with modest means at his/her disposal, spends a large chunk of his/her time keeping tabs on the global art market in all of its variations and infinite nuances.
iv. The date a demand for return of the property is refused- As a general rule, thefts associated with crimes of genocide or mass slaughter should have no statutory limits associated with the discovery of the objects. The issues surrounding cases of art restitution are complex enough that as much leeway as possible should be given to the parties involved to work out the question of ownership. That implies fleshing out the history of ownership of the object, which entails in most cases a significant amount of historical research oftentimes in several countries. A more dynamic public policy on the subject of restitution would provide resources to those who can ill afford years of research so as to bring about speedy resolutions of these art ownership disputes.
b. Laches and statutes of repose: Laches and statutes of repose should not be invoked in cases involving Holocaust-era thefts.
11. Burden of proof
In the US Zone of Occupation in Germany, a law was passed known as Military Law 59. The burden of proof was placed on the current possessor who had to demonstrate that he or she had not knowingly acquired an object having been associated with an act of persecution against groups targeted by the National Socialist government for persecution and extermination. Hence, the onus was placed on the current possessor to establish his/her good faith. The same should hold true today instead of having current possessors hiding behind shields of willful ignorance.
Restitution where appropriate is the goal.
a. Damages are a compromise, especially when claimants have to work through expensive law firms and against institutions that refuse, on principle, to restitute. In this matter, American museums have a paltry record of restitution when compared to their European counterparts.
b. Compensatory awards to a bona fide purchaser do not occur frequently. In 1949, the US Department of State recommended successfully that a New York art dealer, Fine Arts and Associates, be compensated for the sale of a painting to the Detroit Institute of Arts which turned out to be have been stolen from a French Jewish owner and sold through the market by an agent of the Nazi Minister of Foreign Affairs, von Ribbentrop. When the item was restituted to the Jewish family, the New York art firm protested that it had been defrauded by Ribbentrop’s agent and demanded compensation. In the Seattle Art Museum case involving a painting by Henri Matisse which belonged to the heirs of Paul Rosenberg, the Paris art dealer, the Museum sued the New York art gallery, Knoedler’s, for compensation of its loss of the Matisse painting. The Museum argued that its donor, the Bloedel family, had been misled by Knoedler’s about the actual provenance of the painting at the time of its acquisition and therefore transferred the tainted title when they donated the painting to the Seattle Art Museum. The complexity of compensatory awards is tied to the inflated values of art objects on today’s art market. The concept nowadays is the equivalent of a slippery slope and should be treated as such. If there were greater transparency and stricter due diligence requirements, current possessors might be able to forestall these complications.
It’s a nice idea and one that has been bandied about for years. The main problem behind a title registry is that it can provide good title to a current possessor of a stolen item and thereby, act as a ‘laundering’ mechanism for stolen property, The criteria that would have to be met in order to register a work or an object in that registry would have to reflect transparency and full disclosure of the past ownership history of the object being registered. In other words, the risks entailed by such a registry outweigh the benefits unless there is a thorough vetting process put in place. As discussed earlier, the Internet does not provide sufficient background information to justify giving an object a clean bill of health. Moreover, who would establish the criteria by which one could list an object in this title registry? Or would the title registry assume that everyone has ‘good title’?
14. Preemptive Federal Law
For now, Federal law provides the best instrument with which claimants can recover their property under the NSPA. Any attempt to gut or to weaken the NSPA would amount to a catastrophe for claimants who have very little or no protections at the state level. Hence, the ULC project should keep this in mind if it is interested in justice for all parties concerned. If a museum is the current possessor of stolen property, it has to return it to its rightful owner. That is where the Federal system has been and continues to be of tremendous assistance to claimants, regardless of their nationality, and the nature of the theft.
As in so many of these art restitution cases involving losses suffered during the Holocaust, despoiled families had come very close, in the immediate postwar years, to being reunited with their stolen possessions. But, depending on who was interpreting international law on what day and in what Allied jurisdiction (French, American, British, or Soviet), the items in question were repatriated to different countries on the principle that they had to return to the country from which they had been stolen; restitution to the rightful owner was incumbent upon the postwar government of that nation.
In the case of some of Baron Herzog’s paintings, it appears that this is exactly what might have occurred. Presumably, a group of paintings which formed part of the looted collection of Baron Herzog had been comingled with works from the Hungarian National Museum. The lot had ended up in a small town in Bavaria called Dingolfing near Landshut. By late April 1947, the Herzog paintings, those from the Hungarian National Museum, and paintings belonging to the Manfred Weiss family were sent back to Hungary. Ironically, at the same time as these events transpired in Bavaria, officials from the US zone of Occupation in Austria were actively stalling delegates from the Hungarian Restitution Commission in their attempt to locate and claim Hungarian property brought into Austria by the retreating Nazis.
Sixty-four years later, the battle continues for the return of the Herzog paintings. Sadly, sixty-four years ago, some measure of justice might have occurred for the Herzogs, were it not for rigid interpretations of international law and the vagaries of the incipient Cold War.
Nikolsburg, now Mikulov, lies in the south Moravian region of the Czech Republic. After the Munich Pact of September 30, 1938, the town was annexed to the Niederdonau Region of Lower Austria, itself part of Austria which had been absorbed in the Anschluss and renamed “Ostmark” by the Nazis.
From the fall of 1943 to the spring of 1945, the Castle at Nikolsburg was transformed into a depot of works of art and objets d’art stolen by the Einsatzstab Reichsleiter Rosenberg (ERR) mostly in France, and to a lesser extent in Belgium, and Holland. At least 5 trains filled with loot packed into hundreds of crates made their way from Paris to Nikolsburg where they were dutifully unloaded and placed in dozens of rooms throughout the Castle. As the Western Allies advanced across France, Belgium and Holland, many of the crates were transferred to Altaussee in the Salzkammergut section of Austria where the Reich authorities had created a central underground facility consisting of a network of salt mine galleries in which to store plundered art from across Europe. Not all the crates from Nikolsburg, however, made it to Altaussee. An unknown number remained at the Castle.
In the final days of the Second World War, a fierce battle raged in and around Nikolsburg opposing retreating German forces and advancing Red Army units. The town was not spared and the Castle took massive artillery hits. As Soviet troops closed in on the town, the occupants of the Castle removed many of the remaining objects to safer locations across town, including the local museum. A major fire produced by systematic shelling gutted the Castle. To this day, it is not clear how much of it burned down.
French restitution authorities including Rose Valland concluded that the Castle had burned to a crisp and its contents turned to ash. Curiously enough, however, two years after this hasty verdict was pronounced, the Czech government returned to France several hundred items from Nikolsburg/Mikulov which bore the identifying numbers assigned to them by the ERR in occupied Paris, at the Jeu de Paume, where they had been brought and sorted.
Some of these items belonged to Veil Picard (WP), David David-Weill (DW), Louis Louis-Dreyfus (DRF, DRD), the Hirsch family (HIR), the Oppenheimers (OPPE) and many others, including objects seized during Möbel-Aktion (MA-B).
Until a full accounting is produced of the items stored at Nikolsburg, a doubt will always linger whether more objects from the Nikolsburg hoard remain in the Czech Republic or in Slovakia or even perhaps in Austria. No one knows for sure.
Although the more than 48 postwar Italian governments have been focused largely on what the Germans removed from Italy during their two-year occupation of the country, little attention has been paid to looted art entering the Italian art market from Western Europe, Switzerland, and Austria.
Italian art dealers are an expert lot with ties to galleries, museums, and collectors around the world, namely in Europe and the Americas. Despite the rise to power of Benito Mussolini in 1922 and the instauration of a Fascist government, normal trade relations and cultural exchanges persisted well into the 1930s between the new Italy and its neighbors, even as far away as the United States.
After the German invasion of Western Europe in spring 1940 and the systematic plundering of hundreds of Jewish collections that ensued over the next four years, Italian galleries were busily entering into the fray as possible avenues of recycling loot. Capitalizing on their privileged relations with art experts and museum officials from Nazi Germany, these Italian dealers were only too glad to be paid in kind with modernist and especially Impressionist works, in exchange for which they offered Italian and other Old Masters to German agents. Italian dealers like Ventura and Bonacossi were more than willing to adapt to the German way of trading art: My Bellotto for 2 Monets. Joke aside, this is as close to the truth as one can get when it comes to these exchanges.
The following works were used to pay off Italian dealers in exchanges brokered by Goering’s favorite art specialist, Walther Andreas Hofer:
A painting by Sisley belonging to the Lindon family in Paris;
Although born in Heidelberg in 1639, Caspar Netscher established himself as a Dutch painter, who mastered the art of depicting the lushness and sensuality of textiles and their embroidered surfaces. The “Lady with the Parrot” (Frau mit Papagei or Dame am Fenster), by Caspar Netscher is a wonderful example of how Netscher commands detail while conveying intimacy and a subtle dose of exotic levity in his subject.
Hugo Daniel Andriesse, a wealthy Belgian financier and industrialist, owned the Netscher painting until it was forcibly removed from Brussels, Belgium, by elements of the Einsatzstab Reichsleiter Rosenberg (ERR) together with the rest of his collection and promptly shipped to the Jeu de Paume in Paris where it was ‘processed’ in March 1942 as HA 9.
Hermann Goering demanded the painting as well as others from Andriesse’s collection and the item was shipped to the Reich.
Von der Heydt, it should be said, has an extremely long rap sheet as an international man of intrigue and with very deep pockets who exchanged favors with the most unsavory characters bred and nurtured by the Third Reich, including, but not limited to, acquiring, hoarding and dispensing of looted cultural property and other forms of assets pilfered from Jews during the Second World War.
If Andriesse did not recover the painting, it has to be restituted to his family. Why hasn’t anyone done anything about this?
Lady with a Parrot
Source: Bundesarchiv via ERR Project
The Musée des beaux-arts de Montréal touts a significant and well-endowed permanent collection. However, with regards to the history of ownership of the works that it exhibits, the Musée fails the test of transparency on the provenances that it provides to the public and to experts alike.
To name a few:
'The destruction of Sodom and Gomorrha', by Henri Met de Bles (Bouvines, ca. 1510 – unknown date of death), Oil on panel, 29, 8 x 43,2 cm.
Purchase, Horsley and Annie Townsend bequest.
Harlebeke (Belgique), abbé J. Gerrant ;
Paris, dealer Kleinberger (en 1936) ;
London, dealer Peter Matthiesson (en 1960) ;
New York, dealer Kleinberger and Co. (1960-1963).
Technically, Kleinberger was in Paris when the Germans invaded in May-June 1940. One of his assistants, Allan Loebl, became seriously mixed up with the occupying power and had unsavory dealings with pro-Nazi merchants and staff members of the ERR, despite the fact that he was Jewish.
Where was Kleinberger in all of this? And why does the painting surface at Matthiesson’s in 1960 only to return to Kleinberger in New York in 1960?
The gap is significant. The good news would be that the painting somehow remained in Kleinberger’s possession throughout the war. But how?
'Travel pouch and documents on a table' by Paulus Bor (Amersfoort, ca. 1601 - Amersfoort 1669). Oil on panel, 56 x 76 cm, painted in 1630
Gift of Mr. and Mrs. Michal Hornstein
Paris, dealer Galerie Heim (unconfirmed) ;
Amsterdam, dealer de Boer (in 1954 ; unconfirmed) ;
London, Julius Lowenstein (en 1977 ; unconfirmed) ;
Public sale London, Sotheby's, 8 April 1987, no 45, to the dealers Brun
The fact that the Hornsteins gave the painting to the Musée des beaux-arts is the only concrete fact aside from its sale at Sotheby’s London in 1987.
The rest of the ownership history is murky at best and in general “unconfirmed.”
Note the following:
The Heim Gallery did business with the Germans between 1940 and 1944.
Pieter de Boer was one of many Dutch dealers selling to the Germans and especially to the Linzmuseum Project.
Where was the painting before Heim acquired it? When did Heim acquire it? And how does it get to de Boer? And exactly when, since 1954 is an uncertain date?
Last but not least:
'The Virgin of Jerusalem', 15th c., tempera and gold on panel, 34,7 x 27,6 cm
Purchase, Horsley et Annie Townsend bequest
Paris, Jacques Zolotnitzky (before 1931) ;
Paris, dealer À la Vieille Russie (en 1931) ;
Riabouchinsky (before 1959 ; unconfirmed) ;
New York, dealer J.J. Klejman (in 1961).
Aside from the fact that the provenance of this 15th century Russian item begins in 1931 should already be troublesome, the issue before us is the fact that the item was owned by “A la Vieille Russie”, a gallery in Paris. Unfortunately, the Vichy government closed down the gallery at some point between 1941 and 1944 and put it on the auction block to the highest bidder together with its inventory.
Who is Riabouchinsky? What happened to the inventory of “A la vieille Russie”? Was the Novgorod Virgin with the gallery when Vichy authorities seized it? If so, title to the item is no good because it is stolen property. Answers to these questions would resolve this knotty matter.
As you can see, provenance is everything. It is not only history but it is also a representation of who or what has title to the work. In that sense, provenance becomes a legal document. Something that no one should take lightly.
Until the Museum provides clarity to these provenance riddles, a cloud of ownership will always hang over those works.
In early January 2011, the heiress to a Dutch family who currently lives in Venezuela asked for assistance in finding a painting stolen during the German occupation of Holland from her father’s home in Doorwerth. The painting is a triptych signed by Marco d’Oggione, and produced around 1470 for a wealthy Lombard family. d’Oggione had studied under Leonardo da Vinci.
Her father, Theodoor Hermann Driessen, had purchased the d'Oggione from Galleria Voltare in Florence, Italy, in May 1929. Mario Salmi, then Director of the Uffizi in Florence, had provided a certificate of authenticity for the work.
Before the outbreak of the Second World War, Driessen owned a chocolate factory operating under the brand “Driessen” in Rotterdam. The family house—“Jagerhuis”—in Doorwerth, near Arnhem, was filled with art treasures and other valuables, which her father had laboriously collected over many decades.
On October 2, 1944, German troops loaded up all of the Driessen family belongings onto trucks and shepherded them eastward towards the Reich, never to be seen again. The Driessen family fled westward to safety to a nearby village with the little that they had been able to salvage from their house and hid in a cellar with dozens of other refugees.
The following day, on October 3, the “Jagerhuis” was pulverized by phosphorus bombs.
After the war, Theodoor Driessen filed a number of claims, in vain, to recover his property.
"Purificato Mariae" by Marco d'Oggione, ca. 1470, 280 x 160 cm
Source: Bundesarchiv via ERR Project
Should anyone have any information about the d’Oggione, drop us a line. There’s a family waiting to recover it.
At present, there is no comprehensive database for works of art and objets d’art looted during the Second World War and under the Nazi regime.
Let’s assume that a comprehensive database of looted art objects is created and operational. What would it look like?
It would be dynamic, not static. In other words, it would link different types of events together to recreate a historical context for each object and its purported owner. This comprehensive database would be a dynamic beast acting as an intelligence tool for the market, the claimants, and law enforcement, a market research instrument, and a tracking device for lost objects.
Do we start from scratch and create such a database or do we try and make do with what already exists and improve upon it?
That all depends on what type of result you might expect. Both solutions can cost the same amount of money, resources, and time. One relies on a bottom-up approach with a fresh team of experts, researchers, data entry specialists and programmers, while the other stakes its credibility on the ability of stakeholders to work collaboratively, unlock their proprietary databases, build sophisticated interfaces to link these far-flung efforts. Assuming that one can set aside corporate, governmental, and ego-driven considerations to allow for this type of collaboration, the question will still remain: what will the interface accomplish? What results do we expect? What improvements will be needed across the board to create the equivalent of a comprehensive database? As Hamlet said, that’s the rub.
How will it affect the international art market?
One consequence will be the production of reliable and detailed provenances on a wide variety of objects that either come up for sale or are accessioned into museum collections or which can already be found in private and public collections around the world. In other word, the database will make it very difficult for anyone to claim ‘willful ignorance’ when selling or buying or donating or lending an object.
Where there are uncertainties about the provenance of an object, the database will contain sufficient circumstantial and contextual data to allow the researcher to either infer certain notions about the origin of the object under consideration or establish with a fair amount of accuracy the nature of the gaps in the provenance and how best to answer them. One must remember that there will always be a certain degree of uncertainty about the origin of most objects entering or leaving the market. The function of this database is to reduce these uncertainties.
The existence of such a tool raises a number of policy questions which hark back to the Washington Conference on Holocaust Assets of December 1998.
The international conference produced a set of so-called Washington Principles which have become a milestone and point of reference for the international art trade, museum community, and global cultural policy pertaining to Holocaust-era thefts and recovery efforts.
I will cite only those principles which are particularly relevant:
share results of research on Nazi thefts
advocate openness and transparency with respect to archives, research and dissemination of relevant information
encourage research into public collections and promote the search for heirs
establish provenance research projects in the private sector as a routine practice
promote and implement international cooperation among interested groups
create a guide to archives and a central repository of relevant data
The good news is that we have at least one guide produced by the American Association of Museums to assist international provenance research efforts. And there is a modicum of international cooperation among some institutions with respect to specific projects. However, the not-so-good news is that there is very little dissemination of research results on Nazi thefts, there is systematic opacity in the field; there has been erratic research within museums, often motivated by ignorance of the details of the Nazi-sponsored plunder, thus producing ‘false’ positives. There have been few if no efforts to seek out heirs except those deployed by a number of for-profit entities and NGOs. And there are no indications that, aside from the main auction houses and a handful of art dealers, the international art trade pays even remote attention to questions of due diligence and provenance research.
In the United States, the main museum organization is a self-policing entity which does not clearly define what constitutes ‘best practices’ for conducting provenance research and minimizing exposure to accusations of harboring loot.
One positive example of international cooperation in the recovery and restitution of looted cultural property came about shortly after the sacking of the Baghdad Museum in 2003. Within two weeks of the plunder, a series of meetings were held in Paris and London, bringing together under one roof scholars, archaeologists, antiquities officials, dealers, Culture Ministry officials from various countries, and members of NGO’s like UNESCO and ICOM. These officials established the framework for joint collaboration in order to recover thousands of objects that were now entering the international art trade and possibly even private and public collections. The group agreed that the most urgent priority consisted of building a database of the looted objects. Within a month, the Swiss government agreed to underwrite its initial expense at a cost of 250,000 Swiss Francs. This sum would allow the group to digitize the Museum’s inventory and thus facilitate recovery. The data were standardized to conform to the Object ID used by Interpol in its database of looted objects. In other words, they defined a common standard. Very shortly thereafter, recoveries occurred in Jordan and Turkey and warnings had been issued throughout the international art market as far as New York and London.
Over the last three years, Interpol has been calling for the creation of complete inventories, closer monitoring of the international art trade, requiring proof of ownership before any trade occurs, and increased cooperation between law enforcement and the art trade.
In other words, where there is a will, there is a way. After Holocaust-era claimants pass on, their heirs may or may not continue to press for some form of recovery in the years to come. Nevertheless, the problem of looted art will not go away all by itself. The larger issues pertaining to loot and plunder go far beyond the Jewish specificity of the question and preoccupy most countries of the world as they experience daily assaults on their cultural heritage. This is where we can make a clear difference and draw up a new international framework for finding concrete and workable solutions that we can apply over time, but sooner rather than later.
In a wee article published on 10 March 1951, “Le Monde” reported the discovery of crates at Ilbarritz, near Biarritz, labeled “Martin Bormann, Reichsleiter, München.” Joke, right? Wrong.
Incredible, but true.
As far as can be ascertained, on or about 8 March 1951, eighteen crates were found in bushes alongside a beach at Ilbarritz, just south of Biarritz, in Basque country, a hop and a skip away from the Franco-Spanish border and from the town of San Sebastian. The crates were turned over to local police who called in Customs who, in turn, summoned Pierre Labrouche, director of the Musée Bonnat in Bayonne, to inspect the crates and give his professional assessment as to quality, value, and origin. Mr. Labrouche would only comment on the sixteen paintings that were housed in two large crates, some of which were of fairly decent quality. The rest of the items, he professed, fell outside his area of expertise since they were mostly decorative objects, like clocks, porcelain and other objets d’art.
Upon closer examination, one of the paintings yielded a clue as to the origin of the crates. An oil by a German artist, Boettger, it had been exhibited in Munich in 1942. Another indication on the back of the painting pointed to the Obersalzberg at Berchtesgaden.
In April and May 1945, American troops had liberated Berchtesgaden and Münich, stumbling upon troves of looted art. The French Foreign Affairs Ministry’s art recovery specialists, and, in particular, Ms. Rose Valland, speculated that the painting and the other items had been plundered from the main Nazi loot depots in and around Munich, and that some of the items had belonged to Martin Bormann. According to Ms. Valland, there had been significant acts of plunder committed by local laborers at the Führerbau in Munich and in Berchtesgaden before the arrival of American troops there. It could be that some of the thieves made off with the loot, crated it, and planned on crossing into Spain with it.
Why those 18 crates ended up in bushes overlooking a white sand beach south of Biarritz will never be known. As to the owners of the plundered items in those crates, the mystery will endure since no inventory of Martin Bormann's collection survived the war, assuming that one even did exist.
The crates were shipped to Paris for ‘further disposition.’
Between the plundering ways of the Einsatzstab Reichsleiter Rosenberg (ERR) in German-occupied France and the numerous ‘procurement’ offices run by parallel organizations, an untold number of looted cultural objects ended up east of the Oder River and especially in the wartime, Nazi concoction known as the General-Gouvernement.
One of the most nefarious pairs of plunderers were the Muhlmann brothers who, not content with having despoiled Holland, plied their wares in Paris during the Vichy years. Headquartered at 5, rue Mayran, they used their Paris address as a processing center for all sorts of goods to be sent eastward to one of their best clients, Gauleiter Hans Frank.
According to studies and correspondence produced by the French Foreign Affairs Ministry in the late 1940s and early 1950s, most of the objects that passed through rue Mayran went to Krakow to furnish the offices and residences associated with the General-Gouvernement. The Wawel Castle was used as a depot.
André Maurois’ library ended up in Ratibor/Raciborz, as did the libraries of Simon Petlura and Léon Blum, former French Prime Minister who was tried at Riom by Vichy and ended up in Buchenwald.
One of Heinrich Himmler’s houses at Glawa in Silesia served as an erstwhile depot for select French libraries before being transferred to the University of Poznan, which was also used as a depot for tens of thousands of books belonging to French Freemasons and rare books removed from countless churches and monasteries.
Prince Pless’ castle near Klodzko/Glatz in Lower Silesia was used as a book depot.
War-making items from the “Musée de l’Armée” in Paris ended up in a local museum of Wroclaw/Breslau.
Objects associated with Frédéric Chopin were stolen from a society dedicated to the memory of Chopin in Lyon, France, and placed by the Germans in a museum in Krakow.
Gauleiter Hans Frank used the Palace of Count Potocki as one of his residences in Kreszowice where he brought in countless items from German-occupied France. The question remains: how many of these objects was he able to take with him on his hasty retreat to southern Bavaria in mid-January 1945? What happened to the objects that remained in Kreszowice?
Last but not least, a priceless stamp collection looted by the Germans from a Postal Museum in Poland, fell into the hands of French occupation authorities in postwar Germany. It was valued in 1950 at 40 million francs, a staggering sum which would make it one of the most expensive stamp collections in the world today. Officials at the French Ministry of Foreign Affairs proposed that the stamp collection should be used as a bargaining chip with the postwar Polish authorities to sway them into exchanging it for the libraries and countless objects forcibly removed from French institutions and households.
Ten years ago, on November 15-16, 2001, an international conference on looted art took place under the auspices of the National Gallery of Canada in Ottawa, organized by the Canadian Museum Association (CMA) and the Canadian Jewish Congress (CJC). The conference brought together all parties and individuals involved at the time with the issue of looted art. They represented the private art market, the public sector, NGOs; there were numerous lawyers representing both sides of the debate, claimants, historians, and researchers. In the course of two days of animated discussions and presentations, the participants agreed to articulate a series of points and principles from which to issue recommendations for future action in Canada and beyond.
The following is a summation of those debates. There are official reports of the conference and its effects on Canadian institutions that you can consult on-line via the Claims Conference website. Take what you will from them.
The good news is that the discussion was friendly, productive, and pragmatic. The not-so-good news is that everyone went home and not much happened in Canada to push forth the debate on restitution in a manner consistent with the wishes and concerns expressed by the participants. Judge for yourself:
Canada, like so many other countries where there is an art market, is a recipient of loot and has been for decades.
It is a general, albeit vastly understated fact, that 90% of looted art is ‘invisible’ to traditional art historians, and scholars. Although issues pertaining to cultural plunder are not new, there is widespread ignorance of its scope and breadth in the art world, government circles, and the Jewish Community of Canada.
As of 2001, there were no laws on the books—Federal, provincial, or local--to deal with this issue. Dr. Franklin, of the National Gallery of Canada in Ottawa, host of the Looted Art Conference, was quick to say that “There is no legal obligation [for museums in Canada] to restitute.”
Museums have no legal obligations to return stolen works of art to their rightful owners. If claims are filed against individuals, they will be subject to local laws governing statutory limits, laches, good faith purchasing, willful blindness and due diligence. In sum, there are no overt mechanisms in Canada either at Federal or local level for dealing with Holocaust-era cultural property claims.
Then and now, there are few if no resources—human, financial, archival, bibliographical, and academic—for undertaking a serious, exhaustive, review of all institutional holdings in Canada in an effort to identify looted art. Scattered efforts have been duly noted amid 4 largest museums in Canada, as well as in a few smaller institutions.
Everyone acknowledged that there are no short-term fixes to the problem. Solutions are long-term.
What is to be done?
The participants came up with a series of goals to consider for bringing about needed progress on the subject of looted and art restitution:
To identify all looted works in Canadian collections.
To facilitate recovery of such works by rightful owners.
To prevent resale of looted/stolen works on Canadian art market—public/private
To create legal/policy environment to facilitate identification and recovery of stolen works of art.
To establish common standards of evidence that fall outside of traditional rules of civil procedure.
How can these goals be achieved?
Obviously, one cannot expect any assistance from the Federal government, at least not in the short-run.
The onus of support therefore falls on provincial governments: they should either enact or modify laws that facilitate recovery and restitution, and that acknowledge the problem of stolen cultural property.
Museums must conduct reviews of holdings and identify looted works in their collection, ascertain their status, whether those objects have been recovered or not.
The provinces should put forth standardized responses to this problem.
The Canadian Museum Association, ICOM, and other art and cultural property groups, should petition the Federal government to study the problem and produce a Green Paper (the Canadian equivalent of an American White Paper).
The legal experts at the Ottawa Conference agreed that restitution principles should be anchored in local and provincial laws because of the absence of any Federal law in Canada and of Canada’s obstinate refusal, like that of the United States and dozens of other countries, to sign the UNIDROIT convention on stolen and illicit cultural property.
However, conflict resolution in provincial and local jurisdictions will be subject to different legal regimens and rules governing statutes of limitations, laches, burden of proof and rules of evidence.
Hence, any legal strategy must be focused on a moral and ethical appeal to institutions to restitute, founded on the London Declaration of 5 January 1943—the Inter-Alled Declaration Against Axis Acts of Dispossession. The operating principle has been and should always be: if the work was stolen, theft does not convey title. Even this adage has its variants in countries where the possessor of stolen property can become the rightful owner of the stolen object if no claim has been filed against it over a set period of time.
According to Bonnie Czegledy, the good faith purchaser in Canada cannot hide behind ignorance of the fate of acquired works—which is also referred to as willful blindness. Due diligence rules apply, which involve on the part of the acquirer of the art object to engage in research that would enable her/him to be convinced of the licit/illicit status of the object and base her/his decision to acquire or not the object as a result of this research.
Fill the legal loopholes regarding the resale of stolen works of art.
RECOMMENDATIONS FOR CANADA:
Define looted object to include EVERYTHING cultural, including antiquities and books/manuscripts, decorative objects.
Create legal/policy environment to facilitate identification and recovery of looted works
Establish common standards of provenance research, evidence and claims adjudication for Canada.
Conduct a census of all institutional collections in Canada susceptible of containing looted works. Prioritize risk to institutions regarding the repatriation of works. The purpose of this census is to assess the breadth and scope of the problem of looted art in public and private collections. For this to occur, establish a core group of researchers to do initial research and that can travel to all collections across Canada, with financing from provincial governments and Federal foundation endowments, provided that the funding is renewable until the census is completed.
Ask the Canadian Museum Association to adopt an assertive strategy that will facilitate ultimate goals; it should communicate guidelines to museums on how to deal with the public and with claimants.
Petition the Federal government to issue a Green Paper on accession to the UNIDROIT convention on stolen and illicit cultural property. The Federal government involvement in the issue of looted art could begin with the creation of a Central Web Portal run by Canadian Heritage Info Network or another entity so as to respond to inquiries and disseminate information.
Invoke as the moral framework for treatment of looted art claims in Canada the London Declaration of January 5, 1943, or the Inter-Allied Declaration against Axis Acts of Dispossession. Canada signed it together with 15 other countries, including the United States and Great Britain, leading co-sponsors and formulators of the Declaration.
Build a network of assets and skills in Canada and elsewhere to facilitate research efforts.
Create a third-party group which oversees claims if the Federal Government refuses to handle them. Encourage the creation of provincial offices within existing agencies to process claims modeled after HCPO in NYC. This NGO would be supported by the Federal government and owned by the community. The stakeholders would include: museums, the art world, claimants, Jewish and arts and cultural property groups, historians, researchers, scholars, experts, government representatives, with a balanced private/public membership. It would be transparent and completely accessible.
Identify all pertinent records dealing with looted art which can be found in Canadian archives--governmental, academic, institutional, civilian and military.
Produce a guide of those records, similar perhaps to NARA’s Guide on Holocaust-Era Assets
Incorporate the Canadian Jewish community as well as arts and cultural property organizations into these efforts for education, outreach, lobbying, fundraising, and logistics.
Promote the training of individuals in provenance research through universities, cultural institutions and at all levels of government—local, provincial, and Federal. For instance, recruit graduate students from Young Canada Works for provenance work who have art history, history, museum science, forensics and related backgrounds.
Seek public and private funds perhaps even from the UN and the EU to include museums, auction houses, independent scholars, government agencies, as part of an overall effort to stanch the resale of looted works on the art market.
Promote the creation of an international research network to assist provenance checks.
Create a third-party group or panel to oversee claims adjudication and to conduct research.
Georges Voronoff was born on 7 April 1873, in Voronej/Voronezh, Russia. A doctor by training, he and his wife, Andree, lived in Paris, at 132, rue de Tocqueville. They also had a house called 'Villa Minorange,' in Mougins, Alpes-Maritimes. Georges Voronoff was arrested, sent to Drancy, and deported to Auschwitz on train number 60 of 7 October 1943. His wife, Andree, was last notified that he was alive at Auschwitz on 15 January 1945. Presuming that he was, Georges Voronoff was most likely evacuated from Auschwitz with thousands of other prisoners on 18 January 1945 who were marched towards camps inside the Reich. There are subtle hints in the records of the International Tracing Service, at Bad Arolsen, Germany, that Georges Voronoff might have been part of a group headed towards Buchenwald. Regardless, he did not survive the ordeal.
10 objects were removed from the former Voronoff residence at 132, rue de Tocqueville, in Paris, notwithstanding the significant book collection that they held. A number of gold items were seized at the villa in Mougins.
In March 1947, most items were returned by the French postwar restitution authorities to Georges Voronoff's widow, Mme. Andree Voronoff. There were, however, some notable exceptions, which leaves one perplexed:
VOR 6: This painting by an artist associated with Hyacinthe Rigaud never left the Jeu de Paume. Its fate is unknown. It was either removed by one of the members of the ERR staff for personal gain or handed over to a Paris dealer for resale as was frequently the case in those heady days of the wartime Paris art market.
VOR 8: A painting by Christian Wilhelm Ernst Dietricy. It was found by Allied troops at the Nazi art depot in the Austrian mountains known as Alt-Aussee, to which the painting had been sent, most likely from Fussen, on 27 October 1944. The painting went to the Munich Central Collecting Point (MCCP) from which it was repatriated to France on 25 June 1946. After that, it's a total mystery as to why there is no record of its restitution by the French government to Voronoff's widow.
It may come as no surprise if I say that the job of documenting Nazi-sponsored art thefts can be a tedious undertaking. The Hugo Simon collection is a case in point.
Hugo Simon was a German-born man of Jewish descent who fled Germany shortly after the Nazis came to power in 1933. He settled down in Paris on the rue de Grenelle in the 7th arrondissement. Seven years later, the sound of jackboots came back to haunt him as German armed forces converged on his adopted home. This time, he fled to Brazil leaving all of his belongings behind--works of art, rugs, stock certificates, personal papers--everything that he could not carry with him.
In 1947, Hugo Simon submitted a claim for his lost property to the French Ministry of Foreign Affairs. It contained lists of items that he remembers having left behind in Paris and which he rightly presumed to have been stolen by the Germans.
During the Nazi occupation of France, the ERR staff at the Jeu de Paume compiled its own lists of items removed from Hugo Simon's home. They produced an inventory containing 25 items and typed up 11 cards. The Jeu de Paume database documented initially the 11 cards. Therefore, the first task at hand was to add into the database the items that had not been carded by the ERR but which had been listed on their inventory. Once that was accomplished, these 25 items could be compared with the items listed by Hugo Simon on the inventories that he had submitted to the French government and also against the lists produced by the French government of items belonging to Hugo Simon which had been recovered and restituted to him. Simple? Think again...
It turns out that the list of lost items submitted by Hugo Simon contained items which the ERR had neither carded nor inventoried. To make matters more complicated, the ERR had carded and inventoried items which Hugo Simon had not listed on his inventory. Not to say that those items did not belong to him. He simply forgot to list them. If you're lost or confused, I don't blame you. So was I. After twelve hours of forensic work, some semblance of historical truth emerged from the conflation of lists produced by Hugo Simon, the ERR, and the French government.
First, the events as they might have transpired:
Late 1940-Early 1941: A unit of the Dienststelle Westen, the local operational arm of the ERR in German-occupied Paris pays a visit to Hugo Simon's apartment. The early date--the Germans have only been in Paris for less than 5 months--indicates a special interest in Mr. Simon perhaps due to his being a former German citizen, Jewish, and with some proclivities for anti-Nazi sentiment. His collecting habits confirm his progressive leanings as the ERR soon discovers, since Hugo Simon collects mostly 'degenerate' art--works created by German expressionists like Erich Heckel, Ludwig Meidner, Max Pechstein, Max Hunziker, and others.
The ERR inventory of Hugo Simon's collection leaves blank the date of seizure, which reaffirms suspicions that it occurred early on in the occupation of Paris.
16 October 1941: An important shipment of looted art leaves Paris and heads for Fussen, one of the most important storage and organizing depots established by the ERR in Bavaria to recycle cultural plunder from Western Europe. A crate marked 'Collections Diverses' (Miscellaneous) is on that train carrying a painting attributed to Canaletto and labeled H.S. 1.
15 May 1942: The ERR records the official entry of Hugo Simon items into the sorting and selection center of the Jeu de Paume, or 15 months after the original theft took place. What happened in between? Also, the ERR inventory does not include all of the items declared by Hugo Simon as his property, especially rugs, statuettes, fine silk, a number of Impressionist works by Pissarro, Corot, and Daumier and an interesting 15th century 'cassone'. The ERR inventory, however, takes note of the 'degenerate' works in Hugo Simon's collection and proceeds to label them as 'vernichtet' or 'slated for destruction.' As if this was not complicated enough, the ERR had assigned to Hugo Simon's collection the label of 'SI'. Then it changed its mind and labeled it 'Si-unb.' perhaps because someone lost track of the items and could no longer figure out how they had fallen into ERR hands. When the 1942 inventory is produced, the new moniker for Hugo Simon is a sober 'H.S.'
1946-1947: A number of items are recovered by Allied troops in Germany and Austria and shipped back to France for restitution to Hugo Simon's representative. Amongst them is a crate--H.S. 2--containing silver items that were part of a crate inventory drawn up by the ERR in preparation for its shipment to the Reich.
In conclusion, it can be stated that, as of today, works by the following artists including the 15th century Cassone, Chinese decorative items and a piece of furniture, have never been recovered and should still be considered as stolen property:
Honore Daumier, Jean-Baptiste Corot, Ruysdael, Kees van Dongen, Max Orlik, Max Hunziker, Marie Laurencin, Franz Masereel, Ernst Kirchner, Erich Heckel, Max Pechstein, Ludwig Meidner, Springer, Christian Rohlfs, Aristide Maillol, Heinrich Haller, and Demeter.
Castle Keep (1969) Movie Poster
One of my favorite WWII movies, because it is so iconoclastic, otherwise described as 'surrealistic', 'anti-war', 'fantasy.'
The film is adapted from a novel of the same name written by William Eastlake. Set in Belgium during the Battle of the Bulge in winter 1944, a ragtag group of eight American soldiers falls back through a forest in search of a medieval castle which they must defend at all cost against German troops seeking to break through Allied lines.
From the first frames to the end, Pollack's camera drifts in and out of paintings, frescoes, sculptures, furniture, chandeliers, candelabra, tapestries, and richly inlaid accessories spread out through the castle's interminable hallways, much like a museum of European culture, caught up in the whirlwind of war. Captain Beckman, played by Patrick O'Neal, is a moody, dreamy officer, who one thinks might have been an art historian. He falls in love with the castle's contents and confuses his love for its contents with the mistress of the house who falls for his commanding officer, played by a debonair, one-eyed Burt Lancaster. Who can resist such a hunk? To make matters more complicated and more .... European, the master of the house or chatelain, played by Jean-Pierre Aumont, enables the tryst between Lancaster and his 'wife'--we're never sure if she really is his wife--in order to get her pregnant so as to ensure the survival of his noble lineage. How noble!
Seriously, Beckman makes it his mission to save the cultural treasure of the castle. Dutifully, he inventories it, stashes it away carefully in the tunnels below the castle that lead out to safety or not. He even organizes art history lectures to entertain the six haggard men whose fate is already sealed.
No other World War II flick has ever come as close to featuring so much classical art in direct competition with the inevitability of mayhem, broken bodies and armor, and the ultimate destruction of what once was.
Burt Lancaster, ever the cynic, summarizes it beautifully: " Europe doesn't exist anymore. That's why we're here."
As in the case of Pablo Picasso and many other eminent artists plying their creative streak in France, Henri Matisse chose to remain rather than leave his native country in the face of the German onslaught of spring 1940 against Western Europe.
Let's engage in a perfunctory review of Matisse's journey in wartime France:
October 1939: Matisse goes to Paris after a stay near Rambouillet. While in Paris, he places for safekeeping all of his works of art and those of other artists which he owns, in a vault at the Banque de France. His son, Pierre, has already left for the United States, while his other son, Jacques, is in the French Army. His grandson, Claude, is in a boarding school near Vichy. His daughter, Marguerite, is with his wife in the town of Beauzelle. Apparently, Mr. and Mrs. Matisse have not been living together since March 1939.
Mid-October 1939: Henri Matisse heads back to Nice where he has an apartment at the Hotel Regina from which he works. While Henri goes to Nice, his wife and daughter return to Paris to an apartment on rue de Miromesnil.
November 1939: Henri Matisse renews a contract with the dealer, Paul Rosenberg, who is one of his most regular buyers.
January 1940: Pierre Matisse, now settled in New York, announces to a variety of family friends that his parents are splitting up.
May 1940: While the German armies are running roughshod over French troops in eastern France and heading towards Paris, Henri Matisse returns to the beleaguered capital, dodging refugee traffic, in order to finalize his legal separation from his wife.
June 1940: Matisse and everyone else who can manage it hightails it out of Paris and heads south-southwest. He ends up in late June 1940 at Ciboure near Saint-Jean-de-Luz in the Basque country. He remains in that part of the world, not too far from where German troops are stationed, but far enough, until he finds a train to take him back to Nice in August.
August 1940: Matisse reaches Carcassonne then Marseilles. In Marseilles, he draws a series of portraits of his grandson, Claude Duthuit. On August 29, Matisse finally makes it back to the Hotel Regina in Nice, shortly after Picasso returns to his studio in Paris on the rue des Grands Augustins.
Fall 1940: Varian Fry, of the Emergency Rescue Committee, funded in part by Alfred Barr, the director of the Museum of Modern Art (MOMA) in New York, tries in vain to convince Matisse to escape to the United States. Matisse refuses. Matisse is Fry's idol.
Winter 1940-1941: Matisse is plagued by intestinal problems and has difficulty working.
January 1941: A cancerous growth is removed from Matisse's abdomen.
Meanwhile, unbeknownst to him, while he is holed up in Nice, dozens of his paintings and works on paper are being forcibly removed from Jewish collections and brought to the Jeu de Paume or recycled on the local art market. His works fetch upwards of 300,000 Francs in Paris auctions which is a significant amount for those rationed days.
August 1941: Matisse is among many "French" artists who exhibit their works on paper at the "Salon du Dessin" in Paris, one of the first major artistic events in the German-occupied capital that excludes Jews from its walls. That same month, Matisse allows Varian Fry to take a series of photographic portraits of him at the Hotel Regina in Nice. How surreal!
November 1941: Matisse has an exhibit at the Galerie Louis Carré in Paris.
January-February 1942: Matisse grants several interviews to the Vichy government's official radio station.
Matisse spends the rest of the year in Nice, convalescing from additional gastro-intestinal troubles but continuing to work as best as he can for one of his dealers, Martin Fabiani, who makes a fortune collaborating with the Germans during the war. Ironically, Fabiani sells on the side stolen paintings by leading artists such as .... Henri Matisse, which the Germans have exchanged with him against more classical works.
January 1943: Vichy's leading cultural rag, Comoedia, publishes an interview with Henri Matisse, predicated on his creation of 50 drawings illustrating Pierre Ronsard's poems. The article by Marguerite Bouvier is an ode to Matisse, who is now 72 years old.
June 1943: Finally, Matisse is forced to flee Nice and seeks refuge in Vence, due to a constant threat of aerial bombardments.
September-October 1943: Matisse and Braque are prominently displayed at the Salon de l'Automne, an annual fixture of the French (read Paris) art scene. Strangely, while their works are shown to everyone's delight including that of the German occupier, the ERR is busy figuring what to do with Matisse and Braque works under their jurisdiction not too far away at the Jeu de Paume.
Spring 1944: the estranged Mrs. Matisse and her daughter are arrested for engaging in acts of resistance against the Vichy government and the German occupation. Mrs. Matisse gets six months of prison while her daughter is jailed until the Liberation.