04 May 2014

RE: H.R. 4292 Foreign Cultural Exchange Jurisdictional Immunity Clarification Act

April 23, 2014


All U.S. Representatives
U.S. House of Representatives

RE: H.R. 4292 Foreign Cultural Exchange Jurisdictional Immunity Clarification Act

Dear Representative:

Please be advised that the Ciric Law Firm, PLLC represents Ori Z. Soltes, Director and Co-Founder of the Holocaust Art Restitution Project (“HARP”), in connection with the matter described below. HARP is a not-for-profit organization that disseminates information to the public and to claimants about cultural property stolen, confiscated, and misappropriated during the Nazi-era. Professor Ori Z. Soltes teaches at Georgetown University across a range of disciplines, from theology and art history to philosophy and political history. He is the former Director of the B’nai B’rith Klutznick National Jewish Museum in Washington, DC, where he curated exhibitions on a variety of subjects such as archaeology, ethnography, and contemporary art. Professor Soltes has taught, lectured, and curated exhibitions across the U.S. and internationally. He is the author of over 230 articles, exhibition catalogues, essays, and books on a range of topics. Recent books include: The Ashen Rainbow: The Arts and the Holocaust; Our Sacred Signs: How Jewish, Christian and Muslim Art Draw from the Same Source; Searching for Oneness: Mysticism in Judaism, Christianity and Islam; and Untangling the Web: A Thinking Person’s Guide to Why the Middle East is a Mess and Always Has Been. Professor Soltes was also involved in providing the historical research and background information in regard to Egon Schiele’s “Portrait of Wally” case, as well as the restitution of an Odalisque painting by Henri Matisse to the Rosenberg family.

In March 2012, my client and many others wrote to members of the U.S. House of Representatives calling for the immediate withdrawal of S. 2212/H.R. 4086, the “Foreign Cultural Exchange Jurisdictional Immunity Clarification Act.” At that time, my client argued that the bill would bar valid claims by true owners of looted artwork in U.S. courts, thereby eliminating one of the rare remaining deterrents to the illicit trafficking of looted artworks.

We write to you again with the same adamant plea – that H.R. 4292 not be permitted to go forward. Although it is the same plea, the circumstances under which we write could not be more different. Given the unbelievable discovery in Munich, Germany of the Gurlitt horde, the mere proposal of immunity from seizure is mystifying. If ever there were a time to plainly see the destructiveness of such a bill, it would be now, where there is concrete proof that looted art continues to make its way into the market. The effect of passing H.R. 4292 would be nothing short of disastrous for Holocaust survivors who may have looted art claims, as well as source countries with claims for the return of looted antiquities and other artworks.

Today, if a foreign institution provides, in the context of a cultural exchange program, such as a temporary exhibit, artworks to U.S. institutions, this foreign institution is subject to two statutes:

- Under the Immunity from Seizure Act (IFSA), 22 U.S.C. § 2459, foreign lenders are already shielded from seizure of those objects while they are present on U.S. soil. To enjoy this protection, foreign institutions must apply for the immunity order with the U.S. Department of State, which has complete discretion in issuing these orders.

- Under the Federal Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(3), a government-related foreign institution which sends artworks to the U.S. may, under limited circumstances, be sued in the U.S. for either the return of the looted artworks or for related damages, when the looted artworks are the ones sent to U.S. for the exchange (Malewicz v. City of Amsterdam, 362 F.Supp.2d 298 (D.D.C.2005)) or if the looted artworks are still in Europe, but the institution has a commercial presence in the U.S. via other related activities (Republic of Austria v. Altmann, 541 U.S. 677 (2004)). This liability extends even though the artworks are protected from seizure under IFSA. Therefore, a government-related foreign entity is liable before U.S. courts if sufficient commercial activity is found in the U.S., whether directly or indirectly related to the looted objects being present in the U.S.

The following is a breakdown of the significant flaws in H.R. 4292.

1. The bill’s so-called “Nazi” exception is far too narrowly construed.

The bill only focuses the exception on "Nazi," but not on "Axis" related activities. Because the bill only covers governments occupied by Nazi Germany or governments that were allies of Nazi Germany, it eliminates claims involving objects from countries occupied, annexed or controlled by non-Nazi Axis powers, i.e. Japan and Italy. Therefore, all claims involving objects from the following countries would be excluded: British Somaliland, Eritrea, Ethiopia, Libya, Albania, several regions of Greece, Yugoslavia, Albania, Herzegovina, Montenegro, Croatia-Slovenia, Korea, Formosa (Taiwan), South Karafuto, Manchuria, several regions of mainland China, Portuguese Timor, Hong Kong, French Indochina, Thailand, Burma, British New Guinea, the Philippines, Malaya, Andaman and Nicobar Islands, several regions of Singapore, Sarawak, Brunei, British North Borneo, Nauru, the Dutch East Indies, Guam, Imphal, Wake Island, Gilbert and Ellice Islands, Christmas Island, Attu, and Kiska. Such an effect cannot be considered acceptable.

The narrow focus of the bill to a Nazi-only exception mischaracterizes the Holocaust. By adopting this bill, Congress will crystallize the Holocaust as an event specifically Jewish or specifically European, enabling it and the public to ignore the larger human issue of Holocaust-like events which have taken place since World War II and the associated large-scale cultural plunder associated with those events. If Congress passes H.R. 4292, it recognizes that the Holocaust was nothing but a simple historical aberration, and enables us to no longer consider the consequences, costs, or risks of persecution, and the associated cultural plunder in other situations. In essence, Congress’ message in passing H.R. 4292 is as follows: Nazi looting is not okay, but cultural looting and plundering in Cambodia, Afghanistan, Iraq, and Cyprus, is okay, protected, and shielded by the will of the U.S. Government.

In addition, the Nazi-era carve-out is restricted to State collections, and would therefore allow the illicit exchange of Nazi-looted artworks held by non-American private entities, or even municipalities.

Additionally, the same exception defines Nazi-plundered art far too narrowly. The so-called “Nazi” exception in the bill would exclude all objects obtained from forced sales or other forms of looting or plunder not executed directly by Nazi forces. It would also exclude all objects obtained from forced sales or other transactions apparently legal in form or purporting to be voluntarily effected, when in fact the intent was to deprive Holocaust victims of their property, rights and interests in artworks. Again, such an effect from this bill cannot be considered acceptable given that most of the recent looted art cases involve indirect acts of looting and dispossession. In essence, had such a bill been in place during the Gurlitt exhibit in New York in 1956, the art would have been immune from seizure.

2. The integrity of the FSIA would be substantially compromised.

H.R. 4292 removes the jurisdictional ground of commercial activity originating in the Federal Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. § 1605(a)(3). Therefore, a U.S. judge may conclude that the Louvre Museum, for example, will be shielded from any liability for any artwork currently held, either in the U.S. or in France, by any claimant, whether the looted artwork is related directly or indirectly to the initial Exhibit. This would serve as a clear sign to the world that U.S. institutions may freely accept looted artwork into their exhibits, and promote the illicit exchange of looted artwork plaguing the U.S. market.

H.R. 4292 provides that the government-related foreign institution would be completely shielded from any liability, whether the looted artwork is related directly or indirectly to the cultural exchange. Both bills accomplish this by declaring that the cultural exchange in the U.S. does not constitute commercial activity (“any activity in the United States of such foreign state or any carrier associated with the temporary exhibit or display of such work shall not be considered to be commercial activity for purposes of subsection (a)(3)”).

The following example shows that this risk is very concrete: On June 20, 2012, the City of Paris merged all its municipal museums into a public corporation, called “Paris Musées.” This public corporation also owns the Musée des Beaux-Arts in Paris, which currently holds 10 paintings looted by the Nazis and flagged as “MNR” (“Musées Nationaux Récupération”). MNR artwork is already proven to be looted property. Now Assume the Musée des Beaux-Arts lends one of the MNR paintings to a U.S. institution. Under H.R. 4292, not only would any U.S.-based heirs to the painting be unable to sue for either the return of the painting or for related damages, but because the same legal entity which would loan this painting to a U.S. institution also owns other MNR artworks, the partial loan would shield the ENTIRE holdings of the Public Corporation from any suit in the U.S. Therefore, H.R. 4292 would bar claimants to file any suit in the United States against the city of Paris for the return of any MNR artwork or for any related damages under Austria v. Altmann, 541 U.S. 677 (2004).

This case would be similar to potential claims by either source countries, such as Turkey, Cambodia, or India, or individuals in the United States against third parties outside of the United States sending looted artworks in the United States. The recent Kapoor case, involving an American antiquities dealer who sold looted ancient Indian art to museums and private collectors around the world, illustrates that such a scenario, where the entire holdings of a non-US institution would be shielded by the loan of one object, will be very likely in the future.

Therefore, the vast majority of European cultural institutions and governments will be shielded from ANY suit in the U.S. for any looted artwork not falling in the narrow Nazi-era carve-out, whether or not the looted artwork is directly or indirectly related to a commercial presence in the U.S. of the European cultural institution. Therefore, source countries, or individual claimants outside of the narrow Nazi-era carve-out will no longer be able to sue in the U.S. European museums, which are vastly government-owned, for any claims related to artworks subject to pillage, plunder or illegal excavation.

In the end, the only effect of H.R. 4292 will be to bar potential and valid claims by the true owners of looted artworks in U.S. courts, and will eliminate one of the rare remaining deterrents to the illicit trafficking of looted artworks, as well as encouraging transactions involving such looted objects.

3. The impact of H.R. 4292 on the U.S. cultural policy would be disastrous.

The claim by museum representatives that the bill would promote the open and free exchange of cultural works among nations, thus enhancing diplomatic relations, is patently untrue. The bill would promote the open and free exchange of looted art. It would eliminate the incentive for museums and galleries to engage in minimum due diligence and provenance research. It would remove the main tool this country has for helping victims of the worst crimes of the 20th century.

Beyond the Nazi exception and its exceedingly narrow definition of Nazi-plundered art, this bill will result in making the coming of all other kinds of plundered art into the United States immune not just from seizure, but from being recognized as plundered. In fact, in its most disastrous effect, the bill will allow every archaeological artifact originally looted, as well as the foreign government entity attempting to profit from its exhibition in the United States, to be completely protected from any damage or suit.

4. The impact of H.R. 4292 on public perception of cultural institutions would be disastrous.

In being encouraged to preserve their holdings of looted artworks, U.S. and European museums, as well as foreign European governments, continue to aid and abet the absence of justice for war crimes committed by the Nazi government and their allies, by constantly refusing to confront this past, by denying any measure of resolution or restitution for Holocaust victims and their heirs, and by refusing to provide for reasonable restitution procedures.

My client is also appalled at the missteps in public policy regarding restitution of artworks on the part of lawmakers, as well as museums. I am sure you remember the promises made by the museum directors in the House of Representatives 1998 Hearings, under then Chair of Banking Committee Jim Leach, to perform do in-depth research of provenance for their entire collections.

My client is also surprised that, rather than delivering on those empty promises, museums are lobbying you and are continuing the tragedy of the Holocaust, by asking you to ensure that theft from owners in times of war and dictatorship and the greed resulting from its commercial exploitation would be officially protected from justice.

How can Congress, which recognized the Holocaust and its effect by passing the Holocaust Victims Redress Act in 1998, claiming the right to protect Holocaust victims, then turn and attempt to redefine, restrict and change the definition of theft and victims, for the simple purpose of protecting the largest grand theft of art ever perpetrated on humanity?

You must abandon H.R. 4292, because its effects would be nothing short of disastrous for Holocaust survivors who may have looted art claims, as well as source countries with claims for the return of looted antiquities and other artworks.

For the above-mentioned reasons, my client urges you to withdraw H.R. 4292 from any further consideration, review, amendments or vote.

Thank you for your leadership on this important issue and for your support. If you have any questions, please do not hesitate to contact me. On behalf of my client, I thank you for your consideration.

Truly yours,

Pierre Ciric
Member of the Firm

Cc: Ori Z. Soltes
Director, Holocaust Art Restitution Project, Inc.