When is “just and fair” fair and just?

by Marc Masurovsky

It is difficult to pin down precisely the genesis of the concept known as “fair and just” or “just and fair” solution in matters pertaining to the restitution of art objects looted during the Holocaust. Who and when are almost impossible to trace.

A valid starting point is principle #8 of the “Washington Conference Principles on Nazi-confiscated art”. The “Washington Principles” were passed on December 3, 1998 at the close of the Washington Conference on Holocaust-era Assets.

“If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case."

Two years later, on October 5, 2000, a declaration came out of an international forum on Holocaust issues held in Vilnius, Lithuania, which placed heavy emphasis on the search for fair and just solutions “to the return” of looted art and cultural property. It went a bit further than the Washington conference without getting into any specifics, diplomatie oblige, as to what would constitute a just and fair solution to a claim for restitution. Forum participants did ask that “every reasonable effort be undertaken" to “achieve the restitution” of looted cultural assets. Hence restitution {again, without being properly defined] was invoked in the same breath as “just and fair solution.”

Eleven years after the Washington Conference of December 1998, a similar conclave of 40 odd nations and international NGOs gathered in Prague under the auspices of the hosting government of the Czech Republic. The International Conference on Holocaust-Era Assets issued a declaration, called the Terezin Declaration on June 30, 2009. In it, one can find multiple references to “just and fair solutions” without understanding at all what they are and how to achieve them. They do stipulate, however, that the Washington Conference of December 1998 established the moral (and non-binding) principle whereby looted art and cultural property should be “returned to victims or their heirs in a manner consistent with national laws and regulations [emphasis added] as well as international obligations, in order to achieve a just and fair solution.” Unless I am completely mixed up here, I read this as meaning that the restitution of looted cultural property achieves a “just and fair solution.”

In the years following the 1998 conference in Washington, DC, where the Principles were formulated, the tendency was to sharpen the link between restitution and “just and fair” or “fair and just” solutions. And yet….the word “restitution” was not defined in these declarations. If it was to mean the physical return of the looted object to the rightful owner and thereby transfer of legal title away from the current possessor to the rightful owner, many art market players like auction houses and museums, as well as governments, have violated the principle of what is just and fair by insisting that “just and fair” in all likelihood means upholding the good faith of the current possessor and asking—no, convincing—the claimant that financial compensation of some sort or another is the best result that can be achieved in the spirit of the Washington Principles of 1998. Best to invoke the trinity of Washington, Vilnius and Terezin in order to enshrine the physical return of the object.

Is that really what was meant or inferred at Vilnius in 2000 and at Prague in 2009? The answer is inconclusive, because most of the drafters and endorsers of these declarations were well aware that “national laws and regulations” would interfere with the actual physical restitution of the claimed object, especially in areas where the Idol of Good Faith rules all.

Hence, the apparent contradiction between settlements and the various declarations of Washington, Vilnius and Terezin disappears by stressing that the return of the object should be consistent with national laws and regulations. The emphasis of "fair and just" shifts in favor of the rights of the current possessor at the expense of those of the claimant.

"Dedham from Longham", by John Constable

An interesting twist to the Washington Principles involves a painting by John Constable being claimed by Alain Monteagle, representative of the Jaffe family’s restitution claim. The painting is presently located in the Fine Arts Museum of la Chaux de Fonds which is in the canton of Neuchatel in the French-speaking part of Switzerland. Historically, the Swiss federal government has always deferred to local governments’ discretion in the way that they manage or dispose of their cultural assets. If one should apply to the letter the principles enshrined in Washington and reiterated in Vilnius and Terezin, the museum at La Chaux de Fonds, which is municipal, should return the painting to Mr. Monteagle. However, if the return is subject to the “national laws and regulations” of Switzerland and the canton of Neuchatel, as well as the municipality of La Chaux de Fonds, Mr. Monteagle does not stand a chance, because civil law in Switzerland worships the good faith of the current possessor and no foreigner can come into Switzerland and claim what he/she feels is his/her rightful property, at least not since 1949, with a notable exception last year.  At least, that is the impression that we are left with, if history serves as a valid reference point.

La Chaux de Fonds

Interestingly, in a 3-page report issued in January 2014, the Swiss Federal Office of Culture commented that “just and fair solutions must be sought—both when it has been possible to trace the victims and when identification has proved impossible.”

Hence, the principles of Washington, Vilnius and Terezin are not helpful in the real world and, more often than not, municipal governments and their national representatives heap scorn on them so as to safeguard their “cultural property.” If Mr. Monteagle wants his painting back, he has to wage total war against the Swiss government, the city council of La Chaux de Fonds which has oversight of its fine arts museum and the cantonal authorities in Neufchatel. To be successful, the battle for restitution must involve all aspects of civil society and should be waged inside and outside the legal system in order to "achieve a just and fair solution" consistent with Washington, Vilnius and Terezin.

What does restitution mean to me?

by Marc Masurovsky

[Editor's note: this is an opinion piece which reflects the views of the author and does not necessarily commit those of others to what is argued hereunder.]

For our purposes, I will limit my comments to Jewish losses and restitutions to people of Jewish descent who either were persecuted or were blood relatives of victims of anti-Jewish persecutions between 1933 and 1945.

In plain English, (I am not a lawyer) as often repeated on the blog of the Holocaust Art Restitution Project and elsewhere, restitution is the physical return of an object stolen or misappropriated as a result of racial, ethnic, political, religious, and other forms of persecution perpetrated against individuals or groups of individuals because of their faith, ethnicity, beliefs, and/or sexual orientation.

Most commonly, the notion of restitution has been associated in the minds of both the public and legal practitioners and policymakers with anti-Jewish persecution.

The actual physical return of the looted object affirms the transfer of legitimate title to the stolen/recovered property to the rightful owner/claimant.

National governments, their agencies, and international organizations, view the word “restitution” in a different light. It would be easier to use words like “return” or more aptly “transfer.” Indeed, after WWII ended, Allied governments detailed cultural specialists to recently liberated territories in Europe and the Far East to sort out the origins of cultural and religious objects discovered by troops on the march and during their occupation of captured sites.

Once they identified the origin of the objects, as in the country from where the objects had been forcibly removed by the occupying power’s representatives—civilian and military—these cultural specialists, referred to in popular culture as “Monuments Men”—had the objects inventoried, marked as “restituted” and shipped back to the country of origin where they assumed that the returned objects would be then physically restituted to their rightful owners. Here, restitution is a bureaucratic word that holds a specific meaning distinct from the physical return of the object to the rightful owner.

Now that I have ascertained in a “nutshell” what restitution is all about and how it differs in meaning depending on who or what uses the word, what happens when an object is actually not restituted but when some kind of agreement is reached that results:

1/ in an exchange of money from the current possessor to the claimant and
2/ the maintenance of legal title in the hands of the current possessor?

Ever since the end of WWII, government officials overseeing the restitution programs of postwar nations had to contend with current possessors of the objects suspected of being looted who had to respond to claims filed by the aggrieved parties. Very quickly, they sought alternative ways of resolving what were viewed essentially as property disputes over who has good title to an object of art. In other words, the debate over restitution shifted away from the righteousness to apply in concrete terms a responsibility to restitute an object stolen during a genocidal undertaking.

The current possessors pushed back almost immediately after Victory Day. They hid behind national and local property laws that upheld their good faith in the way that they had come into possession of the looted object. The act of restitution was, in effect, held hostage to property laws which regulate who gets to hold title to an object and under what circumstances. Genocide did not figure in the equation. It was simpler that way and continues to be that way today. Good faith is almost like a religion.

As a result of a societal predisposition to invoke good faith arguments when challenges to ownership occur resulting from Holocaust-related events, restitution—meaning the physical return of the looted object to its rightful owner—has become a complex, difficult  and almost insurmountable goal to achieve for thousands of claimants, victims or relatives of victims of acts of plunder committed during the Nazi/Fascist era.

Financial settlements—indemnification or compensation for loss of the claimed property—have been the rule of thumb for most claimants until today and the preferred way of “restituting” practiced by the art market and governments alike. In other words, the looted objects remain in the possession of those who have acquired them either on the art market or by inheritance or by exchange for other objects or obtained them directly through the commission of crimes against humanity. Legal title is not transferred to the rightful owner.  In defense of many claimants who choose financial settlements over the arduous challenges posed by restitution, a settlement can be rationalized as a tacit, unspoken (words are dangerous, especially written ones) acknowledgment of the wrong that produced the loss of the object in the context of persecution and genocide.

Nevertheless, theft committed during unspeakable acts against individuals and groups pays for itself as long as one’s good faith can be upheld.

Nowadays, financial settlements are referred to as “fair and just solutions.” Based on the above, you can figure out rather quickly for whom those solutions work best.

It’s up to you to decide whether a financial settlement can help right the wrongs of the past. For me, the physical return of the object to the rightful owner and the transfer of legal title to said owner, are the only true form of restitution. The rest is a rewrite of history, a sanitized approach to the byproduct of unspeakable crimes so that trade can continue and good faith can remain as a pillar of protection of private property for those who stand to profit the most from the act of possession of those un-restituted objects. Most "current possessors" feel no guilt or remorse over their ownership of objects tainted by genocide. Instead, they can be rather offended that a claimant can show up at their door decades after the events and ask for the object back.  Genocide is not barred by statute.  However, its byproduct of plunder and theft is shielded by antiquated property laws regarding good faith and title to the property.

In the end, this is not just about losses incurred during anti-Jewish persecutions and the Holocaust. The debate over restitution applies just as well to any theft of objects plundered during the commission of crimes against humanity regardless of where they were committed and by whom.

The Knoedler forgery scam trial is now on

by Marc Masurovsky
Twelve years ago, the now defunct elite New York art gallery, Knoedler and Company, which used to cater to the aristocracy of Europe and nababs from countries worldwide, sold a painting attributed to Mark Rothko which, in reality, had been produced by a Chinese artist living in very modest circumstances in Queens. His paymaster was Glafira Rosales, a self-styled art dealer and collector based in Long Island. All told, Knoedler under the leadership of Ann Freedman, its last president, sold more than 30 paintings which Ms. Rosales offered for consignment to Knoedler as products signed by “the titans of Abstract Expressionism” allegedly coming from a private Swiss collection. All told, 63 million dollars changed hands to Ms. Rosales’ benefit. The Chinese painter who produced the forgeries barely received more than a few thousand dollars for the knock-offs that he so expertly created. He has since high-tailed it back to China. 

Glafira Rosales in front a "Jackson Pollock" painting

The honorable New York gallery was forced to close its doors after being asked to refund millions of dollars to irate collectors who were incensed that the gallery had bamboozled them into thinking that they were investing in major modern paintings. 

Ann Feedman

Why did such a reputable gallery ignore a report produced by an independent organization, the International Foundation for Art Research (IFAR), which was unable and unwilling to validate the authenticity of one of the Pollocks sold by Knoedler?  Had Ms. Freedman given more credence to the report and seen a light bulb go off, perhaps she might still have kept her clients and averted the shutdown of the gallery.

How do forged “masterpieces” signed by iconic members of the Abstract Expressionist pantheon withstand scrutiny as authentic pieces? How is it that Ann Freedman, Knoedler’s last president of Knoedler, fell for this elaborate scam? Arrogance might play a role in her undoing since, when asked why she did not dig more into the background of Ms. Rosales, she replied that “she doesn’t do that.” Instead, she relies on the advice of art experts. So much for provenance research. If she did not do it or encourage it, who did, at the ex-Knoedler and Company? The absence of due diligence checks and basic provenance research does lie at the core of the case against Knoedler. Had due diligence practices been put into place and applied to Ms. Rosales and her magic trove of Abstract masterpieces, many of which were signed by Pollock, could the scandal have been minimized and even stopped dead in its tracks, Rosales cuffed and jailed for running a sham operation and would Knoedler still be open today? Should a liability verdict be rendered, it might reaffirm the necessity of due diligence checks and provenance research as checkpoints against being scammed and snookered into acquiring dubious cultural assets.

The art world feeds on its own self-imposed practice of “omerta’, a Mafia code of silence, to sustain, maintain, uphold reputations and most importantly, value. It is a very competitive and ruthless milieu where one’s word can be worth gold or tin plate in appraising, authenticating and vouching for the importance and genuineness of an object offered for sale. It is all about producing a constant supply of high quality works for ever hungry and demanding, wealthy individuals, who can stop taking your calls in a second if you do not provide what they want. Or so it appears. Or so one believes.

Image is vital in this world. A woman like Ms. Freedman does not exactly rise to “queen” status but she is a highly-regarded dealmaker and connoisseur in the international art world. Did she finally break down and get ahead of herself, embarrassed about being caught up in a trap so cunningly set up by Ms. Rosales and playing double or nothing, opted to go “all the way”, by acquiring for herself some of the fakes? Perhaps to reassure her nervous clientele?

We’ll soon find out. Self-interest and narcissistic, patronizing behavior are characteristic features of the high-end segment of the global art world much like in the rarified air that one breathes in executive offices of high-performance hedge funds and brokerage firms and global investment firms, as well as auction house executives who cater to their clients’ every whim. Looking upstream to meet the autocratic needs of an ever-expanding super class of excessively wealthy people worldwide is a challenging task no doubt. Who knows where these paintings end up, in some redoubt deep in the hills of Kazakhstan or a dacha outside of Moscow or better still in the nouveau super-riche compound of a freshly-minted Chinese billionaire?

After all, the idea is to make money, even more money, amass, amass, and amass, buy, buy, buy until there is nothing left to buy and boredom sets in. Art is simply an instrumentality in the perplexing game that the super-wealthy play. Getting caught is simply part of the process. There is very little appreciation for the art as long as experts like Ms. Freedman and her equally high-priced experts can convince these moguls to part with their money because they are helping to sustain an illusion of what the cutting edge of culture is all about, as defined by these “experts.”

Whether the art is any good is for you to decide. Meanwhile, tens of billions of dollars and euros are exchanged each year to sustain this fantasy called the global art market.

The trial of Ann Freedman and Knoedler does allow us to peek into their prefabricated, platinum-plated reality, pockmarked by high fashion events, multimillion dollar parties in exotic remote islands, private estates, and well-protected luxury buildings scattered around the world.

If these are the people who actually end up possessing looted art and antiquities, we will have an incredibly difficult time wresting those objects from them. Their sense of morality does not extend to ceding title to expensive conversation pieces called “art," looted or not.

Russian billionaires

Recent auction in Utah

by Marc Masurovsky

An auction recently took place on January 14, 2016, at St. George, Utah, organized by Pine Valley Auctions. Among the lots being offered for sale were works by important 20th century artists such as Egon Schiele, Karel Appel, Serge Poliakof, Bernard Buffet, Sonia Delaunay, Sean Scully, Joan Miro, and Arshile Gorky. All of these works came from a single collection in the name of Michael P. Cornelius. None of the works came with a provenance. The only evidence of an owner or a possessor of these works came in the form of a white label pasted on the back of these works. Michael P. Cornelius, of Fine American Paints, at 110 7th Avenue, New York. The telephone number provided has a Santa Fe, NM, area code. Nowadays, that is less likely to shock since most people keep their cell phone numbers and resettle in remote communities choosing to keep those numbers. The telephone number is associated with a camera shop in downtown Santa Fe.

The question here is one of trust and diligence. If one wanted to contact Mr. Cornelius, where would one go?

Well, for one, the phone number that he provided was registered to someone else in Santa Fe.

Furthermore, there is no Fine American Paints on 7th Avenue in New York or anywhere for that matter in the continental United States. At the address provided on the label, all that one can find is Williams-Sonoma.

Finally, the pièce de résistance is Mr. Cornelius himself. He too does not seem to exist in a location that makes any sense and can be associated to the works being put on sale in St-George, UT.

There are numerous ways by which works of art can be laundered, resold for profit in remote locations like a small town in Utah which does not experience the presence of modern American and European art of a certain quality on a regular or even occasional basis. This comment is not meant to be patronizing but it is a statement of fact.

An equally serious question to ask about these works being sold with fictitious names, addresses and telephone numbers: are these works authentic? It's true that some buyers don't care whether what they buy is authentic or not because they like the look and feel of the works. After all, that is part of what makes art appealing and, like many works or objects of art endowed with an enthralling esthetic, these artistic pieces become expensive conversation pieces that convey instant status to their possessors.

Sonia Delaunay

Add caption

Bernard Buffet

Arshile Gorky

Nevertheless, keep in mind that these kinds of sales occur fairly regularly throughout the United States and across the globe. For those of you who are interested in investing tens of thousands of dollars into iconic names of the modern art world, please check the references of those who consign the works. Do your due diligence or you will be left with the equivalent of an automotive lemon.

Egon Schiele

The Gurlitt Task Force "fact sheet"

by Marc Masurovsky

The Gurlitt Task Force made a three-page fact sheet available to the general public dated 12 January 2016.

Since the discovery of Cornelius Gurlitt’s private collection in November 2012, too much ink has been spilled over the origins, content and disposition of this collection, which, due to its association with Hildebrand Gurlitt, father of Cornelius Gurlitt, has borne the mark of Cain for his association with the Nazi regime and for having profited therefrom. Hildebrand Gurlitt died in an auto accident in 1956. What he left to his heirs, one of whom was Cornelius Gurlitt, we do not know. We are unaware, at least we in the general public, of the total number of art objects that were in Hildebrand Gurlitt’s possession at time of death. We do not know how many objects his son, Cornelius Gurlitt, sold on the international art market, how many he loaned for exhibitions, how many he donated, how many he gave away, how many he swapped for other objects.

All we know is what we have been told by the German authorities: that there were 1256 works of art which comprised the Cornelius Gurlitt collection. 

The Task Force set about to ascertain how many of these objects had an explicit provenance which could connect it to an act of spoliation, to a theft or misappropriation directed or inspired by the Nazi regime against its owner.

After two years of work and the employment of over 20 contractual researchers on renewable short-term contracts, the Task Force has identified only 11 works as being explicitly the product of Nazi confiscations and thefts, some of which have been returned to their rightful owners, after laborious and unnecessarily complicated negotiations.

Eleven?

499 Gurlitt-owned works are listed on the lostart.de database, proof apparently that there is still a question about their ownership histories.

Let’s look at the other figures:

507 works were not considered to be tainted as Nazi loot, of which 231 works were de-accessioned from German public museums in the 1930s. Did the Task Force even bother to research their provenances once their link to German public institutions was clearly established? What if they were on loan to those institutions prior to being purged for being “degenerate”? Will we ever know?

Isn’t it a fact that the American government upheld during its occupation of a defeated Germany the Nazi de-accessioning law as a legitimate act by the Nazi Government to protect the “values” of German society? Sounds like the forerunner of our modern-day “family values” movement. The questions surrounding that politically motivated act by the American government in the immediate postwar years should be discussed in the open. One wonders if the decision to uphold this Nazi attack against culture was not motivated more by a fear of provoking a wholesale purge of American collections which had been stocked in part by donations from private collectors and dealers who had bought large quantities of “degenerate” works on the international market at fire sale prices and justified their purchases as “rescues”. One should not be shy to express these thoughts because one’s “rescue” is another’s act of complicity with acts of plunder associated with genocidal undertakings. Indeed, had the American government declared the de-acccesion law illegal, the question of repatriating to the reborn Germany all works sold to non-German collectors--private and institutional-would have had to be dealt with in one fashion or another. It never was.

We need to return to Square One here. 

We don’t really know how the Gurlitt Task Force has defined “Nazi loot.” Does it include works that were subject to “internal plunder” during the 1930s which were acquired by Hildebrand Gurlitt at auctions at which objects were sold as a direct result of racial and political persecutions against the owners of those works, forced to sell in order to garner some income to be used to flee Germany? Did the Gurlitt Task Force consider as plundered objects confiscated by Nazi collaborators operating in German-occupied territories?

We don’t know.

We don’t even know how many of the works in Cornelius Gurlitt’s collection were acquired by him on the international art market without due regard for provenance.

We don’t know anything about the methodology used by the Task Force, the archives that were consulted, how far and deep the research was conducted.  Were private archives consulted? How many art historians were consulted as experts on specific artists? How did one determine that an object was subject to Nazi theft besides the obvious description of a Gurlitt object on inventories drawn up by agents of the Nazi government as confiscated?

We might hope that some or all of these questions have been answered in the full report of the Task Force, which was released in German, several hours before the German government made a public announcement of its release, thus giving no time even for Task Force members to review the report.

None of this sounds good. If this is the best that the German government can do under the klieg lights of international opinion, its every moves analyzed and scrutinized for the past two years, we should not hope for German authorities and their agents in museums and cultural circles to practice what we consider to be “transparency”, an absence of “opacity.”

Murkiness has characterized the Gurlitt process since the investigation into Cornelius Gurlitt was initially announced in late 2012. It appears to be as thick as odorous sludge.

Enclosed is the first page of the Gurlitt Task Force “fact sheet.”

Fact sheet

Results on Munich Stock of Artworks

1258 artworks: Total number of works Composed of:

          1224 artworks: Number of seized artworks 


          34 artworks: Finds from Cornelius Gurlitt’s estate which were entrusted to the Taskforce for 
provenance research after Cornelius Gurlitt’s passing in August/September 2013 


Thereof: 


507 artworks: Number of works that were found not to be Nazi-looted

Results:


o 231: Works which were dislocated from German museums by the “Degenerate Art” operation, but which had been acquired by each respective museum already before the Nazi regime came into power in 1933 and which were not on loan from private individuals

o 276: Works which could be attributed to the Gurlitt family stock because they either were created after 1945, or were made by members of the Gurlitt family, or could be attributed on the basis of personal dedications

499 artworks: Posted on the Lost Art online database since suspicions had not yet been ruled out that they may be Nazi-looted art

Results:


o 11 artworks: work identity assured; provenance established (4 works: Nazi-looting confirmed; 2 works: strong suspicion of Nazi-looting after establishing their provenance; 5 works: initial suspicion of Nazi-looting ruled out)


o 117 artworks: work identity assured; provenance indications on possible Nazi-looting; very specific indications in case of 25 artworks


o 27 artworks: work identity assured; due to provenance indications Nazi-looting seems unlikely


o 152 artworks: work identity assured; low provenance indications

o 143 artworks: work identity assured; no provenance indications


o 49 artworks:work identity not assured; noprovenance indications

252 artworks: Artworks (mainly from the “Degenerate Art” operation) for which further research is necessary before they can be categorized