The domino effect

by Marc Masurovsky

In its most basic form, the domino effect is an uncontrollable chain reaction, an irreversible sequence of events brought about by one well-placed flick against a tile, which tumbles the neighboring tile, and then another tile, and then another tile, in a long line of domino tiles until the entire deck is down. Some of these “domino effects” make for fun, easy-to-produce effects. Many of us have tried them at least once to everyone’s delight.

Now apply the same idea to countries. The last time the domino effect was seriously invoked, it was in the form of a threat. American politicians and senior military officers used it to justify a hardline approach in Indochina against the “communist threat.” If one country “went” communist, the rest would fall. Here, the domino was South Vietnam. The other tiles were Laos and Cambodia, and then, who knows? Thailand? India? The “domino effect” was an integral component of the Cold War.

The domino theory in Southeast Asia

Let’s now turn our attention to the museum world. In order for the domino effect to work in the museum world, one needs a critical mass of cultural institutions predisposed to lean in one direction or another. In our case, the domino unit is “restitution”, the “return” of looted cultural assets to rightful owners, be they individuals, communities, tribes or source nations. For there to be a domino effect in the museum world, there needs to be a restitution, a repatriation which “tips the scales” in a way that paves the way for similar returns by other institutions and provokes a generalized onrush of claims that will ultimately provoke more returns, more repatriations, instability in the management of collections, loss of equilibrium in negotiations of loans with source nations, impending chaos, the end of the world as we know it.

Believe it or not, museum leaders and nations whose cultural institutions harbor looted cultural property have invoked the “domino effect” either to prevent restitutions or to isolate restitutions as unique cases which cannot be repeated, fearing that, if such restrictions are not imposed in a settlement, more claims will be filed and a generalized disgorgement of looted objects would ensue in favor of the aggrieved nations. As you know, that simply cannot happen.

The Wrestler from Koh Ker

The repatriation of the Koh Ker statues to Cambodia, it is argued, triggered a minor “domino effect” or a “breaking of the dam.” After Cambodia had won its case against Sotheby’s in December 2013, the matter could have been isolated to that one return. But there were many more statues located in different cultural institutions throughout the United States. The Metropolitan Museum of Art followed suit and agreed to return its two statues, followed by a return from Christie’s and the Norton Simon Museum in Pasadena, CA.  So did the Cleveland Museum of Art.

It is presumed that many more statues are located in European collections. Hence, the domino effect remained confined to the United States.

In the case of the Parthenon marbles, Michael Repps infers that the obstinacy of the British Museum to hold on to the marbles claimed by Greece constitutes a guarantee that, like Tom Thumb removing his digits from a hole in the proverbial dam thus causing the inevitable flood of the low lands, an unconditional surrender to Greece propelling the return of the marbles to their new home at the Acropolis Museum in Athens would trigger an irreversible chain of events, a domino effect, leading to uncontrolled disgorgement of cultural objects and their repatriation to aggrieved source. The counter argument is offered in a master’s law thesis entitled “What’s yours is mine—Indeterminacy in cultural property restitution debate” which was submitted to the University of Helsinki in 2014, by Pauno Soirila. In it, Soirila argues that the “domino effect’” threat is a non-argument since each restitution case is viewed as a unique case and should not cause such a massive disgorgement as threatened by some in the museum world and cultural officials in recipient nations. 

Parthenon Marbles on view at the British Museum, London

An unusual twist to the repatriation/domino effect dyad refers to the hypothetical “devolution” of Wales and Scotland which might provoke a deluge of repatriation requests against “English” museums that would gut them of significant numbers of objects. Hence, in a twist of irony, the threat of falling dominos may not come from those “nationalist” source nations which selfishly demand their looted property back, but rather from insurgent regionalist movements plaguing the halls of power in London. How fitting!

So, what’s all the hullaballoo about with all of these dominos falling and the world of museums as we know it collapsing around us because of incessant claims for return of looted cultural property to source nations and tribal communities?

In true fashion, France embodies the worst of the anti-restitution movement, whereby objects, as a rule, do not leave State-controlled museums under any circumstances. Once in, there is no conceivable exit. The principle of inviolability reigns over the management of cultural objects in French museums, regardless of provenance and origin.

In the case of the Oekyujanggak Royal Manuscripts which South Korea claimed, the French government rejected the Korean repatriation claim. Granted, the case was complicated. The French navy had stolen these sacred royal documents in 1866 presumably in retaliation for the deaths of nine Catholic priests. [This bears strange similarities to the punitive confiscation of bronzes in Benin  in 1897 as a retaliatory act by British colonial troops].

These manuscripts were rediscovered in 1975 at the “Bibliothèque nationale” in Paris. 

Sample pages from the Oekyujanggak Manuscripts

The idea of recovering these manuscripts first was discussed in 1991 by scholars at Seoul National University. South Korea filed a formal request for restitution in 1993. The claim quickly became entangled in larger trade issues between South Korea and France involving high-speed train contracts. [A similar entanglement occurred in the United States which linked high-speed train contracts between France and the United States to pending Holocaust-era claims against French railroads.] The discussion between the two nations evolved into a possible exchange through loans of artifacts of equal worth between the two nations.

As Professor Keun-Gwan Lee of Seoul National University rightfully asked during the ICECP conference held in Gyeongju on October 18-20, 2016, which law should be applied: the 1866 law or the 2011 law?

Regardless of what law applied, France invoked the “domino theory” and felt that an unconditional return of the royal manuscripts without any “contrepartie” from South Korea might provoke a generalized gutting of colonial-era plunder from French institutions.

In Korea, opposition built up and voiced against a proposed exchange of similar documents with Fraance, because, the argument went, any exchange or loan would be tantamount to a recognition of the plunderer’s right to good title, enabling nations like France to loot another nation’s treasures and get away with it.

In February 2011, an agreement was signed between France and South Korea outlining the terms under which the royal manuscripts could return to the Korean people. It wasn’t so much a return as a long-term loan renewable every five years. Hence, title remained with the French government while South Korea obtained the equivalent of “custodial rights” over their stolen royal manuscripts.

Furthermore, the French government insisted in Article 4 of the 2011 agreement that:

“The loan of the Uigwe manuscripts by France to Korea is a transaction characterized by its uniqueness, which cannot be replicated under any circumstance and cannot be viewed as setting a precedent…”

In other words, France would never repeat this folly again.

The so-called “domino effect” of repatriation and restitution of looted cultural assets is a convenient, albeit cynical, scarecrow invented by nations with long histories of cultural plunder to atone for and museum boards worldwide which fear the impending, unproven, gutting of their collections by aggrieved source nations should they surrender prized items. It’s unfortunate, however, that source nations should succumb to these idiotic arguments. We can only surmise that larger considerations—trade, politics, geopolitics—have more to do with the compromise settlements that put an end to these restitution claims than simple fears of a scarecrow wafting in the wind in some abandoned corn field.

A scarecrow

Peace? An unabashed biased view

by Marc Masurovsky

South Korea hosted the 6th International Conference of Experts on the return of Cultural Property (ICECP), a forum which it helped create in 2011. The three-day conference was held from October 18 to October 20, 2016, at the Hilton Hotel in Gyeongju, a historic city situated at three hours train ride south of Seoul.

The conference host was the Korean Overseas Cultural Heritage Foundation, an affiliate of the Korean Cultural Heritage Administration (CHA). It invited specialists and government officials from China, Cambodia, Greece, Turkey, Switzerland, the United Kingdom and the United States.

Several speakers, including Ieng Srong, director of movable heritage and museums section at UNESCO, and Keun Gwan Lee, a law professor and dean of planning and coordination at Seoul National University, called for peaceful solutions to be sought in the resolution of cultural heritage disputes worldwide. These conflicts regularly pit current possessors, i.e., museums in recipient nations, whether State-owned or privately-owned, against aggrieved communities or source countries from which the cultural property was illegally removed either as a result of colonial rule, military conflict, civil strife, or good-old fashioned commercial theft. Their presentations were complex, rich, and raised more questions than they themselves could answer. Thoughtful, they encapsulated the complexity of source nations’ attempts to recover the cultural property lost to predatory practices implemented by uninvited guests, invaders, colonizers, State-sponsored thieves backed by significant force and armies. Decades later, their treasured property remains displayed in the halls of “global” museums which pride themselves on providing to their loving public the result of their illicit purchases and acquisitions, indifferent to the twisted provenances that these objects carry with them.

Yes, negotiations can be fraught and frayed between aggrieved nations and the current possessors, self-described “internationalist” institutions which support a “global” view of displaying cultural objects, regardless of origin, licit or illicit. The strategies that source nations must consider using when attempting to recover their property can have direct consequences on their foreign relations, cultural, commercial, political, with the nations where their objects rest on display.

At what price must these negotiations be conducted, short of declaring war, to recover sacred and cultural objects, prized possessions that are an integral part of their cultural and spiritual heritage? What are the costs of maintaining a durable peace when the current possessors flaunt their acquisition and retention of title to these looted objects which source nations and aggrieved communities have asked to be returned to them out of respect for their heritage and the meaning, symbolism, and (non-monetary) value which they imbue in those objects. These arguments invariably fall on deaf ears, as the current possessors refuse to acknowledge them, so sure they are of their right to maintain title to the stolen property, obtained in “good faith”, mind you.

What does peace really entail when negotiations become protracted, drawn out in order to ensure the return of these looted cultural assets to source nations? Peace subsumes lengthy exchanges, endless mediations provided by international organizations, specially designated committees and individuals to present the arguments that will lead to some kind of resolution. Is it worth waiting for 20 years? And why does it have to take an average of 20 years to recover stolen cultural objects?

This is where it gets interesting. The spokespersons for aggrieved nations reason differently than the individual claimant victims stripped of their property as a result of acts of genocide, like Holocaust victims and their families. Source nations’ attachment to the cultural, spiritual, national significance of their lost objects carries with it a different sense of responsibility which compels varied strategies in how these objects will be recovered.

A brief tour of Korean cultural and sacred sites was enough to make anyone’s blood boil at the immensity and scope of the crimes committed by the Japanese occupying authority against the culture of millions of Korean citizens for close to half a century. It was as heartbreaking to see what no longer is there than to visit ruined Jewish settlements overgrown by forests and bushes, the bare remnants of thriving communities before the Nazis sowed their genocidal wrath against them.

The same reactions would obviously apply to China which suffered unspeakable violations and depredations for fifteen long and endless years at the hands of the Japanese imperial army and its allies. This is history, it happened. And there is no denying it. The scars are still visible. The discussions of this history continue to be awkward and painful, unresolved, an objective history of these tortured events remains a difficult task to accomplish. And it is in this context that the recovery process of the lost cultural and sacred heritage of these aggrieved nations must take place. Korea and China are but two examples of similar crimes perpetrated in other countries around the world. And each time, the fortunate recipients of these crimes—wittingly or unwittingly—are museums and other cultural institutions residing in Western nations. This is not meant to be an anti-Western diatribe but the facts are as they are. Those countries most willing to absorb cultural and sacred material looted from non-Western nations lie mostly to the West of the Oder River and between the Atlantic and Pacific Oceans, with the exception of Japan and its absorption of Chinese and Korean cultural material.

How does one achieve peace in this context? It is almost impossible to ask victims to be peaceful. But it is worth noting that the aggrieved parties have maintained, in most instances, the high ethical ground against the apparently selfish, self-righteous and self-aggrandizing motives put forth by the current possessors as justification to retain title to their looted property.

In that regard, calls for peace to resolve cultural heritage disputes echo the “just and fair solutions” developed as of the late 1990s by international diplomats and their allies in the museums community to achieve peaceful, non-litigious compromises between Holocaust victims’ heirs and the current possessors of their looted property, without the latter ceding title to the looted assets. The victims are asked to be reasonable while their painful legacy is explicitly acknowledged. The same appears to hold true in the recovery of looted cultural property illegally removed from source nations. Their painful heritage and history is readily acknowledged, empathy evenly distributed, but title must remain with the current possessor. Conflict arises when the source nation rejects that rationale, complaints are filed and some form of mediation ensues which can last for years, if not decades, which will require intervention by policymakers, politicians and experts from many countries and international bodies. Why waste all of this time and energy when the facts underlying the thefts and illegal removals are clear? Even if they are somewhat muddy and blurry, the obsession that current possessors have with retaining title borders on obsession and pathology. What would happen if current possessors ceded title to a long-sought object embodying far more meaning to the claimant than it could ever have to the current possessor? Without a fight, swiftly and efficiently.  Would the world fall apart? No, the present and future role of museums  as global institutions might be redefined, that's all.

For now, let’s stop here and ponder.

We will return to this discussion in forthcoming dispatches, inspired by the Sixth International Conference of Experts on the Return of Cultural Property (ICECP) which took place in Gyeongju, South Korea, from October 18 to October 20, 2016.

Deconstructing the Jeu de Paume

by Marc Masurovsky

The process of understanding what exactly unfolded at the Jeu de Paume museum in German-occupied Paris between late 1940 and July 1944 has been in the works for close to a decade.

Jeu de Paume in 1861

Why?

The Jeu de Paume museum, emptied of its contents because of the impending German entrance into Paris in 1940, became the  most important processing center for art objects looted by German and French agents from Jewish owners, mainly in the Paris area but also from sites throughout German-occupied France, and to a lesser extent from Belgium and the Netherlands. The collections seized in Belgium and the Netherlands represent but a fraction of what was removed from France and processed through the Jeu de Paume.

For four years the Einsatzstab Reichsleiter Rosenberg (ERR) staff managed that processing center to which thousands of objects were brought in crates provided by Parisian moving companies.

Typical truck and crate operation at the Louvre

ERR staffers unpacked them, assessed their appearance, condition and importance. Based on their recommendations, these objects were catalogued, inventoried, carded, and either shipped to the Reich or handed over to other German agencies for sale through the Paris art market.

Many post-WWII art restitution cases filed in Europe and in the United States are rooted in the events that transpired at the Jeu de Paume.

What is involved in the deconstruction of the Jeu de Paume?

The bulk of the reconstruction relies almost exclusively on a close examination of primary source documents which attest to the confiscation, transfer, stockpiling, inventorying, cataloguing, carding, and shipment of art objects which were forcibly removed from their Jewish owners.

These documents include, but are not limited to:

-Cards designed and filled out by ERR staffers describing the objects processed at the Jeu de Paume. These cards were also completed in other ERR centers

—in Brussels (Belgium), Fussen/Neuschwanstein (Bavaria, Germany), the Louvre (Paris, France). and Kogl (Austria).

ERR card describing a Rothschild item

-Inventories were produced by the Einsatzstab Reichsleiter Rosenberg (ERR) art specialists in Belgium, France, Germany, and Austria;

-the typewritten version of the handwritten notebooks compiled at great risk by Rose Valland, curator at the Jeu de Paume whose hierarchy asked her in effect to spy for them and document the hemorrhaging of “French cultural treasures” from their Jewish owners to various sites in Germany and Austria;

-restitution claims filed by surviving victims whose property was plundered by German agents between 1940 and 1944;

-wartime and postwar correspondence regarding the thefts authored by victims, perpetrators and witnesses;

-reports compiled by Allied intelligence agencies documenting acts of cultural plunder, including investigations into the actions of specific officials like Hermann Goering, Bruno Lohse, Robert Scholz;

-French police reports detailing their raids on Jewish-owned businesses and residences in close cooperation with German agents;

-records of French anti-Jewish agencies (Commissariat Général aux Questions Juives) responsible (and competing against the ERR) for confiscating Jewish-owned property and facilitating the Aryanization of their businesses.

The ERR staff photographed a number of the confiscated objects. Not all of the objects carded and inventoried were photographed. These photographs are scattered about in various archives throughout Europe—Belgium, France, and Germany. Our task is to reunite them with the corresponding datasets. Their quality varies significantly based on the circumstances under which the photos were taken.

One set of photographs was taken rather crudely in 1940 and 1941. 

Marais aux songes, Max Ernst

 The objects were placed on an easel, a handwritten label identified the alphanumeric code assigned to the object by the ERR, and the object was photographed together with the easel. In other words, the first photographs were produced amateurishly and did not reflect a coordinated policy of treatment of the confiscated objects. Once the Jeu de Paume operation was rationalized and structured under the guidance of Bruno Lohse and other art specialists of the ERR, the photographs took on a more professional quality, often printed on high-end photographic paper.

The official tally reported by French and Germany officials of the number of objects processed at the Jeu de Paume is slightly above 21000. This figure, which I rounded off, has been oft-repeated since 1945 and comes from the official records of the ERR itself and was confirmed by Rose Valland and other French officials after 1945.

The deconstruction of the Jeu de Paume has managed to challenge that official figure upwards and, by so doing, to clarify its meaning.

The 21000 or so objects that were “carded” by the ERR staff in its various depots throughout Europewere objects that the staff considered more from an esthetic viewpoint than an ideological viewpoint. After all, if Nazi ideology had dominated the judgment of the ERR staff, thousands of objects would not have been inventoried or carded because of their “unworthiness” and, therefore, the official figure would have been much lower.

The number itself is low and does not reflect accurately the true extent of the thefts of Jewish-owned cultural assets and the proportion of those assets which entered and left the Jeu de Paume.

Of note are the crates which contained confiscated items. The crates are the most important forensic measure of the actual number of objects which entered the Jeu de Paume from late 1940 to late July 1944. Crates were often assembled in the places of confiscation by the Parisian movers, they contained the fruits of the plunder. They were transported as such in trucks supplied by Parisian moving and storage companies to the Louvre and Jeu de Paume.

Their contents are not always provided in the available documentation. Hence, the Jeu de Paume database can only list the crates, the time at which they entered the Jeu de Paume and exited therefrom.

As of now, there are more than 33,000 datasets in the ERR database, each containing information on at least one object. Several thousand datasets pertain exclusively to crates and their contents, exclusive of the individual objects listed in the database. In other words, these crates contained objects that the ERR did not bother to inventory and/or card for reasons that are not yet clear.

The close examination of Rose Valland’s notes on the contents of crates passing through the Jeu de Paume is the closest that we will ever get to grasping the full extent of the Jeu de Paume operation, the number of collections that were processed there, and the fate of the objects contained therein both during and after WWII.

Crate inventory (partial)

In order of magnitude, the cards, when tabulated,  bring the total number of objects at the Jeu de Paume close to 21000. The inventories of the various collections processed at the Jeu de Paume provide a more accurate but not complete snapshot of the number of objects confiscated from individual Jewish owners. The total number of objects listed in the inventories brings us closer to 30,000 objects. If we add the crates with objects not tabulated in the cards or the inventories, the total number of objects could far exceed 40,000. And finally, the inventories of losses submitted by victims of Nazi and Vichy-sponsored plunder, when confronted with the German inventories, more often than not, contain far more objects than the German inventories. Hence, if we factor in the objects listed on victim inventories which were not carded or inventoried or listed in the description of crate contents, we must ask: where did those objects go since the apartments, mansions, estates, galleries and other sites containing those objects were virtually gutted of all their contents.

Once we reach the end of this exercise, we will be able to provide a more accurate picture of the scope and detail of the cultural plunder of Jewish victims of Nazi occupation and Vichy rule in France.

The process is long and painstaking, but it fulfills a vital mission: to understand the crime of cultural plunder, to document the confiscations, understand the path taken by the various objects during and after the war, and to paint a more complex picture of Nazi cultural policy in occupied territories, the impact of that policy on the art market, and the postwar fate of the objects removed by force from their owners’ possession.

This project is currently funded by the New York-based Conference of Jewish Material Claims against Germany (better known as the Claims Conference) as a joint project with the US Holocaust Memorial Museum in Washington, DC.

The information on the Jeu de Paume can be found at www.errproject.org.

Prisoners of war

by Marc Masurovsky

In late January 2014, Ronald Lauder, president of the World Jewish Congress, declared that art objects stolen from Jews “are the last prisoners of WWII”. He asked that they be returned to their rightful owners.  Two years later, testifying before the Senate Judiciary Committee in June 2016 in support of the so-called HEAR Act, S.2763, Ronald Lauder emphasized, rightly or wrongly, that this proposed bill would help return looted works of art, “the final prisoners of World War II,” to their rightful owners.

This is not the first time that we’ve heard art objects being compared to prisoners of war. The analogy, wittingly or not, produces a misconception as to the nature of the thefts of art objects from Jews and distorts the chronology of events surrounding cultural plunder at the hands of the Nazis between 1933 and 1945. It is a recent notion which may have its roots in the “Spoils of War” conference organized by Elizabeth Simpson in 1995 in collaboration with the Bard Graduate Center for Studies in the Decorative arts.”

The “Spoils of War” conference came on the heels of disclosures that important works of art thought to be missing at the end of WWII had resurfaced in the former Soviet Union. The trove which a shocked world discovered was described by some as the "last prisoners of World War II," citing Karl E. Meyer’s Editorial Notebook: Russia's Hidden Attic; Returning the Spoils of World WarII, (N.Y. TIMES, Feb. 1, 1995, p. A20). Meyer, a journalist for the New York Times, was referring to important French Impressionist paintings that had been deemed lost in the wreckage of WWII only to reappear in an exhibit at the Hermitage. In an unforgettable display of nationalistic and cultural arrogance, Soviet authorities flaunted their prized “takings”, the result of massive sweeps of works and objects of art by so-called Trophy Brigades operating in areas “liberated” by the Red Army in the months leading up to the end of WWII. The Soviets viewed these “treasures” as “reparations” for the staggering losses in lives, equipment, cultural objects and infrastructure that they had suffered at the hands of Nazis and their collaborators. [Cited by Seth A. Stuhl, Spoils of War? A Solution to the Hermitage Trove Debate , 18 J. Int'l L. 409 (2014).

Since 1995, the expression has been re-appropriated time and time again mostly in the form of catchy titles as a mis-characterization of the full dimension and scope of cultural plunder during the Nazi era (1933-1945). Some of the many authors, mostly legal experts, who used the expression:

1997: Margaret M. Mastroberardino, The Last Prisoners of World War II, 9 Pace Int'l L. Rev. 315 (1997)

2002 Emily J. Henson, The Last Prisoners of War: Returning World War II Art to Its Rightful Owners— Can Moral Obligations Be Translated into Legal Duties?, 51 DEPAUL L. REV. 1103, 1105

2004, Geri J. Yonover, NATIONAL PERSPECTIVE: The "Last Prisoners of War" 1: Unrestituted Nazi-Looted Art Fall, 2004 6 J.L. & Soc. Challenges 81

2006 Patricia Kennedy Grimsted, "A Silesian Crossroads for Europe’s Displaced Books: Compensation or Prisoners of War?"  

A world-renown authority on Nazi looting of archives, libraries and books, Dr. Patricia Kennedy Grimsted has often referred to looted books and archives as “prisoners of WWII, held captive by recipient nations as “compensation” or “reparations.”

2010, Jessica Grimes, "Forgotten Prisoners of War: Returning Nazi-Looted Art by Relaxing the National Stolen Property Act ," Roger Williams University Law Review: Vol. 15: Iss. 2, Article 4.


2011, Maria Liberatrice Vicentini, manager of the Nucleo Conservazione Archivio Siviero, suggested that unrestituted works of art should be viewed as “prisoners of war.”

2014, Jessica Schubert, "Prisoners of War: Nazi-Era Looted Art and the Need for Reform in the United States," Touro Law Review: Vol. 30: No. 3, Article 10.

Although these “prisoners of WWII” are universally associated with the former Soviet Union, one can easily argue that they exist in most countries involved in the Second World War, which received untold numbers of cultural items with no provenance that they simply “hung on to”. They rationalized their presence in State collections and warehouses in the same manner as Soviet officials did and their successors in the newly independent nations forged out of the former Soviet Socialist Republics—Russia, Ukraine, Belarus—and their close neighbors in the rest of Eastern Europe. Proof being in the pudding, however, in the absence of coherent, systematic, inventories and audits of such holdings in the aforementioned nations, we can only continue to speculate wildly about the true numbers of these “prisoners.”

Summary:

Let’s give credit where credit is due. The late Elan Steinberg was a major force behind the WJC’s many advocacy campaigns of the 1990s In 1998, he called unrestituted looted art "the last prisoners of war."  In November 1998, the WJC reiterated its assertion that looted paintings by Matisse, Chagall and Fernand Léger residing in French museum collections as “orphans” waiting to be returned to “loving parents” were in fact “the last prisoners of war” and they should be “freed.” .

Unless anyone protests, we will award to Elan Steinberg paternity for the expression, which Ron Lauder must have adopted since then. Still, the expression is laden with misconceptions.

Prisoners of war are people, and like with “orphaned” works, we tend to give human shape to objects and assign them sentient qualities which allows us to compare with them with individuals who have been captured in combat or in a battle zone and subjected to forced internment, confinement, and imprisonment by a hostile force. A prisoner of war is usually a member of the military or an agency affiliated with the one of the branches of a country’s armed forces and taken into custody by the “enemy.”

Prisoners of war are usually released at the end of the conflict that provoked their capture. They can also be exchanged for enemy prisoners. In principle, they have rights covered by international agreements, like the Geneva Convention.

Not to be flip, but can all of the aforementioned be applied to cultural objects being held “against their will” by a country which has no designated right to hold them and whose responsibility, at least its ethical or moral responsibility, is to return them to their rightful owners?

Furthermore, a prisoner of war has to be captured during a period of active military conflict. The looting of art objects under Nazi rule began in 1933, six years before the eruption of military conflict on the European continent. Theoretically, the expression “prisoner of war” cannot apply to any art object which was misappropriated, confiscated, plundered or otherwise stolen from its rightful owner prior to the outbreak of war, in other words, during the six-year period of 1933-1939.

Mountain out of a mole hill? Historical accuracy is important and the use of rhetoric to score political points is so widespread as to constitute an epidemic of sorts and therefore cannot be controlled by conventional methods. Only through education and awareness raising can the record be corrected. Art objects, once again, are not people and do not share their characteristics. They have no will of their own. They might symbolize events that extend far beyond their intended purpose as a result of their twisted or disrupted ownership histories. But they cannot—and should not-- be compared to people held against their will behind bars or barbed wire. If people insist on analogizing unrestituted art objects with “prisoners of war”, then it would be more useful to compare them to US soldiers listed as “MIA-Missing in Action” whose return has been elusive since the end of the Vietnam War.





Where does that get us? Nowhere.

Orphans

by Marc Masurovsky

Historian Lisa Leff pointed out in her recent book, “The Archive Thief,” how, in the late 1940s, the leadership of the Jewish Cultural Reconstruction (JCR) compared identifiable books recovered in former Nazi-held territories in the aftermath of WWII to “kidnapped children.” According to Rabbi Bernard Heller, the “theoretical” restitution” of these “kidnapped children” would be akin to reuniting them with their “overjoyed parents”. For those cultural assets that could not be matched with an identifiable owner, these “stunned waifs” would be placed in “foster homes” run by “loving foster parents.” As it turns out, these “abductees” ended up in a complex network of “foster homes” happy as pie to become the new “[foster] parents.” These new “homes” consist of museums, libraries, and other cultural institutions, State-controlled and/or private, Jewish and non-Jewish around the world.

The JCR was tasked with redistributing among Jewish communities worldwide (mostly in the United States, Europe and Palestine/Israel) those cultural objects bearing no obvious markings that might tie them to an owner. In their zeal, even objects that could have been reunited with rightful owners were treated as “waifs.”

Decades later, European governments explained how they treated Jewish-owned assets in the post-Holocaust world and if they had made any effort to return them or make them available to their owners or next of kin. For example, the Swedish authorities issued a report in 1997 on “orphaned” assets located in Swedish financial and other institutions. To them “orphaned” meant that assets had remained “unclaimed” for decades following the end of the Holocaust.  In Greece, “orphaned” property was transferred to an organization responsible for aiding needy survivors, most likely with the proceeds from liquidating such “orphaned” assets.  The same scenario also unfolded in countries like Austria and France with greater or lesser success.

In 2008, the Israel Museum in Jerusalem staged an exhibit called “Orphaned Art: Looted Art from the Holocaust at the Israel Museum.” More than 1200 “orphaned” items are catalogued at the Israel Museum. The Jewish Restitution Successor Organization (JRSO) was the main collector of these cultural “orphans”. It operated in post-WWII Germany and Austria to locate, identify and disperse objects tagged as Jewish-owned, mostly without an identifiable owner to whom to return the found objects. The JCR was its redistribution arm.

Marilyn Henry, who wrote a regular column for the Jerusalem Post before her untimely death in  2011, argued that these “orphans” should be transferred to European Jewish cultural institutions since they came from European nations subjected to Nazi rule and terror. She mentioned how Benjamin Ferencz, the noted former chief prosecutor at the International Military Tribunal of Nuremberg, described recipients of “orphaned” assets as their new owners, rather than their trustees or custodians.
In other words, the new “parents” held clear title to these cultural “orphans.” Ferencz’s comment could be interpreted as a clear rebuke to any attempt by claimants, relatives of the unfortunate “parents”, to obtain restitution of these “objects”, in other words, reuniting them with their “families.”

Throughout the post-1945 era, museums, libraries and other cultural institutions have been transformed into massive “foster” homes for “orphaned” objects. In line with Ferencz’s comment, one can understand more clearly how Jewish museums around the world have been reluctant, remiss and even hostile to the idea of restituting any of the “orphans” that they lovingly curate and nurture as “foster parents.” Even the US Library of Congress played dumb in the late 1990s when faced with the evidence that they held at least a thousand valuable books spanning three centuries of noted Jewish authorship which it had obtained after WWII.

The London-based European Commission on Looted Art (ECLA) has described “orphaned” works as having no prior ownership history. If we adapt that line of thought liberally and argue that any cultural object is an “orphan” whose previous ownership history is non-existent, the vast majority of cultural objects currently sitting in cultural institutions worldwide or being offered for sale by auction houses across the globe should be dubbed as “orphans” in want of their “parents” due to the sheer absence of a provenance that describes their history. Surely, we cannot accuse the art world of being so cruel and insensitive, can we?

Incidentally, and this might be completely irrelevant, the US Senate considered a bill in 2008 referred to as the “Orphan Art Bill” which would regulate how copyrighted images can be used whose owners cannot be located. A law addressing similar issues was passed in the United Kingdom in 2013. Without getting in too deep into a legal swamp, users of copyrighted orphan works would not be penalized in their use and reuse of such images as long as they had been diligent in seeking out the purported owners of the images.  However, the US Copyright office noted recently that “the ownership status of orphan works does not serve the objectives of the copyright system. For good faith users, orphan works are a frustration, a liability risk, and a major cause of gridlock in the digital marketplace.”

Can the same reasoning be applied to cultural objects “orphaned” as a result of genocidal policies? Should we view cultural “orphans” as a liability risk? Not if we accept the Ferencz verdict of clear title to these objects.

And yet…

If we do generously apply that reasoning to cultural assets “orphaned” as a result of the violence that cost the lives of six million individuals of Jewish descent, we would have to question the level of diligence exerted by new “owners” (according to Ferencz) of “orphaned” cultural assets. In most cases, such diligence has not even been a consideration simply because the reigning assumption amongst the new “foster parents” was that the rightful owners had perished and not left any relatives who could become the new “parents” of these “orphaned” assets.

These poor “orphans” are routinely sold and resold through bookstores, antique shops, galleries, auction houses, Jewish and not, thus bouncing from one “loving foster parent” to another. If Rabbi Heller’s analogy holds, the treatment of these “orphans” constitutes systemic abuse and grievous neglect under the guise of providing a “good home” to those “waifs”.

Let’s face it, no systematic effort has been made in the past 80 years to find the “parents.”

You do know that objects are not people, something that, ironically, officials of Holocaust memorial institutions and even Jewish groups explain when they justify why they do not focus on cultural claims or include acts of plunder and misappropriation in their exhibits and educational programs. Isn’t it twisted irony that those responsible for the relocation and redistribution of “orphaned” objects grounded their arguments in anthropomorphic language to emphasize the humanitarian and profoundly sensitive motivations underlying their mission—to find new homes for the cultural wreckage of the Holocaust? Little did we know that these metaphors eliminated any possibility of viewing restitution as a viable solution to the fate of our “waifs”.

"Portrait of Greta Moll," by Henri Matisse

Portrait of Greta Moll

by Marc Masurovsky

[Editor's note and caveat: this article brings together the major articles which appeared in the international press concerning the restitution claim filed against the National Gallery of London by the heirs of Greta Moll.  If there are any misrepresentations of the facts, I assume full responsibility for them. The purpose of this article is to understand and raise questions about the itinerary of the painting before it reached the United States in 1949.  Some of the questions may seem self-evident or unnecessary but they are designed to flesh out possible explanations for the various twists and turns that the story of this Matisse painting borrowed especially between 1945 and 1949.]

In September 2016, the heirs of Oskar and Margarete "Greta" Moll, two German artists who had been persecuted by the Nazis, filed a lawsuit demanding the restitution of a “Portrait of Greta Moll,” which Henri Matisse had painted in 1908. The Molls had owned one of the most important German collections of paintings by Henri Matisse in the years preceding Nazi rule.  

The defendant in this case is the National Gallery of London. Greta’s husband, Oskar Moll, had been one of the early victims of Nazi purges in the academic, cultural and artistic world. The Nazi regime viewed their work as “degenerate” and Greta Moll’s sculptures were included in the now infamous 1937 Munich exhibit, the sole purpose of which was to debase the work of countless modern artists, Jewish and not. 

In 1944, after their house was destroyed,  the Molls sought refuge in the suburbs of Berlin so as to avoid the punishing air raids conducted by Allied bombers.

After the unconditional surrender of the Third Reich on May 8, 1945, the Molls found themselves in the Soviet sector of Berlin. Soviet “cultural policy” in liberated Berlin included the forced removal of whatever cultural and artistic objects and transferring to the Soviet Union, manu militari. Soviet military officials also conducted their own version of purges of “degenerate” art. The so-called Trophy Brigades helped implement this removal policy. Red Army troops “liberated” thousands of objects belonging to Berlin museums and to private collectors from storage facilities in the areas of Berlin that they had overrun. They organized the transfer of those objects to Soviet-run depots deep inside their zone of occupation for ultimate transport to the Soviet Union.

Oskar Moll, courtesy of artnet

In 1947, the Moll family decided to move out of the Soviet sector of Berlin while they still had a chance to. Their designated destination: Wales, where one of their daughters resided. Meanwhile, Oskar Moll died on 14 August 1947 in Berlin. Greta became the designated heiress to the portrait that Matisse had produced of her decades before. Some reports have characterized the painting as the “family’s only remaining asset.” The same reports portrayed Greta as living in fear of an export ban, which could only have been imposed by the Soviet military authorities. To forestall such an eventuality, she recruited Gertrud Djamarani, one of her husband’s former students, to “smuggle the painting" to Zurich and drop it off for safekeeping with a local art dealer, Heidi Vollmöller, the daughter of a wealthy textile executive. She ran a gallery and an auction house in Zurich.  The gallery has had a strong presence on the antiquities market.

"Greta" and Oskar Moll

Another report suggests that, for whatever reasons Greta might have conjured, “the painting was in danger.” This fear might have been prompted by prevailing Soviet cultural edicts severely restricting in their zone the ability of destitute individuals trapped in their zone to raise money or transfer their assets out of the Soviet sector. Artforum goes even further and argues that Greta Moll feared thefts and misdeeds by Allied troops, although if she was in the Soviet sector, she only had the Red Army or Soviet officials to fear, not the Western Allies.

Heidi Vollmoller

There is no sense in speculating why Greta Moll recruited Ms. Djamarani as the temporary custodian of the Matisse portrait. In any event, Ms. Djamarani made her way out of the Soviet Zone of Occupation with the Matisse painting and was able to cross the German-Swiss border with it. Impressive!

The story of the Matisse painting becomes a bit messy once the painting and its custodian enter Switzerland.

Reminder: The Second World War ended in May 1945 in the European Theater and in August 1945 in the Asian theater. Europe was officially liberated. There were no more Axis-sanctioned acts of plunder, no more confiscations by Nazi authorities. If there were seizures and confiscations, they were driven by other considerations at the hands of post-war authorities. The “Portrait of Greta Moll” was not confiscated by the Nazis. The Moll family was able to protect it throughout the entire National Socialist era, no small feat. Two years elapsed between the unconditional surrender of the Third Reich and Greta Moll’s transfer for safekeeping of the painting to Gertrud Djamarani and ultimately to the care of an art dealer, Heidi Vollmöller. Was the latter aware of Frau Moll’s intentions? Did she expect delivery of the painting with Gertrud Djamarani acting basically as a courier? Unclear.

Most press accounts confirm that Ms. Djamarani ran out of money in Switzerland. It’s not clear either how long or how quickly it took her to become destitute, how badly she needed money to begin with. Switzerland has always been and remains even today an expensive place in which to survive, especially in an opulent city like Zurich. Oskar Moll’s former student hung on to the painting long enough to perceive it as a valuable asset from which she could derive some badly needed funds. A highly unethical and, yes, criminal posture to adopt, but in the disastrous follow-up to WWII, millions of men, women, and children found themselves pauperized, doing anything to earn a living. Theft and other crimes as well were common occurrences across war-devastated Europe. Black markets operated on high octane, especially in cities like Munich and Berlin. Everything was available for a price as long as someone had money to pay for what you offered. Swiss art dealers benefited exponentially from such financial and societal distress, eager to buy low and sell high. That, however, does not excuse Ms. Djamarani’s behavior because it was plainly illegal.

Gertrud Djamarani used the Matisse painting which belonged to Greta Moll in order to obtain financial assistance from Heidi Vollmöller. . In doing so, did she pass herself off as the owner of the Matisse painting? Unclear. This also tells us that Ms. Vollmöller.  ight not have known that the painting’s true owner was Greta Moll and if she did, she became party to the crime. Moreover, she did not question the fact that an impoverished student coming from Berlin would be the proud owner of a well-executed portrait of a woman by Henri Matisse. There were plenty of dealers and collectors in Switzerland who would have given Ms. Djamarani good money for the painting and, more importantly, who would not have raised the origin of the painting as a precondition for a transaction. So, why did Ms. Djamarani focus solely on Ms. Vollmöller to obtain assistance? We don’t know. One other detail is worth considering at least for historical reasons. By 1947, after having been pummeled by the Western Allies since 1944 over their handling of looted assets belonging to Jewish victims, the Swiss authorities were especially vigilant to seize movable assets like the Matisse portrait in Ms. Djamarani’s possession which might enter Swiss territory by plane, train, road, or even on foot. How did Ms. Djamarani make it across the German-Swiss border without a detailed inspection of her belongings? If I had been her, I would have been sweating buckets.

We can all agree that Gertrud Djamarani’s behavior upon her arrival in Switzerland, was nothing short of problematic as well as that of the Zurich art dealer to whom she was supposed to entrust the painting. She used it as a vehicle to raise money for herself which probably financed her exit out of Switzerland.

Gertrud Djamarani ended up somewhere in the Near East, not the most peaceful region of the post-1945 world to relocate in especially as French and British colonial dominions were cracking at the seams amid generalized unrest fueled by rising pan-arab nationalistic fervor and Jewish desires to control their own territory and carve out a nation out of Palestine.

Heidi Vollmöller sold the painting without the consent of its rightful owner, Greta Moll. In 1949, the Matisse portrait reached the New York art market and ended up at the Knoedler gallery. From there it entered the collection of a Texan oil baron, then returned to Switzerland and finally ended up in London with Lefebvre which sold it to the National Gallery in 1979, two years after the death of Greta Moll.

In 2011, we learn that The National Gallery first became aware of the Moll heirs’ “interest in the painting” through an exchange of letters involving legal representatives.

We agree with Greta Moll’s heirs “that [the painting] was sold without permission after [Greta Moll] sent it to Switzerland for safekeeping.“ But the facts as they have been presented in the international press do not lead anyone to deduce that this case can even be considered as a “World War II art restitution case”.

David Rowland, a New York attorney involved in many Nazi-looted art cases and who represents the interests of the Moll heirs declared:

"We think that it is improper for public museums to hold misappropriated/stolen artworks in their collections and that there is both an ethical and legal obligation to return misappropriated/stolen art to its original owners and their heirs. The same principle of course applies even more so to art lost in the Nazi era and its immediate aftermath, as is the case here.”

Note: 

The photo of Greta and Oskar Moll comes from the following website:

http://www.silesiancollections.eu/Kolekcje/Moll-Margarete-1884-1977-Moll-Oskar-1875-1947-Breslau

The image of Heidi Vollmöller is a portrait produced by Hans Purrmann. According to the website "the athenaeum-org", only the thumbnail can be reproduced. For more information, see

http://www.the-athenaeum.org/art/detail.php?ID=233742

The long summer of 2016

by Marc Masurovsky

I confess.

The absence of any postings on the plundered-art blog this past summer was as a direct result of the thrashing that we suffered at the hands of the American museum lobby, its auction house allies and a handful of well-established community groups which found it easier to support museum boards than claimants suing them to foster some form of justice 80 years after the genocide against the Jews of Europe.

It’s not as if the roof collapsed over our heads. But it felt like a sucker punch, one that we had not been dealt in quite some time.

What am I referring to here? The US Senate Judiciary committee and its processing of two legislative proposals critical to the claims process affecting art objects displaced in Axis-controlled Europe—S. 2763 known as the HEAR Act and S.3155.

Round 1-- June 2016

The HEAR Act (S. 2763) was the subject of a hearing on 7 June 2016. Helen Mirren, a highly talented and versatile actress, was the star witness for claimants seeking the restitution of their cultural assets on US territory. Senators, Republican and Democrat, fawned over her when it came time for photo ops and autographs. A Hollywood actress always plays well in Peoria. She could have sold used cars to these elected fools, the result would have been the same.

Members of HARP, myself and counsel, Pierre Ciric, suspected that something was up at this Senate hearing. On the Republican side, Senator Cornyn (Texas) uttered menacing words (seize this opportunity because there won’t be another one like it, or something to that effect), Senator Charles Grassley (Iowa) advised Senator Orrin Hatch (Utah) that he could introduce his other bill (in effect, S. 3155). On the Democrat side, Senator Charles Schumer, great friend of museum lobbies, trial lawyers and mainstream Jewish organizations, abandoned the hearing five minutes after it had begun. These minor events contributed to an almost surreal atmosphere in the Senate hearing room. Added to the mix, the absence of a genuine debate on whether or not looted art claims would be extinguished after the proposed “truce” or sunset period lapsed (by this, I mean that the HEAR Act’s lure was to propose that  current possessors could not invoke echnical defenses when defending against cultural claims, only up to 2026. After that date, who knows? It’s been the ambition, no, the goal, of the art market in the US, including museum directors and their boards, to extinguish all cultural claims that could be filed on the US market.) And, last but not least, the unfortunate and misguided collusion of certain American Jewish groups, like the American Jewish Committee in its mistaken belief that the HEAR Act was a great gift to claimants, considering that the AJC never did anything constructive to support cultural claimants. Period.

Round 2--July 2016

The onslaught by the museum lobbyists of the AAMD (Association of American Museum Directors) and the leadership of New York museums was finding its mark. Their success among members of the Senate Judiciary Committee relied on the fact that the Republican and Democrat senators and their staff members had no basic understanding of the massive losses suffered by Jewish victims of the Nazis, the complexities of burdensome and costly recovery in postwar America of art objects confiscated and misappropriated between 1933 and 1945. In short order, Republican Senator Orrin Hatch introduced S. 3155 and was able to have it processed speedily through the Senate Judiciary Committee with unanimous consent. Even Democrat Senator Pat Healey who had vehemently opposed its forerunner, S. 2122, felt that he could not pursue his opposition to the museums’ attempt to create a claims-free market inside the United States.

Round 3--August 2016

HARP tried to rebuild the successful coalition of 2012-2013 against Senate Bill 2212 in order to neutralize its successor, S. 3155. In vain.

The newest and most visible group promoting the protection of cultural heritage and antiquities in the Mideast war zone, the Antiquities Coalition, was nowhere to be found and seemed to ignore the very existence of these two pieces of legislation.

It’s hard to tell what exactly happened. But it could be that its full attention was focused on overseas recruitment of and negotiations with source countries as part of their campaign to forge new coalitions among all source countries, in order to safeguard antiquities and archaeological sites under threat of destruction and crack down on the illicit trade. Despite all of this maneuvering on the international arena, no attention was being paid to the domestic US market and its complex, often absurd and confusing legislative environment. Only ARCA, the Association for Research into Crimes against Art, has been a steadfast and reliable ally because its leadership understands the linkages between Nazi confiscated art, looted antiquities, and looted indigenous sacred objects on the international market.

One preliminary assessement would hold that the American cultural heritage community had failed to understand that S. 3155 affects them and their clientele, those constituencies and nations that they aim to protect. We don’t blame them, we simply nurtured expectations that ran higher than warranted.

As for the lawyers representing plaintiffs in art restitution and repatriation cases, most of them are based in New York, some are in Los Angeles, Boston, and Washington, DC. Some of these attorneys participated in the drafting and amending of both bills that sailed through the Senate Judiciary Committee and therefore aligned themselves with their framers.

One can only wonder whether their tacit or explicit support of S. 2763 and S. 3155 was a business decision aimed at adapting to new realities, that, in their view, Holocaust-era claims are fated to be extinguished by the callousness and calculated hostility of the art world’s leadership and their opportunistic political allies whose main objective is to make sure that history, the kind that affects people’s lives and their cultural assets, no longer enters the sanctum of cultural institutions on American territory. We hope that this was all a big miscalculation, but we won’t know unless we ask them and they agree to go on the record.

S. 2763 and S. 3155, combined with other recent legislative proposals (the so-called Engel bill) that passed through the House of Representatives to protect antiquities and restrict their importation into the US is what we call a cultural policy, one that the US government pretends that it does not have. And yet, those who are on the front line of enforcement have been waging an incredible and outstanding battle to suppress with the few tools at their disposal the resale networks of looted cultural objects operating on US territory. These government agencies—ICE, the FBI, even the BIA--are simply not helped by the failure of other government agencies and a confused and ignorant Congress, and the obstreperousness of museum leaders and their lobbyists in fostering an environment that encourages a general clean-up of the domestic art and antiquities market.

Instead of antiquities and cultural heritage groups, HARP found solace amongst anti-communist and conservative groups which understood that cultural objects plundered in other historical contexts  (like during and after the Bolshevik Revolution of 1917) would end up entering the US market without fear of being confiscated, thus embarrassing the lenders, like Russia, France, the UK, and many other nations with a lot of cultural skeletons to rattle in their display cases and exhibition halls. These groups’ enthusiasm at contributing to the fostering of a more ethical approach to the art market has contrasted sharply with the indifference of antiquities groups and their lawyers in this summer of 2016  Lesson learned.

Round 4--September 2016

Cultural claimants lost several major legislative battles between June and September 2016, for the first time since the Washington Conference on Holocaust-era Assets of December 1998.

Luckily for them, S. 2763 and S. 3155 do not appear to be hastily headed for a vote of the full Senate in the current session which ends on 7 October 2016. Operators like Senators Charles Schumer and Orrin Hatch may try to manipulate Senate procedures to have these two bills passed on voice vote with a quorum plus one in the Senate chamber. What with all of the nonsense generated by the Congressional resolve to hold the Saudis accountable for the attacks on New York, Pennsylvania and Washington, DC on 11 September 2001, budgetary issues and the presidential election campaign, one can only hope that these votes will be postponed. But anything is possible.

There’s a war to fight out there and the stakes are high.

For references, please consult past articles on the plundered-art blog:

plundered art: S. 2763: Restitution kabuki plundered art: Highlights from Senate Judiciary Committee hearing ...

plundered art: The American museums, the US Senate and the art ... plundered art: Revisiting Senate Bill 2212, Part Two

Silences that are Hardly Golden

by Ori Z Soltes

edited by Marc Masurovsky

With the untimely passing of Elie Wiesel, my mind wanders back to issues that, over the years, I discussed with him, and things that I wrote about him. A consistent subject of both processes was the kind of responsibility Jews have to make the world a better, more justice-ridden place—in general, given the rabbinic and particularly Lurianic mystical imperative of tikkun olam (“repairing the world”), and in particular given what we as a group endured during the Holocaust. I confess that I confessed to him my disappointments at times in the failure of the Israeli or American Jewish communities to do this or that where they might have responded more positively or aggressively to a given situation. 

In one conversation with Mr. Wiesel I mused over what it is that too often prevented Jews from doing what I thought was the right thing. On the other hand, in one article that I was asked to write on “Who Speaks for the Jews?”—in which one of the figures I discussed was Elie Wiesel—the assertion that I offered was that there is nobody, per se, who plays that role in the Jewish world—there is no Pope or universally embraced political leader. One of the things that has historically prevented Jews from engaging in religious or political wars with each other on anything approaching the scale of the Crusades or the age of Religious Wars in Europe was the widespread diaspora—a thirteenth-century Jew in Germany would have been unlikely to know much about the gastronomy on Passover of Jews in Morocco, and therefore to have objected to it, much less spilled blood over it.

We remain a fractious community of communities today. Depending upon whom you ask and his/her spiritual and/or political affiliations, a given Jew may see his rabbi or his rebbe or the Prime Minister of Israel or the President of the World Jewish Congress (WJC) or the American Jewish Congress (AJC) —or a charismatic speaker, writer and Nobel Prize winner like Elie Wiesel—as the most appropriate figure to whom to turn for guidance regarding how to think, speak and act as a Jew. Non-Jews might think it’s the President of B’nai B’rith where few Jews are likely to think so. So it would be a surprise if we all agreed on what constitutes the “right thing” in a given situation.

There is some irony that one of Elie Wiesel’s first divergences, (following his memoir, Night), from writing novels, was his work—a personal journalistic reportage—regarding the plight of Soviet Jewry, called “The Jews of Silence.” Published in 1966, it was one of those important literary sources for inspiring Jews in America to speak up and speak out, because their oppressed co-religionists in the USSR could not. American Jews have not always been afraid to speak up, it seems.

The questions of contemporary Jewish silence in the face of injustice reminds me of another signal instance, more than fifteen years ago, when the same queries might be proffered. I refer to the attempt by the then District Attorney of Manhattan, Robert Morgenthau, to hold back two Egon Schiele paintings—“Dead City III” and “Portrait of Wally”—that had been on display at MOMA as part of a loan exhibition from the Leopold Museum in Vienna. Morgenthau sought to keep them from immediately heading back out of New York with the rest of the collection when the exhibit ended so that the claims put in by two Jewish families that these two paintings had been plundered from them by the Nazis—and that Dr. Kurt Leopold had acquired them with full knowledge of that fact—could be explored and adjudicated.

The museum community was up in arms: amicus briefs, both formal and informal flew fast and furiously. The museums challenged the validity of government interference in cultural matters. They argued the threat that the economic base of New York City would be deleteriously affected by this: that base, the assertion went, was heavily dependent on culture, specifically large-scale tourist visitation to New York’s art museums, and if the government was successful at holding back these two works, museums across the world would cease and desist from lending objects to New York museums, causing a dynamic shrinkage in loan exhibition quantity and quality, and thus of museum visitation and thus of the New York City economy.

All the museums joined this doleful chorus. My colleagues, Willi Korte and Marc Masurovsky and I, who had joined together to create the Holocaust Art Restitution Project (HARP) in September 1997, were on the other side of the fence. Willi had done and continued to do an enormous amount of research to validate the two families’ claims. Marc and I met with Robert Morgenthau to explain it—and to argue that the very assertion of the museum community was the proof of its fallaciousness: that art is big business, and that, unless one is pretty certain that one’s painting or sculpture is an ill-gotten good, one will not to hesitate to lend it to the Met or MOMA or the Guggenheim, knowing that art that has been on display in such places will exponentially increase in value.

All of the museums joined the chorus, including, of course, the doyenne of Jewish museums, the Jewish Museum of New York. Moreover, nobody among the “leadership” of the New York Jewish cultural and political communities spoke up on behalf of the claimants. The WJC really couldn’t, since its then vice-president—who in establishing the Committee on Art Recovery, announced that they would be “taking paintings off museum walls,” and might have been expected to speak up but could not—was the vice-president of MOMA’s Board and had put half a million of his own dollars into the project of bringing the Leopold Museum exhibition to MOMA. His quadruple conflict of interest—his role at MOMA vs his role at CAR vs his role in the WJC vs his earlier ambassadorship to Austria, shortened by the Austrians’ objections to his purchasing and carrying away the likes of Schiele paintings that they considered part of the Austrian patrimony, by diplomatic pouch—certainly explains his silence.

But why the Jewish Museum? What of the rest of the Jewish world? It was clear that, having spent so many decades trying to define itself as both a museum of Jewish history and culture and of art, and closer than ever since the 1960s to being accepted as part of the art museum world without alienating the Jewish world (in the 1960s it had managed the first but not the second), the Jewish Museum did not want to oppose that art world and re-isolate itself—two paintings and two Jewish family claimants seemed a small price to pay for amicus brief acquiescence. (I am not even going to raise the question of provenance in the museum’s own collections).

And the Jewish community in general?

A pundit well over a century once observed—as Emancipation was gradually breaking down ghetto walls throughout Western and Central Europe and Jews found themselves more welcome into the mainstream of culture, socio-economics and even, almost, politics, between 1780 or so and World War I—that “you can take the Jew out of the ghetto, but you cannot take the ghetto out of the Jew.”

He meant the extreme care with which a Jew feels he must operate, in words and actions, not because a riot might sweep through the now-gone ghetto, but because full acceptance into the larger community and all of the advantages of being mainstream might be denied or retracted. Is that what the Jewish “leaders” of New York City were and still are afraid of, in an America whose principles of eschewing anti-Christian sentiment have always been under assault from some quarters? Where Jews could not run for political office in some places (the state of New Hampshire) until late into the nineteenth century? Are we still faced with fear of what the non-Jews will think about us—or has it resurfaced after a period, in the 1960s and 1970s when Jews marched in Selma, Alabama on behalf of Blacks and marched in New York City on behalf of Soviet Jews?

The question is not who speaks for the Jews these days, but how many and which Jews speak up when the situation is potentially awkward but when silence is acquiescence to the miscarriage of justice. We have justifiably become fond of pointing out—it was one of Elie Wiesel’s important contributions to our thinking about the Holocaust, and the specific subject of his third novel, The Town Beyond the Wall—that silent acquiescence is a form of passive collaboration. There is a particular irony when this issue falls into the context of Nazi-plundered art, when one considers the disturbing datum that Jewish dealers like Georges Wildenstein were often more than willing to see harm done to other Jewish dealers, like Paul Rosenberg, if it served art-dealing business needs—or that perhaps the key dealer on behalf of Hitler, Hildebrandt Gurlitt, was half-Jewish.

If the Jewish role in history and art history is a complex one, and if the role of art within the context of the Holocaust was complex (another long story for another time), then the failure of Jews to speak now, so many decades later, in too many contexts where the matter of restituting Nazi-plundered art to victims’ heirs is also complex, perhaps. Or perhaps simple: fear. Whatever the reasons, that failure would have rabbis like Isaac Luria—and no doubt Elie Wiesel—rolling in their graves.

"The Actor," by Pablo Picaso

by Marc Masurovsky

The Actor, by Pablo Picasso.

Saturday morning, 1 October 2016, brought news of a restitution claim filed by the Leffmann family heirs against the Metropolitan Museum of Art for a painting by Pablo Picasso, “The Actor”, which is estimated to be worth 100 million dollars. According to Graham Bowley, writing for the New York Times, the Leffmann family left Cologne in 1937 and sought refuge in Italy, paying for their exit in part with the sale of the Picasso painting. The Leffmanns ended up in their new land of refuge, Brazil, not unlike other Jewish families plundered by the Nazis, like Hugo Simon.

The Leffmanns sold the painting to the Perls Gallery and Paul Rosenberg, both in Paris. At the time of the Leffmann sale, Hugo Perls  lived in Paris where he had emigrated in 1931, fearful of the inevitable rise to power of the Nazi movement in Germany. The Kaete Perls Gallery moved from Berlin to Paris. Hugo and his wife, Kaete, separated.  According to the Metropolitan Museum of Art, the Kaethe Perls Gallery acted as an agent in the sale of the Leffmann Picasso in 1937. It indicates Hugo Perls, her estranged husband, and Paul Rosenberg, a renown Paris art dealer and collector, as jointly investing in the painting. 

Hugo and Kaete Perls, by Edvard Munch

Thelma Chrysler Foy

According to the New York Daily News, Cesar Monge de Hauke paid 12,000 dollars for “The Actor” but the journalist, Victoria Bekiempis, does not explain to whom de Hauke paid the sum and for whom he allegedly acquired the Picasso painting. One might assume that he had acted as a go-between for Knoedlers. At the time of the transaction, de Hauke was associated with Germain Seligmann, who operated a successful art gallery in New York. In the summer of 1940, de Hauke decided to strike gold on the wartime Paris art market by packing up his belongings in New York and moving to German-occupied Paris. However, this fact has no relevance on the bearings of the Leffmann claim.  The Metropolitan Museum's provenance of "The Actor" does not mention de Hauke.

In another odd journalistic claim regarding the history of the Leffmann family's escape to freedom, Reuters reported that the sale of the painting was to flee Benito Mussolini's Fascist Italy in June 1938! No kidding.. Should that be true, it would be odd since the racial anti-Jewish laws were not enacted until November 1938. Odd how history can get rewritten so quickly and in such a fangled manner!

Thelma Chrysler Foy, a daughter of Walter Chrysler, acquired “The Actor” through Knoedlers in 1941 and donated the Picasso work to the Metropolitan Museum of Art in 1952.

Of interest to us is the involvement of Perls and Rosenberg in the joint acquisition of the Leffmann painting in Paris. Whatever assets Hugo Perls had left behind in Germany, the Nazi government confiscated them. Paul Rosenberg, on the other hand, suffered the same fate two years later, fleeing the German blitzkrieg against Western Europe and seeking refuge in New York where many European Jewish collectors and dealers had also resumed their lives. His entire art collection was seized and many of its contents redistributed with glee among art dealers, brokers and collectors in the Paris art market.

One has to wonder in retrospect and with twenty-twenty hindsight—maybe unfairly—how much Rosenberg and Perls knew of the duress sales in Nazi Germany, how they viewed the acquisition of assets owned by persecuted Jews—ethical or unethical?—or did they simply look at the acquisition of “The Actor” by Pablo Picasso as just another business opportunity?

The post-WWII era inaugurated historic claims for restitution by men and women of Jewish descent, many of whom owned art collections, major or minor, who had been persecuted and plundered during the commission of an act of genocide. The claims were unprecedented in modern history but so was the crime which provoked them. It turns out that a number of post-war Jewish claimants acquired, wittingly or unwittingly, on the German art market, in Switzerland, or in the post-1945 era works and objects of art confiscated from other Jews or sold under duress to finance their escapes by paying excessive levies demanded by the Nazi government as toll fees to allow Jews to leave the Reich.

As is the case today, provenance seemed to have not counted for much in the decision to acquire plundered or confiscated objects. Ironies of history or simply standard operating procedure in the art market, regardless of who and what you are?

The emphasis placed on Perls and Rosenberg in the post-duress sale ownership history of the Leffmann Picasso is to underscore the fact that the art market and those involved in it often set history aside in order to acquire what they covet as part of their overall business activities. This was especially true in the inter-war period, the wartime years, and the decades following the end of WWII and the Holocaust.

This behavior is similar to what we experience nowadays with Native American artifacts looted from religious and sacred sites throughout North America and the acquisition of antiquities known to emerge from conflict zones in the Mideast and elsewhere.

No one is immune to such behavior, not even those who were persecuted.

The New York law firm of Herrick Feinstein is representing the Leffmann family in its bid to recover the Picasso painting from the Metropolitan Museum of Art.