28 November 2016

The duty to memory

by Marc Masurovsky

Which is simpler—recovery of looted cultural objects or memorializing the loss of cultural objects? The short answer is: both are fraught with complications. Let's focus for now on memory.

Remembering what was once “ours”.

When natural disasters strike communities, the survivors get together, mourn their losses, both individual and collective, give thanks for being alive, and remember what was once “theirs.” It is part of the grieving process. Shrines are erected to honor the dead, plaques are affixed to the walls of buildings where a traumatic event occurred, or steles are set up in public squares or at a crossroads, to honor and remember. These acts of remembering are the outward expression of a tacit, implicit accord that we have a duty of memory, our responsibility as an organized citizenry to pay homage, to remind ourselves that, despite events in our common pasts, anchored in mass violence and traumatic upheavals, our communities survived and, although scarred, rebuilt themselves.

Whether it be the “Holocaust,”, the mass murders and tortures in Cambodia, the fratricidal violence in countless countries, the near-total extermination of indigenous groups worldwide, there is a collective duty to remember what we, as humans, are capable of inflicting on our neighbors, our friends, our relatives, and on total strangers. The memory of our “bloodlust” serves as a reminder of what we have lost and what we have done unto others.

In the case of culture, this duty to memory takes an odd turn.


Rare are the plaques that memorialize sites of plunder.

Jeu de Paume memorial in Paris
In France, it took the government nearly a half century before it felt that it could memorialize the depredations resulting from the Nazi-led cultural plunder of France. In 2005, a plaque was nailed to the side of the Jeu de Paume museum in the Tuilerie Gardens in Paris. It immortalizes the Jeu de Paume as a storage and transit center for art looted from Jewish victims of Nazi policies in occupied France and Rose Valland’s role in documenting those thefts. The plaque itself is sober. It also cites the number of works that Rose Valland is credited with recovering on behalf of the French State—45,000 in all—. One wonders whether all of those objects transited through the Jeu de Paume or if that figure represents the totality of works of art which the French government was able to repatriate from Germany and Austria after 1945.

In 1942, the Nazi government decided that it was time to expropriate all Jewish-owned property for the benefit of Germans living inside the Reich’s borders. The enforcement of the so-called “Mobel-Aktion” all across Western Europe resulted in the emptying out of tens of thousands of residences either rented or owned by persons of Jewish descent. Their goods were sorted, the most valuable were set aside, while the rest were put on trains to German cities damaged by Allied aerial bombing raids. In German-occupied Paris, a number of sites across the beleaguered capital were used to process expropriated Jewish household goods, a task performed by Jewish inmates from the transit camp of Drancy. One of those sites was called Levitan, once a furniture store at 85-87, rue du Faubourg Saint-Martin. A plaque was erected which honors the Jewish prisoners who worked there as slave laborers.  It also reminds the reader that Jewish goods were sorted at Levitan.  A good many of those goods were art objects which were inspected by Nazi agents and later sent to the Jeu de Paume for cataloguing and shipment to art depots in the Reich or for resale on the Paris art market.
Memorial at Levitan in Paris

Similarly in Germany, there are few memorial plaques reminding the public of Nazi crimes against culture.

Kopenickerstrasse depot memorial in Berlin
In Berlin, a printed text framed inside a clear waterproof casing is nailed to a wall at the former Kopenickerstrasse depot which encapsulated the destructive power of “Aktion Entartete Kunt”. In that depot, thousands of “degenerate” works of art were stored after being confiscated from individuals, galleries and cultural institutions across Germany. A good many were destroyed while the rest were put up for sale on the international art market.

One of the rare plaques honoring the work of an ardent critic of the corruption endemic to post-WWI German society marks the residence of Georg Grosz as one who stood against militarism and who satirized through his graphic work State-sanctioned corruption. Predictably, the Nazi authorities tagged Grosz’ works as “degenerate.” By 1933, Grosz had established himself in New York as a German exile.
Georg Grosz memorial plaque in Berlin, Germany

If we view the Jeu de Paume commemorative plaque as setting a precedent for memorializing sites of plunder, shouldn’t similar plaques be established at former ERR depots in Germany and Austria where loot from across Axis-occupied Europe was amassed?

Here is a brief list of these sites:

Buxheim near Memmingen
Nikolsburg in the Czech Republic.

The ERR depots in Paris should likewise be marked with similar plaques, used for processing Jewish-owned collections and for amassing loot seized during M-Aktion.

6, place des Etats-Unis
17, place des Etats-Unis
12, rue Dumont d’Urville
26, rue Dumont d’Urville
77 Avenue de la Grande-Armée, garage Talbot—sous-sol et 1er étage
23, rue Drouot
41, quai de la Gare d’Austerlitz
43, quai de la Gare d’Austerlitz
Faubourg Saint-Martin : garage Levitan
Rue Fresnel : Garage Fresnel
104, rue de Richelieu
45, rue Labruyère

Maybe plaques should also be placed outside of the Hotel Drouot in Paris, to remind art shoppers that this was an important recycler of looted Jewish-owned property. Is that inappropriate to even suggest a public link between a leading broker of art sales and its managers’ opportunistic behavior during the German occupation of Paris?

How far does one extend the work of memory through memorials without provoking volatile reactions from the public and from the government, starting with the arrondissement, the city and the national government?

Clearly, the complexities associated with remembrance activities, especially those that leave a permanent presence such as physical memorial structures, abound. This fear of offending one part of the public and of rattling old skeletons is nothing new but it plagues the public discourse on cultural plunder during the Nazi years.

At this rate, we can go from one country to the next where acts of plunder occurred and draw up lists of sites of memory.  The list is endless, perhaps because the memory of plunder has not yet been addressed properly.

Museum labels as “memory”

Inadequate labeling can create even more frustration than the absence of labeling associated with works of art on display. Several decades ago, there was widespread indignation at how the French government described the origin of specific works of art in State-owned museums.

Since then, there have been sporadic efforts in the United States to be more upfront about the troubled past of works in permanent collections. At the Museum of Fine Arts, in Boston, MA, a project called “Art with a Past” invited viewers to read a text that did not exceed several hundred words on a large-size plaque next to the concerned work of art. The text detailed that the work had been plundered by the Nazis and had since been restituted to its rightful owners before entering the MFA’s collection. A unique experiment in the postwar annals of museum labeling, the “Art with a Past” project shows how a cultural institution can guide the viewing public to explore further the history of ownership of an object and serve as a reminder that history, even traumatic history, can intersect and interfere with the lives of an object’s owners.

Provenance as memory

The history of ownership of an object participates in the duty to memory. After all, museum leaders already encourage their staff to produce a particular telling of the story of the objects in their collections. But they are averse to construct a story of the object as an “object lesson” in how history and art interact and affect the destiny of works and objects of art. The decades-long feud over how provenance is researched and written goes to the core of this duty to remember traumatic events that shape and direct the paths taken by objects and their owners through the sinews of history, both in space and time.

An inability and unwillingness to write these stories constitutes a crime against memory, an appeal to institutional amnesia-"appreciate” art simply as object of worship and study. The art world’s refusal to acknowledge the complex history of art objects blindsides historical truth and cheats the viewing public of a unique chance to learn more about how objects circulate, often without their owners’ consent, as a result of turbulence in the unfolding of history. Governments should encourage cultural institutions to engage their public by using art as an opportunity to teach history. After all, what better way is there to use their tax-exempt status which is there for a reason--to educate their public?

27 November 2016

The binary: Holocaust and/or plunder

by Marc Masurovsky

The binary—Holocaust and plunder—is a taboo.

The official binary—Holocaust OR plunder—has been the prevailing dogma characterizing the conceptualization, development and implementation of Holocaust historiography, education, and remembrance, in particular in the United States and Europe. Even flagship institutions like the US Holocaust Memorial Museum in Washington, DC, the Shoah Memorial in Paris, France and Yad Vashem in Jerusalem, Israel, eschew the discussion on plunder thus provoking and perpetuating a revisionist approach to Holocaust remembrance and Holocaust studies.

The conventional approach, at least in the United States, has been to discuss the Third Reich, the Holocaust and the Second World War, without referring to the economic and cultural crimes that preceded, accompanied, and followed crimes against individuals, including the infliction of physical harm and, in many instances, death.

During and immediately following the Second World War, British and American policies were geared towards the physical defeat of the Third Reich and its allies, the neutralization of its economic infrastructure, which was heavily blamed for sustaining, fueling and amplifying the Reich’s predatory, expansionist, and, yes, exterminationist policies. The framers and executors of Reich policies carried out ferocious campaigns against individuals belonging to specific groups, Jews, Roma, political opponents, homosexuals, the handicapped, and others viewed as not worthy, sub-human, and disposable.

And yet, starting with the first months of the National Socialist regime, economic assets, including real estate, businesses, financial assets, and cultural objects, were targeted for seizure, expropriation, forced sale, and incorporation into the Reich’s economic machine. Anti-Jewish and other forms of discriminatory policies went hand in hand with economic deprivation and confiscations of victims’ assets.

The Allies were well aware of this and wanted to prevent at all cost the overt and covert recycling of victims’ assets by those who either confiscated them or profited from their access on the open market. For that reason, they targeted representatives of industry, finance, government, trade, as well as the institutions in which they worked, together with all sorts of brokers and resellers used as fences and cut-outs to exfiltrate victims’ belongings out of the Reich and its occupied territories into neutral zones.

In other words, the postwar recovery and reorientation of economic, commercial, financial and cultural assets was as important to the Allied powers as the neutralization and punishment of those who fought against them and who engineered and implemented criminal acts against their victims.

The planners of the International Military Tribunal at Nurenberg established crimes of plunder as crimes against humanity. Few defendants were charged for such crimes because priorities were reordered and focus given on the planning and carrying out of the Final Solution of the Jewish Question, a genocidal policy. Part of the genocide against the Jews involved the mass removal of Jewish wealth in all its forms and the profiteering that resulted therefrom on a European scale with ramifications worldwide.

Why is it that in the twenty-first century, most, if not all, academic and museological programs dedicated to retelling and teaching the history of the events that we construe as the Holocaust fail to include any reference, mention, or citation of economic crimes committed against Jews and the forcible removal of their property?

Nazi war on culture
The National Socialist movement’s mantra was to tear down the corrupt, “Jewish” culture that poisoned Germany under the Weimar Republic, cleanse the civil society of all its pernicious influences, restore German greatness through a reordering from top to bottom, bottom to top, a “refonte” of the cultural landscape.

For twelve years, Nazi bureaucrats and their Fascist allies in neighboring countries waged an incessant war, a Kulturkampf, against the cultural sphere, and, through expansionism, exported that cultural conflict into the territories the Reich occupied.

That obsession with eradicating negative cultural influences suffused the Nazi discourse, comingling culture and anti-Jewish policies. The inevitable result was the marginalization of the Reich’s cultural enemies, which included the Jews, through job discrimination, eviction, expropriation, pauperization, seizures and confiscations. The consequences are well-known: millions of cultural objects were forced onto the open market without the consent of the owners and sold at whatever prices to a domestic and international clientele for twelve years.

The restitution of these objects is a direct result of Allied policies framed during and after WWII, to restore justice and cancel out the nefarious effects of the Nazi Kulturkampf.
When we hear leaders of Holocaust education proudly state that “they do not do culture,” one’s neck hairs should rightfully bristle.

It’s time to give up these idiotic stereotypes and prejudices against teaching the Holocaust and economic crimes, side by side.

How much courage does it take to pronounce in a single sentence the words Holocaust, Aryanization, forced sales, and restitution?

12 November 2016

Revisiting the Martha Nathan loss of a Gauguin painting

by Marc Masurovsky

Martha Nathan was the wife of a prominent German Jewish collector, Hugo Nathan. He died in 1922. After inheriting his wealth and his art collection, Martha Nathan continued to live in Germany. She eventually fled to France in 1937 settling down in Paris, much like Hugo Perls and countless other German Jews had done before her. Meanwhile, she had shipped for safekeeping some of the works that she owned to Basel, Switzerland. Mrs. Nathan sold one of those paintings, “Street scene in Tahiti,” by Paul Gauguin, to three Jewish art dealers, Justin Thannhauser, Alexander Ball and Georges Wildenstein. These three dealers were later plundered when the Nazis invaded France in May 1940, one of the ironies of Nazi-sponsored cultural plunder.

'Street scene in Tahiti, by Paul Gauguin

The Toledo Museum of Art (TMA) acquired the Gauguin painting in May 1939 where it remains to this day.

When the Nathan heirs asked for the restitution of the painting in 2004, the TMA demurred and fought back. The TMA’s lawyer went on the offensive, accusing the Nathan family of not having pursued a claim for restitution of the Gauguin painting after 1945 and maintained that she had not been forced to sell it under Nazi pressure. In 2006. the TMA “quieted” the Nathan claim in an unusually aggressive blowback strategy. In a move that would have made Clausewitz proud, the best defense being an offense, the TMA had filed its own lawsuit against the Nathan heirs, contending it held legitimate title to the painting. The Detroit Institute of Art joined the lawsuit, arguing that a van Gogh painting, which also had belonged to Martha Nathan, was its legitimate property.

In hindsight, the Nathan claim was the first claim to reach an American museum for the restitution of a “flight asset.” In the years following the Washington Conference of December 1998, no one had developed a clear notion of what “flight assets” were and especially whether or not they amounted to a restitutable loss as a result of Nazi persecution. Neither historians of the period nor Jewish officials involved in restitution matters nor, for that matter, politicians and civil servants had ever considered the possibility that “flight assets” could occupy the same space as “forced sales” or “looted assets”. The Washington Principles did not address them, a key element of the defense put forth by the Toledo Museum of Art to oppose restitution.

In the eyes of the TMA’s lawyers, the Gauguin painting did not smack of persecution, there was no evidence of force exerted upon Martha Nathan; in their view, she had not lost control of the painting at the time of its sale. Moreover, they restated the fact that the sale had occurred outside of Germany, involved Jewish art dealers, had not been instigated by the Nazi regime, nor did the Nazis profit from the sale. At stake in the Nathan complaint against the Toledo Museum of Art was Martha Nathan’s status as Jewish victim of Nazi persecution, inside and outside the Third Reich. In other words, as long as Martha Nathan had property and other interests left in Nazi Germany, she remained a target of Nazi persecution, regardless of where she lived.

Was the Gauguin painting a “flight asset”?

“Flight assets” were fungible assets whose short-term realization helped the assets’ owners to survive in their chosen country of exile after fleeing from Nazi Germany.

Our litmus test for validating the “flight asset” label involves asking the following questions:

Would Martha Nathan have sold the painting in the first place had she not been forced to flee first to France and then to Switzerland where she died in 1958?

Would she have fled to France or Switzerland, had there been no immediate threat to her person?

Did she need to sell the Gauguin painting in order to survive in exile?

The Toledo Museum of Art contended that Martha Nathan had obtained a fair price for her Gauguin painting at the time of the sale, consistent with what the market could bear in Western Europe in the late 1930s.

Once again, the price that a Jewish victim of Nazi persecution obtains for a work of art is of no consequence and should not be relevant to determining duress and persecution. It is the circumstance under which the sale takes place which matters the most and the reasons driving it.

It is disheartening to see how a Jewish victim of Nazi persecution is not allowed to obtain fair price for an asset and claim duress. In the minds of those who currently possess such works, fair price is a telltale sign of being free and unencumbered by any form of persecution or harassment. This mischaracterization of “duress” and “forced sale” continues to poison the historical narrative of Jewish plight in the face of Nazi persecution, even in exile, an issue that no one has bothered to clear up definitively through scholarly writing and forceful policy statements.

The acceptable standard trope for a Jewish victim is for her to live under an unremitting regime of terror and intimidation. There is a general reluctance to accept that persecution can be “experienced” outside the borders of the territory in which it originated. This contention has all the hallmarks of a double standard since it is widely accepted nowadays that victims of persecution, torture, rape and other forms of human debasement, continue to live in fear and display behavior akin to being persecuted even in exile, far away from the scene of the crime. It is called “trauma.”

The Toledo Museum of Art refused to acknowledge that Martha Nathan’s decisions to sell works of art during the Nazi years were guided and influenced by Nazi racial policies and their impact on her corporate presence in Nazi Germany (real estate, and other assets). US courts and museum lawyers have had wide license to pontificate as to when one is persecuted and one is not, especially if the victim’s property came to them as a direct result of an act of Nazi persecution. Why should lawyers and judges take on the charge of (re)writing certain aspects of Holocaust history?

Plaintiffs’ lawyers bear a huge responsibility when they propound facile arguments that would lead us to believe that an item was plundered when, in fact, it might not have been thus allowing the current possessors’ lawyers to tear asunder historical facts tied to cultural plunder. Historians have a professional and ethical duty to set the record straight on these matters.

11 November 2016

Swiss foreign cultural policy?

by Marc Masurovsky

At a time when one French Jewish family is beating its head against a brick wall to recover a painting by John Constable, “Dedham from Langham”, from the Museum of Fine Arts in La Chaux-de-fonds, in the French-speaking part of Switzerland, a country whose officials revere Good Faith on the altar of Neutrality. A joke, by any stretch of the imagination. 
Dedham from Langham, by John Constable

This is the only known claim today submitted by a non-Swiss citizen of Jewish descent for a work of art sold under duress in German-occupied France in 1943 because its owners—the Jaffe family—were of Jewish descent.

In the mean time, the Swiss government has been returning a host of antiquities to foreign nations requesting them:

May 27, 2014: The Swiss government returned to Serbia a trove of 150 coins dating back to the Roman era. The crime? Illegal importation into Switzerland by a Serb national in 2011.

December 2014: The Swiss government returns a Han Dynasty terra cotta to China.  The crime? Forged customs declaration. The item had been shipped from the United Kingdom to the county of Vaud. This restitution was hailed as a major step in the fight against the illicit traffic in cultural assets.

November 2015: The Swiss government returned to the Iraqi government two cuneiform tablets on the pretext that they had not been properly registered as “cultural goods” when entering Switzerland. The crime here? False registration in violation of a June 1, 2005, law governing the transfer of international cultural goods.

July 2016: The Swiss government returned to Italy nine antiquities including five fresco fragments from the 6th century BC. The fresco fragments which come from Pompeii resulted from a voluntary restitution by their current possessor. Swiss cantonal police seized the other items.

Pending: a request by the Bolivian government for a statuette representing the deity, Ekeko, removed from Bolivia in 1858, the result of a drunken swap, a statuette for a bottle of brandy. The statuette currently sits at the History Museum of Bern.

It is remarkable that the new minister of Culture of the Swiss Confederation, Isabelle Chassot, is so committed to the return of cultural objects that are illegally in Switzerland.

One wonders whether these returns fit into a larger policy of maintaining cordial relations with source countries—a commendable goal in and of itself. 

What does it take to show a similar regard towards the heirs of Jewish victims whose looted cultural assets ended up in Swiss cultural institutions and private collections? Why is it that Jews have to fight like hell to recover what is theirs while source countries just have to ask for their objects?

This is not a whining session.

We know what the stark differences are. There are no laws covering the return of looted Jewish cultural assets. But there are a myriad of laws enacted in the last 20 years that make it very difficult to sustain the presence of looted cultural assets on Swiss territory.

Hopefully, Isabelle Chassot will figure out a way of making an ethically grounded exception to facilitate the return of looted Jewish cultural assets.

Mark my words: where there’s a will, there’s a way.

08 November 2016

Pondering “flight assets”-Fluchtgut

by Marc Masurovsky

Not to be flip, but “flight assets” is an odd expression. Its more appropriate use applies to aviation, airplanes, anything related to a state of being in the air, hopefully in a steel structure with wings, a tail and engines.

Assets that fly…

Assets don’t leave by themselves. They require human conveyance. And the implication is that they have to cross a border, otherwise why would they be “flight assets”?

The question then becomes: where are they coming from and where are they headed?

Assets can consist of very different elements, but the word connotes value. If we are speaking in historical terms, the expression has been almost exclusively applied to the Nazi era, from 1933 to 1945.

The word “flight” also embodies the notion of “fleeing," of running away from something terrible, something that is sure to cause the owner great harm and distress. Assets fleeing? Well, they have no soul so they cannot “flee”, but they can be made to cross a border quickly in the context of a distressing set of circumstances for their owner.

In 1933 Europe and subsequent years, there were valid reasons to flee from National Socialist Germany. We do not know the exact numbers but before Hitler came to power there were those who smelled something rotten taking hold of the body politic in the dying Weimar Republic. And they left with more than their shirt and coat on their backs. So, the expression “flight assets” does not apply to them.

Come January 30, 1933, the situation changed dramatically. An anti-Semitic, racialist government had just reached the pinnacle of political power in Germany. It took some time to enforce nationwide an ideological program that was meant to exclude entire swaths of the populace. In the chaos that ensued and enveloped millions of lives, those born in the Jewish faith and those virulently and explicitly opposed to the Nazi movement, felt the noose tightening around their necks. If you had the means to flee, you did so. If you had valuables that you wanted to place in a safe place, you packed them and shipped them to a safe destination. In 1930s Europe, there were a fair number of places that were considered safe. Switzerland was one of them. It’s next door to Germany, its financial institutions welcomed all kinds of assets. The newly-established Banking Secrecy Laws made it possible to cloak one’s identity away from prying eyes.

We have now framed the contours of “flight assets” as they apply to valuables belonging to people in distress, fearing for their safety and well-being, aware of the restrictions preventing them from functioning as empowered citizens of a country-Germany-that is now denying them the right to earn their livelihood and live a good life as Germans. They are of Jewish descent, the victims of a virulent anti-Semitic program that aims to rid the new Germany of “Jewish influence”, whatever that might entail, but in the initial years after Hitler’s ascent to power, hundreds of thousands of German citizens of the Jewish faith wondered what lay in wait for them.

For those who sought asylum elsewhere, like in Switzerland, they needed to survive. Fired from their jobs, losing their homes, forced to sell belongings at any price, they secured some valuable assets and shipped them abroad where they would use them as sources of badly-needed income until they could relocate and live in relative peace, restart their broken lives.

These German citizens of Jewish descent were fleeing a desperate and threatening environment to their persons. Are the valuables that they sold in Switzerland to support themselves to be considered as “flight assets”? In other words, had they not been threatened by the New Order/Neue Ordnung in Nazi Germany, would they have shipped those valuables abroad, including to Switzerland, not as long-term investments, but as short-term fungible assets to be realized so as to sustain the equivalent of a subsistence wage while reflecting on an uncertain future? Doubtless, the answer is negative. “Flight assets” are short-term fungible assets whose realization helped the owners to survive.

So, here’s the rub: there are many people, especially in the art world and in government circles in European countries and even in North America, who honestly believe that persecution stops when the fleeing refugee crosses the border into some kind of nirvana. There is this notion that “flight assets” do not exist because the refugee sells them without any immediate pressure from the authority that propelled her to flee in the first place. Hence, there is no reason why a valuable, in this case, a work of art, should be returned to the person who sold it as a “flight asset” because she did not have a gun pointed at her head in order to sell it.

To that assertion, one might respond: would she have sold the painting in the first place had she not been forced to flee to such a haven as Switzerland? Would she have fled in the first place, had there been no immediate threat to her person? The same argument, by the way, applies to all neighboring countries—Denmark, the Netherlands, Belgium, France, even the United Kingdom, Austria (for a short time only), the United States? Canada? What about Italy? And Spain? And Portugal? Anywhere?

Let’s suppose that our Jewish refugee shipped in an understandable panic several valuable works of art, expensive jewelry, stocks and bonds, bearer shares, and other fungible goods, to the United States. She was able to make her way west with the little that she could carry with her. If she left right after Hitler’s rise to power, she would have been able to take more than the clothes on her person and a suitcase packed with goodies. But that did not last long. Soon thereafter, crates were stuck in freight forwarding houses on orders from Reich authorities, bank accounts were frozen, excessive levies were imposed on departing German citizens. One had to resort to very creative scenarios to send out “flight assets” to foreign havens. Scenarios that often involved accomplices, non-Jewish accomplices. In many instances, these go-betweens, if motivated by lucre, could earn significant sums helping to smuggle these “flight assets” into safe havens outside of Nazi Germany.

What if our refugee sold her “flight assets” once she reached New York, Boston, or even Toronto, or Montreal? Would we still consider these assets as “flight assets” and therefore restitutable? If we are faithful to the definition that we laid out above, it does not really matter where those “flight assets” ended up because it does not alter the circumstances under which they were shipped in the first place.

If we decide that “flight assets” belong in the same category as “duress” and “forced sales,” we are obligated to consider them as items subject to restitution or compensation for the same reason as assets sold under “duress” in Nazi Germany or in territories occupied or annexed by the Third Reich.

Last but not least, price should have nothing to do with the realization of a “flight asset” or a sale under “duress” at a “forced sale” and cannot be used as a reason for denying restitution to the aggrieved party seeking the return of the “flight asset.” It is the circumstance under which the asset is sold which should determine whether or not this asset should be restituted to the person or her family, obligated to sell it in order to survive.

In the constantly contentious debate over restitution of Nazi looted art, a “flight asset” is a fungible asset which has been shipped across state borders to a safe place by an individual under severe distress in her place of residence whose government has imposed threatening, discriminatory, restrictive measures upon her as a result of her faith and beliefs. This dire state of affairs has compelled this individual to seek refuge outside the borders of her native land and to use whatever valuables she was able to ship or transfer to her new home as a short-term source of revenue to allow her to survive until she figured out what her next move would be.

Switzerland is not the only country that received “flight assets.” That thought is absurd through and through. The “flight asset” could end up anywhere, and could be sold anywhere as long as it served the purpose of providing critical means of subsistence to the persecuted owner.

06 November 2016

Buehrle haunts Zurich

by Marc Masurovsky

In August 2015, a new book co-authored by Swiss historian and journalist, Thomas Buomberger, and art historian, Guido Magnaguagno, has called into question the ethics of Swiss arms manufacturer and major art collector, Emil Buehrle, in his wartime purchases of major paintings stolen by the Nazis in neighboring countries, mostly France and also from the Netherlands and from Germany.
Emil Buehrle

The book “Schwarzbuch Buehrle—the Buehrle Black Book” goes into great details regarding the dubious histories of many of the paintings, mostly Impressionists, which Buehrle had bought after they had been brought into Switzerland by dubious means, sometimes involving the German diplomatic pouch, other times, simply being shipped to Swiss dealers by who would then resell them to Buehrle.
Foundation Buehrle

The book’s publication coincided with the gradual transfer of the bulk of the Buhrle collection from the E. G. Buhrle Foundation to the Kunsthaus Zurich, to be displayed in a new wing of the Zurich museum completed in 2020. The question raised by the press is: can one morally defend the display of these works tainted by acts of genocide, especially in museums like the Museum of Fine Arts of Zurich that receive state subsidies?

According to contemporaneous press accounts, the Kunsthaus’ spokesperson, Bjoern Quellenberg, opposed a spirited defense of his institution against Mr. Buomberger’s criticism of the Zurich Museum’s policy regarding the Buehrle collection. Quellenberg dissented on several points with Buomberger’s critique:

On the one hand, he considered any works sold under duress as being different from “looted art” and therefore, legally, they should be treated differently. He emphasized that the Washington Principles of 1998 do not cover duress and only refer to works “confiscated by the Nazis.”

Technically, Quellenberg is right; the greatest failing of the Washington Principles is that they made no explicit reference to duress and forced sales, thereby endangering all claims for cultural objects displaced and misappropriated during the early years of the Third Reich within Germany proper. However, he is wrong in that subsequent international conferences and declarations on Nazi looted art have referred to duress or forced sales as constituting theft. Moreover, legal decisions outside of Switzerland have confirmed that duress sales are tantamount to State-sanctioned theft of property [Vineberg v. Bissonnette, involving a painting belonging to a Düsseldorf dealer, Max Stern, forced to sell his collection by orders of the Reich between 1935 and 1937.] Moreover, Swiss courts have never recognized as valid restitution claims involving works of art in Swiss institutions or collections which were misappropriated through duress or forced sales.

“Fluchtgut” or flight assets, according to Quellenberg, have no definitional legal basis, thus implying that objects falling under this category—sales out of necessity outside of Germany prompted by acts of persecution—cannot be considered as looted assets and should not be protected as restitutable property. At an international conference held in Winterthur, Switzerland, in 2014, the subject of “flight assets” was debated without any conclusive outcome. Opinions appeared to split along “party” lines—plaintiffs’ lawyers and their researchers leaning towards a more lenient reading of property sold by necessity in countries not under any short-term threat of invasion or occupation by the Nazis, as similar to “duress” sales, while others, mostly German and Swiss officials and museum professionals, feeling that this equation is a stretch.

A favorable reading on “flight assets” would affect thousands of objects having been sold out of necessity in Switzerland and pre-invasion Western Europe to help support fleeing German Jewish refugees who had been stripped of all of their property before their expulsion from the Third Reich.

With regard to the responsibility of the Kunsthaus to provide more background into the history of these displaced objects and how they entered Buehrle’s collection, Quellenberg was unequivocal: “we mainly focus on the works. We do not deal with the family history at all…”  This contention goes at the heart of museums’ responsibilities to re-contextualize in their proper historical framework objects under their care whose paths intersect with traumatic societal events during which the lives and fates of the owners of these objects change dramatically, affecting the ownership of these works; a subject worth sharing with the public.
Kuntdhaus Zurich
As we can see, there is a lot more work to be done in Switzerland and other countries, as far as the treatment of art objects is concerned. Once again, words carry an incredible amount of weight. The retelling of a story involving persecuted owners, broken chains of ownership owing to acts of persecution and other State-sponsored discriminatory policies, are an indelible part of the story of objects that we admire and study. It is the responsibility, both ethical and pedagogical, of museums to share these stories with museumgoers feasting their eyes on what they tout as “treasures.” In turn, these “treasures” should not be treated as “toxic material.”

Finally, it is unfortunate that there is still no consensus over definitions of “looted art,” “duress sales” and “flight assets.” Perhaps, 2017 should be the year when clear definitions are adopted, standardized and implemented by the international community in their respective nations.

Stories of objects

by Marc Masurovsky

Artists produce their works in whatever media they select as their mode of expression-paper, panel, stone, metal, silk, canvas, cardboard, synthetic materials, reused “found” surfaces. Depending on their own inclinations, they will either set aside their works for posterity, sell them or exchange them for other works.

Buyers, depending on the value and perceived importance of these works, have disposable income on hand, allowing them to constitute minor or major collections, driven by themes or simply an eye for what appeals to them at the moment of purchase. It’s all very personal. And, depending on their relationship to the creators, they acquire their works to support them or as investments, or because of their interest in what the works represent.

Most artists will remain “unknown”. The established “art historical” community will not recognize the intrinsic or extrinsic value and importance of their works for highly subjective reasons dictated by their tastes, inclinations, and relationships with what we know as “the art market” and “cultural institutions.” In other words, these “unknown” artists have not been given the privilege of having their works studied or reviewed by so-called experts and critics who, thanks to their training and specialization, pass judgment on these artists’ works and either promote their potential success or bury them into the dustbins of history where all is left to be forgotten for posterity. More often than not, experts and critics align themselves with galleries, museums, and collectors. Their objectivity should be called into question. And yet, many “unknown” artists are known in their communities, in the regions where their communities are located, through extended networks which might stretch across borders. But they will never attain a spot in the “pantheon.” That is not necessarily the worst fate in the world. But such exclusion produces enormous amounts of frustration, insecurity, and marginalization among creative producers.

Operating in a higher tier of the art market, a coterie of gallery owners, art brokers, well-heeled collectors buy low to sell high, occasionally hover over the “unknowns” and rely in part on their “experts” to guide choices and focus on potential success stories that can produce a return on their investment. Their interest is to “make” a successful artist, reflecting “their” vision of what “success” means. This is where the artist’s world intersects with what we idolize and love to hate as the “art market”—a chaotic mixture of businesses, large and small, and entrepreneurs whose primary motive is to make money from art sales. Profit guides one’s inclinations and tastes, more often than not.

Gallery owners and brokers alike rely on a wealthier clientele, one that hails from the national and international financial, commercial and professional worlds (read lawyers, accountants, consultants, entrepreneurs, etc..). The market becomes more complex at this level and intersects with industry, finance, commerce, and politics through the buying and selling of art, which becomes a status-based undertaking. Companies, banks, professional groups, law firms, accounting firms, consulting businesses, acquire art for “show”, perhaps, to project sophistication, status, and taste. This has been standard practice for centuries. Even government agencies acquire art objects.

Because of the interlacing of business and politics, the artist and her works are one or two steps removed from the world of politics, diplomacy, policymaking, trade and finance. These sectors play an important role in shaping the direction of the societies in which they evolve and which they nurture with their investments and know-how, for better or for worse. They also become enmeshed in the sponsorship, financing and promotion of political movements and parties, small or large, in their attempt to shape policies that benefit their best interests. There too, art becomes intertwined with these events, where art objects with value and significance can change hands among the upper echelons of the society and their fate, in turn, can be more closely determined if the winds of change blow in one or another direction.

When we look at the history of objects and that of the people who produced them, acquired them, traded them and displayed them, we are peering into the history of society as we grapple with the story behind these objects. It’s up to museums, those cultural temples that, in principle, are there to educate the citizenry to recount those stories; more often than not, their leaders gut these objects of their context.

Artists do become embroiled in partisan affairs—they tend to take sides in debates that affect large segments of civil society, the direction that policies take, depending on their influence their voice and their works can become part of larger political debates. These stances become part of the stories of these objects. Artists’ faith and beliefs can determine their own fate and destinies, as well as that of their works, depending on what party or formation takes the reins of political and economic power in the societies where they express themselves. That too becomes part of the story of the objects they have created as they make their way from one owner to the next, one storage place to the other, they cross borders, enter institutions or homes in other countries as a result of choices made by their owners or their exhibitors or borrowers. This too becomes part of the story of these objects and should be consigned to paper or to digital templates—so that others may learn more about how art and its creators intersect with what we understand as History, the combined stories of people, entities, groups, communities, and those who lead them.

The art world should not shy away from telling these stories as they relate to the objects, their creators, and their successive owners.