Backdrop to the 20th anniversary celebration of the existence of the CIVS

by Marc Masurovsky

[Editor's note: This is the first of three articles on the November 15, 2019, one-day colloquium convened by the CIVS in Paris, France]

As is the case with all celebratory anniversary conclaves, the organizers are those who know more about what needs to be feted than the attendees to the erstwhile fiesta. After twenty years of existence, the “Commission pour l’indemnisation des victimes des spoliations (CIVS)” shared their 20-year odyssey through the wreckage of the Second World War exemplified by the staggering material, financial, and emotional losses suffered by the Jews of France during four endless years of persecution at the hands of a pseudo-legal French authority and German occupation forces.

A host of speakers were invited to share their thoughts with an audience of at least 400 participants who mostly hailed from the United States, the United Kingdom, the Netherlands, Belgium, Germany, Austria, Switzerland, and, of course, France. Much to my surprise, about one fourth of the participants were researchers, a pattern that has emerged over the past several years around similar international gatherings in London, Bonn, and Berlin, to name a few. The usual NGOs connected with art restitution matters were also in evidence—the Holocaust Art Restitution Project (HARP), the Commission for Art Recovery (CAR), Mondex, the Claims Conference, the Commission for Looted Art in Europe (CLAE)—as well as perennial personalities operating on the fringes of the art restitution community and constantly fighting for what they perceive is their rightful share of the “business.” An ugly thought.

As seen from the outside in, the proceedings began with a predictable self-congratulatory tone, where speakers highlighted the many accomplishments recorded by the valiant civil servants working tirelessly to restore a symbolic sense of justice to families broken and torn asunder by the horrors imposed upon them by those who despise Jews and covet their property. All of this in a country which has a terrible time facing its recent past in an open manner. Much has been done since 1945 but far more needs to be done still.

It is with that in mind that my cynicism was quickly checked when speaker after speaker articulated self-critical thoughts, most of whom belong to a coterie of—now—dignified, erudite, skilled elderly gentlemen and gentlewomen responsible for creating the CIVS and for shepherding it through the torturous and treacherous waters of accountability for crimes committed against the Jews of France and their possessions.

To be quite frank, I left satisfied that I had witnessed a historical event and been given a fairly reasonable balance sheet of two decades of activity on behalf of Jewish victims. In France, that counts for a lot.

The proceedings took place not too far from UNESCO in a building which houses administrative offices subordinate to the Prime Minister’s cabinet. It was miserably cold and wet outside, which made it easier to allow ourselves to be penned inside an auditorium which, although comfortable, gradually became stuffy and unbearable. But the high concentration of human-generated heat only exacerbated the situation. I am digressing….

To be continued…

  

S. 2763: Restitution kabuki

an opinionated piece by Marc Masurovsky

Note: The title was inspired by a close friend who is intimately involved in art restitution matters.

The authors of Senate Bill 2763, the “Holocaust Expropriated Art Recovery Act” (HEAR Act), have as a major sponsor Republican Senator and former presidential candidate Ted Cruz. Another Republican co-sponsor is Senator Cornyn. Neither of them has been known to utter a word or express a single public thought about Holocaust claimants and/or about Nazi looted art. Democratic Senator Charles Schumer of New York, who is no friend of art restitution advocates, is a co-sponsor of S.2763 with Senator Blumenthal from Connecticut.

On the afternoon of Tuesday, June 7, 2016, the Senate Judiciary Committee held a public hearing regarding Senate Bill 2763. The witnesses included Ron Lauder speaking on behalf of the World Jewish Restitution Organization (WJRO), Monica Dugot of Christie’s, Agnes Peresztegi of the Commission for Art Recovery, Dame Helen Mirren, actress noted for her role as Maria Altmann in “The Woman in Gold”, and Simon Goodman, one of the heirs to the collection and property of the late Friedrich Gutmann.

Let’s deconstruct the title of the proposed bill:

Expropriated Art: is “expropriated” a legal term or just an evocative word to denote forcible removal without the owner’s consent? It might have been selected so that an acronym could be used to publicize the bill—in this case, HEAR. What if we had used displaced or misappropriated as substitutes for “expropriated”? Then we would get HDAR or HMAR. Not very elegant.

Does this proposed legislation cover all acts of illegal misappropriation of Jewish-owned cultural assets between 1933 and 1945? Or does the proposed legislation only cover those instances where a “public agency”, writ large, orders the “taking” of private property from Jews? Depending on how you answer these questions, the field of objects covered by this proposed legislation could change rapidly.

Recovery: it’s a word like any other, but does it actually mean “restitution” or simply the act of “recovering”? Merriam-Webster defines “recovery” as “the return of something that has been lost, stolen, etc.” What would have occurred if the Act had been called the “Holocaust Expropriated Art Restitution Act”? It would have been far more specific and more claimant-friendly. Then, the framers of the act could not be accused of playing footsy with the art market by keeping the wording ambiguous, because “recovery” is an ambiguous term, much as recovering from addiction leaves room for a relapse. Why ambiguous? Well, US troops “recovered” looted art throughout "liberated" Germany and Austria. Did it mean that it was “restituted”? No, it simply meant that it had to be shipped to countries where local officials would then “restitute” the objects to their rightful owners, or not.

Why the ambiguity? Is S. 2763 really a hat tip to the art market, a flirty wink to indicate that, no worries, your interests will be taken into account when this law finally passes?  In other words, “recovery” might also mean “just and fair” which usually means “financial settlement” where the seller or current possessor of the claimed looted item gets to hang on to the prized ownership title to the looted object.

“Recovery” is another way of saying that the art market continues to hold tremendous sway on how restitution works for Holocaust-era claimants.

At the end of the day, so the expression goes, it is always a business decision how a looted object gets "returned” and “recovered.”

Are claimants’ rights genuinely protected by S. 2763? Or is this bill a subversive sop to the art market and a gift to the Association of Art Museum Directors (AAMD) and to the American Alliance of Museums (AAM)? These two groups have fought for years to put an end to the claims process, callously indifferent and disdainful about how cultural objects are stolen, misappropriated, expropriated, displaced, whatever the word is to connote illegality.

As currently drafted, S. 2763 might be nothing more than a final attempt to address art restitution in the United States, offering the art market the equivalent of a social peace during a six-year period of claims hopefully unimpeded by statutes of limitations and laches (assuming that the final version of S 2763 keeps out laches, no guarantees given!). Claimants would presumably get a « fair day in court » where their claims may be assessed solely on their merits, again within a six year framework or less, depending on when the claimed item had been located and identified and the evidence garnered to back the claim.

S. 2763 is looking more and more like a thinly disguised message to claimants,.a last opportunity to file for restitution assuming that they know where their object is and they have the proper documentation to support their claim. If not, how will they obtain the evidence in the time allotted to them? How will claimants afford a court action against a current possessor especially if it is a museum or a billionaire collector with access to a well-supplied war chest ?

S. 2763 stacks the cards against claimants, however which way you look at it. Even if they do manage to garner the documentation, claimants will not be able to afford the hefty litigation fees associated with a proceeding to obtain restitution.

It is not possible to endorse S.2763 if a mechanism is not explicitly created which ensures that claimants will be supported in their attempt to recover their lost property. The Federal government should subsidize this commitment for at least ten years to ensure that claims are properly addressed and have a fair chance of being heard, by minimizing research and legal costs to claimants.

S. 2763 favors wealthy claimants with access to significant means to support research into their claims and legal action to recover identified objects which sit either in public or private collections. It is clearly not designed to help the vast majority of claimants, who lost cultural assets that are not museum-worthy. It provides succor to the very few, those who are familiar with the claims process and are able to demand the return of high-end items which their lawyers are willing to recover for them at rates the average claimant cannot possibly afford.

The claims process has always been skewed towards those who have lost cultural assets considered of great value in today’s market and towards whom gravitate most lawyers as well as market players.

The most expensive works of art in the world and their histories (or lack thereof)-Part One

by Marc Masurovsky

Our collective jaws routinely drop when we read about a work of art selling for sums of money that most of us cannot comprehend or even perceive. And yet, there exists an informal club of men and women who are capable of spending such sums.

We won’t waste time wondering whether or not they actually enjoy the art objects on which they lavish huge sums. Their investment redefines what is meant by “priceless.” Is priceless an unattainable sum for the common mortal? Is it a sum that is beyond the reach of a billionaire? Or is it a sum that does not exist?

No matter.

“Transparency”, read less opacity, is the operative principle pertaining to research into the history of art objects even when they fetch sums symbolized by figures that contain eight or nine Arabic numerals.

Let’s take a look at some of these objects for which their proud owners spent at least 60 million dollars.



1. Bassin aux Nympheas, 1919, by Claude Monet sold for 66 million dollars at Christie’s on June 24, 2008.

Bassin aux nymphéas, 1919, Claude Monet-Source: Christie's

It belonged initially to the famous Paris art dealing family of Bernheim-Jeune who then sold this dreamy painting to a member of the Durand-Ruel family, another Parisian art dealer, from there to Sam Salz, Norton Simon, an owner in Indiana and then the Millers whose estate sold it off in 2008. This information is accessible through the Christie’s catalogue.


2. The massacre of the Innocents, 1610, by Peter Paul Rubens sold for 76 million dollars in July 2002 through Sotheby’s. Originally misattributed to Jan van den Hoecke, it remained in the same family for close to two centuries. Then it changed owners either before or right after the First World War (1914-1918), fell into the hands of an Austrian family whose patriarch did not like it, thinking it was “ugly” and consigned it to a monastery until the 89-year old heiress of said Austrian family had a change of heart and decided to put it up for sale.

The Massacre of the Innocents, 1610, Peter Paul Rubens

3. Le Moulin de la Galette, by Auguste Renoir, sold for 78 million dollars on May 15, 1990 at Christie’s. The smaller of the two versions that Renoir painted, no one knows for certain whether it was painted before or after its more famous larger version which Renoir completed in 1876. It went through the now defunct New York art gallery, Knoedler’s, where John Hay Whitney acquired it in 1929. It remained in the Whitney family until 1990 when it was auctioned and sold to a maverick Japanese businessman, Mr. Saito. He later ran out of money and was forced to sell off his assets including this Renoir painting and one by Van Gogh. Rumor has it that this less ambitious version of “Le Bal du Moulin de la Galette” ended up in a private Swiss collection. 

Le Moulin de la Galette, n. d., Auguste Renoir

4. Portrait of Dr. Gachet, 1890, by Vincent van Gogh sold for 82 million dollars on May 15, 1990 at Christie’s. Its history carries with it the taint of Nazi cultural policies aimed at works that were deemed objectionable because of their content and execution. This painting by van Gogh changed hands a number of times in the early 20th century, through the Paul Cassirer gallery in Berlin then Galerie Druet in Paris before ending up in the permanent collection of the Städel Museum in Frankfurt. Following the rise to power of the Nazis on January 30, 1933, museum officials there tried their best to shield their “degenerate” works from the prying eyes of the Nazis. Unfortunately, “Dr. Gachet” was a well-known work and van Gogh did not whet the esthetic appetites of the new barbarians clad in brown and black uniforms. Pursuant to official Reich policies, the painting was de-accessioned in 1937 and joined other captive works in the ever-expanding collection of Reichmarschall Hermann Goering. With the help of Joseph Angerer, art historian and art dealer in the pay of Nazi officials, Goering sold “Dr. Gachet” to a German banker, Franz Koenigs, who then allegedly turned around and sold it or relinquished it to Siegfried Kramarsky. The Kramarsky family fled to New York just in time with the van Gogh. The painting was placed on long-term loan to the Metropolitan Museum of Art as of 1984. Thereupon, the Kramasky heirs decided to sell it. Mr. Saito, a Japanese businessman who boasted of possessing a vast fortune, spent a small fortune on the van Gogh, breaking all records to date for a painting by the tortured Dutch master.

Portrait of Dr. Gachet, 1890, van Gogh

Then, the painting disappeared from view. It did not help that Mr. Saito went into such exponential debt that, no doubt, “Dr. Gachet” was sold in a private sale. But to whom?

Charles Goldstein, executive director of the New York-based Commission for Art Recovery (CAR), was quoted as saying that, one way or another, the title to the painting is clouded and resale will be difficult. Which would explain why the painting has not resurfaced in the past two decades. Condemned, due to a tainted title, to remain in the global parallel art market of sub rosa transactions. This will not help the Koenigs heiress to recover the painting that she claims was not sold consensually to Kramasky. Or so it would seem.

See the fascinating book by Cynthia Saltzman, “The Portrait of Dr. Gachet: The Story of a Van Gogh Masterpiece, Money, Politics, Collectors, Greed, and Loss” which takes the story of Dr. Gachet up to Mr. Saito.

Sometimes It Takes a Village to Correct a Historical Wrong

Madonna and Child in a landscape

by Ori Z. Soltes

No two cases that deal with Nazi-plundered art are identical. There always seems to be some twist or turn to one situation that hasn't manifested itself in other situations. And what leads to rectification can be complicated and also sometimes surprising.

Back in 1999, HARP was made aware of a 1518 painting by Lucas Cranach the Elder that was at the time (and remains) in the collections of the North Carolina Museum of Art. It appeared that the painting, a small, beautiful Madonna and Child in a Landscape, had been plundered from the collections of Phillip von Gomperz, a successful Jewish businessman from Vienna, Austria. His surviving heirs were, at the time of its discovery in North Carolina, two grand-nieces in their 80s, Marianne and Cornelia Hainisch, who were not Jewish--a reminder that this issue is not by any means always a simple Nazi-Jewish matter, since the Nazis plundered from others as well, but also since the vagaries of life can and sometimes did lead Jews after the Holocaust to abandon the faith that was the primary object of Nazi hostility.

One of the founders of HARP and a key figure within it, Willi Korte, did the exhaustive research that showed unequivocally the provenance chain of the painting, from Gomperz’ acquisition of it to March 10, 1938 when the Nazis officially arrived into Austria (the Anschluss) and the Gomperz family was forced to flee (Gomperz himself would survive until 1948, dying in Switzerland); from the 1940 Nazi confiscation of the Gomperz collection, including Cranach’s Madonna and Child, which was then acquired by Baldur von Schirach, the Nazi Gauleiter of Vienna; to its appearance in the New York art market in the 1950s, where it was purchased by a California collector primarily of medieval German art, Marianne Khuner; to her passing on the painting to the North Carolina Museum of Art (NCMofA) in 1964 on a long-term loan that, through her will, became an outright gift in 1984, at the time of her death.

Baldur von Schirach

One can find a brief resume of this chronology if one goes to the site, ArtThemis, operated by the Art-Law Centre at the University of Geneva, Switzerland. There are, however, several things missing from what is presented as the official account. If one references Emily Yellin’s February 4, 2000, NY Times article, as the ArtThemis website does, there are, not surprising, the same omissions. One absence is the far greater chronological detail that Willi Korte had provided than what is presented on the website. This is fair enough: the website is presumably designed to give a thumbnail summary of the case and not an exhaustive history of it. A second absence, however, is the lack of any reference to Mr. Korte at all. Aside from writing him out of history these two omissions also contribute to what is a fairly widespread failure to realize how tedious and time-consuming the tracking down of such a provenance history often is—and in this case, certainly was.

Willi Korte

There is another matter that is lost if one reads an account as limited as that on the ArtThemis website, or the NY Times article, both of which merely jump in their chronology to 1999 and credit the Commission for Art Recovery with sending a letter to the Director of the NCMofA. The letter is simply credited in the website, without comment, with “detailing evidence of the painting’s history... it also indicated the names of the two sisters” who were the claimants; the ArtThemis entry and the article present the Museum as simply deciding to investigate the provenance claim and the following year restituting the painting to the sisters who agreed, in gratitude, to sell the painting back to the museum at well below its market value.

What is missing are a number of key details, key players and key complications—aside from the enormous lacuna of credit to Willi Korte. The fact is that Korte himself could certainly not have induced the Museum to restitute the painting on his own. He turned to the NY Holocaust Claims Processing Office (HCPO) and its then-Associate Director, Monica Dugot, who corroborated Willi’s research and spearheaded the initial attempt to ask the Museum to consider the claim, with the hope that, as a government institution, albeit from another state, the HCPO might carry weight that would be more substantially felt by the Museum and its Director. For the fact is that, faced with letters from both CAR and HCPO, the Museum was recalcitrant about even entering into a discussion about the matter.

By that point, the Holocaust Art Restitution Project (HARP) was also involved beyond Korte’s initial efforts. HARP wrote to the Museum Director, offering its expertise and assistance in coming to some resolution of this issue, and received a minimal response—that the matter was “being looked into” and that no help was needed. At that time HARP was also able to view correspondence between the North Carolina Governor and the Museum Director—for the Museum is, by definition, a state-governed institution. The governor made it clear that the Museum need not feel obliged to abide by the proposals taking shape in the American Association of Museums (AAM) and the Association of Art Museum Directors (AAMD) and that had also been articulated by the so-called Washington Principles—these came out of a December 1998 conference sponsored by the State Department that HARP was instrumental in helping to organize—with respect to provenance in general, and specifically as it pertains to art concerning which there might be suspicion that it had been plundered by the Nazis due to provenance holes between about 1930 and 1945.

HARP was also aware of another chain of correspondence. The Museum had galvanized key members of the Jewish community of Raleigh-Durham to write letters to the Hainisch sisters, telling them how important the painting was for the museum and specifically how it could be an important instrument for Holocaust education, with an augmentation of its label and a series of programs built around it. (That campaign was apparently carried out with complete unawareness that the sisters were not Jewish!)

With the encouragement to the NCMofA to ignore the threefold—HCPO, CAR and HARP—request, together with its own strategic pushback against responding effectively to that request, the Museum remained far from forthcoming. But, in the end, it did come to the very sort of agreement suggested at the end of the ArtThemis chronology. How? Both because the Museum Curator (as opposed to the Museum Director) came to see the importance of facing the claim head-on, and because another member of the HARP team, Janine Benton, knew a very active and interested reporter in North Carolina, and spoke to him. He in turn wrote a serious and excoriating article about the matter in the local Press.

It was, more than anything, the embarrassment that the Museum experienced as a consequence of the media discussion—and criticism—that built on that initial article that pushed the Director finally both to “investigate the claim” and ultimately to reach out to the Hainisch sisters through Monica Dugot. They, in their graciousness and their gratitude that the situation had not come to a legal confrontation, agreed to the terms that are now part of the historical record—and in the end did set an example to the American Museum community with regard to non-legal discussion/negotiations in the face of this sort of claim . A far cry, however, from the ArtThemis summary that refers to “the swift friendly settlement of this case was possible thanks to the Museum’s refusal to rebuff the restitution claim”—which summary is also found in the NY Times article. The painting remains in North Carolina. Its label presumably tells some of the story of its ownership, plunder and wanderings until it arrived into the Museum, and one might suppose that there are indeed education programs that use it as a starting point for a discussion of a range of Holocaust-related subjects, particularly appropriate to a location that has a fairly long history of racial, if not religious oppression.

North Carolina Museum of Art

There is an epilogue to this narrative that arrives at its denouement through the power of the Press and in this case the ability of the Press to shame a public institution into righting a wrong in spite of itself. Currently, an elderly French woman struggles to regain possession of a small Pissarro painting, stolen from her father by the Nazis—that has, through a chain of sales and purchases similar to those of the Gomperz Cranach in which, at least in the 1950s, the gallery that was doing the selling ignored the obvious clues regarding its Nazi-era provenance, and misled or outright lied to the American purchaser who, perhaps, asked a few too few questions—that ended up two decades ago in the hands of the Fred Jones Museum of Art at the University of Oklahoma (OU) in Norman, Oklahoma. Its discovery there within the past two years by the claimant has led to an ugly battle. The President of OU apparently knows no shame, and even in the face of enormous adverse publicity, including vociferous excoriation on the part of state politicians, has refused to consider her claim.

What in the end will induce justice to arise in Oklahoma? That remains to be seen and is another story for another day with its own twists and turns. The outcome at this point is certainly not that of the outcome in North Carolina 15 years ago, in spite of the pressure of the Press—and in any case, no two of the many stories pertaining to Nazi-plundered art are identical.

More on restitution in postwar Italy

Renewed attention is being given to the scope and breadth of objects of art plundered by the Nazis and their allies which entered the art market in Italy during the fateful years of the Third Reich and beyond. An upcoming seminar to be held in Milan on June 23, 2011, is being co-sponsored by the global auction house, Christie’s, and the Art Law Commission of the Union Internationale des Avocats (UIA). It will bring together international specialists and lawyers adept at working on art restitution cases including the New York law firm of Herrick, Feinstein, and the Commission on Art Recovery (CAR).

The goal is to paint a broad picture of the state of affairs in postwar Italy regarding the restitution of Holocaust-era looted art, what can be done about improving the climate of restitution in a country that has long prided itself for having taken the lead in the search for and recovery of works of art forcibly removed from its territory.

And therein lies the rub…

Successive Italian governments—and there have been a great many of them!—have focused their attention almost exclusively on the plunder initiated by Nazi Germany when it sent its troops deep into Italy after the removal of Mussolini in 1943. Hence, the official window of plunder in Italy has always been considered to be a ‘foreign’ affair, the responsibility for which must be laid at Germany’s feet between 1943 and 1945. Moreover, in a cynical move to prevent plundered art from leaving the country, the Italian government appears to be commingling all plundered art as 'cultural property.' Should that be the case, this signals an ominous turn against the possibility of recovering Holocaust-era cultural goods found in Italy.

Convenient…

Once upon a time, back in 1922, there was a man by the name of Benito Mussolini whose March on Rome heralded the rise to power of Fascism which lasted a good 21 years, not bad for a political novice and former newspaper editor.

During that time frame, the Fascist Party ran amok against its opponents, harassing them, arresting them, imprisoning them, and when it deemed fit, murdering them “while trying to escape.” Many others were forced into exile or confined to the ‘villeggiatura’, a semblance of house arrest in the deep rural south of Italy for anti-Fascist intellectuals. All the while, opponents’ property was seized, stolen, and reincorporated into the economy of Fascist Italy, if it didn’t end up in the homes of prominent Fascist dignitaries.

In 1938, the Fascist government edicts the so-called “Manifesto of Race” which defines who is a Jew, aping the Nazi government and foreshadowing Vichy’s contribution to anti-Semitic legislations by two years. From that time on, Jews are no longer safe in Italy, nor is their property.

Hence, the questions that should be asked at this seminar bear especially on the 21 years of Fascist rule, which include 5 years of pre-Nazi invasion anti-Jewish persecution.

The art market

Italy remained an open market, regardless of Fascist strictures, importing and exporting and doing business with countries around the globe. The Italian art world continued to maintain good relations with its neighbors, buying, selling, and trading. As it turns out, Italy was a convenient place for Nazi dealers and museum officials to meet up with their counterparts in Italy and from other countries.

During the height of the anti-Jewish persecutions in German-occupied Europe, Italian art dealers were more than happy to accept as payment, in lieu of cash, works of art which Nazi officials did not deem suitable for their collections, especially modernists. Where did those works go?

As importantly, Northern Italy was a hotbed of smuggling and contraband of all manners of commodities, including art, during the period of German occupation, activities often supervised by Nazi intelligence operatives, the most notorious being Freddy Schwend, based in Merano.

And one should not forget the Vatican, which curried favor to all sorts of authoritarian, racialist regimes in the 1930s and 1940s, enabling safe passage in the late 1940s and 1950s for untold numbers of Axis collaborators and plunderers on their journeys across the Mediterranean Sea and into the Americas, under the pretext that they had solid anti-Communist credentials.

On a final note, Italy came up during the May 6-7, 2011, World War II Provenance Research Seminar in Washington, DC, within the framework of an ambitious project overseen by the National Gallery of Art to fully document the acquisitions made by the Samuel H. Kress Foundation.  The Count Contini-Bonacossi had been Mr. Kress' 'art advisor'.  Contini-Bonacossi's credentials placed him as a major Italian art dealer with privileged ties to Hitler and Goering's minions as well as with their intermediaries operating in German-occupied France, Belgium, and Holland.  Something to keep in mind...