O Canada! Where did you go wrong?

by Marc Masurovsky

What is the problem up there?

Way back when, at the turn of the twenty-first century, an international conference was held in Ottawa hosted by the National Gallery of Canada, where members of the art trade, civil servants, researchers, claimants, survivors, art historians, lawyers, and hangers-on from various nations met to discuss looted art and restitution as a global problem but more particularly as a Canadian problem.

After three intense days of deliberations and animated discussions, the participants to this conclave came up with a blueprint with could have led to meaningful reforms in Canada that might have raised the ethical bar, thus ensuring that museums, dealers, collectors—the private and public sectors—did the right thing, cleaned up their collections, stopped buying looted artifacts and stolen art, and educated their public and their personnel about the ethics of collecting and the evils of cultural plunder. In some respect, the Ottawa Conference had accomplished a small miracle, one that was out of reach of the Washington Holocaust Assets Conference of December 1998.

Lost opportunities. Had this blueprint been enacted, even in part, it would have placed Canada at the forefront of the art restitution movement, a title that Austria is fighting hard to gain, since it is the only country in the world with a basic and generically effective restitution law.

Twelve years later, nothing has happened of any significance in Canada, save for interesting declarations, expressions of good will, attempts at increased provenance research in various museums (three at last count) and an inability, more to the point, an unwillingness to return stolen cultural property to their rightful owners. All this inaction despite the presence of highly educated and aware specialists, art lawyers specialized in restitutions, at least in name only, as well as thousands of Jewish Holocaust survivors whose property was stolen but who somehow do not weigh in to these debates. Well-intentioned people everywhere, but no one to step up to the plate and tip the scales in favor of JUSTICE. Even the Canadian Jewish Congress has vanished from the very debates that it used to stoke with glee in the late 1990s. Times have changed, indeed.

Why the sour face?

Montreal is a poster child for everything that is wrong and that is right about Canada. Forget Toronto because no one is paying attention there.

Who gets it right? Why, the Max Stern Foundation at Concordia University. This foundation, established after the death of a German Jewish art dealer from Düsseldorf who was forced to leave the Third Reich for the obvious reasons after having been forced to sell his collection of several hundred Old Master paintings.

Max Stern's gallery in Dusseldorf, Germany
Source: Concordia University

Forced sale drove Max Stern into the ground and Nazi anti-Jewish policies drove him into exile to Canada where he became a successful businessman and bequeathed his estate to Concordia University, with the caveat that it would have to establish a project whose main goal would be to recover his lost works of art. Brilliant! The only project of its kind in the entire world… No kidding.

Musée des Beaux-Arts, Montreal
Source: Wikipedia

Who gets it wrong? The Musée des Beaux-Arts of Montreal, a wonderful, albeit eclectic, compilation of brilliant Old Master paintings abutting fairly tacky and should I say “pompier” art from the 19th and early 20th century.  Now is not the time to be snobbish about the quality of the art. Suffice it to say that, from the 1950s on, this charming museum benefited from the largesse of a handful of very wealthy donors who parted with their classical acquisitions, coupled with new acquisitions over the past several decades aiming to place the Musée des Beaux-Arts as close as possible to the pantheon of great museums in North America, if not in Canada. Mission accomplished? You be the judge. Meanwhile, in their great haste to acquire, the museum staff and board members forgot to do their due diligence and, in the process, absorbed a small trove of paintings of dubious origin. The most glaring examples are:

The Deification of Aeneas (1642-1644) by Charles Le Brun
Source: Wikipedia

The Deification of Aeneas (1642-1644), by Charles Le Brun, which once belonged to Jacques Goudstikker, a wealthy Dutch art merchant who perished accidentally on a boat in the North Sea shortly before the Nazi takeover of Holland in spring of 1940. The rest being history, several thousand pieces in his extraordinary collection were dispersed under the watchful eyes of Marshal Goering and his minions. Goudstikker’s heirs have spent decades seeking the return of these stolen works. Successes and failures have followed in quick succession, but the behavior of the Musée des beaux-arts of Montréal ranks as low as that of the Norton Simon Museum in California over its stubborn reticence to relinquish paintings that belong to the Goudstikker family, even if all of the evidence in hand is clear and incontrovertible.

“Das Duett” by Gerhard Honthorst, which used to be the property of a German Jew named Bruno Spiro before being sold under less than honorable circumstances in 1934. How it ended up at the Musée des Beaux-Arts remains unclear.

"Das Duett" by Gerhard Honthorst
Source: Lost Art

As with many cultural institutions, the Montreal museum’s leadership has been sitting pat on its hands, waiting for things to not happen. That is one strategy that characterizes most museums’ responses to restitution claims, the strategy of attrition. Tire them out, stall for time, until someone passes away, namely the claimant, or the plaintiff’s treasury runs dry, or a combination thereof.

It’s even more unfortunate to have to witness this callous state of affairs when one realizes that the chairperson of the Musée des Beaux-Arts of Montreal is one of the most successful Holocaust survivors in Canada. Yes, you heard it here. This is not esoteric or a mystery, no one is hiding under a rock here. Mr. Hornstein is a distinguished member of the Canadian Jewish community, a highly decorated member of Canadian society, someone to look up to and admire, especially after everything that he went through, least of which was to be deported to Auschwitz. And yet, with the moral sway and the burden of history that Mr. Hornstein carries on his frail shoulders, although he sounds like one tough guy, a man known for his boundless generosity, why does he not awaken from his dream and persuade the Museum’s board to relinquish those few paintings that are at issue to their rightful owners, thus transforming him into an even greater mensch than he already is? Why? Does anyone know? Maybe it’s because at least one painting in the collection was claimed by the Polish government. Who knows?

It’s always been a puzzle as to why it would have to come to this, time and time again, where Jewish claimants, some rich, most not, would have to butt heads against formidable members of the Jewish community, current possessors of their property, and bloody their heads against brick walls of indifference, verging on disdain and contempt. Yes, strong words these are, but truthful words, words spoken from decades of hapless and helpless observation. How many times have Jewish claimants come up against other members of the community in futile attempts to knock sense into them and invoke age-old communal ties to do the right thing much like the Torah commands them to do? Nothing doing. For some inexplicable reason, the principle of having acquired a stolen work of art in good faith primes over any moral, ethical, communal, communitarian, spiritual, religious, or plain commonsensical reason. It simply ain’t gonna happen.

So, what is to be done?

All-out war? Is that what where we are headed? Intra-communitarian warfare? Silly discourses about working hard and having suffered greatly and why should I simply hand this painting back to you? How do I know it’s yours anyway? And so forth and so on? So much unnecessary strife, so much grandstanding, why? As usual, it’s the principle that matters, on both sides of the fence. The current possessors reason like 2nd Amendment nut cakes who prize their guns over human life, while claimants invoke rightfully the wrongs of history, the certainty that injustice has been committed, brandish the incontrovertible proof that backs their claim, invoke and implore, and plead, in vain. Maybe the Mounties can resolve this, much like agents from Immigration and Customs Enforcement (ICE) do in the United States whose track record is practically unblemished. After all, it’s hard to challenge a badge and a gun, because there’s not much left to say. A crime is a crime. But if the hapless claimant comes unarmed, the current possessor eats him alive, arguing that there is no crime. Long live Kafka!

It is somewhat a fitting irony to have two antithetical institutions and modes of behavior co-existing within half a mile of one another in Montreal—the Max Stern Art Restitution Project on the one hand and the Musée des Beaux-Arts on the other. They embody the optimism that one can feel whereby it is possible to recover and to do right, while the other exudes cynicism and reinforces our endless pessimism that museum boards and their supporters live on another planet in some kind of art-fueled apartheid.

As yet another pessimistic sign of things to come, there is an event coming up at McGill University, also in Montreal, which appears to be underwritten by one of the top law firms in Canada. The event hosts none other than Glenn Lowry, director of the Museum of Modern Art in New York, to discuss the intersection of art and law when it comes to questions of restitution of looted art. Well, now, who else but Glenn Lowry to discuss in the most objective and impartial manner how his institution has refused steadfastly ever since the end of the Second World War to return anything to anyone.

Glenn Lowry
Source: The Lattice Group

Quite the contrary, MOMA is always happy to preserve, safeguard, store, display, acquire, and otherwise hoard works of art that do not necessarily belong to this fine cultural institution. Perhaps, these words are on the cusp of libel. Perhaps they are, but go ask the Georg Grosz heirs, go ask the heirs of the Redslob family, go ask anyone about Alfred Barr’s disingenuous and clever ways of acquiring looted art on the European market and then on the American market, hiding behind sycophantic dealers and collectors only too happy to minister to Barr’s wishes, in the hopes that he would …. what? Curry favors to them? The art world being what it is, anything is possible, of course. But Alfred Barr was no dummy, no he wasn’t. When looted art, art looted by the Nazi government from its own citizens and institutions was put up for sale in Lucerne, Switzerland, in late June 1939, Barr didn’t dare embarrass himself by bidding in person for those works. No, he hired “cut-outs” who acted on his behalf and turned the acquired works over to MOMA without dropping a hint that the purchases had been commissioned by good ol’ Alfred.

Alfred H. Barr
Source: Wikipedia

Back to Canada... Suffice it to say that for McGill to host a presentation on a subject as complex and contentious as restitution of looted art by asking the proverbial elegant fox to lead the discussion, the fox being Mr. Lowry of course, is already a very bad sign, an indication that there is no interest on the part of this fine academic institution to provide a forum where the complexities of plunder and its consequences for institutions such as MOMA can be brought to bear for the benefit of the audience. Or one senses callous indifference on the part of the organizers of this event as they prefer to display their talent at bringing in one of the most successful American museum directors on their campus to discuss a topic where he unfortunately behaves more like a perpetrator than a Solomon, thereby cheating its public of an unique opportunity to apprehend the role of cultural institutions as enablers of historic injustices by refusing to return objects that clearly do not belong to them.

The fight continues…

Come on, Canada! Wake up! Smell the coffee! Do something useful and honorable! Restitute!

Canada and looted art

Ten years ago, on November 15-16, 2001, an international conference on looted art took place under the auspices of the National Gallery of Canada in Ottawa, organized by the Canadian Museum Association (CMA) and the Canadian Jewish Congress (CJC). The conference brought together all parties and individuals involved at the time with the issue of looted art. They represented the private art market, the public sector, NGOs; there were numerous lawyers representing both sides of the debate, claimants, historians, and researchers. In the course of two days of animated discussions and presentations, the participants agreed to articulate a series of points and principles from which to issue recommendations for future action in Canada and beyond.

The following is a summation of those debates. There are official reports of the conference and its effects on Canadian institutions that you can consult on-line via the Claims Conference website. Take what you will from them.

The good news is that the discussion was friendly, productive, and pragmatic. The not-so-good news is that everyone went home and not much happened in Canada to push forth the debate on restitution in a manner consistent with the wishes and concerns expressed by the participants. Judge for yourself:

Canada, like so many other countries where there is an art market, is a recipient of loot and has been for decades.

It is a general, albeit vastly understated fact, that 90% of looted art is ‘invisible’ to traditional art historians, and scholars. Although issues pertaining to cultural plunder are not new, there is widespread ignorance of its scope and breadth in the art world, government circles, and the Jewish Community of Canada.

As of 2001, there were no laws on the books—Federal, provincial, or local--to deal with this issue. Dr. Franklin, of the National Gallery of Canada in Ottawa, host of the Looted Art Conference, was quick to say that “There is no legal obligation [for museums in Canada] to restitute.”

Museums have no legal obligations to return stolen works of art to their rightful owners. If claims are filed against individuals, they will be subject to local laws governing statutory limits, laches, good faith purchasing, willful blindness and due diligence. In sum, there are no overt mechanisms in Canada either at Federal or local level for dealing with Holocaust-era cultural property claims.

Then and now, there are few if no resources—human, financial, archival, bibliographical, and academic—for undertaking a serious, exhaustive, review of all institutional holdings in Canada in an effort to identify looted art. Scattered efforts have been duly noted amid 4 largest museums in Canada, as well as in a few smaller institutions.

Everyone acknowledged that there are no short-term fixes to the problem. Solutions are long-term.

What is to be done?

The participants came up with a series of goals to consider for bringing about needed progress on the subject of looted and art restitution:

• To identify all looted works in Canadian collections.
• To facilitate recovery of such works by rightful owners.
• To prevent resale of looted/stolen works on Canadian art market—public/private
• To create legal/policy environment to facilitate identification and recovery of stolen works of art.
• To establish common standards of evidence that fall outside of traditional rules of civil procedure.

How can these goals be achieved?

Obviously, one cannot expect any assistance from the Federal government, at least not in the short-run.

The onus of support therefore falls on provincial governments: they should either enact or modify laws that facilitate recovery and restitution, and that acknowledge the problem of stolen cultural property.

Museums must conduct reviews of holdings and identify looted works in their collection, ascertain their status, whether those objects have been recovered or not.

The provinces should put forth standardized responses to this problem.

The Canadian Museum Association, ICOM, and other art and cultural property groups, should petition the Federal government to study the problem and produce a Green Paper (the Canadian equivalent of an American White Paper).

The legal experts at the Ottawa Conference agreed that restitution principles should be anchored in local and provincial laws because of the absence of any Federal law in Canada and of Canada’s obstinate refusal, like that of the United States and dozens of other countries, to sign the UNIDROIT convention on stolen and illicit cultural property.

However, conflict resolution in provincial and local jurisdictions will be subject to different legal regimens and rules governing statutes of limitations, laches, burden of proof and rules of evidence.

Hence, any legal strategy must be focused on a moral and ethical appeal to institutions to restitute, founded on the London Declaration of 5 January 1943—the Inter-Alled Declaration Against Axis Acts of Dispossession. The operating principle has been and should always be: if the work was stolen, theft does not convey title. Even this adage has its variants in countries where the possessor of stolen property can become the rightful owner of the stolen object if no claim has been filed against it over a set period of time.

According to Bonnie Czegledy, the good faith purchaser in Canada cannot hide behind ignorance of the fate of acquired works—which is also referred to as willful blindness. Due diligence rules apply, which involve on the part of the acquirer of the art object to engage in research that would enable her/him to be convinced of the licit/illicit status of the object and base her/his decision to acquire or not the object as a result of this research.

Fill the legal loopholes regarding the resale of stolen works of art.

RECOMMENDATIONS FOR CANADA:

• Define looted object to include EVERYTHING cultural, including antiquities and books/manuscripts, decorative objects.
• Create legal/policy environment to facilitate identification and recovery of looted works
• Establish common standards of provenance research, evidence and claims adjudication for Canada.
• Conduct a census of all institutional collections in Canada susceptible of containing looted works. Prioritize risk to institutions regarding the repatriation of works. The purpose of this census is to assess the breadth and scope of the problem of looted art in public and private collections. For this to occur, establish a core group of researchers to do initial research and that can travel to all collections across Canada, with financing from provincial governments and Federal foundation endowments, provided that the funding is renewable until the census is completed.
• Ask the Canadian Museum Association to adopt an assertive strategy that will facilitate ultimate goals; it should communicate guidelines to museums on how to deal with the public and with claimants.
• Petition the Federal government to issue a Green Paper on accession to the UNIDROIT convention on stolen and illicit cultural property. The Federal government involvement in the issue of looted art could begin with the creation of a Central Web Portal run by Canadian Heritage Info Network or another entity so as to respond to inquiries and disseminate information.
• Invoke as the moral framework for treatment of looted art claims in Canada the London Declaration of January 5, 1943, or the Inter-Allied Declaration against Axis Acts of Dispossession. Canada signed it together with 15 other countries, including the United States and Great Britain, leading co-sponsors and formulators of the Declaration.
• Build a network of assets and skills in Canada and elsewhere to facilitate research efforts.
• Create a third-party group which oversees claims if the Federal Government refuses to handle them. Encourage the creation of provincial offices within existing agencies to process claims modeled after HCPO in NYC. This NGO would be supported by the Federal government and owned by the community. The stakeholders would include: museums, the art world, claimants, Jewish and arts and cultural property groups, historians, researchers, scholars, experts, government representatives, with a balanced private/public membership. It would be transparent and completely accessible.
• Identify all pertinent records dealing with looted art which can be found in Canadian archives--governmental, academic, institutional, civilian and military.
• Produce a guide of those records, similar perhaps to NARA’s Guide on Holocaust-Era Assets
• Incorporate the Canadian Jewish community as well as arts and cultural property organizations into these efforts for education, outreach, lobbying, fundraising, and logistics.
• Promote the training of individuals in provenance research through universities, cultural institutions and at all levels of government—local, provincial, and Federal. For instance, recruit graduate students from Young Canada Works for provenance work who have art history, history, museum science, forensics and related backgrounds.
• Seek public and private funds perhaps even from the UN and the EU to include museums, auction houses, independent scholars, government agencies, as part of an overall effort to stanch the resale of looted works on the art market.

Internationally:

• Promote the creation of an international research network to assist provenance checks.
• Create a third-party group or panel to oversee claims adjudication and to conduct research.