Restitution is an elite sport

by Marc Masurovsky

The post-1945 years have shown that State intervention in the treatment of restitution claims arising from wholesale plunder of Jewish-owned property ensured that the playing field would be somewhat level, allowing victims of modest income to have equal access to State officials as did members of elite and well-connected families, by reason of rank, status, and income.

This illusion of equal access did not last long. The vast majority of restitution claims were converted into compensation requests. In other words, the message to claimants was clear. Unless we think that your loss lessened the cultural patrimony or heritage of the Nation, you are better off asking for some form of financial compensation. Goodbye!

We can actually date this change of mind, somewhere between 1946 and 1947, not more than two years after the most destructive war devastated most of the European continent.

Jewish groups have behaved in similar fashion. Rushing to declare all unidentified Jewish cultural losses as “heirless”, they lobbied postwar officials and Allied military authorities in Germany and Austria across Western and Central Europe to turn over to them hundreds of tons of unclaimed Jewish property so that they could be sold off to benefit displaced persons and refugees. Choice pieces were transferred to Palestine/Israel where they were inevitably incorporated into Israeli cultural institutions.

Without a lawyer, an accountant, and one or more friends in “high places,” if your name was not Rothschild, Zuckerhandl, Seligmann, Bernheim, Rosenberg, Mannheimer, and so forth, your loss as a result of Nazi/Fascist anti-Jewish persecution and plunder was your problem, no one else’s.

Fast forward to the last 20 years…


The US government, at the outset of the Washington Conference on Holocaust-era Assets of December 1998, issued 11 principles, most of which shaped and framed by American museum officials, to guide the future behavior of museums and governments alike when faced with restitution claims. As soon as the conference ended and the Principles were announced to great fanfare, everyone went home and the 42 governments that had sent representatives to what was supposed to be a watershed moment in the postwar treatment of Jewish losses, forgot why they had attended the conference and business resumed as usual in some kind of amnesia-driven haze which had characterized their behavior since 1945 when confronted with Jewish losses-human and material.

Enter the private sector to fill the yawning void left gaping by governmental neglect, indifference and absenteeism. Private lawyers, consultants, researchers, treasure hunters and other glory seekers, entered the fray to “help claimants” with their quest for justice. The catch? If your loss was not “interesting”, viz., if your objects did not fetch a high enough value on the art market, your claim was dead. If, on the other hand, your objects, if found and recovered, could yield several hundred thousand dollars or euros and up to the tens of millions of dollars, sometimes hundreds of millions, you could easily find enough logistical and political support to carry you through the tedium of a restitution claim. High-value objects signed Schiele, Klimt, Pissarro, Picasso, Kirchner, Grosz, Modigliani, and many others, have shaped th public’s understanding of cultural plunder. Why would anyone steal something other than a “masterpiece”? It’s as if there were only a hundred artists in the entire world whose works the Nazis coveted. Wrong again. Still, the restitution game has fueled that perception which, in its very essence, is a-historical and a profound lie.

In the end, the top 1 to 5 percent of the claimant class can afford to obtain support for their quest for justice in the shape of a “solution” to the adverse ownership of an object looted and recycled on the international art market. For the beleaguered rest, go fish!

Justice is elusive for those who cannot afford it.

As of today, there is no mechanism, twenty years after the Washington Principles, 74 years since the end of WWII, which allows claimants to achieve measurable justice that rises above the word “imperfect” so perfectly touted by Ambassador Stuart Eizenstat and his ilk.

What’s worse is that wealthy claimants do not feel any compunction to come to the aid of the less fortunate amongst them. Not one, not a single one, and their lawyers, after recovering millions of dollars from the sale of restituted objects, has thought to support the less fortunate claimants with research and legal support. It is dog eat dog out there, no room for solidarity, compassion or commonality of interest, just like during the Holocaust. If you were of modest income, you were on your own and you definitely could not rely on your wealthy neighbors to bail you out. Too bad. Life’s not fair. Far more worthwhile to plant trees and give to your favorite animal rescue effort. History? Who cares? Culture? Who cares? Cultural rights? Yeah, right. Justice? Get over yourself.

Mainstream Jewish organizations have taken the greater part of 70 years before paying attention to victims of plunder. In so doing, they have continued to ignore individual claimants who seek the return of cultural objects from museums, auction houses and private collectors, except for the Claims Conference, the Commission for Art Recovery and the Holocaust Art Restitution Project.

Organizations established to promote the cause of restitution and aid in recovery efforts found themselves blurring the lines between justice and profit.

Holocaust memorials around the world pretend that the word “plunder” does not apply to their mission and should not be taught to their visitors. Selective ignorance is bliss.

The State of Israel has had a very ambivalent attitude towards the victims of plunder, preferring to ignore them rather than helping them, with the exception of Hashava, a State agency set up to assist in recovering looted objects and property located in Israel. It unfortunately closed its doors last year, therefore, Israel has no mechanism by which to assist claimants whose families endured the worst cataclysm to befall the Jewish people.

The only state agency in the United States that gives claimants a glimmer of hope is the Holocaust Claims Processing Office (HCPO) which has been in existence for over 20 years.

In the end, the 95 percent of claimants have been on their own since 1945. No wonder so many of them have chosen to forgo the torture of seeking the return of their lost property, to the great relief of those who own their property. After all, what are laws for except to protect the interests of those who own property even if looted during an act of genocide?

Plunder pays for itself. It is a crime against people, against communities, against culture which the international community has decried but done nothing measurable and concrete to prevent and to punish. Ownership of private property is more important than restorative justice for losses incurred during genocidal acts, objects ripped out of the ground of source nations, or forcibly removed from indigenous communities worldwide, powerless to oppose the white devils and their fire-breathing sticks.

Why should we expect museums, galleries, auction houses, art dealers and collectors to behave any differently? There is no incentive for them to be more “ethical”, no rewards for good behavior and no measurable consequence for bad behavior resulting in the acquisition and possession of looted cultural assets. They keep on doing what they do best—aid and abet the plundering ways of our fellow brothers and sisters around the world across generations. Catch us if you dare!

Arnold Toynbee summed it up beautifully when he declared that our species, Homo sapiens, should be renamed Homo cruellis.

A small tribute to Charles Goldstein

Charles Goldstein

by Marc Masurovsky

Charles Goldstein, counsel to the Commission for Art Recovery and Ronald Lauder’s attorney, died on July 30, 2015. He was 78 years old. Mr. Goldstein was also affiliated with the New York law firm of Herrick Feinstein, which has developed over the years a prestigious art restitution practice. Herrick Feinstein’s most visible cases have been the Portrait of Wally by Egon Schiele and the missing paintings of the late Jacques Goudstikker. Mr. Goldstein's most significant case at the time of his death is CAR's representation of the Baron Herzog's heirs against the Republic of Hungary.

I will now refer to Mr. Goldstein as Charles because of the budding friendship that evolved between us. I cannot say for certain that there was a deep friendship, but it certainly went beyond acquaintanceship.

Nothing predisposed me from ever meeting Charles and even more so from developing a bond with him, however loosely you would like to define what a bond really is.

As Ronald Lauder’s lawyer and as counsel to the Commission for Art Recovery (CAR), there was much axe to grind over palpable differences between what he represented -- or what I thought he represented--and what I represented. Namely, as a co-founder of the Holocaust Art Restitution Project (HARP), I became embroiled together with my HARP colleagues, Ori Z. Soltes and Willi Korte, in the Portrait of Walli affair which erupted in late 1997 over the refusal by the Board of the Museum of Modern Art of New York (MoMA) and its director to even consider opening a dialogue with the relatives of the pre-war owners of two paintings by Egon Schiele with questionable ownership histories that were on display in MoMA’s galleries as loans from the Leopold Collection in Vienna, Austria.

Ronald Lauder was then the Chairman of the Board of MoMA. The perception to the outside world was that Mr. Lauder and the Board of MoMA had steadfastly refused to sit down with the proclaimed heirs of the two contested Schiele paintings and to try to “work something out” short of getting embroiled in costly legal entanglements. The claimants wanted the paintings to remain in New York until they could get a fair hearing. MoMA wanted to honor its contractual obligations with the Leopold Museum and get the paintings out of the museum at the end of the Schiele Exhibit scheduled for the first week of January 1998. At that time, Charles was not directly involved in art restitution matters. In a very frank exchange that Charles and I had over the Wally affair, Charles insisted that Lauder was not involved in MoMA's ill-treatment of the Wally affair.

Thus began a cold spell between HARP and CAR. It did not help matters that CAR had sought to silence HARP by offering to “buy” it out of existence in the summer of 1998.  Lauder represented CAR and there was no way of understanding how CAR could square art restitution and MOMA's handling of the Schiele paintings. As far as HARP was concerned, CAR had gone to the dark side, choosing to leave most art restitution claimants in the cold and catering to wealthy clients seeking the return of their priceless works. Those were the caustic days of the late 1990s embittered by the mixed results of the Washington Conference on Holocaust-era Assets of December 1998, fueled by the American government's inability and unwillingness to truly move forward on this last chapter of WWII, dealing with the fate of looted Jewish cultural assets. Much water has since flowed under the proverbial bridge. Cooler heads have somewhat prevailed and it is clear that HARP's initial assessment of CAR ended up being far from accurate, as attested by Charles' groundbreaking work in art restitution cases and that of his colleague, the extremely able and brilliant Agnes Peresztegi, Director of European Operations for CAR.

Seven years elapsed since the Wally affair and the Washington Conference. A mutual friend advised Charles to invite me to a very unusual (by my standards) international gathering of specialists co-sponsored by the London-based International Foundation for Cultural Diplomacy that was being held in southern Bavaria on the estates of the Duke of Bavaria. Charles/CAR agreed to sponsor my presence at this conclave. The topic at hand: databases and art restitution. I hadn’t set foot in Germany since 1972.

I drove through the Swiss-German border, laden with ancient memories of Jewish refugees being turned back in the 1930s and early 1940s. I was so terrified that I slowed down to show my passport. I was quickly summoned to keep on driving because… there was no passport check.

As I drove along the roads flanking the northern edges of Lake Constanz, names of towns echoed with direct associations to former slave labor camps, depots for looted Jewish property, and Allied battlefields. It was in this area that Jacques Doriot, leader of the PPF and a close friend of the German occupation forces in France had been machine-gunned on a lonely road towards the end of WWII. Charming!

I found myself arriving two hours earlier than I should have at the town of Salem---a curious name since in the US, Salem had hosted the first political trial of the New World accusing a group of young women of using sorcery and witchcraft against the town's "respectable" men.

My first stop was the local cemetery. You might find that strange but cemeteries are the best way of getting acquainted with the history of a community. The first “monument” that I saw was a plain, massive rectangular marble slab tacked to a small obelisk bearing the etched names of German soldiers from Salem who have gone “missing” during WWII. I found it truly moving and, no matter how much havoc those young soldiers might have wreaked in the former Soviet Union, it was still a compelling homage by their kin to indicate their fate as “missing”. Call it my ecumenical side but a human loss is a human loss, no matter which side of the fence you happen to reside on. My heart did leap when I saw several names with those familiar 'lightning bolts" etched next to them. Further along, tucked away behind the right wall of the church, around which the cemetery was formed, one stumbled on the Social Democratic section—made quite obvious by the tributes engraved on various tombstones. A good indication that Salem had experienced a complex political past reflective of Germany’s woes during the Weimar period. No Jewish graves in sight.

I eventually stumbled into my temporary living quarters, located on the estate of the Duke of Bavaria, down the street from the cemetery. I walked around the grounds and saw seated at a table outside the “inn” drinking a cocktail a small, balding, rotund figure topped with a roundish puffy face. He was wearing what the French call a grey “gilet” over which he wore a dark jacket. It was Charles. He motioned me to his table and we started chatting over nothing and everything. So began our “friendship”.

Over the years, we learned to trust each other. Although trust is a big word, maybe respect is more appropriate. I never worked for Charles, but he invited me over time to keep him “posted” on my activities and what I knew of specific occurrences in the art restitution field, a genuine hornest’s net crossed with a snake pit.

We did end up “working” together to stymie attempts by the American museum community to pass laws in Congress that would in effect eliminate claimants’ only recourse to plead their case in US courts over objects with contested histories. This collaboration, particularly centered around SB 2212 and its subsequent variants in the House of Representatives, defined the outer boundaries of our “bond.” The discussions provoked by the proposed legislation to “immunize” stolen works and objects of art entering the US for purposes of display, compelled us to find common grounds over issues such as barring statutes of limitations and other technical legal defenses in art restitution cases and Federal regulation of due diligence practices in the art world.

Charles, never one to mince his words, flatly stated that restitution litigation as we know it would die off quietly because of the paucity of claims coming forth in US civil courts. I could only retort that the huge cost of litigation, no thanks to Charles’ steep fee structure, discouraged most claimants from coming forward. His quip was to restate that he and his firm would not take any case where the object’s value was less than one million dollars. Period.

We left it at that.

The most important moment for me was when Charles broke rank with American Jewish organizations over the campaign to defeat SB 2212 by arguing that it was wrong and unethical to disregard other genocidal events against indigenous peoples and cultures around the world, including one of the most egregious which targeted the original inhabitants of the Americas. He recognized that it was in our common interest to seek support from those advocates of other groups and constituencies seeking redress for past genocides and from the archaeological community. It demonstrated his profound ethos and commitment to color-blind justice. The strategy worked and SB 2212 died a miserable death.

Charles and I ended up meeting several times a year in New York at some of his favorite watering and eating haunts, either on the upper west side across from the Lincoln Center, or across from his firm at 33rd Street and Park, or even on the upper East Side close to where he lived.

He gradually shared more elements of his personal life which were “entertaining” to say the least. I never considered Charles to be a ladies’ man, but, yes, he was, in his own special way. He had a disarming smile and a wicked sense of humor, almost disarming.




As he grew weaker due to his illness, he maintained a stoic poise and was quite frank about his few brushes with death owing to allergic reactions to the medication that he was taking which seemed to incapacitate him. But he was a fighter and he knew how fortunate he was to be so well cared for by a supportive network.

I end this small tribute to him with two last thoughts:

I thank him dearly for extending himself professionally by supporting projects dear to my heart.

He left behind a wonderful daughter, Deborah, who, in so many ways, is the antithesis of her father. But they both share a huge heart and openness of mind that are hard to find nowadays. I never had the pleasure of meeting his son, Graham, nor his ex-wives. But my heart goes out to all of them for their loss.

Charles: You are sorely missed. You were and continue to be a driving force and a huge influence on the restitution discussion both in the US and abroad. We have not yet measured the impact of your passing. The fact that your opponents representing museums and art dealers have already uncorked champagne bottles toasting your disappearance is premature and typical of their hubris. We’ll see who has the last word.

More importantly, you taught me to value and nurture a more pragmatic approach to seek a more ethical treatment of restitution claims and instill better practices in the management of objects with dubious histories. In that regard, you were an excellent teacher.

I do miss you, as a friend, a colleague and an intellectual foil.

You are a mensch.

It has been 15 years since that fateful year of 1998: what do we have in 2013?

The American government prefers to let the market decide on what is fair and just for Holocaust victims of cultural plunder.

European governments are loath to challenge the cultural institutions that they subsidize directly and indirectly. By so doing, they legitimize the misappropriation of untold numbers of art objects and they prevent an impartial and scientific examination of the history of these objects which “ended up” in their basements and depots during and after the Second World War.

On the brighter side…

A growing number of curators and other art professionals have changed the way they work in American and European institutions when faced with problematic ownership histories for objects being accessioned or already in their collections—that’s reason enough to be guardedly optimistic.

“Art market players” are more aware than in the recent past regarding the complications arising from the trade in looted cultural assets. But that is all relative. Outside of Paris, London, and New York, that statement becomes moot. Moreover, the absence of verifiable statistics makes it nigh impossible to measure the result of such “increased awareness” because of the near impossibility of coming up with even a gross estimate of restitutions triggered exclusively by the art market’s due diligence efforts. Something to work towards for the sake of “transparency.”

Back to the dark side…

Fewer than five—yes, a number between 0 and 5—institutions of higher learning in the world—as far as one can tell—offer either intermittent or regular academic programs focused solely on provenance research. If universities, colleges, institutes—private and public—continue to be obstinate in their refusal to satisfy a growing demand for such programs, the only possible remedy is to create alternative programs that specialize in provenance research and its interdisciplinary corollaries. Where there is a will, there is a way!

There is no public policy--national or international—with which victims of plunder can assert their interests in seeking the recovery of their stolen cultural property.  It’s time to shame international non-governmental organizations that have repeatedly ignored calls to meet the needs of individuals, entities, and groups whose cultural assets have been and continue to be the targets of theft and plunder.

Some lawyers who call themselves “restitution lawyers” have never recovered anything on behalf of their clients, and yet… they command the respect of their peers in the legal profession.

After all these years, claimants still cannot rely on the international Jewish community to support their quest for restitution of stolen cultural assets. Exceptions are few and duly noted: the New York-based Claims Conference—although the Claims Conference does not handle individual art claims, it stands out as the principal advocate on a global scale for laws and policies that favor the return of looted cultural assets to their rightful owners. Oh yes! In Israel, there is a parastatal organization called Hashavah whose mandate for recovery of looted art only pertains to objects that are located in Israel proper. . And that’s about the size of it, folks.

Left standing are the Holocaust Art Restitution Project and the Commission for Art Recovery, both American-based organizations devoted in their specifically different ways to securing some measure of justice for claimants and to documenting cultural losses during the Holocaust. In the United Kingdom, the Commission for Looted Art in Europe marches on.

What is to be done?

Hashava Poster, Source: Federation of Jewish Men's Clubs

Confessions of an art looting “expert” (II)

Here’s a question: How did I get here?

Well, I will do my best to answer this impudent query of mine.

Main Gate at Birkenau
Source: Wikipedia

My story begins in the summer of 1967 when I visited Auschwitz-Birkenau with my parents while trekking through Poland in a red 2 CV Citroen, which was a real hit amongst our esteemed Polish friends. While I was astounded and fascinated by the massive concentration camp, my parents wanted to leave as quickly as possible. Needless to say, I was marked for life. I should take a short break here and tell you that both my parents are/were American expatriate artists who sought the Bohemian life in 1950s Paris after escaping from New York City and their respective families. They settled down in and around Montparnasse on the left bank and spent their lives painting, drawing, socializing, and plying their craft until death did them part.

Fast forward to the 1970s: I spent my adolescent years cutting my teeth on the hardscrabble political turmoil of the Parisian student movement. Not much needs to be said about three long years dodging nasty neo-Fascist gangs. That was enough for my political awakening and a constant reminder that some people take their Fascist politics very seriously even three decades after the death of Adolf Hitler and the onset of the Cold War.

In 1980, several years after graduating from Antioch College, in Yellow Springs, Ohio, I became a consultant for the Office of Special Investigations at the US Department of Justice in Washington, DC. Although my main duties were to help with lawyers’ investigations into the past activities of war criminals living in the United States—mostly Belorussians—I also focused on the postwar recruitment of Nazi war criminals by Allied intelligence, and especially American agencies. I found myself more often than not sifting through documents in the dusty stacks of the National Archives at 7th street and Pennsylvania Avenue, NW, in downtown Washington. There, every day, I would peruse documents drafted by agents and analysts of the Office of Strategic Services describing how war criminals were escaping detection in the mid-to late 1940s and finding freedom and refuge in safe havens across Europe, the Middle East and the Americas. This was my first introduction to looted art—the trading of plundered art by Nazi criminals and collaborators to obtain exit papers, visas, forged identities, passports, so that they could enjoy the fruits of their plundering ways in faraway places. I was hooked, I was fascinated, I could not stay away.

Alphonse d'Amato
Source: Wikipedia

Fast forward to 1995: The Swiss banks are being pummeled by Edgar Bronfman, the scion of the Seagram’s fortune and a leader of the American Jewish community. He has recruited Senator Alphonse d’Amato to lead the charge against these banks for their systematic misappropriation of funds and assets deposited by individuals of Jewish descent during the 1930s and early 1940s in the vaults of hundreds of financial institutions across Swiss territory. Many of the account holders died during the Holocaust or never reclaimed their accounts and the bankers made away with their money and valuables. The Swiss bank litigations re-opened the wounds of the failed restitutions of the postwar era. And they paved the way for art restitution claims. A key element of the negotiations with the Swiss banks was the exclusion of cultural assets deposited in those banks from any settlement reached between the plaintiffs’ lawyers and the banks’ representatives. I joined a committee of experts at the law firm of Cohen, Milstein, Hausfeld and Toll, to come up with a realistic estimate of the Swiss banks’ liability towards Holocaust victims. I was in good company: Willi Korte, the doyen of looted art investigations in the US; Sydney Zabludoff, a former CIA analyst specializing in black markets and money laundering; Fritz Oppenheimer, a Swiss banking specialist who taught us how to bill law firms; and Cees Wiebes, a Dutch expert on corporate cloaking during the Second World War. Three months of hard work yielded the following result: Swiss banks would have to pay 10 billion dollars in compensation to Jewish victims. The ultimate settlement reached several years after our finding: $1.25 billion. In other words, a toothbrush settlement.

In the spring of 1997, Willi Korte and I thought it would be a great idea to house a looted art database project at the US Holocaust Memorial Museum in Washington, DC. The answer that we received was a resounding “NO” qualified as: “This project does not fit within the mandate of the US Holocaust Memorial Museum.” Dejected but not defeated, we turned to Ori Z. Soltes, then director of the Klutznick National Jewish Museum at B’nai B’rith. We met with his board members and they greeted us with open arms. What a relief! The Holocaust Art Restitution Project (HARP) was born.

Robert Morgenthau
Source: Wikipedia

No sooner had we announced publicly in early September 1997 HARP’s creation than Ronald Lauder made a similar announcement and established the Commission for Art Recovery (CAR) under the auspices of the World Jewish Congress, of which he was the Secretary-Treasurer. Four months later, Lauder, in his capacity as chairman of the board of the Museum of Modern Art, faced the wrath of two Jewish families whose paintings were on loan from the Leopold Collection in Vienna, for an exhibit of Egon Schiele’s works at MOMA in late 1997. In early January 1998, spurred by HARP’s research into the provenance of those works and the odd way in which the show had been mounted, the New York Police department was ordered by then District Attorney of Manhattan, Robert Morgenthau, son of the late Henry Morgenthau, Roosevelt’s Treasury Secretary, to seize the two incriminated paintings by Egon Schiele—Night City III and Portrait of Walli—and prevent them from leaving the United States so as to give the aggrieved families a fair hearing and a reasoned shot at pleading their case for restitution.

The Walli case dragged on for another 13 years while Night City III returned to Austria. However, the seizure of the two paintings struck the Austrian government broadside and provoked an unprecedented debate about cultural plunder and restitution in the homeland of Ruth Jarai, rightful owner of “Walli” and of Marie Altmann, rightful owner of “Portrait of Adele Bloch-Bauer” by Gustav Klimt. The seizure led to the enactment of a series of restitution laws aimed at righting some of the wrongs of Austria’s post-Anschluss Nazi past.

"Of course I'm back: I just nipped out for a bit of wall decoration"
Art Theft, Stanley Arthur Franklin, 1967
Source: The Book Palace

Direct action—Drastic circumstances require drastic remedies even if it means forcing the hands of foreign governments, shaking up the international art market but not enough to rattle it into compliance. After several years, the status quo returned quickly, all was well, the fear of subsequent seizures waning as lawyers and diplomats ran roughshod over the renewed debate on restitution of looted cultural assets.

Although the Washington Conference of December 1998 had convened representatives and delegates from more than 47 countries to discuss how to resolve these decades-old problems of property returns to Jewish victims, the pundits went home, satisfied that they had done their duty to pledge to ‘do something.’ National commissions emerged in many European countries to investigate the wrongs of that war with limited impact on the quest for historical truth and the imposition of equitable remedies for spoliated families and their heirs. In the absence of meaningful public policies aimed at righting those historical wrongs, national governments across Europe and the American government, left it to the ‘market’ to adjudicate the merits of Holocaust-era cultural claims, thus handing over to the legal community an inherently political debate requiring political solutions. In the United States, the Clinton Administration was beholden to its donors and was reluctant to investigate the ill-doings of American museums during the life of the Presidential Advisory Commission on Holocaust-Era Assets (PCHA) which had been voted into existence by an act of Congress in June 1998. The Commission proved quickly to be ineffectual in carrying out its Congressional mandate and, in essence, violated the terms of the legislation that had empowered it, content to rehash the usual mantras of wartime plunder and avoid the thorny questions of looted cultural assets entering the United States. Those stolen, unrecovered assets entered countless museums, which receive substantial Federal fiscal advantages in the form of tax-exemptions. A largess unmatched in the rest of the world where cultural institutions are mostly run by national governments. Surprisingly, the PCHA ruled that there was no looted art problem in the United States and that further research would be needed to ascertain the opposite. How convenient! The Commission went out of business in the spring of 2000, as quietly as it had come into existence.

Fast forward to the Holocaust-era Assets Conference of June 2009 in Prague: this follow-up to the 1998 Conference in Washington, DC, was born to fail, especially as pertains to the question of looted art. Pre-conference planning was secretive, heavily politicized, did not involve claimants and their representatives, nor did it tap into the pool of international experts in art restitution matters, relying instead on government representatives overseeing questions pertaining to looted art or trophy art in their respective countries. Hence, despite some token input from groups like the European Commission on Looted Art (ECLA), the fate of claimants’ cultural assets rested almost exclusively in the hands of museums’ representatives and government civil servants with international Jewish organizations unwilling to commit themselves to a meaningful strategy aimed at restituting looted cultural assets. Not a pretty picture. The end result is well-known: a diluted declaration of intent known as the Terezin Declaration which serves as a basis for future discussions. It is left up to each conference stakeholder (governments and NGOs) to interpret and apply the Declaration as they see fit, which is not saying much at all.

Hopeless? Maybe. Really hopeless? Not quite. But much time and energy has been lost in endless, sterile debates which do not address the core issues centered on the identification and restitution of looted cultural assets.

The offspring of the June 2009 Prague Conference is the European Shoah Legacy Institute (ESLI), based in Prague and overseen by the Czech Ministry of Foreign Affairs. After muddling along for two years, ESLI has finally gotten a sense of itself as an organization with a mission that has 46 foreign stakeholders and NGOs to bring about proposals for lasting solutions to reach some form of closure regarding the compensation of Holocaust victims, the restitution of looted art and Judaica, the provision of care to needy survivors, and the settlement of immovable property questions especially in Eastern Europe.

Source: WRJO

Its advisory council is comprised of five working groups that address those areas, including one for looted cultural assets and one for Judaica. The mission of ESLI is open-ended and it will be as effective as its participants are willing to make it despite the fact that there is great skepticism as to its capacity to survive and make any meaningful contribution to the general state of things.

At this point, ESLI is the only organization of its kind in the world which can address issues pertaining to Holocaust-era looted property within the framework of an international forum. Its reach can be wide and extensive only if its members allow it to be. We will see.

Meanwhile, restitution efforts continue to be focused on expensive works of art, a small unrepresentative percentage of the vast numbers of works and objects of art still to be identified and located around the world.

True, it is true that for the past ten years or so dozens of very expensive works of art have been returned to their rightful owners. More often than not, though, settlements have been reached with the current owners who retained title to those stolen cultural items with cash allotments to the victims’ families as compensation. Hence, the new justice, cloaked under the pretense of restitution, has become a vehicle for accommodating current owners at the expense of the claimants’ rights to recover their property. That’s what happens when governments fail in their fiduciary and humanitarian duties to come to the aid of those who need it the most.

Here we are in late 2011 wondering if mechanisms can be put into place to ensure that victims of Nazi thefts of cultural assets can and will have their day in court to recover what is rightfully theirs.

The complication lies mostly in the identification of those looted cultural items. Indeed, with the passage of time and the disappearance of those who witnessed or suffered directly from the thefts, the subsequent generations have lost the knowledge that their families had owned works of art, objects of art, furniture, accessories that had been forcibly removed from former residences in troubled Europe. Thus, the tables have turned. It is not so much up to claimants to speak up about their losses, but instead, the onus falls on those whose task it is to research those cultural crimes and uncover the identity of the stolen objects. In other words, the knowledge of these crimes has waned from the memories of the victims and the responsibility to ensure that those crimes are documented and brought to justice falls on those whose specialty it is to uncover the evidence and study the circumstances under which those crimes were committed, the paths taken by those objects from owner to owner and the possible whereabouts of those stolen objects. The research is overwhelming and cannot be accomplished by lone individuals. It must be grounded in an institutionalized, international undertaking whereby archival materials are systematically searched, analyzed, and relevant data are extracted from them and placed in digital repositories which allow for sophisticated searches of objects, owners, collectors, perpetrators, locations of thefts, dates, and descriptions, to name a few of those categories.

In other words, the future of art restitution efforts lies in systematic historical research and analysis. The research produces the information on unrestituted objects of art which triggers investigations and the search for victims’ heirs. Until such research efforts are put into place, the most effective tools of restitution at the disposal of claimants, at least in the United States, is for Federal authorities to intervene on their behalf, seize objects from current owners and return them to the rightful owners, assuming, of course, that the research underlying the cases is flawless.

An uncompromising position, you might say? What is the alternative then? More of the same? Upholding the sacred rights of current possessors when everyone knows that theft does not convey good title to the next owner? As Steven Bibas wrote in his thoughtful 1994 essay on statutes of limitations, traditional legal defenses as invoked by current owners only abet art thefts at the expense of the rights of claimants. Justice trumps all other considerations when it comes to righting the wrongs wrought by acts of genocide more than seven decades ago. There is no statute of limitations on genocide or any other forms of mass slaughter and crimes against humanity. That’s the plain truth.

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...