Are German museums in favor of restitution?

by Marc Masurovsky

By the looks of it, the answer is a qualified NO.

Let’s take a quick run-through at the track record of German institutions through the glare of the media since 2006. If some cases have fallen off the wagon, just blame the author. No one else.

Generally speaking, collections owned by noted art dealers and collectors like Alfred Flechtheim have continued to plague and embarrass German museums because many items illegally removed from those Jewish owners have entered these public collections.

In 2006, German museums complained that restitution procedures were too easy and that anyway most claims centered on auction house sales. What does that have to do with anything?

According to the LA Times, German museums asked the German government for help in funding provenance research because they had no money for such purposes and their staff seemingly could not be tasked to perform such duties.

Oh yes! museum directors asked that the discussion about restitution be more “businesslike.” Somehow, they felt inconvenienced by the emotional tone underlying claims for restitution. It’s hard to imagine why since claimants are heirs to victims of a genocide perpetrated by German state institutions against their families during the National Socialist period.

In 2007, the grumbling by German museums persisted over restitution rules.

In 2008, Culture Minister Bernd Neumann convened a meeting in Berlin with representatives of German museums, art experts, and individuals concerned with questions of restitution. Once again, museums requested more money for provenance research. However, some museum researchers spoke up and complained that they worked in isolation, were overwhelmed by the dizzying amount of work to do for institutions that were understaffed and underfunded.

In January 2009, an international Conference took place at the Jewish Museum of Berlin which focused the spotlight on the state of affairs both in Germany and elsewhere regarding restitution matters.

We are skipping through history here. In November 2013, the Gurlitt case exploded onto the international scene, taking by surprise everyone remotely interested in issues pertaining to looted art, to restitution, to Gemany's handling of its past.

Some commentators have gone as far as saying that the “handling of this Nazi legacy (entartete kunst) is a moral disaster.”

During that time, a restitution claim filed by the Montreal-based Max Stern Restitution Project, landed on the desk of the leadership of the City Museum of Dusseldorf over a painting by Wilhelm von Schadow which belonged to the late Max Stern. Contrary to most German museums, the leadership of the city Museum proved to be sympathetic to the request for restitution and endeavored to work closely with the Max Stern Project in order to resolve the claim favorably. An odd moment when one considers the general hostility that permeates the German museum world regarding restitution claims.

It could be that the Montreal-based restitution project which is housed at Concordia University, relies heavily on international law enforcement agencies to facilitate its requests for restitution. An interesting model to keep in mind.

While German museums were giving short shrift to Holocaust-era claimants, the German government appeared to encourage the repatriation of looted antiquities to Greece and Iraq. The same could not be said for African countries like Nigeria, Chad and Gabon. Neo-colonialist double-standard or geopolitics gone awry?

If you think we are being too harsh on the German government and its cultural institutions, they should not feel singled-out since a similar negative assessment appeared in the New York Times accusing American museums of rolling back the clock on restitution: stalling, balking, and disengaging from the restitution discussion. Fair or unfair?

2014 let in a bright light of hope when the museum of art of Wuppertal decided of its own accord with the support of the local city council to do the right thing and restitute a gorgeous painting by Caspar Netscher entitled “Lady with the Parrot—Dame mit Papagei”, an exceptional moment in the annals of restitution in Germany, a moment that should have heaped kudos on the director of the Wuppertal Museum, Gerhard Finckh, for his willingness to keep an open mind even if it meant losing one of the museum’s prized possessions. A gesture that was largely ignored by German and foreign journalists, commentators, restitution officials, and the like. So, we take this opportunity to applaud Mr. Finkh’s decision to restitute the Caspar Netscher painting to the heirs of a Belgian Jewish family, as a shining example of what can be done if one wills it to be done.

Note that the world did not come to an end and that the art market is still in operation.

However, the restitution enthusiasm was short-lived, the window closed and the room went dark. In August 2014, the Bayerische Staatsgemäldesammlungen rejected a restitution claim for a painting by Jacob Octhervelt.

In the midst of the Gurlitt mess, 2015 has not gotten off on a positive footing. Indeed, the so-called Guelph treasure has been the subject of a restitution claim whereby the German institution holding the so-called treasure which is worth quite a bit of money has refused to return it on grounds that there is no proof of a spoliation, let alone duress. The family has turned around and filed a lawsuit.

In the minds of restitution lawyers both in Germany and the United States, the Guelph treasure case puts the lie to German pledges to do what is needed to facilitate restitution to claimants.

As a result of the constantly evolving Cornelius Gurlitt scandal, in death as in life, German promises of passing laws eliminating statutes of limitations have not come to fruition.

In response to the savagery displayed in Syria and Irak against people and property, especially cultural property, Germany woke up to the fact that its territory is used as a major turnstile for the reselling of looted antiquities originating in that conflict. Monika Gruetters proposed that provenances be required for all cultural items entering or leaving Germany which apparently come from the Mideast. A great idea that is not favored by the German art market. Let’s see.

Will there be more funding for provenance research in Germany? A new center requested by Monika Gruetters has reorganized and expanded the provenance bureaucracy in Germany, the largest of its kind in the world, but it does not appear to be the ideal way of addressing the problem that plagues cultural institutions in Germany. As a model, the world is taking note, but wonders whether this is what we should NOT be doing when addressing the question of research and due diligence in museum collections.

Nevertheless, it is easy to criticize the German government when the rest of the world is not doing a bloody thing to move forward on questions of research, due diligence, improved conditions for filing and resolving claims and so forth and so on.

We are therefore duty bound to acknowledge that, in its particularly clumsy way, Germany has been trying to improve the climate regarding research into histories of ownership of objects that might have been looted and which are present in German state collections. An improvement that does not allay the underlying problem: how willing are German museums to restitute objects once conclusive or convincing proof has established the illicit nature of the object in a German public collection?

The answer to our initial question is still NO. Unless proven otherwise, the vast majority of German museums are still not inclined to restitute.

As they say in the United States, proof is in the pudding.

Seeking guidance from INTERPOL

The words vary but their meaning does not.

Plunder, looting, theft, spoliation, misappropriation, pillage—call it what you wish, it all comes down to the same thing: someone somewhere has committed a theft of cultural items either under cover of an international military conflict, a domestic uprising or insurrection or major civil unrest, or simply has broken into someone’s home, place of business, or public institution to commit the crime of art theft.

Lawyers will have a field day arguing that each word connotes something slightly different. But as one famous unnamed general said at the end of the Second World War, “Theft does not convey title”. Period.

Since 1945, much has been said but little has been done to address in absolute terms the global problem of cultural theft, especially when it has been fueled by considerations of race, ethnicity, belief, and/or greed and lucre.

INTERPOL
Source: Wikipedia

No global solution to the problem of cultural property theft, cultural plunder and looting, can be achieved without the full and engaged participation of international organizations, especially since the founding of the United Nations in 1945.  As part of an on-going effort to spark more interest in the role of the organized international community of experts and officials who take at least a nominal interest in questions of art crime, let’s take a brief look at one institution—INTERPOL—and its pronouncements between 2004 and 2007 regarding international art crime.

First off, we paid a visit to INTERPOL’s website datelined 2007 and found these remarkable items under the rubric of “frequently asked questions” or FAQs” :

• “In fact, it is very difficult to gain an exact idea of how many items of cultural property are stolen throughout the world and it is unlikely that there will ever be any accurate statistics. National statistics are often based on the circumstances of the theft (petty theft, theft by breaking and entering or armed robbery) rather than the type of object stolen. To illustrate this, every year, the Interpol General Secretariat asks all member countries for statistics on thefts of works of art, information on where the thefts took place, and the nature of the stolen objects. On average, we receive 60 replies a year (out of 186 member countries), some of which are incomplete or inform us that no statistics exist.”
• To the question, “Which countries are most affected by this type of crime?”, the answer is…….
  
  France
  Italy
  Russia
  Germany
• The most sought after items by thieves as reported by law enforcement agencies are:
  
  Paintings
  Sculptures and statues
  Religious items
• INTERPOL’s General Secretariat devised the following tools “to tackle the traffic in cultural property”:
  
  A "wanted" poster:
  
  In 1986, INTERPOL published “THE 12 MOST WANTED WORKS OF ART’ poster.  The following year, the poster was renamed “THE MOST WANTED WORKS OF ART", printed in black and white and updated twice. Since 1998, the poster has been printed in COLOR!
  
  A database of stolen works of art:
  
  As of 2007, Interpol’s computerized database contained 26,000 stolen works of art. The main caveat for eligibility to be entered into the Interpol Stolen Works of Art database is that the object be “fully identifiable.”  The most astounding development occurred in 2010 when, for the first time, INTERPOL agreed to publish a series of paintings stolen from Max Stern, a German Jewish art dealer once based in Duesseldorf whose business was liquidated by the Nazi government and he was forced to flee to Canada.  At his death, Concordia University became the executor of his estate and launched a unique program under the guise of the "Max Stern Foundation" to publicize the cultural losses suffered by Max Stern and promote the identification and restitution of his cultural property, with some measure of success, thanks in part to the crucial role played by the Immigration and Customs Enforcement (ICE) unit of the Department of Homeland Security in the apprehension and restitution of some of Stern's works from private collections in the United States.

Max Stern in Germany, c. 1925
Source: National Gallery of Canada, Library and Archives, Fonds Max Stern via Max Stern Art Restition Project, Concordia University

Since INTERPOL is comprised of representatives from police forces the world over, it is well-positioned to make recommendations that allow its law enforcement members to do their job more efficiently and curb the global crime wave of art theft.

When reading these recommendations, please keep in mind that we are now in the year 2011. Our planet has suffered through two global wars since 1914 which accounted for combined human casualties of close to 80 million individuals and massive thefts of cultural property. Since 1945, there has been at least one international military conflict in some part of the globe. Each conflict has produced its fair share of cultural plunder.

INTERPOL believes that the following conditions need to be met in order to achieve lasting long-term solutions to the problems of global art crime:

1. bring in laws to protect cultural heritage and regulate the art market. 
2.  become party to international conventions (1970 UNESCO Convention and the 1995 UNIDROIT Convention)
3. prepare inventories of public collections using standards which will make it possible to circulate information in the event of theft
4. develop a computerized database along the lines of those currently in use, to avoid duplication of effort. 
5. circulate information on thefts as rapidly as possible
6. raise public awareness with regard to the cultural heritage both in the country and abroad
7. set up specialized police units to tackle this type of crime
8. hold training courses for the police, other law enforcement services and customs, with the support of cultural institutions.

In order to appreciate the tedium of political discourse at the international level and the degree to which raising international awareness can best be compared to La Fontaine’s fable of the “Turtle and the Hare” (We know who won the race, right?), here are some highlights of meetings convened by INTERPOL between 2004 and 2007:

Meeting place: Sinaïa City, Romania 
Date: September 7-9, 2004
Title: 4th International Conference on the Illicit Traffic in Cultural Property Stolen in Central and Eastern Europe

The participants acknowledged that there were serious problems east of the Oder River “concerning the protection and documentation of cultural property”.

They recommended the following:

• “To monitor the art market including the increasing sales on the Internet.”
• “To encourage the completion of inventories including photographs of cultural property for public and private collections using international description standards such as Object ID.”

Castelul Peles, Sinaia, Romania
Source: Wikipedia

Meeting place: Washington, DC
Date: May 23, 2005
Title: 3rd Meeting of the Interpol Tracking Task Force to Fight the Illicit Trafficking of Cultural Property Stolen in Iraq

The participants realized that the Internet is becoming a favorite venue for the sale of cultural items stolen in Iraq.

Meeting place: Lyon, France
Date: June 21-23, 2005
Title: 6th International Symposium on the Theft of and Illicit Traffic in Works of Art, Cultural Property and Antiques

The participants recommended the adoption of a “model export certificate for cultural property jointly developed by UNESCO and the World Customs Organization.”

More importantly, albeit very diplomatically, the participants invite their members to “consider adopting legislation and developing procedures that require proper examination of appropriate documentation for all cultural goods entering their country.” Remember, we are now in 2005, not in 1955.

The participants agreed to provide “relevant law enforcement agencies” around the world access to Interpol’s Stolen Works of Art database.

This one is the clincher:

The participants asked that the governments of their respective nations should “consider whether their cultural heritage legislation should include a provision for proof of ownership of cultural property prior to their trade.” In other words, was there no requirement until 2005 to prove the ownership of a cultural item before it entered the art trade?

Other recommendations included:

“Countries seeking the return of their cultural property provide adequate relevant documentation detailing the date and place of the theft with a full inventory of the stolen objects including descriptions and photographs. For incidents of looting, date and place with documented justification of the provenance of the items should be provided.”

“Establishment of minimum documentation for all cultural objects and use of the Object ID checklist for this purpose.”

Meeting place: Lyon, France
Date: March 7-8, 2006
Title: 3rd Meeting of the Interpol Expert Group (IEG) on Stolen Cultural Property

The participants admitted that they needed the assistance of “art market professionals in the trade in cultural objects” in order to enable law enforcement agencies to locate stolen cultural items more effectively. Interesting… Should one surmise that the international art trade has not had to worry about the heavy arm of law enforcement until very recently?

As a result of high-profile looted art cases which required years of litigation and tentative outcomes, the participants focused on alternative dispute resolutions as one way of facilitating the restitution of stolen art to countries of origin.

Not only did they propose that “law enforcement agencies extend their co-operation efforts to art market professionals as valuable partners and sources of information,” but, in the same breath, the participants suggested that “creative solutions” be found to facilitate the “return of cultural objects.” These solutions might include: arbitration, conciliation, mediation or negotiation procedures. More worrisome is the notion that long term loans could be used as an acceptable compromise to achieve the return of coveted stolen objects. Worrisome in light of the deals struck by the Metropolitan Museum of Art, the Wadsworth Atheneum in Connecticut, the Getty Museum in Los Angeles. These institutions have sufficient clout, despite their egregious behavior concerning the harboring of looted art and antiquities, to convince the injured parties—in these instances, foreign nations—to accept complex deals whose outcome is to dilute the responsibility of the institution responsible for benefiting from the misappropriation of a cultural object.

In other words, the aiding and abetting of art crimes has a way of turning into a profitable moment for all parties concerned, fueled for the most part by commercial and financial incentives at the expense of ethics. Let's hope that INTERPOL and other like-minded well-intentioned organizations do not fall into this gilded trap.  Theft is theft, no matter how you look at it and cultural institutions that profit from it should be held accountable even if it costs them an exhibit or two and the ill-gotten items that they have acquired.