Showing posts with label HARP. Show all posts
Showing posts with label HARP. Show all posts

21 September 2023

Solidarity is an aspiration devoutly to be wished

by Marc Masurovsky

If you search for a definition of the word “solidarity”, this is what you find:

“Unity or agreement of feeling or action, especially among individuals with a common interest; mutual support within a group.”

In other words, “solidarity” requires unity of feeling or action amongst individuals and entities that share a common interest and support one another. It also implies that they all work together to achieve a common objective. Let’s apply the concept of “solidarity” to the interwoven notions of cultural plunder, art looting, and the restitution, repatriation, return of those plundered cultural goods to their rightful owners, be they individuals, groups, entities, or governments.

Past history teaches us that governments, entities, groups and individuals have systematically deprived others of their artistic, cultural and religious objects for a variety of reasons, ranging from greed and avarice to naked hatred of the rightful owners for reasons of race, gender, creed, and/or ethnicity. The international community, in all of its wisdom and desire to improve the lot of people around the globe, has agreed that it is wrong, illegal, and immoral to steal artistic, cultural and religious objects. If one does this, justice needs to prevail in part through the recovery, restitution, repatriation of these objects to their rightful owners.

Colonial expansionism unleashed cultural and other heinous crimes against communities living in areas coveted by the colonialists, resulting in the deprivation of life, identity, and culture for millions of people around the world. Successive wars fueled by racial and ethnic hatred of others have provoked the deaths of tens of millions of individuals and the outright theft of the property of those who were targeted for physical elimination and removal from the surface of Planet Earth. Make no mistake, these conflicts are still with us today and they are always accompanied by crimes against the culture, identity, and beliefs of the victims (case in point: the 1990s wars in the Western Balkans, and currently in Libya, Ukraine and Yemen.)

Since the 1990s, individuals and entities have come forward to hasten the restitution and/or repatriation of these looted objects wherever they may have ended up, either in private hands or in State-controlled collections and institutions. They focus separately on:

-the confiscations of Jewish-owned property displaced by the Nazis and their allies between 1933-1945;

-the expropriations of indigenous cultural objects through colonial conquest and occupation;

-the systematic illegal extraction of archaeological objects from source nations; and

-the plunder of Native American communities and First Nations in North America.

We have identified four categories of looted or plundered cultural goods:

1/ goods forcibly removed from geographical areas targeted for seizure and exploitation by colonial powers;

2/ goods forcibly removed by State authorities, with the help of military, police, and parastatal forces, from communities living within State borders;

3/ goods forcibly extracted from the territories of nations for ideological or commercial reasons under the cover of military conflicts or civil strife;

4/ goods forcibly removed from their rightful owners during acts of genocide, most notably during the Nazi era, the Holocaust and World War II.

Until the early years of the 21st century, there was no perceptible dialogue between the advocates of justice and restitution representing these four groups of looted cultural goods.

Archaeologists and so-called source nations worked in their corner, denouncing the irreparable loss of antiquities which ended up inevitably in private and public collections. Mainstream domestic and international Jewish organizations were never keen on seeking the actual physical restitution of objects plundered from Jewish victims between 1933-1945, preferring instead global schemes by which victims and their families would receive the equivalent of a “check in the mail.” Indigenous communities plundered during periods of domestic territorial expansionism and national unification (some call it “progress”) were left to their own devices for decades before there was widespread outrage at their plight. The systematic and on-going looting of their communities continues to benefit private collectors and cultural institutions worldwide. Advocates and organizations representing these four categories have worked separately in their silos, competing against one another for the attention of private donors, foundations and governments to enlist their aid in furthering the cause of their “clients.”

It is difficult to find instances of “solidarity” between these four categories and their respective communities, although, in theory, they agree on the common goal of restitution, repatriation, and return of looted objects to their rightful owners. Their professed mutual interest does not seem to include the possibility of reaching out to representatives of the “other categories.” Doing so would lead to a greater good by merging their separate agendas under the larger umbrella of a unified approach to the restitution, repatriation, and return of these objects to their rightful owners.

The Holocaust Art Restitution Project (HARP) was created in September 1997 to document Jewish cultural losses between 1933-1945 and the postwar fate of unrestituted looted objects. Our concern has always been to address in an open public discussion the question of cultural plunder in all its forms, regardless of when and where it occurred. More than 13 years ago, HARP crossed the bridge to get acquainted with the cultural heritage community, including archaeologists, anthropologists and other professionals documenting ancient cultures and the damage and destruction wrought upon them. One group stood out at the time—the Lawyers’ Committee for Cultural Heritage and Preservation (LCCHP). An instant synergy evolved between HARP and LCCHP over issues of plunder and restitution. Our representatives participated in and attended seminars, workshops, and fora organized by LCCHP. This cooperation has since extended to the Antiquities Coalition. 

Since 2013, HARP has forged ties with the Amelia (Italy)-based Association for Research into Crimes against Art (ARCA). HARP has been teaching a one-week provenance research workshop during ARCA’s three-month annual certification program focused on Holocaust-era losses and postwar restitution, a novelty in an environment mostly populated by cultural heritage specialists, archaeologists, and art law/art crime professionals.

HARP took interest in the continuing thefts of sacred Hopi artifacts from their communities in Arizona and New Mexico, the smuggling of these objects to France where certain auction houses sold these objects, in some instances, for tidy sums. All this under the nose of US Federal authorities. HARP advocated for the Hopi nation before an administrative court in Paris, not once, but six times, in a vain effort to stop these sales and return the sacred objects to their rightful owners. Although these battles were thankless, they helped make a point that, just because HARP specializes on Jewish cultural losses, it should not ignore the pain of other groups constantly subjected to similar forms of cultural plunder, largely unpunished. For the past ten years, HARP has forged ties with the Amelia (Italy)-based Association for Research into Crimes against Art (ARCA). HARP has been teaching a one-week provenance research workshop during ARCA’s three-month annual certification program focused [use gerund] on Holocaust-era losses and postwar restitution, a novelty in an environment mostly populated by cultural heritage specialists, archaeologists, and art law/art crime professionals.

HARP’s pivoting to a more ecumenical approach towards plunder and restitution has attracted some critics. A major Jewish organization once told HARP to remove the word “Holocaust” from its organizational name –HARP­­­–because of our defense of the Hopi nation. That senseless comment signaled an unhealthy parochialism and reaffirmed our resolve to pursue a path towards a more universal approach towards cultural plunder. HARP defines cultural plunder as a universal crime against humanity and promotes an interfaith, inter-ethnic, inter-cultural, global discussion on how to prevent future acts of cultural plunder and protect all cultures from commercial and ideological predation while prioritizing Jewish cultural losses from the Nazi era.

No other Jewish group seems willing to invest itself in an all-embracing dialogue about plunder and restitution. It reminds me of reports and correspondence written in 1940-1941 by officials of Jewish relief groups in France, pleading for assistance from non-Jewish organizations to help stranded, starving, interned Jews. The answer was always the same: you take care of your own, we take care of ours.

We are now in the Fall of 2023. Why do we continue to live in our separate corners, looking askance at the “others”? What will it take to bring these four categories under one big tent and forge a common strategy whose sole purpose is the restitution, repatriation and return of these objects, regardless of where they were forcibly removed, regardless of who or what instigated these crimes, and regardless of when these crimes occurred?

The lack of solidarity will spell the long-term failure of these restitution and repatriation campaigns to the immense relief and delight of those who currently hold these looted objects and continue to acquire them despite the general outcry of such behavior. It’s a bit like the movie “Catch me if you can!”. Unfortunately, this is not a game. It’s about the destruction of society (and humanity) to the great benefit of the perpetrators and at the expense of you, me and them.








19 November 2019

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…
  

05 December 2016

The U.S. Department of State Is Structurally Unable To Perform Appropriate Provenance Research On Immunity From Seizure Applications Submitted By Foreign Museums

by Marc Masurovsky and Pierre Ciric[1]

The Holocaust Art Restitution project (“HARP”) initiated research into the State Department’s ability to perform appropriate provenance research on immunity from judicial seizure requests submitted by foreign institutions. From the documents provided by the State Department through a Freedom of Information Act request, HARP analyzed: how the State Department verifies provenance research conducted by the borrowers and lenders for the object(s) under consideration; how the State Department verifies claims of due diligence made by both lenders and borrowers for objects under consideration for immunity from judicial seizure; and how the State Department awards determinations of “cultural significance” and “national interest”. HARP concludes that the immunization from judicial seizure application process relies almost exclusively on attestations made by the lenders, the borrowers, the country desk officers, and the unit of the State Department which certifies cultural significance. There is no empirical process the State Department follows to verify provenance research conducted by the borrowers and lenders. The State Department essentially relies on the good faith of both the borrowers and the lenders to attest to their holding good title to the cultural objects under consideration and that there is no basis for a third-party challenge on the grounds that the objects being offered for display were looted or misappropriated. 

[The material contained herein is subject to the copyright laws of the United States and cannot be reproduced without the prior written permission of the Ciric Law Firm, PLLC and of the Holocaust Art Restitution Project. Copyright © 2016]

INTRODUCTION

In 2014, the Holocaust Art Restitution Project (“HARP”) initiated research on the U.S. Department of State’s (“State Department”) ability to perform appropriate provenance research on immunity from seizure requests submitted by foreign museums the Immunity from Judicial Seizure statute, 22 U.S. § 2459 (IFSA). To accomplish this research, HARP submitted a Freedom of Information Act (FOIA) request to the State Department. Following the State Department’s response, HARP analyzed the State Department’s provenance research process and its procedures for determining the soundness of the borrowing institutions’ applications to immunize objects coming from foreign lenders’ collections.

STATUTORY AND ADMINISTRATIVE FRAMEWORK

The IFSA protects from seizure or other judicial process certain objects of cultural significance imported into the U.S. for temporary display or exhibition. The State Department is designated to administer the statute.

Under the statute, (1) the object must be a of cultural significance, (2) there must be an agreement between the lender and “one or more cultural or education institutions within the United States”, and (3) the loan must be for temporary exhibition in the U.S. at a cultural exhibition “administered, operated, or sponsored, without profit, by any such cultural or educational institution.”

The State Department provides an application procedure and checklist.  Based on this checklist, the following items are to be included with an application:

1. A list of expected places and dates of exhibition;

2. A specific statement of whether or not “the exhibition is to be administered, operated or sponsored without profit to the borrowing or participating institutions”;

3. A schedule of the objects to be imported for which the applicant is requesting determinations under § 2459;

4. A scholarly statement establishing the cultural significance of the imported objects;

5. A statement concerning the provenance of works to be borrowed, as follows: “The applicant certifies that it has undertaken professional inquiry—including independent, multi-source research—into the provenance of the objects proposed for determination of cultural significance and national interest. The applicant certifies further that it does not know or have reason to know of any circumstances with respect to any of the objects that would indicate the potential for competing claims of ownership [except as described below. For the objects for which circumstances exist that would indicate the potential for competing claims of ownership, the following is a description of such circumstances and the likelihood any such claim would succeed].”

6. Facts supporting an assertion that all U.S. participants are cultural or educational institutions, such as an organization’s current IRC § 501(c)(3) determination letter;

7. A copy of each “agreement entered into between the foreign owner or custodian thereof and the United States or one or more cultural or educational institutions within the United States providing for the temporary exhibition…” of the object(s), a copy of any agreements with participating museums or other U.S. cultural or educational institutions, and a copy of any agreements between a foreign owner and a foreign custodian;

8. Copies of all related commercial agreements between any or all of the U.S. institutions and the foreign owner/custodian or other parties; and

9. The contact person for the application, and his or her telephone number and e-mail address.

FOIA REQUEST

On March 5, 2013, HARP submitted a FOIA request to the State Department, seeking information on the provenance research process associated with documents “regarding any grants of Immunity from Seizure Under the Judicial Process of Cultural Objects Imported for Temporary Exhibition of Display under 22 USC § 2459.” The FOIA request further sought “records of the Bureau of Educational and Cultural affairs for any documentation, policy memoranda, and fact finding determinations for any final determinations by J. Adam Ereli, Principal Deputy Assistant Secretary, Bureau of Educational and Cultural Affairs, Department of State under the following authority by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. § 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681, et seq.; 22 U.S.C. § 6501 note, et seq.), Delegation of Authority No. 234 of October 1, 1999, and Delegation of Authority No. 236-3 of August 28, 2000 (and, as appropriate, Delegation of Authority No. 257 of April 15, 2003).”

The purpose of the FOIA request was to elucidate and clarify to what extent the State Department resorted to due diligence “best practices” in determining whether cultural objects about to be displayed in U.S. museums and libraries earned the “culturally significant” label in “the national interest.”

Key to this process is the State Department’s ability to conduct independent provenance research on objects being considered for immunity from judicial seizure, should a third-party claim arise demanding the restitution and/or repatriation of a presumed looted cultural object included in the submission for immunity from judicial seizure.

At the heart of the FOIA request lies HARP’s concern that the State Department is structurally ill-equipped to make such determinations and essentially relies on the word of both the borrower and the lender to attest to their holding good title to the cultural objects under consideration and that there is no basis for a third-party challenge on the grounds that the objects being offered for display were looted or misappropriated without the consent of the rightful owners and without any subsequent restitution of the looted or misappropriated objects.

After negotiations, which lasted almost a year, HARP obtained a schedule of immunity from seizure grants from the State Department, for a three-year period. As a result of the huge cost and time associated with producing documentation for each grant of immunity from seizure over a three-year period, the State Department and HARP reached an agreement in 2014 to obtain the submission of 12 immunity from seizure applications. On June 11, 2014, the State Department produced several hundred pages of documentation regarding the 12 immunity from judicial seizure procedures for cultural objects on loan to U.S. institutions from abroad. A list of the document received as part of the FOIA request is contained in Exhibit A.

DATA AND METHODOLOGY
HARP’s concern with the grants of immunity from seizure rests on the State Department’s ability to determine if, in fact, the art objects proposed for immunity from judicial seizure have ownership histories which do not suggest that the objects’ title might be challenged by an aggrieved party because the object had not been properly restituted to its rightful owner.

The State Department supplied to HARP documents for art objects loaned by foreign institutions to be displayed in various museums and other institutions in the U.S. Each grant of immunity from judicial seizure is provided to a borrowing institution requesting that the objects be immunized so as to enable their display in the U.S. without fear of seizure resulting from a third-party claim.

HARP wished to ascertain if the State Department had a procedure in place to verify independently from both the borrower and the lender the ownership history of each object being proposed for immunization. The lender provides information on the object to the borrowing institution. That information, in turn, is incorporated into the application for immunity from judicial seizure submitted by the borrowing institution. The latter certifies that it has conducted professional inquiry—independent, multi-source searches—into the ownership history of the objects under consideration for immunization.

FINDINGS

1. Volume of Applications
Initially, HARP obtained a schedule of immunity from seizure grants from the State Department, for a three-year period. We counted almost 280 grants over the three-year period, so on average, the State Department had issued two such grants or certificates per week. First, it is astounding to observe that the State Department had issued this many grants of immunity or certificates per week. Each certificate covers anywhere from one object to hundreds of objects, depending on the complexity of the loan serving an exhibition on U.S. territory.

Provenance research is a complex procedure, as attested to by museum professionals, and takes significant time. In such a short period of time, it is virtually impossible to perform an independent assessment of whether the history of ownership of the objects being considered for immunity from judicial seizure is free from any disruption of title that might have been produced by an act of looting or misappropriation in the 19th and 20th centuries. More importantly, it would be next to impossible to assess, in that time period, whether these objects had been properly returned to their rightful owners before entering the lenders’ collections.

2. Documentation

Throughout the State Department’s response, each application for immunity from judicial seizure included at least the following types of documents:

1/ a copy of the notice of application in the Federal Register;

2/ a text of the public notice of application;

3/ a request from the borrower to the State Department to make a determination of “cultural significance” and that the exhibit is in the “national interest”. The request is in the form of a letter to the Assistant Legal Adviser for Public Diplomacy and Public Affairs. Each applicant has provided the same letter with some notable exceptions. It suggests that the “timely publication of these determinations [cultural significance and national interest] will facilitate the immunization of the objects under consideration from judicial seizure. The terms spelled out in 22 USC § 2459 must be fully satisfied in order to obtain the immunity from judicial seizure. In the case of Princeton University Art Museum, the application was submitted as “a courtesy” to the lender.

The application for immunity from judicial seizure is sent to ECA/PE/C/CU, which provides its clearance for “cultural significance.”

The national interest determination appears to be made at the Country Desk for the lending nation. In the University of Chicago Library application the Country Desk for Switzerland “offered its national interest clearance.” In the case involving the Maya object exhibit at Princeton University Art Museum, the Desk Officer for Australia was asked to make the national interest determination.

4/ a list of objects to be exhibited by the borrower. In some instances, both the borrower and the lender submitted a list of objects covered by the application for immunity from judicial seizure.

5/ correspondence by mail and/or email between the borrower and the State Department regarding the application for immunity from judicial seizure

6/ additional background about the proposed exhibit submitted by the borrower.

Following HARP’s FOIA request, it is impossible to assert whether or not the State Department submitted every document to HARP regarding each application for immunity from judicial seizure. The following are additional documents not present in every application which were submitted by the borrower to the State Department in support of the application for immunity from judicial seizure.

In two instances, the borrowers, the Frick Collection and the Museum Of Fine Arts, St. Petersburg, FL, submitted a “scholarly statement in support of the application for determination of cultural significance of the objects covered by the application for immunity from judicial seizure.

In one instance, the borrower, Metropolitan Museum of Art, submitted an “immunity file checklist” as part of the borrower’s application for immunity from judicial seizure. The checklist included eight different types of documents that constituted a complete application for immunity from judicial seizure:

1/ list of imported objects

2/ copies of agreements (borrowers/owners or custodians)

3/ copies of related commercial agreements

4/ places and dates of exhibition

5/ “without profit” statement

6/ statement as to provenance

7/ scholarly statement as to cultural significance

8/ U.S. participants are cultural/educational institutions (i.e., IRC 501(c)(3) letter)

In one instance, the borrower, the Milwaukee Art Museum, submitted a table of contents/checklist as part of the borrower’s application for immunity from judicial seizure.

In one instance, the borrower, Princeton University Art Museum, submitted a one-page statement attesting to the “cultural significance” for a single object covered by the application for immunity from seizure. The statement was signed by Dr. Bryan Just, curator and lecturer in the Art of Ancient America at the Princeton University Art Museum.

In one instance, the borrower, the University of Chicago Library, submitted a one-page “provenance statement” in support of its application for immunity from judicial seizure.

In reviewing this documentation, HARP assumed that there was a standard process for foreign lenders to apply for immunity from judicial seizure. We noted deviations from that standard which U.S. institutions supplied when we obtained the application check list of documents. We observed that, even in the application process, applicants used different strategies and the quality of the documents varied regarding the provenance information about the objects under consideration.

We also observed how the State Department handled the cultural significance and national interest determinations, even when the arguments proffered by some of the borrowers were specious regarding cultural significance and national interest.

Since the objects come from foreign lenders, one should presume that the borrower has requested from the lender documentation detailing the ownership history of the objects being proposed for immunization. There is no indication that such requests were made in the application we looked at. The provenance information provided by the lenders ranges from minimal to detailed. There is no possible way for the State Department to accept the borrower’s warranty of provenance without doing so on blind faith.

Missing documents are hinted at in correspondence between the borrower and the State Department. For instance, with respect to the application submitted by the Fine Arts Museum of San Francisco for an exhibition entitled “Impressionism on the water”, the Museum’s exhibition coordinator, Hilary Magowan, notified the State Department on April 26, 2013, that she was attaching to her email the loan agreements from nine foreign lenders to the exhibition. HARP received only the correspondence but not the loan agreements.

3. Provenance determination
As to provenance statements, the borrowers all provided boiler plate language attesting that they had conducted “professional inquiry—including independent, multi-source research—into the provenance of the objects,” certifying that “we do not know or have reason to know of any circumstances with respect to the objects that would include the potential for competing claims of ownership.” In all cases, no descriptive statement of how provenance research was conducted or how many independent sources were consulted to support their assertion.

The University of Chicago Library made no reference to having undertaken professional inquiry into the provenance of the objects, but emphasized that there was no evidence of any competing claim or past litigation that would challenge ownership to these objects being considered for immunity from judicial seizure.

The Museum of Fine Arts in Saint Petersburg, Florida, applied for immunity from judicial seizure for an exhibition of ancient Egyptian artifacts coming from the Fondation Gandur in Geneva, Switzerland. In submitting its application, it attested that it had undertaken professional inquiry “into the provenance of the objects.” The borrower provided only a descriptive list of the objects—101 in all—without indicating how, where, when and from whom Mr. Gandur had acquired these objects. It is difficult to imagine the Museum of Fine Arts conducting such intricate research on 101 objects in less than a year’s time.

The Frick Collection submitted a list of 58 objects from the Courtauld Gallery in London, England for its exhibit “Mantegna to Matisse: Master Drawings from the Courtauld Gallery. Each object contained a detailed provenance with an occasional reference to a certificate from the Art Loss Register for items that might have proven to be problematic.

The Fine Arts Museum of San Francisco submitted a list of over 100 objects that it planned to exhibit under the title “Royal Treasures from the Louvre: Louis XIV to Marie-Antoinette”. It asserted that it had conducted professional inquiry into the provenance of the objects under consideration for immunity from judicial seizure. There again, it is impossible to ascertain how the research could have been conducted without requesting from the Louvre the curatorial files for each of the objects. No mention was made on how the independent, multi-source research was undertaken. Neither does the State Department ask for justification of this assertion. The Louvre inventory only provided the name and date of the donation or sale to the Louvre for the objects concerned, point of departure for any provenance research effort.

In fact, the Fine Arts Museum of San Francisco received a letter from a claimant seeking provenance information on artworks which may match artworks subject to a claim before the CIVS in France, after the immunity from seizure grant was issued and the exhibit started. The claimant provided a copy of the letter to HARP. In its response, the Fines Arts Museum of San Francisco was unable to provide any provenance information to the claimant beyond the inventory information provided by the Louvre, which included no actionable information susceptible to confirm or dismiss a potential claim.

4. Research standards

Provenance research is an inter-disciplinary process that extends far beyond the reaches of conventional art history. At the very minimum, its purpose is to determine the history of an art object from the time of its creation to the present holder, be it a person, organization, corporation, museum, or government entity.

In the past twenty years, this type of research has become synonymous with ferreting out evidence of theft and other criminal acts which separated the rightful owner from the object’s possession without his/her consent. The responsibility of cultural institutions and art market players is to ensure that they do not engage in activities which enables the trade, accessioning, or display of stolen cultural assets.

When the State Department envisions the grant of immunity from judicial seizure, it warrants that provenance research did not indicate that the objects under consideration showed any sign of contested title due to theft or other forms of misappropriation.

To do so, an institution must check all available public and proprietary sources of information which might contain information that would shed light on past ownership of the concerned objects. Art historical sources need to be consulted to verify or corroborate the information provided by the lenders as to the ownership history of the objects. Sometimes, one would have to consult specialized monographs about the creators of the objects if the catalogues of the artist’s works do not include any or little information about the objects. Part of the provenance research effort requires one to understand the circumstances under which the object changed hands during turbulent historical moments that might have led to a forced displacement of the objects from a rightful owner to an illicit owner, due to an absence of consent for the transaction to take place. This can only be accomplished by checking historical sources of the period during which the objects changed hands.

If the objects are ancient artifacts, extracted during excavations in “source nations,” it is critical to verify that the excavations were authorized and the objects were exported legally to their new owners. Various documents can be used to confirm the extraction and the exportation of the objects. Customs documents, archaeological notes and dig registries, are some of the documents that might be available to do so.

The lenders’ documents on the objects need to be verified as well since they might contain crucial information about the ownership histories which are not published in the official literature surrounding these objects. This is fairly common in the museum world.

There is no evidence to show that neither the lenders nor the borrowers, in most instances, engaged in provenance research as outlined above. There is also no evidence that the State Department made any effort to verify independently that the information attested to by lenders and borrowers was true and accurate.

The borrower never explains how their research is conducted, which sources are consulted, and how it reaches the determination that all objects under consideration are clear of competing claims. The State Department seemingly relies on the certification provided by the borrowing institution without seeking some form of document explaining how those determinations were made.

5. The State Department has granted immunity in the face of existing claims
In 2003, 14 works of art by Kazimir Malewicz were exported to the United States by the Stedelijk Museum of Amsterdam to be party of a temporary exhibition at the Solomon R. Guggenheim Museum in New York and the Menil Collection in Houston. Malewicz v. City of Amsterdam, 362 F. Supp.2d 298, 303 (D.D.C. 2005). Following a request by Amsterdam that the works of art be granted immunity from legal process with in the United, the Malewicz heirs filed an objection. Id. However, the State Department “determined that the objects were of cultural significance that that their temporary exhibition was in the national interest.” Id. (citing 68 Fed. Reg. 17852-01, April 11, 2003.). The State Department granted immunity from seizure to the 14 works of art by Malewicz and therefore “immune from seizure and other forms of judicial process that might have had the purpose or effect of depriving the Guggenheim or the Menial Collection (or any carrier) of custody or control of the artworks while in the country.” Id. Before the end of the loan in Houston, the heirs of Malewicz filed suit against the City of Amsterdam to recover the value of the works of art or, in the alternative, the return of the works of art. Id. Clearly, the State Department knew of the claims by the Malewicz heirs and did nothing to assist them. Instead, the State Department granted immunity from seizure under the IFSA with full knowledge of a pending claim against some of the artworks.

CONCLUSION
HARP’s FOIA request demonstrates that the State Department has no in-house procedure by which to corroborate the borrower’s claims of provenance research. Neither does it have the possibility of verifying the provenance information supplied by the lenders. By inference, HARP subsumes that State Department accepts the borrower’s certifications that the lender’s ownership of the objects being proposed for immunization is verified and there will be no competing claims filed by third parties to challenge the lender’s title to the immunized objects.

The due diligence checks on art objects borrowed from foreign lenders to be exhibited in U.S. institutions are left to the borrowers to conduct. Based on the documentation supplied to HARP by the State Department through the FOIA disclosure, each borrower used boiler-plate language—which is customary—to attest to independent, multi-source inquiries in conducting provenance research on objects to be covered by a grant of immunity from judicial seizure.

In most instances, some detailed provenance information was supplied by lenders (not borrowers) as part of the application for immunity from judicial seizure. However, in most instances, the borrowers relied on the certifications of good title from the lenders to certify that there was no information that it knew of that would raise doubts on the ownership of the objects being covered by the immunization from judicial seizure. HARP is highly skeptical of the claim by the borrowing institutions that they conducted professional inquiries, including independent, multi-source research to ascertain the provenance of the objects offered for exhibit by the foreign lending institutions.

Moreover, the determinations of cultural significance and national interest appear to be pro forma, and are not based on any empirical evidence. It is unclear how country desk officers at the State Department are qualified to determine whether art objects being loaned to U.S. institutions represent a “national interest.” HARP is unaware of the criteria used by country desk officers to make such determinations. In several instances, these determinations of cultural significance and national interest appeared to be connected to the uniqueness of the exhibits. First-time loans from foreign lenders to U.S. institutions was the most compelling argument. Therefore, the State Department accommodates borrowers and lenders and has no procedure in place to assess independently the quality of the applications and the veracity of the borrowers' statements. It is unable to challenge the provenance information supplied by either or both parties.

Based on the information provided by the State Department through the FOIA disclosure, HARP concludes that the immunization from judicial seizure process relies almost exclusively on attestations made by the lenders, the borrowers, the country desk officers, and the unit of the State Department which certifies cultural significance. There is no empirical process in the granting of immunity from judicial seizure for art objects that allows HARP to conclude that the State Department is in a position to challenge the certifications made by the borrowers.

If the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act (S. 3155) becomes law, the systemic inability of the State Department to ensure that the applicant certification is properly supported or documented would create a significant risk for stolen artworks to come into the country through temporary exhibits.

EXHIBIT A

Documents Obtained through the FOIA Request from the State Department
Exhibit: Fine Arts Museum of San Francisco [Royal Treasures from the Louvre: Louis XIV to Marie-Antoinette]

1/ federal register
2/ public notice
3/ additional background
4/ immunity from judicial seizure application
5/ inventory supplied by the lender-Louvre Museum
6/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
7/ correspondence between borrower and State

Exhibit: Frick Collection [Mantegna to Matisse: Drawings from the Courtauld Gallery]
1/ Federal register
2/ public notice
3/ additional background
4/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
4a/ scholarly statement in support of application for a determination of cultural significance
5/ list of foreign loans and provenance

Exhibit: Museum of Fine Arts, St. Petersburg, FL [Ancient Egypt: Art and Magic: Treasures from the Foundation Gandur pour l’Art, Geneva, Switzerland]
1/ Federal register
2/ public notice
3/ revised request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
4/ borrower press release
5/ checklist of objects
6/ initial request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
7/ appendix checklist possibly supplied by borrower in spreadsheet fashion with photographs
8/ scholarly statement supplied by borrower in support of application for a determination of cultural significance
9/ correspondence between borrower and State

Exhibit: Metropolitan Museum of Art [Matisse: In search of true painting]
1/ correspondence between borrower and State
2 /press release by borrower
3/ federal register
4/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
5/ checklist of items with provenance supplied by borrower
6/ public notice
7/ additional background
8/ list of domestic-owned objects in the exhibit—no provenance given except the name of lending institutions

Exhibit: Metropolitan Museum of Art [Woman in Blue, Against blue water, by Edvard Munch]
1/ federal register
2/ public notice
3/ additional background
4/ immunity file checklist
5/application by borrower for immunity from judicial seizure with full provenance

Exhibit: University of Chicago Library [Swiss treasures: from biblical papyrus and parchment to Erasmus, Zwingli, Calvin and Barth]

1/ additional background
2/ provenance statement—more like a certification—submitted by the borrower
3/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
4/ public notice
5/ checklist from multiple lenders containing statements of curatorial significance and history of ownership for each object
6/ federal register

Exhibit: Princeton University Art Museum [Dancing into Dreams: Maya Vases from the Ik’Kingdom]

1/ federal register
2/ public notice
3/ additional background
4/ cultural significance certification statement
5/correspondence between borrower and State
6/ exhibition checklist submitted by borrower
7/ request for immunity from seizure as “a courtesy” to the lender.

Exhibit: Fine Arts Museum of San Francisco/Peabody Essex Museum [Impressionists on the water]

1/ federal register
2/ public notice
3/ additional background
4/ checklist/schedule of exhibit items submitted by the borrower
5/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
6/ correspondence between borrower and State
7/ inventory/checklist contains deleted names of private collectors who loaned their works to the exhibit.

Exhibit: Milwaukee Art Museum [Impressionism: Masterworks on paper]
1/ federal register correspondence
2/ public notice
3/ request from borrower to State to make a determination of “cultural significance” and exhibit is in the “national interest”
4/ table of contents/checklist for applicant
5/ additional background
6/ schedule of works and their source/not provenance

Exhibit: Fine arts Museum of San Francisco [Girl with pearl earring: Dutch paintings from the Mauritshuis]

1/ correspondence
2/ request for cultural significance and national interest determinations
3/ certification of provenance included in its application for immunity
4/ federal register
5/ public notice
6/ additional background













[1] Marc Masurovsky is a historian, researcher, and advocate, specializing in the financial and economic underpinnings of the Holocaust and World War II. Marc holds a B.A. in Communications and Critical Cultural Studies from Antioch College and an M.A. in Modern European History from American University in Washington, DC. He worked at the Office of Special Investigations of the US Department of Justice researching Byelorussian war criminals. Marc advised the Senate Banking Committee in the mid-1990s on the involvement of Swiss banks in the Holocaust, and then lent his expertise to plaintiffs’ counsels suing Swiss banks on behalf of Holocaust survivors. Since 1997, Marc has focused his attention on the fate of objects of art looted by the Nazis and their Fascist allies, and was a founder of the Holocaust Art Restitution Project. He played a major role in the January 1998 seizure of Egon Schiele’s “Portrait of Wally” and “Night City III” at the Museum of Modern Art of New York and was a director of research for the Clinton-era Presidential Advisory Commission on Holocaust Assets in the United States (PCHA). Since 2004, Marc has overseen the creation, development and expansion of a public online database of art objects looted in German-occupied France that transited through the Jeu de Paume in Paris from 1940 to 1944.

Pierre Ciric is a founding partner of the Ciric Law Firm, PLLC, a boutique law firm specialized in commercial litigation services for businesses, nonprofit organizations and individuals, and in cultural heritage law. Pierre received his J.D. from New York Law School. Pierre represents French, American and European business and individual clients in the United States. Most notably, Pierre recently successfully settled a Nazi-looted art case representing the heirs of a French Jewish family seeking to obtain restitution of a Camille Pissarro painting from an American university. He also obtained restitution of an important “Judaica” religious object on behalf of an Eastern European Jewish community from an American collector. Pierre is a lawyer admitted to the New York Bar. He is the Vice President of the French American Bar Association, a member of the Professional Ethics Committee of the New York County Lawyers Association, and a Vice President of the New York Law School Alumni Association.

28 May 2015

Stop the illegal sale of sacred Hopi artifacts by EVE auction house in Paris on June 1, 2015!

Editor’s note: We are publishing a letter co-signed by a group of dedicated scholars and museum directors who are outraged that the French government is allowing for the sixth time in over a year the illegal sale of sacred Hopi artifacts through an auction house called EVE. The sale is slated for June 1, 2015. A seventh sale is slated for June 10, 2015. The Conseil des Ventes Volontaires (Council of Voluntary Sales) is a regulatory body which oversees the French auction market. In past attempts to stop these sales, the CVV defiantly noted that the history of ownership or provenance of the objects is merely optional and, more importantly, the Hopi or any other indigenous group or tribe has no legal standing in France to assert a claim of ownership on their objects which, oftentimes, reach the market illicitly.

In the case of these Hopi artifacts referred to as “friends” by their rightful owners, the Hopi, these objects are entering the French market after circulating through a semi-clandestine black market in the United States populated by thieves and established dealers from the Southwest to the hallowed streets of Manhattan in New York City. Under the very nose of the FBI, the Department of State, and the Department of Homeland Security, these ill-gotten objects have left US territory for one reason and one reason only: they cannot be sold legally in the US and the French are more than happy to welcome them so that they can be sold off to a predominately ignorant public despite a permanent cloud on their title.

In order to stop the June 1, 2015, of the claimed objects, a letter is being sent to François Hollande, President of France.]



May 27, 2015



The Honorable François Hollande

Président de la République Française

Palais de l’Elysée

55, rue du faubourg Saint-Honoré

75006 Paris

FRANCE



BY EMAIL & TELEFAX



RE: AUCTION SALE OF SACRED HOPI OBJECTS SCHEDULED FOR JUNE 1, 2015



Mr. President Hollande,



We, the undersigned, are the directors or leaders of several large U.S. institutions with significant collections and interests in Native American art and culture. Collectively, our staffs consist of leading scholars in the field of Native American studies who have significant and long-standing expertise and knowledge of the culture of Native American groups in the Southwest United States, including the Hopi Tribe and the New Mexico Pueblo tribes. Over the past 3 years, we have been appalled by the continued willingness of auction houses in Paris, and in particular the EVE auction house, to proceed with sales which include items described by the Hopi Tribe as “katsina friends,” and that the auction houses have offensively described as “masques katsinam.”



Several of us have, on prior occasions, requested that these auction houses withdraw the katsina friends from sale and that these sacred, communally owned objects be promptly returned to the Hopi and other Pueblo tribes who are their rightful owners. As we have explained in the past, the katsina friends are communal property and cannot be sold by any tribal individual. Furthermore, while katsina friends can be held and cared for by individuals, they belong to the communities from which they come and are cared for by specific ceremonial societies or clans. Under both tribal custom and tribal, state and federal law, they cannot be sold or given away by any individual. As a result, they cannot be legitimately privately owned by individual collectors or institutions, as legal title under tribal, state and federal law could never pass to anyone other than the applicable tribe. Thus, the sale of such items constitutes the sale of stolen property, which is obviously legally prohibited, both in the United States and around the world. While the Hopi Tribe first enacted statutes specifically prohibiting the sale of katsina friends and other communal religious objects in the 1970s, the Hopi and other tribes have openly and notoriously prohibited such sales by communal law and custom since the first contact with non-Natives in the Southwest.

Today, the sale of such objects violates various federal, state and tribal statutes that protect the United States’ cultural resources and tribal property, and prohibit trafficking in stolen goods and various species of birds. In addition to these laws, U.S. case law has clearly established that buying or selling katsina friends is a crime under the Native American Graves Protection and Repatriation Act (“NAGPRA”). EVE auction house’s statements that NAGPRA does not have criminal prohibitions on the trafficking in katsina friends or in other NAGPRA defined sacred objects and objects of cultural patrimony are a blatant and offensive misstatement of U.S. law.

As such, we are shocked to hear that the EVE auction house has, yet again, scheduled another sale that includes the illegal sale of several katsina friends for June 1, 2015 in Paris.

As we have indicated on prior occasions, we can reasonably assert that the proposed sale of these katsina friends, and the international exposure of them, is not only illegal, but is causing and will continue to cause significant outrage, sadness and distress among members the affected tribes. For them, katsina friends are living beings, which is why they are called “friends” (kwatsi) in the Hopi language. The friends are loved, cared for, and ceremonially fed. They are a connection between the human world and the spirits of all living things and the ancestors. To be displayed disembodied in an auction catalogue and on the internet is sacrilegious and offensive. If one claims to value these katsina friends as “works of art”, one must also respect the people who made them and the native traditions that govern their ownership and use. As fellow human beings, it is our hope that you will offer understanding and empathy to the tribal people who are so deeply damaged and affected by this proposed sale. You cannot honor and value these katsina friends while dishonoring their rightful owners. These are universal principles of cross-cultural human conduct which France has continuously endorsed throughout World history.

Furthermore, we are highly concerned to have learned that, twice already, the Hopi Tribe and their representatives have attempted to suspend prior auction sales in Paris through a body controlled by your government, called the “Conseil des Ventes Volontaires (or “CVV”), which has the power to suspend auction sales or to force the withdrawal of certain objects from a sale where sufficient doubt exists on the provenance of these objects. We were especially appalled to learn that, twice, the CVV refused to withdraw katsina friends in prior proceedings by holding the incomprehensible position that neither the Hopi Tribe, nor individual Hopi tribal members, had any legal standing to challenge these sales. This grotesque jurisprudence flies in the face of the long-standing recognition of Native American tribal sovereignty and the fact that U.S. law clearly establishes that federally recognized Indian Tribes have the power to sue in any number of matters. The Hopi Tribe is an ancient culture — with more than 14,117 enrolled members today — that has remained steadfast to its culture, language, heritage and spirituality. It is also a sovereign nation federally recognized by the U.S. government and should be treated accordingly.

Additionally, we are quite troubled by the lack of legal equity and apparent prejudice that the French legal system opposes against American parties, such as Indian Tribes, while at the same time, French museum institutions are the first ones to seek and successfully obtain the leverage of the American legal system when they are plaintiffs in claims involving cultural property stolen in France and subsequently transferred to the United States.

On behalf of the undersigned museums, we request your official intervention to stop the June 1 auction of the katsina friends, and do everything in your power to obtain their swift and prompt restitution to the Hopi people.

Sincerely,

Robert Breunig, Ph.D.
President
The Museum of Northern Arizona

John Bulla
Interim Director & CEO
Heard Museum


Janice Klein
Executive Director
Museum Association of Arizona

Jonathan Batkin
Director
The Wheelwright Museum of the American Indian

Michael F. Brown
President
School for Advanced Research

Christoph Heinrich, Ph.D.
Director
Denver Art Museum



Cc: Gérard Araud
Ambassador of France to the United States
The Embassy of France to the United States
4101 Reservoir Road, N.W.
Washington, D.C. 20007
By e-mail: Gerard.araud@diplomatie.gouv.fr



Cc: Cabinet de la Présidence de la République



M. Jean-Pierre Jouyet
Secrétaire général
By e-mail: jean-pierre.jouyet@elysee.fr

M. Thierry Lataste
Directeur de cabinet
By e-mail: thierry.lataste@elysee.fr

M. Jacques Audibert
Conseiller diplomatique
By e-mail: jacques.audibert@elysee.fr

Mme Audrey Azoulay
Conseillère Culture et communication
By e-mail: Audrey.Azoulay@elysee.fr

Mme Françoise Tomé
Conseillère Justice
By e-mail: francoise.tomé@elysee.fr

M. Adrien Abecassis
Conseiller Affaires Bilatérales
Cellule Diplomatique
By e-mail: Adrien.abecassis@elysee.fr


Christiane Taubira
Garde des Sceaux, Ministre de la Justice
13, Place Vendôme
75042 Paris Cedex 01 FRANCE
Fax : (011) 33-1-44-77-60-02
By e-mail: Christiane.Taubira@justice.gouv.fr

Anne Berriat
Directrice adjointe de cabinet
By e-mail: Anne.Berriat@justice.gouv.fr

Carle Deveille-Fontinha
Conseillère Diplomatique
By e-mail: Carla.deveille-fontinha@justice.gouv.fr



Fleur Pellerin
Ministre de la Culture et de la Communication
3, rue de Valois
75001 Paris FRANCE
BY e-mail: Fleur.Pellerin@culture.gouv.fr
Fax: (011) 33-1-40-15-85-30

Fabrice Bakhouche
Directeur de cabinet
By e-mail: fabrice.bahouche@culture.gouv.fr



Laurent Fabius
Ministre des Affaires étrangères et du Développement international
37 Quai d’Orsay
75007 Paris FRANCE
Fax : (011) 33-1-43-17-40-94
By e-mail: Laurent.Fabius@diplomatie.gouv.fr

Alexandre Ziegler
Directeur de cabinet
By e-mail: Alexandre.Ziegler@diplomatie.gouv.fr

M. Benoît Guidée
Conseiller des affaires étrangères, Asie, Amérique
By e-mail: benoit.guidee@diplomatie.gouv.fr



Catherine Chadelat
Conseillère d’Etat
Présidente
Conseil des Ventes Volontaires
19 Avenue de l'opéra
75001 PARIS, France
By e-mail : c.chadelat@conseildesventes.fr
Par Fax: 01-53-45-89-20

Cc: John McCain
U.S. Senator for the State of Arizona
U.S. Senate
241 Russell Senate Office Building
Washington, DC 20510
Phone: (202) 224-2235
Fax: (202) 228-2862



Jeff Flake
U.S. Senator for the State of Arizona
U.S. Senate
Senate Russell Office Building 368
Washington, D.C. 20510
Phone: 202-224-4521
Fax: 202-228-0515



Ann Kirkpatrick
U.S. Representative, Arizona First District
U.S. House of Representatives
201 Cannon HOB
Washington, DC 20515
Phone: 202-225-3361
Fax: 202-225-3462



Raoul Grijalva
U.S. Representative Arizona Third District
U.S. House of Representatives
Washington, D.C. Office
1511 Longworth HOB
Washington, DC 20515
Phone: (202) 225-2435
Fax: (202) 225-1541

Paul Gosar
U.S. Representative, Arizona Fourth District
U.S. House of Representatives
504 Cannon HOB
Washington, DC 20515
Phone: (202) 225-2315

Matt Salmon
U.S. Representative, Arizona Fifth District
U.S. House of Representatives
2349 Rayburn House Office Building
Washington, DC 20515
Phone: (202) 225-2635
Fax: (202) 226-4386

David Schweikert
U.S. Representative, Arizona Sixth District
U.S. House of Representatives
1205 Longworth House Office Building
Washington DC, 20515
Phone: (202) 225-2190
Fax: (202) 225-0096

Trent Franks
U.S. Representative, Arizona Eighth District
U.S. House of Representatives
2435 Rayburn HOB
Washington, DC 20515
Phone: (202) 225-4576
Fax: (202) 225-6328

Krysten Sinema
U.S. Representative, Arizona Ninth District
U.S. House of Representatives
1237 Longworth House Office Building
Washington, DC 20515
Phone: 202-225-9888

Cc : Her Excellency, Jane D. Hartley
U.S. Ambassador to the French Republic and to the Principality of Monaco
U.S. Embassy in France
2 avenue Gabriel
75382 Paris Cedex 08, France
Fax: (011) 33-1-42669783
By e-mail: HartleyDJ@state.gov

The Honorable Loretta Lynch
Attorney General
United States Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001 U.S.A.
By e-mail: loretta.lynch@usdoj.gov

The Honorable James B. Comey
Director
Federal Bureau of Investigation
935 Pennsylvania Avenue, NW
Washington, DC 20535-0001 U.S.A.

Sally Jewell
Secretary of the Interior
Department of the Interior
1849 C Street, N.W.
Washington DC 20240 U.S.A.
By e-mail: sally_jewell@ios.doi.gov, sallyjewell@ios.doi.gov, sally.jewell@ios.doi.gov,
exsec_exsec@ios.doi.gov

Herman G. Honanie
Chairman
Hopi Tribal Council
Fax: (928) 734-6665
By email: hopicouncil@hopi.nsn.us
P.O. Box 123
Kykotsmovi, AZ 86039
By e-mail: HeHonanie@hopi.nsn.us

Cc: Ori Z. Soltes
Director
Holocaust Art Restitution Project, Inc.
c/o 5114 Westridge Road
Bethesda, MD 20816-1623
By e-mail: orisoltes@gmail.com

Pierre Ciric, Esq.
Member of the Firm
The Ciric Law Firm, PLLC
17A Stuyvesant Oval
New York, NY 10009
By e-mail: pciric@ciriclawfirm.com

06 April 2015

The Gurlitt Affair: A canary in the coal mine?

by Ori Z Soltes

Surrounded by all kinds of interesting and problematic details, there are three large issues that stand out in the now-notorious case of Cornelius Gurlitt and his extraordinary hoard of paintings. One is that, having stumbled on this cache, between September, 2010—when Cornelius Gurlitt came back over the border from Switzerland, loaded with the residual of the cash that he had earned by selling yet another one of those paintings left to him by his late father, Hildebrand; suspicious of the volume of cash, the German authorities obtained a warrant to enter his apartment in Munich and found it piled high with some 1379 works—and its seizure in March, 2012 with the dubious provenance questions that more than 500 of these raised, (given, in particular, the fact that Gurlitt's father, Hildebrand, had been a major art buyer for Hitler's LinzMuseum project, in spite of having a Jewish grandmother), it took the Germans another eight months to let the world know that the cache existed.

The second is that, having done so, the Germans announced that a committee would be organized to examine the paintings, since they obviously do present Holocaust-era plunder questions--however they both remained secretive as to who would be on this committee, excluded some of the most skilled and experienced provenance researchers whom I at least know, and their politicians tied the hands of those on the committee, to the extent that key members of it threatened to quit. The third issue is that, sometime after this process began—after this mysterious process with its various legal and moral sides and aspects began its plod, and after, in the course of it all, the 84-year-old Gurlitt died (in May, 2014)—it emerged that there was a second cache of more than 260 paintings and drawings that had been kept in Gurlitt's farmhouse outside Salzburg, Austria that first came to light in February, 2014, and that the entire hoard had been left, in his will, to the Kunstmuseum (Museum of Fine Arts) in Bern, Switzerland.

This third issue presents at least one question and one serious practical problem. The question is how it came about in the first place that the Bern Museum—rather than, say, some Museum in Germany, where Gurlitt lived and died—received such a substantial inheritance. How was the relationship that led to this outcome forged? What, for example, might have been the role of the museum in who knows how many transactions in the previous half-century and more, during which Gurlitt never held a job, but lived by periodically selling paintings from his collection—in Switzerland?

If this question may never be answered, the practical problem is at least as troubling. In accordance with the arrangements outlined in the will, the Bern Museum will use its own staff resources exclusively to explore the provenance histories of all of these paintings—in 90 days—and its opinions/decisions will be final. Those of us who have worked in the provenance-research trenches are all too aware of how slow the process can be and therefore of how unlikely it is that honest and forthright, definitive conclusions can be drawn so quickly about so many works by so small a group of potential researchers (of relatively limited experience in this matter) in such a short period of time. HARP’s letters to the Museum Director have not yielded anything resembling a satisfactory response.

But the question is: why should anyone care about these three issues? The answer in broad, emotional terms is that all three of them pull at the meta-issue of justice, and whether it will be—or can be—done. More specifically, they pull at justice as it pertains to the enormous matter of the Holocaust and the specific subset of that matter that focuses on the plunder of cultural property—and what that act of plunder, and the failure to see property that was plundered restituted to those from whom it was forcibly taken (or to their surviving heirs), signifies about justice and/or the lack of justice in a post-Holocaust world.

There are more specific historical concerns that these three issues raise, however. If, as Martin Luther King, Jr. once famously observed, "the arc of the moral universe is long, but it bends toward justice," the arc of the specific history of Germany, Austria and Switzerland as it pertains to Holocaust-related justice has been an instructive one. In general, as everyone knows, the Holocaust was an event that in the immediate aftermath of the war provoked some outrage and a desire to punish the perpetrators and some of the major figures, like Hermann Goering and Joachim von Ribbentrop were sentenced to death. But that first period past quickly, and the Holocaust was shortly all but ignored between the time of the Nurnberg Trials and the Trial of Adolph Eichmann in 1961.

The latter event, coupled six years later with the outbreak of the Six-Day War of June, 1967, between Israel and multiple Arab nations—just prior to which it appeared more than possible that Israel, with its 2.5 million Jews, would be annihilated; a few million Jews massacred while the world stood by and shrugged its shoulders, which possibility dredged up historical memory barely two decades old—began the process of bringing the Holocaust to the surface of particularly European and American Jewish and non-Jewish consciousness. This is the time-frame in which Yad VaShem came into existence in Jerusalem and within a decade of the June War the US Holocaust Memorial Museum was being planned in Washington.

Where Germany in particular is concerned, members of the Taetergeneration ("Perpetrator Generation"), who carried out the war, including thousands of former Nazis, after the first burst of show-trial sentencings had been carried out—by American, British, French and Russian judges, not by the Germans themselves—found plenty of jobs during the post-Nurnberg period in the civil service and even in the government, including some 25 Cabinet members and a President. This is what the journalist Ralph Giordano called Germany's zweite Schuld: "second guilt." Nobody was interested in the Nazi past; it was only in 1958 that West Germany established a central office for investigating war crimes--and with little real power, at that. The German judiciary did little with regard to former Nazis—how could it, since it was itself studded with former Nazis? The legal terms under which individuals might be found guilty of war crimes were narrow enough that very few could or would end up serving time for them. Of perhaps 6,500 members of the SS to survive the war, fewer than 100 were tried in German courts and only 50 were convicted.

All of this began slowly to change in the world at large as well as in (West) Germany by the 1970s, when the wartime pasts of a growing number of former Nazis living comfortably in the United States were uncovered. The culmination of change arrived to Germany with the trials of John (Ivan) Demjanjuk, an autoworker living and working outside Cleveland. After being deported from the United States, being tried and convicted in Israel for crimes allegedly committed in Treblinka and having his sentence overturned by an appeal to Israel’s Supreme Court, Demjanjuk was sent back to the US but with his citizenship revoked and ended up sent to Germany, where he was eventually found guilty of crimes committed at Sobibor.

The point is this: he had originally been accused and found guilty of being someone who in the end he was said not to have been—“Ivan the Terrible,” a brutal guard at Treblinka—but, by virtue of having been a guard at Sobibor, regardless of particular actions that he did or did not commit, he was found guilty of having been part of the “extermination machinery.” Although John Demjanjuk died (he was 89, by then) while awaiting the outcome of an appeal, the German authorities and media largely regarded this as a turning point in German legal history, since it suddenly opened up new possibilities with regard to punishing former Nazis. One might say the process begun in Israel with the Eichmann trial culminated in Germany with the Demjanjuk trial.

The further point is this: that although in the matter of such legal proceedings, the turning point came only early in the new millennium, the psychological groundwork was being laid for thirty years, evidenced by the explosion of Holocaust memorials, large and small throughout Germany, the renaming of streets in cities like Berlin to draw attention to prominent Jews whom the Nazi regime had destroyed, and by laws making it illegal to deny the Holocaust. Where Nazi-plunder art and cultural property is concerned, by the late 1990s and the beginning of the new millennium the Germans were ahead of the curve of most of the rest of the world in how broadly the term “plunder” was defined by them and in their willingness, indeed apparent desire, to address victims and their heirs who put in claims for restitution in an equitable manner.

At around the same time—from the mid-1990s to the end of the first decade of the new millennium, changes might also be felt elsewhere, as, for instance, in Austria and Switzerland. For half a century the Austrians had claimed that, in the Anschluss they were the Nazis’ first victims; by the end of the 1990s they were officially acknowledging how enthusiastically they had embraced the Nazis and how eagerly they had followed and even exceeded Nazi prescriptions for dealing with their Jewish neighbors. The Swiss had claimed to have remained successfully neutral due to the German fears of engaging their brave soldiers in the treacherous Alps. By the end of the millennium they were acknowledging that their role—particularly in the realm of plundered art, with regard to its sale and trade on the open market—had been essential for the Nazis, and that this had facilitated their unmolested neutrality. Swiss banks that had refused to turn over accounts to the heirs of Nazi victims (“Can you show me proof of your father’s death—perhaps his death certificate?” “They did not hand out death certificates at Auschwitz!”) were beginning to make the process of claiming such accounts more reasonable, in part under pressure from the US.

One of the concomitants of all of this was that, in general terms, anti-Semitism seemed to be on the wane; gradually from the 1970s through the new millennium’s first decade, it at least became increasingly unfashionable to make anti-Semitic statements or to engage in acts that could be called anti-Semitic—in general and particularly in Germany, Austria, Switzerland and other countries that had actively assisted the Nazi extermination of Jews.

So why are the three large issues associated with the Gurlitt affair so significant? Why, aside from the meta-issue of justice and whether or not it gets carried out, in general terms or in the specific terms of the Holocaust, its perpetrators and victims—or in the sub-specific matter of cultural property, provenance, theft and restitution? Because these issues suggest a disturbing pattern wherein the arc of history is curving back upon itself.

During the last several years—the years when the Germans remained silent for 8 months regarding Gurlitt; and when they opted for an obscure and unforthright path with respect to researching his collection’s provenance history; and when the museum in Bern has seen fit to violate legal/moral assertions championed in 1998 in the so-called Washington Principles as well as the principles regarding provenance research and its concomitants heralded by ICOM (of which august international museum organization the Bern Museum is a member)—there has been a precipitous rise in anti-Semitism. What was unsayable a decade ago can be heard with ever-growing frequency. What cannot be directly said is said by proxy in some quarters—most often by condemning Israel for behavioral patterns that are exhibited in many places across the planet but ignored by those same Israel critics.

As troubling as the Gurlitt affair is in its own capacity, what it signifies with regard to the turning back of Germany—and Switzerland—toward a very dark place from which they both seemed to have emerged not that long ago is very disturbing indeed. Placed against the backdrop of a large look at the world and what appears to be an unshakably negative attitude towards Jews and Judaism to which far too many individuals resort whenever socio-economic or political conditions become difficult or complicated, the Gurlitt affair feels like a canary in the coal mine, whose quiet death warns us and asks the question: when will the breathable air run out?

13 February 2015

Provenance research workshop in New York City, April 16-17, April 23-24, April 30-May 1, 2015

by Marc Masurovsky

Should it be viewed as a "miracle"? Not really.

How hard is it to organize an event such as a provenance research workshop?

Make the decision to do so.

Find a venue.

Find a host.

Design the program.

Finalize it.  And you're on your way.

The key to all this is to have the will to do so. Not that many people do not have the will to do so.

But the discussion around provenance research has been so contaminated and is so fraught with political and ideological, read partisan, undertones, that even the overtones are tainted and do not sound right.

In an effort to take the politics out of the discussion on provenance research, the purpose of this workshop is to provenance where it belongs---in history, law and ethics.


Researching a provenance is not God's work, nor is it a recipe for cracking time travel. It is simply geared to help us understand the history of ownership of objects.

The key to research, ssshhhh!, is to keep on asking questions until you are completely and entirely satisfied with the answers to your questions.

You are not going to get all the answers that you want and need, especially with works on paper, decorative objects and other assorted objects which have not attracted the attention of art historians and other experts. But if you come to the workshop, you will be able to clarify how best to handle these incomplete "provenances."

Ok. Enough said.

Here is the official announcement. We hope to see you in New York City at some point in the second half of April 2015.

The application link is here

https://nyls.wufoo.com/forms/artrelated-provenance-research-application-page/



30 January 2015

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.

04 January 2015

HARP and the Hopi Tribe


by Ori Z. Soltes, President, the Holocaust Art Restitution Project, Inc. (*)
Protest outside Hotel Drouot auction house in Paris


The Holocaust Art Restitution Project (“HARP”) was founded in 1997 to perform research pertaining to cultural property that was plundered during the Nazi period and never recovered by its original owners. This was by definition a mandate with expandable parameters. The contexts of plunder and its aftermath prove variable: while most works were stolen by the Nazis, the Soviet “Trophy Brigades” notoriously plundered from the Germans without concern as to whence the Germans had gotten such loot—for the USSR, which suffered quantitatively and qualitatively beyond what most others, certainly Americans, can imagine, whatever they brought back to their own museums was small compensation for what they had lost in lives and cultural property destruction—and allied soldiers more than occasionally walked off (or in the most egregious case, that of Joe Tom Meador, sent home in plain-wrapped boxes) with important artifacts, most often from German sites. Objects ended up not only in museums, but—thanks to an art market that flourished throughout the war without thought as to the fate of those individuals, families, galleries or museum collections from which the objects had come—in private galleries and in turn private hands and homes.
42nd "Rainbow" Division in all its glory

The common denominator in all of this is the manner in which greed can and did blind so many plunderers and their accomplices, both during and for decades after the war. It offers a parallel to the larger truth regarding the human species: that we can be and have historically been immeasurably destructive, that we alone turn torture into an art and killing into a science. We who can be so extraordinarily creative—who produce drawings and paintings and sculptures and edifices, as well as poetry and music, theater and dance—have an intensely dark side; the Taliban and ISIS destroy cultural property; Hitler and his minions destroyed, but also hoarded, traded and sold unprecedented quantities of it—and there was a host of enablers both then and since then for whom the possibility of direct or indirect profit or simple selfishness means that the issue of Nazi-plundered cultural property continues to be before us 70 years after the last wartime guns were fired.

For HARP, the common denominator in our research has been the desire, during the past 15 years, to offer some counterweight to these forces, to push the scales of justice toward some balance in the manner of continuing the sort of work—done in the immediate aftermath of the war, but with insufficient resources and for too brief a period of time—that can restore cultural property to those individuals from whom and those institutions from which it was forcibly taken, whether at gunpoint or at pressure point. It has been and always will be a daunting task; the issue is scaled as biblical Goliath was said to have been facing David, here HARP.

Our taste for justice, however, is not limited. There is a peculiar logic to our having taken up a cause that apparently has nothing to do with the Holocaust, but everything to do with that taste, inherent in a mandate such as ours. Sacred objects belonging to the Hopis and, as the issue has expanded, to Navajos and Zunis—and no doubt other Native American groups—have, like other sacred objects from diverse cultures across the planet, been plundered, destroyed, transferred, sold, purchased by museums and private individuals motivated by the same sort of impulses that motivated Nazi plunderers and their gallery and museum accomplices during and after World War II, Soviet hoarders and American GI thieves. The emergence during the past two decades of an awareness of this unsolved problem has followed a growing awareness of the importance of recognizing the integrity of indigenous peoples everywhere and of protecting their cultural and religious rights. Thus the two “types” of plunder injustice have finally become linked. They are linked, too, by a common principle: those with the power and experience to hold onto what they have taken (or others have taken on their behalf) use that power and experience to maintain a tenacious hold on their booty against the attempts of the plundered to regain possession of their property.

Twice now, within the past six months, an auction house in Paris and its regulatory oversight body, have ignored history, justice and the ethics that they pretend to uphold as civilized champions of culture, placing scores of sacred objects plundered from the Hopis and other American Indian tribes up for sale. The auction house ignored the question of provenance, (in the second auction going so far as to deliberately mislead would-be buyers by announcing in its catalogue that no objects up for sale had any provenance questions or problems attached to them), the issue of the indigenous peoples’ cultural and religious rights—and in the case of its regulatory oversight body, the French Conseil des Ventes, (“Board of Auction Sales”) offered its ruling on this matter, in favor of the auction house, by denying the standing, i.e. the legitimacy and indeed the very existence, as such, of the Hopis and other American Indian tribes as other than a vague group with a name apparently not found in the French dictionary.

That HARP should have taken up this cause on behalf of the Hopi tribe, to use our experience and our expertise to argue on their behalf that the auction of such artifacts not take place—the first time as an advocate, the second time as an advocate with the Power of Attorney to represent the Hopis and their Chairman—falls well within the bounds of our larger mission of seeking justice for those whose cultural property (and in this case, religious property) has been plundered and never returned to them. The same greedy motivation impelled and impels the auction house and the participants in its process, including the French Government, of continuing to despoil a particular group of its possessions and its heritage, without concern for how and when and why such artifacts were taken from their original locations in Arizona. The same desire to offer some balance to this stance that impels HARP’s interest in Nazi-plundered art has motivated HARP’s participation in fighting to get the artifacts off the market and on a trajectory back to those who made them and use them for cultural and religious purposes.

There is a particular and somewhat ironic feature in this: the French have a rather spotty, if not appalling record with regard to returning Nazi-plundered cultural property to families from which it came when holes in the national museum collections could be nicely filled by some of that property. That they have, in this latest instance of moral blindness, twice ignored their own stated position as part of the Western world regarding the reality and rights of indigenous peoples and instead have stood on the edge of legal technicalities to avoid pursuing an ethical course echoes the perspective that led so many Holocaust-era objects—from Louis XIV furniture to paintings—to remain in state museums.

HARP will continue, when asked to do so, to push those who pretend that cultural and religious property taken from its original owners ceases to have a connection to those owners simply because it has passed from hand to hand and now hangs in a public museum or is displayed in an auction house or has been purchased by a buyer who chose and/or chooses not to ask questions as to where his or her prize came from and how it left its original home.



(*) Ori Z. Soltes teaches at Georgetown University across a range of disciplines, from theology and art history to philosophy and political history. He also is the former Director of the B’nai B’rith Klutznick National Jewish Museum in Washington, DC, where he curated exhibitions on a variety of subjects from archaeology to ethnography to contemporary art. He has taught, lectured and curated exhibitions across the country and internationally. He also is the author of over 230 articles, exhibition catalogues, essays and books on a range of topics. Recent books include The Ashen Rainbow: The Arts and the Holocaust; Our Sacred Signs: How Jewish, Christian and Muslim Art Draw from the Same Source; Searching for Oneness: Mysticism in Judaism, Christianity and Islam; and Untangling the Web: A Thinking Person’s Guide to Why the Middle East is a Mess and Always Has Been. Ori, along with HARP’s team, was also involved in a number of restitution matters, such as providing the historical research and background with regard to Egon Schiele’s “Portrait of Wally” case, as well as the restitution of “Odalisque”, a painting by Henri Matisse, to the Paul Rosenberg family.