Is Switzerland changing the way it views Nazi looted art?

by Marc Masurovsky 

Here we are in the early days of 2022, looking back at 2021 and wondering if anything good came of it, notwithstanding the pandemic, the million plus deaths from COVID-19 alone, the repeated closures of public and private institutions, the inability to travel safely, the high-stakes gamble everyone of us faces when we go shopping, mingle in public places, take public transportation in order to escape from our confinement at home while we dodge the wily virus. It knows no borders, harbors no partisan bias and treats everyone equally without due regard to age, gender, occupation, faith and political affiliation.

What’s going on in Switzerland? 

In December 2021 alone, a number of developments have reshaped the restitution map in Switzerland as reported in the Swiss and international press. Two names have largely taken over center stage in the Nazi looted art story and the way it permeates life in Switzerland: Gurlitt and Bührle. The former has been ubiquitous since the transfer to the Kunstmuseum Bern of the estate of the late Cornelius Gurlitt who bequeathed his collection to the Bern Museum—the remnants that he had inherited from his father, Hildebrand Gurlitt. The estate consisted of more than 1400 works, mostly on paper, which Gurlitt, Sr., had amassed throughout the Nazi era and in the immediate postwar years (he died in 1956). Gurlitt, Jr., gradually dissipated its contents as his sole source of income with which he eased himself into old age.

Kunstmuseum Bern

Cornelius Gurlitt

Since 2014, the Kunstmuseum Bern has weathered international criticism over its acceptance of the Gurlitt estate. Could it have turned down the bequest? The Gurlitt collection, it must be said, has been a toxic affair from the get-go as Bern has had to learn to coexist with the indelible Nazi taint that accompanied the works. Its only way out was to take the bull by the horns and to make a conscious and very public attempt at researching the origins of each work—an exercise in due diligence, something we expect from any museum, large or small. Even more frightening was the possibility that tainted items had to be restituted, something that Swiss museums have been loath to do since the late 1940s, with few notable exceptions, using the stale but highly effective of “good faith” to justify the non-return of loot. 

Emil Georg Bührle

December 2021 has turned out to be a very busy month in the Swiss world of museums and art restitution. First off, a Social Democratic lawmaker, Jon Pult, introduced a parliamentary motion to establish an independent commission in Switzerland that would make recommendations on Nazi-era claims. A cross between the UK’s Spoliation Advisory Panel and France’s CIVS with a smidgeon of Austria’s Provenance Research Commission. This motion was prompted (the proverbial straw that broke the camel’s back) following the news that the Kunsthaus Zurich had agreed to put on display 203 works from the collection of Emil Georg Bührle, a Swiss arms manufacturer who owed his fortune to his wartime dealings with the Axis powers and who frolicked on the international looted art market, buying up choice pieces confiscated from Jewish dealers in Western Europe. 

Kunsthaus Zurich

Several days after the announcement of Pult’s motion, the Zurich museum garnered headlines which should have prompted its director to hit the schnapps bottle. The Bührle incident triggered an international storm of disapproval and at least one Swiss Jewish artist demanded that her works be removed from the museum. Once the winds subsided, the museum ordered a group of experts to look into the wartime history of the paintings in Bührle’s collection. The kind of effort that had already been conducted in part or in whole by numerous researchers over the past several decades, including the New York-based Commission for Art Recovery. Will their findings be shared with the Kunsthaus experts? We don’t know but we sure hope so. 

Before Xmas 2021, the Kunstmuseum Bern announced that it would part with 29 works from the Gurlitt collection with a view to returning them to the rightful owners. Will it actually restitute them? Or will the museum seek a “fair and just solution” in order to retain custody of the objects under contention? 

As we get used to the humdrum of 2022 which strikingly resembles the din of 2021, let’s hope that Bern and Zurich come to their senses and forge an irreversible path towards a more ethical treatment of their collections.

Buehrle haunts Zurich

by Marc Masurovsky

In August 2015, a new book co-authored by Swiss historian and journalist, Thomas Buomberger, and art historian, Guido Magnaguagno, has called into question the ethics of Swiss arms manufacturer and major art collector, Emil Buehrle, in his wartime purchases of major paintings stolen by the Nazis in neighboring countries, mostly France and also from the Netherlands and from Germany.

Emil Buehrle

The book “Schwarzbuch Buehrle—the Buehrle Black Book” goes into great details regarding the dubious histories of many of the paintings, mostly Impressionists, which Buehrle had bought after they had been brought into Switzerland by dubious means, sometimes involving the German diplomatic pouch, other times, simply being shipped to Swiss dealers by who would then resell them to Buehrle.

Foundation Buehrle

The book’s publication coincided with the gradual transfer of the bulk of the Buhrle collection from the E. G. Buhrle Foundation to the Kunsthaus Zurich, to be displayed in a new wing of the Zurich museum completed in 2020. The question raised by the press is: can one morally defend the display of these works tainted by acts of genocide, especially in museums like the Museum of Fine Arts of Zurich that receive state subsidies?

According to contemporaneous press accounts, the Kunsthaus’ spokesperson, Bjoern Quellenberg, opposed a spirited defense of his institution against Mr. Buomberger’s criticism of the Zurich Museum’s policy regarding the Buehrle collection. Quellenberg dissented on several points with Buomberger’s critique:

On the one hand, he considered any works sold under duress as being different from “looted art” and therefore, legally, they should be treated differently. He emphasized that the Washington Principles of 1998 do not cover duress and only refer to works “confiscated by the Nazis.”

Technically, Quellenberg is right; the greatest failing of the Washington Principles is that they made no explicit reference to duress and forced sales, thereby endangering all claims for cultural objects displaced and misappropriated during the early years of the Third Reich within Germany proper. However, he is wrong in that subsequent international conferences and declarations on Nazi looted art have referred to duress or forced sales as constituting theft. Moreover, legal decisions outside of Switzerland have confirmed that duress sales are tantamount to State-sanctioned theft of property [Vineberg v. Bissonnette, involving a painting belonging to a Düsseldorf dealer, Max Stern, forced to sell his collection by orders of the Reich between 1935 and 1937.] Moreover, Swiss courts have never recognized as valid restitution claims involving works of art in Swiss institutions or collections which were misappropriated through duress or forced sales.

“Fluchtgut” or flight assets, according to Quellenberg, have no definitional legal basis, thus implying that objects falling under this category—sales out of necessity outside of Germany prompted by acts of persecution—cannot be considered as looted assets and should not be protected as restitutable property. At an international conference held in Winterthur, Switzerland, in 2014, the subject of “flight assets” was debated without any conclusive outcome. Opinions appeared to split along “party” lines—plaintiffs’ lawyers and their researchers leaning towards a more lenient reading of property sold by necessity in countries not under any short-term threat of invasion or occupation by the Nazis, as similar to “duress” sales, while others, mostly German and Swiss officials and museum professionals, feeling that this equation is a stretch.

A favorable reading on “flight assets” would affect thousands of objects having been sold out of necessity in Switzerland and pre-invasion Western Europe to help support fleeing German Jewish refugees who had been stripped of all of their property before their expulsion from the Third Reich.

With regard to the responsibility of the Kunsthaus to provide more background into the history of these displaced objects and how they entered Buehrle’s collection, Quellenberg was unequivocal: “we mainly focus on the works. We do not deal with the family history at all…”  This contention goes at the heart of museums’ responsibilities to re-contextualize in their proper historical framework objects under their care whose paths intersect with traumatic societal events during which the lives and fates of the owners of these objects change dramatically, affecting the ownership of these works; a subject worth sharing with the public.

Kuntdhaus Zurich

As we can see, there is a lot more work to be done in Switzerland and other countries, as far as the treatment of art objects is concerned. Once again, words carry an incredible amount of weight. The retelling of a story involving persecuted owners, broken chains of ownership owing to acts of persecution and other State-sponsored discriminatory policies, are an indelible part of the story of objects that we admire and study. It is the responsibility, both ethical and pedagogical, of museums to share these stories with museumgoers feasting their eyes on what they tout as “treasures.” In turn, these “treasures” should not be treated as “toxic material.”

Finally, it is unfortunate that there is still no consensus over definitions of “looted art,” “duress sales” and “flight assets.” Perhaps, 2017 should be the year when clear definitions are adopted, standardized and implemented by the international community in their respective nations.