The economics of restitution battles

by Marc Masurovsky

In an ideal world, the cost of seeking restitution of a Nazi-looted art object should not be a hindrance to achieving justice. The government, writ large, a State agency, a non-profit organization, domestic or international, would take on the burden of recovery of a looted cultural object, from the first notification to the current possessor that she holds title to property stolen during the Nazi era, to the final act of recovery, the physical transfer of the object to the rightful owner’s heirs complete with a transfer of title.

In the real world, the aforementioned scenario simply does not exist, and, if it does, it is as rare as the Hope Diamond.

There are no public or charitable organizations which have the resources to manage the restitution of a looted object from a to z, soup to nuts, from identification to recovery or settlement. However, there are many consultants both in the Americas and in Europe who are available to assist you in the recovery process, for a fee and not an insignificant one at that.

The Washington Conference on Holocaust-Era Assets of December 1998 failed to put in motion the procedures by which to assist claimants in their bid to recover their looted cultural assets at little or no cost. There was no political will amongst the participants at the conference to go beyond speeches and do the heavy lifting, as we call it, to convince their kinsmen back home to pass laws that would establish the appropriate mechanisms for expeditious and systematic restitution of looted assets. It never really happened. Austria might be an exception since it did pass a restitution law in 1999, partly as a reaction to the physical seizure of two paintings by Egon Schiele on display at the Museum of Modern Art of New York. Their possessor at the time was the Leopold Foundation, based in Vienna.

With no structure, no organization to fall back on, claimants have had few places to turn to. The Holocaust Claims Processing Office in New York is the only viable State-level agency (not Federal, a big difference!) which facilitates the claims process for Holocaust victims and their families.

The restitution process is a tedious and laborious affair fraught with emotions and riddled with obstacles. Hence the tendency among lawyers to recommend financial settlements that, in their view, at least address the moral dimension of the claim while leaving the object and title to the claimed object in the hands of the current possessor whose sole defense rests on arguing that she acted in good faith when purchasing the claimed object. In today’s parlance, this approach to the resolution of a cultural claim for Holocaust-era thefts and all of its variants is referred to as a “just and fair” solution, something that presumably should work for everyone but really does not.

In a world where most attorneys command high fees, there is little chance that, at those rates, a claimant can receive a modicum of legal advice unless the value of the object(s) that she wants returned exceed the hundreds of thousands or even reach millions of dollars or euros. And if she does recover, she needs to sell the object in order to settle her debts for legal representation predicated on a contingency fee arrangement, which usually runs at about one third of the market value of the claimed object.

The failure of the public sector to create effective, credible, and humane legal and administrative mechanisms to provide a forum for some form of justice for victims of cultural plunder, has relegated the resolution of these claims to the market place.

Technically, there is nothing wrong with that concept, except that the price tag is steep and out of reach for most people seeking restitution. The most popular works earning legal representation in restitution proceedings through private firms are works by Egon Schiele and Gustav Klimt which were at the bottom of the art world’s food chain until the 1970s and those produced by German Expressionists (Kirschner, Grosz), Impressionists and their progeny (from Monet and Pissarro to Cézanne and van Gogh), and, yes, Cubists (Pablo Picasso and Braque, most notably) and its variants (Fernand Léger). There is some room, of course, for top-flight Old Masters. When it comes to value, why discriminate?

The absence of political solutions to restitution claims—in the form of laws passed by national legislatures aimed at simplifying and/or fast-tracking claims for looted cultural objects, eliminating technical defenses (latches, statutes of limitations) used by possessors not to return claimed objects, thus driving legal expenses through the roof—has helped drive up the cost of justice, hence, the price of restitution of an object stolen during the commission of an act of genocide.

If the value of the claimed object falls below several hundred thousand dollars or euros, it complicates a lawyer’s commitment to achieve restitution (yes, this is an unfair statement but it is close to the reality that many claimants encounter) since mounting legal fees will quickly surpass the value of the object and thus drive into the negative the cost-benefit of restitution. Thus, if your family lost works and other objects now scattered across the globe, whose individual value may not rise past 50,000 to 100,000 dollars or euros, you might not be able to find a top-ranked lawyer to represent you. If your family lost a substantial collection of more than 50 or so “secondary” works produced in 17th century Europe, a lawyer might consider representing you to obtain restitution for those objects—they would be viewed as a “lot”-- that have been identified in present-day collections. Hence, we fall into the same logic—cost and benefit. Rightfully, a lawyer must ask: what’s in this for me besides the ephemeral headlines tied to “doing the right thing”? She runs a business, not a charity, so the saying goes. Mouths to feed, people to pay, rent, insurance and other costs add up. Time is also a factor: these cases tend to take an average of three to ten years to resolve, some stretching out over several decades, others ending miraculously quickly, as in two years or less.

Since the vast majority of objects stolen during the Nazi years were not “treasures” worth hundreds of thousands or millions in today’s currencies, the vast majority of the victims have not obtained restitution of their objects. As the years and decades go by, their stolen object are sold at auctions, displayed in galleries or museums, or, worst of all, hanging in a stranger’s living room.

The postwar restitution machinery was never designed to help the average victim. It was designed to recover treasures and high-end cultural objects thus restoring a country’s “greatness” from which those “treasures” were forcibly removed while offering substantial returns to their possessors and handlers. Is it mere coincidence why so much emphasis has been placed on the recovery of paintings by Egon Schiele, Gustav Klimt, Camille Pissarro, Pablo Picasso, Fernand Léger, Georges Braque, Henri Matisse, Antonio Canale, Caspar Netscher, Romanino, Amedeo Modigliani, Max Liebermann, Georg Grosz, Ernst Wilhelm Kirchner, etc., etc.?

The press, incidentally, is partly to blame for this state of affairs because it is so quick to respond to restitution claims involving big name artists fetching hefty price tags on the global art market. If you peruse the few public looted art databases that are currently available for consultation, such as lostart.de and www.errproject.org, you will note that there are thousands of artists whose works have been stolen and yet the world only focuses on a handful.

The chances of recovering 90 per cent of the world’s stolen art are close to zero because the world in which we live rewards only the “great ones,” those who produce “masterpieces” which become a nation’s “cultural treasures” coveted by those who can afford them. The rest?

Our collective loss, someone’s private gain.

Provenance research—now and later (First installment)

This “think-aloud” is neither the first nor the last on a topic that has become, despite its innocuous phrasing, far more contentious than it ought to be.

For now, it is best to throw out some questions for which answers are not necessarily forthcoming.

Why all the fuss about provenance research?

Up until the mid-to late 1990s, provenance research remained within the province of trained art historians working in cultural institutions where art objects are cared for and displayed for the benefit of the public. The research aims to enhance the understanding of the object—its author, its physical attributes, the period in which it was produced, the reasons for its existence, and how it evolved over time and space.

This kind of research is an academic/intellectual exercise that helps ascertain the authenticity of an object and its place in the history of art, writ large.

It is not a requirement incumbent upon its practitioner. Provenance research is one of many duties that “come with the job.” If it does not get done, no one gets fired. More often than not, the information that is collected about the object does not enter the “public record” insofar as it is communicated to the general public. If it is communicated, that is left up to the discretion of the institution where the research is conducted.

Then, the 1990s came and went, and, all of a sudden, “provenance research” became something else entirely.

If I had been working in a museum in the wake of the scandal surrounding the misuse of Swiss bank accounts owned by persons of Jewish descent who may or may not have perished during the Holocaust, I would have been rather oblivious to any debate about loot in general. Once the debate about the mishandling of “Jewish bank accounts” (I hate that expression!) transferred into the (mis)handling of art objects nestled in the permanent collections of countless museums both in North America and Europe, provenance research entered the spotlight front and center.

If I had been working in a museum at the time that the “Portrait of Wally” by Egon Schiele was seized at the Museum of Modern Art of New York in early January 1998, I probably would have wondered: what is that all about? And I would have naturally sided with the then owners of the painting, the Leopold Foundation of Vienna, and the exhibitors, the Museum of Modern Art, wondering what Robert Morgenthau, then district attorney of Manhattan, had had for coffee on the day that he decided to order the New York Police Department to seize the painting.

I would have done so because my training would have precluded me from even wondering if I should even worry about whether or not the institution that I served had actual title to the objects under my care and examination. Why should I have worried about title since I simply assumed that my institution was the rightful owner?

I write these words simply because it is the right thing to do: acknowledge that the beast that has become “provenance research” has been transformed from an innocuous art-historical practice into a tendentious, litigation-laced, means to an end: does the research into the origins of an object lead to the maintenance of that object in the collection that I help steward or does it lead to the de-accessioning of the object because of some historical wrong that broke the chain of ownership of the object, thus changing its status to “restitutable”?

“The Portrait of Walli”: The Case that Will Not Go Away

Portrait of Walli, by Egon Schiele
Source: Bloomberg

In an odd twist of events that allows Egon Schiele’s “Portrait of Walli” to resurface as a magnet for attention, Robert E. Roistacher, former chairperson of the Manhattan Solid Waste Advisory Board, and a 1968 graduate of Columbia University, filed a “demand for judgment” against Andre Bondi and Edith Southwell, the heirs of Lea Bondi Jarai, the late rightful owner of “Walli” whose painting was returned to the Leopold Foundation in Vienna, Austria, in exchange for 19,000,000 $. [the complaint was officially filed, right? Is there a public source to the info?]

Mr. Roistacher is asking for $4,500,000 in professional services that he rendered to the family which include “developing a plan to restrain the property…from leaving New York County, New York, and the jurisdiction of United States courts, until restitution was made therefor.” Roistacher argues that he introduced the Bondi Jaray family members to “legal counsel” and helped in the recovery of the painting.

The demand represents a quarter of the settled value of the painting, and was filed in the United States District Court for the Southern District of New York on November 14, 2011.

The “Walli” case has an original aspect to it. You might recall that the painting was identified in late 1997 as being the property of Lea Bondi Jaray’s family while on display at the Museum of Modern Art of New York, loaned for that purpose by the Leopold Foundation in Vienna, as part of a major retrospective of Egon Schiele’s works. Ronald S. Lauder, former US Ambassador to Austria, and chairman of the Board of MOMA, was instrumental in facilitating this keystone exhibit of the Austrian Secessionist’s provocative and sensual works.

Robert Morgenthau, former District Attorney of Manhattan
Source: Zimbio

Once “Walli” was fingered as possible looted cultural property, a mad scramble ensued to keep the painting from returning to Austria after the exhibit had ended its run at MOMA. The painting, wrapped and crated, was slated to depart in the first week of January 1998. On the eve of its departure, however, then District Attorney of Manhattan, Robert Morgenthau, son of the late Henry Morgenthau, Franklin D. Roosevelt’s Treasury Secretary from 1933 to 1945, called in the cavalry in the form of New York’s “finest men in blue”—the Police Department—and had the painting seized in order for the aggrieved parties to be given a fair hearing on the matter of the ownership of “Walli.”

The seizure represented Phase One of the case. Phase Two dragged on for twelve long years until a settlement was reached with the Leopold Foundation in July 2010, which was brokered by the law firm of Herrick Feinstein acting on behalf of the Lea Bondi Jaray estate.

The question raised by this new twist appears to be: what exactly happened during Phase One? It was sufficiently complex that a serious history of that period may need to be written. Until then, we will see what unfolds with Mr. Roistacher’s claim.

A “fair and just settlement” for a looted Schiele in Vienna?

Any public announcement of a settlement of a claim against the Leopold Museum in Vienna, Austria, must be greeted with a hefty dose of skepticism.

In the latest round, on the heels of the so-called return to the Leopold Foundation of the “Portrait of Wally” by Egon Schiele for a toll fee of $19 million dollars, another issue has cropped up involving “Houses by the Sea”, painted by Egon Schiele in 1914.

Houses by the Sea, Egon Schiele
Source: Leopold Museum via Bloomberg

According to today’s press reports, Dr. Rudolph Leopold had acquired the painting in 1955 after its illegal seizure from Jenny Steiner and subsequent sale by Nazi authorities in wartime Vienna. As in the case of the “Portrait of Wally,” Leopold had a tendency to be fully cognizant of the tainted past of his Schiele acquisitions without paying due heed to the moral implications of his acts, in the name of garnering in a fantastically egotistical manner the largest collection of works by Schiele in the world. He achieved his goal, playing fast and loose with Jewish victims’ losses and with History, the history of spoliation of an entire class of citizens in post-Anschluss Austria.

The “partial” settlement reached by Dietmar Leopold, Rudolph’s son, grants $5 million to Jenny Steiner’s grand-daughter, for a third of the painting. There remains the question of settling with the unnamed “US institutions” that account for the remaining interest in the painting.

Although Dietmar Leopold is confident that he will be able to settle all outstanding claims against his parents’ vast Schiele collection, one must pause at the disquieting notion that such an idea is good and represents “a fair and just” reflection of the actual circumstances underlying the presence of tainted works in the Leopold Foundation’s permanent collection.

More troublesome is the press release of the Leopold Foundation. Absent are comments from Jenny Steiner’s grand-daughter. Her silence is deafening. And yet, the Foundation ecstatically thanks her for her “willingness to contribute to this favorable solution.” Moreover, the very same people who refused to return the “Portrait of Wally” to the Bondy heirs for over four decades laud the personal involvement of Frau Leopold and her son to resolve these complex matters and reach a “fair and just solution.” Even more reprehensible is the declaration that the painting is “doubtlessly the property of the Leopold Museum Private Foundation.” Another way of rubbing salt in the wound. Maybe, theft does convey title in Austria, which it does not in the United States.

As some have pointed out recently, it strikes one as odd that a painting cannot be restituted to the rightful owner’s heir while another painting can be so easily removed from the walls of the Leopold Foundation and be offered up for sale at Sotheby’s so as to pay for the settlement of yet another painting, namely the “Portrait of Wally.” All of this smacks of the same kind of cruel cynicism that tortured and demeaned the Bondy family throughout the postwar years and into the final weeks of the settlement last July 2010. A sad commentary on the current state of affairs in Vienna. One would have thought that the Austrian government could have taken a greater role in ensuring that justice might prevail once and for all, especially after Rudolph Leopold’s death. By its own admission, the Austrian government can intervene and exert significant influence on decisions made by the Leopold Foundation, especially those that engage its fiduciary responsibilities. And yet, it does not. Perhaps, nothing much has changed after all in Vienna.

Letter to Marilyn Henry concerning the return of 'Portrait of Wally' by Egon Schiele

Note: This letter was sent to the late Marilyn Henry in an effort to articulate complicated thoughts pertaining to the unsettling resolution of a decades-old battle to recover the 'Portrait of Wally' by Egon Schiele from the clutches of Mr. and Mrs. Leopold.  It constitutes mostly an attempt to sort out conflicting emotions and to restore a semblance of historical truth to an international story of racially-motivated theft, punctuated by a half-century of injustice towards a Viennese family whose sole crime was to be Jewish.

August 17, 2010

Dear Marilyn:

I debated even writing this note regarding the return of Wally to Vienna—the scene of the crime, as it were.

The ceremony on July 29 was emotional. After all, we did wait for 12 years to see a case closed that, had cooler, pragmatic, and ethical heads prevailed, would have been resolved a long time ago.

But, there were none of the above at the time of the ‘event’, the seizure of Wally at the Museum of Modern Art on that fateful Wednesday afternoon, in early January, on the eve of its planned departure for Europe. Had Wally left the United States, there would have been nothing to discuss, no strategies to implement. More to the point, there would have been no restitution law in Austria, of the kind that we now see today being implemented, albeit in a limited way, but in a more efficient manner than in most other countries that boast similar laws.

Indeed, not only would there have been no restitution law in Austria, but Randy Schonberg would not have recovered Maria Altmann’s fabled Klimt paintings which set astronomically high records at auction. Randy would still be wondering exactly how to approach the Austrian government and would be haunting the halls of the State Department looking for someone with enough spine to go and rattle a diplomatic saber at an indifferent Austrian government.

Worst of all, Dr. Leopold and his wife would continue to enjoy in apparent indifference to the suffering of Holocaust victims and their families, the pride and joy of their collection—so many Schieles with provenances that would make one’s hair raise on one end, to defy logic—in an unholy alliance with the Austrian government’s representatives on the board of the Leopold Foundation.

And, yet, most of the above did not come to roost because Wally did not go home in January 1998, as it was supposed to like an obedient child whose estranged biological relatives were clamoring to keep it in the US so that they could have their day in court and assert their rights to it.

I made the mistake of sitting in the same row as Frau Leopold and her coterie of dowagers. She snickered through the entire ceremony not four seats away from me. The same woman who together with her late husband, Dr. Leopold, prevented the Bondi family for more than 12 years from recovering Wally, on legal, moral and ethical grounds with the Anschluss and the Holocaust as the historical backdrop.

On July 29, my stomach turned while I saw the glitterati of New York City and of our own Federal government fawning over Frau Leopold, she who kept justice at bay for 12 years. Some might say that the time had come for reconciliation. Well, perhaps, we should just shake hands with former war criminals and collaborators and call it a day. Let bygones be bygones, right? After all, what is done is done, and so we should all move on. America loves stories of redemption, but they should not apply to the Holocaust.

My two heroes on the 29th of July were Andre Bondi and Robert Morgenthau. Andre because of his steadfastness and his family’s persistence in seeking what was rightfully theirs, in the face of total indifference to their cause in the late 1990s, except for one small group of irreverent folks based in Washington, DC. Those who comprise the Holocaust Art Restitution Project or HARP.

More on that later…

Robert Morgenthau will always remain an outsized mensch in my personal pantheon of individuals to look up to, true mensches. He inherited the best genes in the world, those of his father, Henry Morgenthau, one of the few in Franklin Delano Rooselvelt’s cabinet who stood up in explicit terms against National Socialism and Fascism when it was not fashionable to do so. Decades later, Robert stood up against the American museum establishment, the art world, complacent Jewish organizations, and a meek, passive Federal bureaucracy, more interested in accommodating America’s allies than standing up for a single citizen over a single painting that turned out to be property stolen during the Holocaust. Robert did the right thing. What he called a Hail Mary pass, was actually a calculated moment that did not come out of left field , but the outcome of a thoroughly well-rehearsed strategy that would not have been put into motion, had everyone else done their job to safeguard Wally and the rights of American citizens like the Bondi’s.

First off, the Departments of State and Commerce who, instead of considering the possibility that the Bondi Affair was worthy of note and thinking a bit harder about the implications of an inquiry with the Austrian government over property looted during the Holocaust, whose true owners are American citizens, chose to place the overarching national interests of the United States over those of its citizens. Granted, the logic is well entrenched in customary international law, but such logic has been mercilessly applied as a foil against Holocaust victims seeking redress since the late 1940s. In other words, the Federal government was simply being consistent with its stated policy not to intercede on behalf of Holocaust victims and their families in a forceful and meaningful manner.

While State and Commerce were not willing to modulate what was fast becoming an international incident, the Senate Banking committee leadership, under Senator D’Amato, had voiced its concern over the fate of Wally and contemplated some drastic action that would require the painting to remain in the US until its provenance could be sorted out in the interest of justice for Holocaust victims and their families. There too, the will to act quickly vanished, presumably under pressure from some unnamed notables close to the Museum of Modern Art and who also bankroll the World Jewish Congress. With State, Commerce, and the Senate Banking Committee running for cover, there was no one left to support the Bondis in their plea to keep the painting in the United States, at least long enough so that their side of the story could be heard in a fair and objective manner.

Except for HARP. Founded by Willi Korte, Ori Soltes, then director of the Klutznick Museum at B’nai B’rith in Washington, DC, and myself in September 1997, HARP’s mission was and continues to be to document the historical cultural losses suffered by Jewish owners during the 12 year reign of the Nazis. The Bondis had contacted Willi Korte and asked him to dig up the historical documentation surrounding the illegal seizure of Wally by Friedrich Welz and its subsequent wartime and postwar fate, which landed it in the hands of Dr. Leopold. Willi then turned to HARP for assistance and asked HARP to use whatever means possible to create sufficient pressure to keep the painting in the US.

Meanwhile, in late December 1997, Judith Dobrzinsky wrote a lengthy article for the New York Times on the Schiele exhibit and the brewing controversy surrounding Wally and another painting, Night City III, which was being claimed by the Reifs. However, in the same article, Judith also wondered whether venality had played a role in the Bondis’ decision to seek the return of Wally since they knew that the painting was then worth an estimated 2 million dollars.

With that type of adverse publicity, the Bondis had very few people to whom they could turn. Certainly no one in the Federal and legislative branches were willing to assist them. Jewish groups were pretending that they didn’t exist. And what was a District Attorney of Manhattan to do?

HARP, in the mean time, was seeking an accommodation with MOMA, a middle ground which would form the basis for a dialogue over the fate of the painting, as long as they could remain in the US. The general counsel of the Museum of Modern Art issued a terse rebuff—the reply to HARP’s request for dialogue and postponement of the shipment of Wally to Europe was: “Come and sue us if you want to prevent the painting from leaving. You have until Thursday.” Or something to that effect.

Without the painting in hand on US territory, the Bondis had no case. Fortunately, there were a number of legal issues that surrounded the Schiele exhibit’s hasty entry into the United States. Those legal issues provided a minimal opening for the District Attorney’s office to contemplate an aggressive move against MOMA to secure the painting and protect the rights of the Bondis on the suspicion that the painting might in fact be stolen property.

But the District Attorney’s office could not consider any form of drastic action against MOMA. It waited for the federal government to act. On the Monday preceding the expected departure of the painting, the Federal and legislative branches pulled their pins out of the game. Morgenthau was truly alone. But he was ready, whether he admits it or not, to launch his action.

And so, Robert did what he normally does, but which stood out as an outrageous exercise of bravura against the caste of Brahmins, symbolized by the tier one museums of New York and their friends and sycophants and followers and admirers. It was more like the 7th Cavalry charging when all hope had faded. As he explained it to us—Willi, Ori, and I—he doesn’t tolerate stolen property in his jurisdiction, especially if it is tainted by crimes against humanity.

Wally was saved. All hell broke loose. New York Museums instantly vilified Robert Morgenthau as a villain who was about to rain an economic calamity onto New York City. This message was delivered in unison by every major cultural institution in Gotham.

Morgenthau contacted HARP and asked if we would supply him with an affidavit in defense of his action to safeguard the rights of the Bondis. We complied with pleasure. Ori Soltes did the honors as chairman of HARP. We sat in Robert’s rickety conference room under the watchful eye of his late father, Henry. We were in good company. As it turns out, HARP is the only group that provided such an affidavit in defense of Morgenthau’s action.

This is basically the story of HARP’s involvement in preventing Wally from leaving the United States and securing the rights of the Bondis to a fair hearing of their claim. Wally did not mysteriously stay in New York by some act of divine inspiration that befell Robert Morgenthau. Without plenty of assistance, he could not have acted without knowing what we knew about the already-emerging complexities of the case. What had started as a simple request to modify the provenance of a painting in MOMA’s catalogue of the Schiele exhibit turned into a nightmare, both for the museum community, the US government, the Austrian government, and, the Bondis.

The rest is history. But on that fateful Wednesday afternoon, history was made as a result of a month of intensive lobbying, all-out pressure, and persistence from a small group of individuals who simply wanted Wally and Night City III to remain in New York so that their origins could be sorted out in the name of justice for Holocaust victims and their families.

I am relieved for the Bondi family, but the relief is bittersweet.

The only outcome that we had envisioned as just was restitution, assuming that there would have been no systemic failings.

I commend Larry Kaye and Howard Spiegler of the law firm of Herrick, Feinstein, for having found the best possible result to allow for closure to a very unpleasant and painful and trying ordeal, prompted initially by a racial crime perpetrated against a Jewish woman who loved her Wally. At least, Wally returns to Vienna with a price tag attached to its frame. But at what cost?

Regards,
Marc Masurovsky

'Human Rights and Cultural Heritage: from the Holocaust to the Haitian Earthquake'

Brookdale Center, Cardozo Law School
Source: Wikipedia

This one-day symposium took place on March 31, 2011, at Cardozo Law School in downtown Manhattan.

It featured, among other things, a panel on "Nazi-Era Looted Art: Research and Restitution."  The speakers included one person from the art trade, Lucian Simmons, a vice president at Sotheby's; Larry Kaye, of the law firm of Herrick Feinstein who co-chairs its art law group; Inge van der Vlies, who is a senior official of the Dutch Restitution Committee in Amsterdam; Lucille Roussin, co-organizer of the conference and head of the Holocaust Restitution Claims Practicum at Cardozo Law School.... and myself, as co-founder of the Holocaust Art Restitution Project and the only non-lawyer and historian in the assembly.

Lucian Simmons
Source: Sotheby's

Larry Kaye spoke about the events surrounding the seizure of the 'Portrait of Walli' by Egon Schiele and the involvement of his firm in the settlement of the case with the Leopold Foundation in Vienna, Austria.  He also addressed some sensitive issues governing the plunder of the Goudstikker collection in Amsterdam and the postwar role of the Dutch government in not facilitating the restitution of many items in that collection.

Howard Speigler, left, and Lawrence Kaye
Source: The New York Times via Fred R. Conrad

Lucian Simmons described how Sotheby's is leading the charge on art restitutions, careful, though, not to intrude on the rights of the consignors and the good faith purchasers, and reminding all of us that there are two victims in this game--the historical victim who lost the work or object and the good faith purchaser who--god forbid!--was caught with it, thinking it was perfectly fine. He did address an early incident involving a painting by Jakob van Ruysdael which had been withdrawn from a sale at Sotheby's London, in October 1997 on account of its shady provenance--which indicated that it had been acquired for Hitler's Linz Museum project.

Inge van der Vlies
Source: Raad Voor Cultuur

Inge van der Vlies gave us a painstaking description of the processes involved in assessing art claims in Holland through her restitution committee, reminding us all that, had the Dutch government adhered strictly to the rule of law, no returns would have been possible to claimants because of statutory and other considerations governing ownership of works of art.  Hence, its munificence in 'doing the right thing' governs the debate on restitution.  Larry Kaye took exception to the Dutch government's interpretation of what constitutes legally binding decisions in art restitution cases.  Nothing further needs to be said here about this.

Being the historian of the group, my task was to give context to the issue of restitution. I opened up the subject writ large, going back to the Hague conventions of the late 19th and early 20th centuries which sought to define protections for civilians and their property while armies duked it out near their fields.  My point, which is not popular, is that plunder of works and objects of art motivated by ideological, political, racial, and ethnic considerations are characteristic of the first half of the 20th century, starting with Armenia, going through the muddle of the First World War, Fascist Italy, Nazi Germany, the Anschluss, the establishment of a Nazi protectorate in then-Czecholovakia, the disappearance of Poland, the Nazi invasion of Western and Northern Europe, and the subsequent onslaught against the Soviet Union and southeastern Europe.  Not much time left to discuss the fundaments of restitution except to indicate that market considerations reigned supreme in the immediate postwar which compelled the US government in 1946 to liberalize the art trade by quickly eliminating wartime restrictions on the imports of cultural objects into the US, without knowing what objects might be of illicit origin.  The US and its allies shut down art claims in and around 1948 in their respective zones of occupation in Germany and Austria, thereby shifting the claims process to national governments in Europe and the Americas.

Howard Spiegler, Larry Kaye's alter ego at the Art Law Group of Herrick Feinstein, delivered a genuinely entertaining lecture over lunch where he took on the critics of art restitution litigation, especially aimed at high-revenue firms such as his and Larry's.  Point well taken.  Someone has to do the work.  The problem since 1945? There is still no national and/or international mechanism by which claimants who cannot afford to pay legal fees can be guaranteed a satisfactory procedure through which to articulate their losses and seek redress.  It's now been 66 years since the end of the Second World War and chances are that nothing will ever happen.

The main disappointment in an otherwise productive conference was the inability of the conveners to make a link between Holocaust-era losses and cultural property disputes in the postwar era, and also to address the confusion and complications arising out of the distinction between cultural property and other types of art objects and works of art.  Currently countries such as Italy are deliberately placing Holocaust- and World War II-era losses under the roof of cultural property and cultural patrimony, thus treating a painting by Claude Monet on the same basis as an antique urn.  The end result? the likelihood that the object, even if restituted, cannot leave Italian territory without special permits.  Something akin to what takes place in Austria with works by Gustav Klimt and Egon Schiele, and in France, with any masterpiece produced on French territory.

Hopefully, at some future forum, someone will take the brave step and challenge these artificial barriers that separate antiquities from the rest of artistic production.