Canada and looted art

Ten years ago, on November 15-16, 2001, an international conference on looted art took place under the auspices of the National Gallery of Canada in Ottawa, organized by the Canadian Museum Association (CMA) and the Canadian Jewish Congress (CJC). The conference brought together all parties and individuals involved at the time with the issue of looted art. They represented the private art market, the public sector, NGOs; there were numerous lawyers representing both sides of the debate, claimants, historians, and researchers. In the course of two days of animated discussions and presentations, the participants agreed to articulate a series of points and principles from which to issue recommendations for future action in Canada and beyond.

The following is a summation of those debates. There are official reports of the conference and its effects on Canadian institutions that you can consult on-line via the Claims Conference website. Take what you will from them.

The good news is that the discussion was friendly, productive, and pragmatic. The not-so-good news is that everyone went home and not much happened in Canada to push forth the debate on restitution in a manner consistent with the wishes and concerns expressed by the participants. Judge for yourself:

Canada, like so many other countries where there is an art market, is a recipient of loot and has been for decades.

It is a general, albeit vastly understated fact, that 90% of looted art is ‘invisible’ to traditional art historians, and scholars. Although issues pertaining to cultural plunder are not new, there is widespread ignorance of its scope and breadth in the art world, government circles, and the Jewish Community of Canada.

As of 2001, there were no laws on the books—Federal, provincial, or local--to deal with this issue. Dr. Franklin, of the National Gallery of Canada in Ottawa, host of the Looted Art Conference, was quick to say that “There is no legal obligation [for museums in Canada] to restitute.”

Museums have no legal obligations to return stolen works of art to their rightful owners. If claims are filed against individuals, they will be subject to local laws governing statutory limits, laches, good faith purchasing, willful blindness and due diligence. In sum, there are no overt mechanisms in Canada either at Federal or local level for dealing with Holocaust-era cultural property claims.

Then and now, there are few if no resources—human, financial, archival, bibliographical, and academic—for undertaking a serious, exhaustive, review of all institutional holdings in Canada in an effort to identify looted art. Scattered efforts have been duly noted amid 4 largest museums in Canada, as well as in a few smaller institutions.

Everyone acknowledged that there are no short-term fixes to the problem. Solutions are long-term.

What is to be done?

The participants came up with a series of goals to consider for bringing about needed progress on the subject of looted and art restitution:

• To identify all looted works in Canadian collections.
• To facilitate recovery of such works by rightful owners.
• To prevent resale of looted/stolen works on Canadian art market—public/private
• To create legal/policy environment to facilitate identification and recovery of stolen works of art.
• To establish common standards of evidence that fall outside of traditional rules of civil procedure.

How can these goals be achieved?

Obviously, one cannot expect any assistance from the Federal government, at least not in the short-run.

The onus of support therefore falls on provincial governments: they should either enact or modify laws that facilitate recovery and restitution, and that acknowledge the problem of stolen cultural property.

Museums must conduct reviews of holdings and identify looted works in their collection, ascertain their status, whether those objects have been recovered or not.

The provinces should put forth standardized responses to this problem.

The Canadian Museum Association, ICOM, and other art and cultural property groups, should petition the Federal government to study the problem and produce a Green Paper (the Canadian equivalent of an American White Paper).

The legal experts at the Ottawa Conference agreed that restitution principles should be anchored in local and provincial laws because of the absence of any Federal law in Canada and of Canada’s obstinate refusal, like that of the United States and dozens of other countries, to sign the UNIDROIT convention on stolen and illicit cultural property.

However, conflict resolution in provincial and local jurisdictions will be subject to different legal regimens and rules governing statutes of limitations, laches, burden of proof and rules of evidence.

Hence, any legal strategy must be focused on a moral and ethical appeal to institutions to restitute, founded on the London Declaration of 5 January 1943—the Inter-Alled Declaration Against Axis Acts of Dispossession. The operating principle has been and should always be: if the work was stolen, theft does not convey title. Even this adage has its variants in countries where the possessor of stolen property can become the rightful owner of the stolen object if no claim has been filed against it over a set period of time.

According to Bonnie Czegledy, the good faith purchaser in Canada cannot hide behind ignorance of the fate of acquired works—which is also referred to as willful blindness. Due diligence rules apply, which involve on the part of the acquirer of the art object to engage in research that would enable her/him to be convinced of the licit/illicit status of the object and base her/his decision to acquire or not the object as a result of this research.

Fill the legal loopholes regarding the resale of stolen works of art.

RECOMMENDATIONS FOR CANADA:

• Define looted object to include EVERYTHING cultural, including antiquities and books/manuscripts, decorative objects.
• Create legal/policy environment to facilitate identification and recovery of looted works
• Establish common standards of provenance research, evidence and claims adjudication for Canada.
• Conduct a census of all institutional collections in Canada susceptible of containing looted works. Prioritize risk to institutions regarding the repatriation of works. The purpose of this census is to assess the breadth and scope of the problem of looted art in public and private collections. For this to occur, establish a core group of researchers to do initial research and that can travel to all collections across Canada, with financing from provincial governments and Federal foundation endowments, provided that the funding is renewable until the census is completed.
• Ask the Canadian Museum Association to adopt an assertive strategy that will facilitate ultimate goals; it should communicate guidelines to museums on how to deal with the public and with claimants.
• Petition the Federal government to issue a Green Paper on accession to the UNIDROIT convention on stolen and illicit cultural property. The Federal government involvement in the issue of looted art could begin with the creation of a Central Web Portal run by Canadian Heritage Info Network or another entity so as to respond to inquiries and disseminate information.
• Invoke as the moral framework for treatment of looted art claims in Canada the London Declaration of January 5, 1943, or the Inter-Allied Declaration against Axis Acts of Dispossession. Canada signed it together with 15 other countries, including the United States and Great Britain, leading co-sponsors and formulators of the Declaration.
• Build a network of assets and skills in Canada and elsewhere to facilitate research efforts.
• Create a third-party group which oversees claims if the Federal Government refuses to handle them. Encourage the creation of provincial offices within existing agencies to process claims modeled after HCPO in NYC. This NGO would be supported by the Federal government and owned by the community. The stakeholders would include: museums, the art world, claimants, Jewish and arts and cultural property groups, historians, researchers, scholars, experts, government representatives, with a balanced private/public membership. It would be transparent and completely accessible.
• Identify all pertinent records dealing with looted art which can be found in Canadian archives--governmental, academic, institutional, civilian and military.
• Produce a guide of those records, similar perhaps to NARA’s Guide on Holocaust-Era Assets
• Incorporate the Canadian Jewish community as well as arts and cultural property organizations into these efforts for education, outreach, lobbying, fundraising, and logistics.
• Promote the training of individuals in provenance research through universities, cultural institutions and at all levels of government—local, provincial, and Federal. For instance, recruit graduate students from Young Canada Works for provenance work who have art history, history, museum science, forensics and related backgrounds.
• Seek public and private funds perhaps even from the UN and the EU to include museums, auction houses, independent scholars, government agencies, as part of an overall effort to stanch the resale of looted works on the art market.

Internationally:

• Promote the creation of an international research network to assist provenance checks.
• Create a third-party group or panel to oversee claims adjudication and to conduct research.

Historical backdrop of postwar restitution politics

The following is an excerpt from a November 18, 1998, presentation on looted art given at Clark University, Worcester, Massachusetts. A bit dated and dusty but still relevant...

There is ample precedent in recent history for the United States government to engage in a policy of restitution of looted works of art. It is rooted in wartime experiences and rejection of the Nazis' genocidal program and policy of wholesale plunder. At its heart stand the principles enacted in Article 3 of the Hague Convention of 1907 which condemned wartime plunder of cultural property from public and private collections in times of war and made the governments of those responsible for the thefts liable for compensation. In the throes of the Second World War, the beleaguered Allied powers denounced through the so-called London Declaration of January 1943 all acts of dispossession in occupied territories by the German occupation forces and their local acolytes. In February 1944, American Treasury Secretary Henry Morgenthau, flanked by representatives from a dozen nations, warned the Nazis not to steal gold from occupied countries and promised full retribution at war's end. The statement was a not so veiled warning aimed at the complacent neutrals only too eager to benefit from Axis transactions in fungible assets stolen from occupied Europe. In the summer of 1944, at Bretton Woods, where economists and government planners from around the world met to lay the foundations of the post-war international financial system, a Resolution passed known as Resolution VI which condemned all transfers of plunder from the Third Reich to neutral nations and warned the neutrals--Sweden, Switzerland, Spain, Portugal, and Turkey--that they would be held liable for harboring such ill-gotten wealth, including stolen cultural property. At Chapultepec, Mexico, similar pronouncements were made in March 1945 to sensitize Latin American nations that hoarding of illicit wealth was anathema to the Allied nations and would be viewed as an attempt to aid and abet the Nazis in the post-war era. The Potsdam declaration of August 1945 confirmed the Allies' pledge to ferret out loot in neutral countries, whereby the Soviet Union ceded all such assets found in Western and Central Europe to the Americans, the British, and the French. The Soviets' jurisdiction extended east of the Oder River, wherein all looted works of art were looked upon as in-kind payments and absorbed into State collections, a predicament which reverberates ever more intensely today.

At the onset of the International Military Tribunal in Nuremberg in 1946, the Allies enshrined as a crime against humanity all racially, politically, and religiously, motivated acts of spoliation and dispossession aimed at civilian populations. Therefore, the act of plunder was placed on par with the commission of atrocities and not subject to any legal prescription in the post-war era. However, the governments of recently liberated countries of Western and Central Europe faced the politically unsavory task of ferreting out collaborators, and punishing them, while trying to compensate their own citizens for wartime losses. The short-lived and grossly inadequate purges of wrongdoers in the private sector failed to cleanse the ranks of the art world of the men and women who fueled the bustling, Nazi-sponsored art trade of the occupation years. Kinship ties, business and political relations between those who plundered Jewish collections, those who benefited from the plunder, and those officials who achieved a remarkable transition from collaboration to post-war reconstruction governments because they played the resistance card at the opportune moment, made any effective overhaul of the art market an impossible goal to attain. To deal with the question of restitution, post-war governments passed laws requiring claims to be filed within a 3-year period, and, by 1947-1948, most claimants were shut out of any attempt at recovery.

In the United States, museum directors and art dealers alike were exerting substantial pressure on the State Department to eliminate wartime measures aimed at preventing loot from entering the country illegally. Arguing that there had been few documented cases of actual loot being intercepted by Customs agents, museum officials and their allies in the private art market, worried about the consequences of these regulatory measures on the art trade, succeeded in persuading the State Department to lift all existing barriers that screened the flow of art into the United States. The real nut of the argument lay in the following rhetoric put forth by Lamont Moore, a government official who presumably worked at Customs: "Hundreds of works of art are coming in at present and they are increasing all the time. And is it proper to exert government control over a private industry? Is it right to put that much control over private business? ... to maintain such controls is bad business.,, The Germans have not transferred any hoards of art to foreign countries; the situation has been met; and the Treasury Directive is no longer necessary..." Obviously, this official echoed the back-to-business mantra of the art world and its conservative allies in the Federal bureaucracy.

The Treasury Department balked but conceded and on June 30, 1946, cancelled the relevant Directive #51072 that prevented works of art that had been confiscated from Nazi victims or illegally acquired by the Nazis from entering the United States. Restitution experts at State and Treasury who had lobbied against the lifting of these regulatory instruments, complained that the elimination of the directive contradicted America's international commitments to ferret out and restitute looted works of art. They also worried that the inflow of looted works into the United States would grow exponentially in the coming years, since the American market was the only one that had the resources and the infra-structure to absorb high-quality, museum-quality works from Europe. These same officials resorted to secret audits of importations of works of art and antiques by New York galleries like Wildenstein and Brummer, between 1946 and 1954, in order to smoke out suspicious shipments. There is no information on the outcome of these investigations, but they do cover several thousand objects. French cultural officials even warned their American counterparts in 1946 that the outflow of art from France to the United States had grown at an alarming rate since the fall of 1944. In a number of cases, Liberty military transport ships were used to smuggle paintings from France into the US. Although officials at State and Treasury pressed for a new set of directives aimed at thwarting the importation of loot into the United States, their efforts went largely unheeded in the changing climate of the post-war, where restitution gradually took a back row seat to geopolitical containment, European reconstruction, and business-as-usual.

In Europe, Allied officials in the occupation zones of Germany and Austria, already burdened with returning thousands of works to governments that placed competing claims on them, had to contend with American dealers and museum officials bidding for works with suspicious provenances on the black market or lobbying local government and military officials to relax export licensing laws and allow dealers to gain access to the thousands of works of art that had not been claimed by survivors or their families. Sadly enough, a number of notorious German art looters and Nazi purchasing agents like Bruno Lohse and Gustav Rochlitz who belonged in the defendants' dock at Nuremberg were shielded by the very museum directors and curators in charge of Allied restitution efforts who later on lobbied for a general relaxation of the international art trade. By the late 1940s, local laws in Germany and, to a lesser extent, in Austria, were liberalized to allow gallery owners and art dealers to resume trade with the outside world, and, especially with the United States.

Confronted by the realities of post-war business opportunities presented by thousands of high-quality works of art of dubious provenance available for sale at unbeatable prices, American restitution officials worked out a legal and political framework that would preserve the American government's commitment to the identification and restitution of stolen works of art to their rightful owners, A treaty was signed to that effect in July 1946, called the Tripartite Agreement. The co-signatories were the United States, Great Britain, and France. 14 nations endorsed the agreement, Its purpose was to uphold the principle of restitution as policy and for each government to ensure that looted works of art would not reach safe harbor on their shores and that every effort would be deployed to return these works to their legitimate owners. As part of its obligation under the Agreement, the State Department sent to 72 American museums, 57 New York galleries and 2 Boston-based galleries, and close to 40 colleges and universities, a series of consolidated lists of art losses compiled by various European governments. These lists served as the only bulwark of defense against looted works of art entering private and public collections in the United States. Whether or not they were ever consulted is subject to debate. In the words of Ardelia Hall, Arts and Monuments Adviser to State: 'The Tripartite Agreement is an outstanding contribution of our Government for the eventual recovery of objects lost in World War II and still missing. It is important that this policy be effectively carried out in the United States, as this country is, today, the chief market for valuable objects. Enormous sums of money might be involved ... this policy will contribute to the good name of our country, to the foreign policy of the Department, and win the gratitude of foreign nations, for cultural objects are always cherished." She went on to say the policy was "founded on international law and international agreements to which this Government is obligated.." But above all, she argued, it is based "upon the principle of respect for the inviolability of art and the integrity of cultural institutions, upheld by this country long before there were any formal obligations to require it." Alas! No one today comes close to Ardelia Hall's commitment to art restitution.

The American government also issued a directive aimed at restituting objects brought into the United States by returning servicemen. This directive, called SWNCC 322, barred servicemen from bringing back to the United States any items that had been illegally obtained in Europe, or, if acquired legitimately, had been plundered from Nazi victims. The War Department was charged with the investigation of these cases, in collaboration with State and other Federal agencies. Before putting itself out of existence in the spring of 1946, the American Commission for the Protection and Salvage of artistic and historic monuments in war areas--known as the Roberts Commission--staffed by luminaries of the museum world like Francis Taylor, director of the Metropolitan Museum of Art, had issued in support of SWNC 322 a strong reminder to museums, art and antique dealers and auction houses, with respect to looted works of art, that "It is, of course, obvious that no clear title can be passed on objects that have been looted from public or private collections abroad. We believe, therefore, that it is to the advantage of both public institutions and the trade... that any specific examples of looting of works of art or cultural materials be brought to light as soon as possible."

With the able assistance of Ardelia Hall, the Arts and Monuments Adviser at State, but actually, the pillar of art restitution in the post-war era, several hundred items were eventually found and returned to their rightful owners, including a Durer print taken to the US by a young Brooklyn College student named Raul Hilberg. Whether or not we are speaking of the eminent Holocaust historian, I do not know. But this peppy graduate student insisted that the work not return to Germany, but be placed in an Americn museum. The State Department threw the book at him and the Durer print was promptly returned to the depository from which Mr. Hilberg had removed it. 

The American commitment to art restitution lasted for as long as Ardelia Hall remained at the State Department. After her departure in the early 1960s, which was bemoaned by French restitution officials, and in particular her counterpart, Rose Valland, the American government essentially forgot about its post-war commitments towards potential art loss claimants as did most other nations. Without Ardelia Hall, government-sponsored art restitution in the United States came to a screeching halt, but the principles remained and live on to this day. Principles, that is. Not policies.

Meanwhile, the Allied military authorities and their several hundred Monuments and Fine Arts advisors were busy collecting close to 2 million looted works of art from Germany and Austria, sorting them and trying to match them with a prewar owner. The task was made all the easier by ascribing the main responsibility of restitution to the governments of the countries from which the items were forcibly removed or illegally acquired. By 1948, the American occupation authorities had decided to close down the bulk of its investigations, and by 1951, the main collecting points closed their doors and the residual works still in place were shipped to governments requesting them as part of their national treasure. By the mid-1950s, all avenues for claimants were effectively closed and the only hope of recovery lay in the cash settlements offered by the Federal Republic of Germany, which released the German government from any future claims filed by an individual for material losses.