Washington Principle #10: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference in Berlin, Germany, on November 26-28, 2018 and entitled "20 years Washington Principles: Roadmap for the Future," it would be worthwhile to revisit these Principles and to put them through a linguistic, methodological and substantive meat grinder, and see what comes out of this critique. There will be eleven articles, each one devoted to one of the Principles enacted in a non-binding fashion in Washington, DC, on December 3, 1998.]

Principle #10
Commissions or other bodies established to identify art that was confiscated by the Nazis and to assist in addressing ownership issues should have a balanced membership.

This principle is one of the few in the set of 11 where there has been some implementation effort. However, it is written in such a way that it almost consists of two distinct parts: one dealing with commissions “or other bodies” and the other, somewhat puzzling, recommending “balanced membership” in these here commissions “or other bodies.”

1/ commissions or other bodies:

Since the Washington Conference of 1998, five European nations managed to establish some form of commission or “other body” designated to address cultural claims and in some countries like France, claims for other types of looted assets including cultural claims. They were established in five countries—France, United Kingdom, the Netherlands, Austria, and Germany—between 1998 and 2003. Interestingly, the Austrian government was the first to establish such a commission, largely motivated by the seizure of two paintings by Egon Schiele at the Museum of Modern Art in New York in early January 1998. The seizure put o the fast track plans for a restitution law, Austria being the only country in the world with such a law which set in motion a mechanism by which Federal Austrian museums do not need a claim against them to conduct research into their collections. The opposite is the reality.

1998: Commission for provenance research, Vienna, Austria,

1999: Commission pour l’indemnisation des victimes de spoliations [CIVS],

2000: Spoliation Advisory Panel, London, UK,

2002: Dutch Restitution Committee, The Hague, Netherlands,

2003: Limbach Commission.

Whether these commissions have been effective since the date of their creation is another discussion entirely. Suffice it to say that, if we were to rank their overall impact and effectiveness at resolving claims, we could provide the following tentative ranking from worst-1- to (relatively better)-4- by nation:

1: Germany
2-3: Netherlands
3: France
3-4: The United Kingdom and Austria

Relative because these commissions are far from being perfect, their concept of justice has often clashed with the realities of history, enforcing a delicate balance with their desire to protect their State museums and their commitment to be “just and fair” with the claimants based on the evidence provided to them. Some have chosen decided biases against certain categories of claims, namely those for items sold under duress, while others have been mired in the bureaucratic cultures of their national governments. But, all in all, there are five standing commissions as opposed to non which have been active for now twenty years, in part as the result of the Washington Principles.

The failure to implement Principle #10 in the United States reflected the deep polarization between government officials, museum directors and their trade associations, lawyers for both possessors and claimants, restitution groups and politicians. Despite a succession of “town meetings” and symposia held in the wake of the Washington conference (1998) and Vilnius (2000) to define the contours of an American restitution commission, no consensus could be reached, no one knew where to place such a commission in the tangled mess known as the US government. Even restitution lawyers ended up opposing the creation of such a commission and preferred to maintain the status quo rather than impose a toothless entity in the art restitution discussions within US borders.

2/ balanced membership

Aware that the Washington Principles were conceived to protect the interests of the current possessors while taking into account ways of being fair and just to claimants, the issue of a balanced membership for those commissions adjudicating or hearing claims for restitution of looted art, must give us pause.

What’s the worry? What does the word “balanced” infer? That discussions would be too biased and should reflect a balance of what kinds of opinions exactly? Does it mean equitable representation for all stakeholders in the restitution discussions and an assurance that they will have a seat on these commissions and be able to proffer their views fairly?

Opinions on this question differ wildly. If you represent the interests of current possessors, you want to make sure that the claimant voice on the commission is minimal, at best, but present enough not to be accused of partiality. If you represent the interests of the government of the nation where sits the commission in question, your interests invariably collude with those of the possessor because the government is most oftentimes the possessor acting as defendant against a claimant. If you are a claimant, you want to ensure that claimants’ representatives, independent historians, maybe even ethicists have a seat on the commission. The latter never happened.

Hence, the preoccupation over balanced membership betrayed, then and now, a general fear on the part of the possessors—therefore, governments and museum associations-that claimants’ voices would become too loud and mar the “just and fair” discussion and tilt it towards the rights of the claimants. It is largely palpable in the recent reform of the Limbach commission which ushered into the commission’s board two members of the Jewish community, a notion that even the German minister of culture opposed initially, for their presence might inject bias into the commission’s proceedings.https://www.artforum.com/news/germany-appoints-first-jewish-members-to-its-limbach-commission-for-nazi-looted-art-64667

In sum, keep the commissions and strengthen their mandates. Do not regress like the Dutch Restitution Committee in accepting the views of the Dutch museum community that the cohesiveness of their collections was far more important than a claim for restitution.

Principle#10 could be rewritten as follows:

Commissions or other bodies shall be established to assist in addressing ownership issues for unrestituted artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945; these commissions or other bodies shall have a balanced membership consisting of, but not limited to, members of the art trade, civil servants, current possessors, claimants and their representatives, historians and specialists.

MoMA's dalliances with the two portraits of Max Hermann Neisse by Georg Grosz

by Marc Masurovsky

 "Portrait of Max Hermann Neisse", by Georg Grosz, 1925

In April 2009, the heirs of the German expressionist artist, Georg Grosz, filed an art restitution lawsuit against the Museum of Modern Art (MoMA) in New York, claiming that three paintings by Grosz held in MoMA's collection since the 1950s rightfully belonged to Georg Grosz and his heirs. The outcome of the suit yielded no restitution to the Grosz family despite an offer by MoMA to share the paintings in a co-ownership deal.

A German-born art dealer named Curt Valentin had sold to MoMA one of those paintings, Grosz’s “Portrait of Max Hermann Neisse”, in 1952; this was the second version dated 1927, which Grosz had produced of the celebrated Polish-born German writer, Max Hermann Neisse.

However, as early as 1948, Alfred Barr, the iconic director of MoMA at the time of the 1952 purchase, had had his eyes on the first version that Grosz had painted in 1925 of Max Hermann Neisse. That painting had graced the walls of the Städtische Kunsthalle in Mannheim, Germany, until the Nazi government ordered its de-accession as a “degenerate [entartete]” painting which National Socialist aesthetic principles. After its de-accession, the Mannheim painting of Max Hermann Neisse was eventually sold in the late 1930s to Kurt Sachs, a private collector from Hamburg.Barr wrote about the 1925 Grosz portrait to Theodore Heinrich, then chief of the Wiesbaden Central Collecting Point in Germany, a trained art historian who eventually went on to lead several museums in the United States and Canada in the 1960s and 1970s. Barr had been tipped off of its existence by Charles Parkhurst, another American cultural advisor with US forces in Germany, also referred to as a “monuments man”. Parkhurst had informed Heinrich on February 4, 1948, that Barr would write to him about “a painting for sale formerly in the Kunsthalle, Mannheim.” Apparently, the go-between offering the painting was an “American bookseller” based in Paris, France. This bookseller swore up and down to Barr that the provenance of the Grosz painting was above reproach. [Editor's note: this bookseller might be none other than Heinz Berggruen, who had opened a bookshop on the Left Bank Paris right after its liberation in late August 1944. He had extensive art dealing contacts in Germany and traveled regularly between Paris and the US zone of occupation.].


Barr, on the other hand, indicated to Heinrich that “we would like very much to have this picture in the Collection [of MoMA ] but don’t want to buy anything of which the ownership is not entirely certain.”

Barr to Heinrich, February 9, 1948

Heinrich chose not to reply to Barr in writing but instead met with him in New York on February 27, 1948, at which time he gave him his opinion about this possible acquisition.

 Note by Heinrich about Mannheim Grosz painting

The main concern that Barr had regarding the Mannheim Grosz portrait was that the Mannheim Kunsthalle was aggressively seeking the restitution of the 584 works that it had been forced to de-accession during the Nazi years. Each Western zone of occupation of Germany---French, British, and American—had adopted a different stance regarding the recognition of German museums’ ability to recover their ‘de-accessioned’ properties. According to Heinrich, the Americans had not put forth an official position for or against such claims by German museums, although they ended up ruling in favor of the Nazi de-accession laws, thus striking down with one fell swoop any hope for German museums in their jurisdiction to recover de-accessioned works. However, the French had reacted favorably to Mannheim’s claim for a painting found in private hands in their zone of occupation, thus encouraging the director of the Mannheim Kunsthalle to pursue other claims in the Western Allied zones of occupation of Germany. On the other hand, German art dealers were displeased at the behavior of the German museums whose claims for de-accessioned “degenerate works” were impeding their chance of selling them on behalf of private art collectors like Kurt Sachs who had acquired them after museums had been forced to disgorge them.

In August 1949, Barr offered to buy the painting and resell it to Mannheim "at cost". He sympathized with Mannheim's year-long battle to recover the painting from Sachs and his dealer, Ernst Hauswedell.

Barr to Heinrich, August 19, 1949

Hauswedell argued virulently against Mannheim's claim in a letter to Barr dated September 26, 1949, where he derided the museum’s claim.

Hauswedell to Barr, September 1949

In the end, Mannheim succeeded in reintegrating the Grosz portrait in its permanent collection after having lost it to Nazi cultural policies in 1938. Whether or not this recovery resulted from Barr's intercession is not known.

Three years later, Barr settled on the second version of “Portrait of Max Hermann Neisse” by Georg Grosz, a decision that came back to haunt MoMA 50 years later.

Archival sources: 

Museum of Modern Art, New York, NY

Theodore Heinrich Records, Regina, Saskatchewan, Canada

Why all the fuss about provenance research?

by Marc Masurovsky

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 had been 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?

The right thing to do is to 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”?

Since the seizure of “Portrait of Wally” in early January 1998, provenance research lost its innocence. Battle lines have been drawn between defendants upholding their rights to keep art objects under fire for being “looted”, on one side, and plaintiffs demanding the return of those art objects arguing that they were the rightful owners whose families had been despoiled for racial, ethnic, religious and other reasons at some point between 1933 and 1945 during the twelve year reign of the Nazi Party and as a result of the expansionist war decreed by Adolf Hitler and his minions against Europe’s “undesirables”-Jews, Slavs, Jehovah’s Witnesses, homosexuals, emotionally and physically challenged individuals, and anyone else who was caught in the crosshairs of a continental-wide fit of man-made madness, verging on an apocalyptic nightmare worthy of any painting signed by Hieronymous Bosch.

There had been a glimmer of hope at the time of the so-called Washington Conference on Holocaust-Era Assets of November 30-December 3, 1998. Art was not supposed to be on the calendar of the conference. The seizure of the Schiele paintings (actually, two paintings had been seized at MoMA in early January 1998) changed the configuration of the planning for the Washington Conference. American policymakers were not pleased about the seizure because they argued that it had besmirched the bilateral relations of the United States with Austria. In so stating, the US government had sided against the claimants and had upheld Austria’s argument at the time that the entire flap over “Wally” was a private matter to be resolved between the claimants—heirs of Ruth Bondi-Jarai—and the Leopold Foundation, then owner of the seized paintings. Still, and this is for another installment, Morgenthau’s muscled intervention at MoMA triggered an existential debate inside Austrian political and cultural circles which forced Austria to reexamine its entire relationship with its past as it affected the illegal seizures of Jewish cultural property. The end result: the only restitution law in the world which mandates “provenance research” in all Federal public cultural institutions of the Republic of Austria.

Begrudgingly, the US government and its many allies at the planning table for the Washington Conference inserted art as one of the many different types of looted assets whose fate needed to be deliberated on by the attending nations and Non-Governmental Organizations (NGO). The Washington Conference produced the so-called non-binding “Washington Principles”—11 recommendations that have become de facto “policy” for lack of a better word in many nations that want to remove that cultural monkey off their backs.

For some, the Washington Conference was a success. For others, it was a dismal failure. For those who deemed it a success, the Conference provided a unique forum to get a sense of where the world stood as far as justice to Holocaust survivors was concerned. The principles notwithstanding, everyone went home thinking they had done God’s work for three days. Those who saw in the Conference a dismal failure balked at the so-called Principles as yet another diplomatic way out of taking full responsibility for not having done anything concrete to render justice to the victims of plunder while throwing a sop at museums, auction houses, and other privateers of the art market by reassuring them that, although provenance research was highly recommended to fill “unavoidable gaps” in the history of ownership of art objects under their care and stewardship, “fair and just solutions” ought to be sought in order to ensure a measure of justice for all. In the end, for the naysayers, the Washington Conference led to a massive failure of international public policy, thus creating a vacuum of power and decision-making over the fate of countless art objects whose newfound status in legal limbo—plundered or not? Restitutable or not?—had to be resolved not with legislation but through, oftentimes, vicious legal battles pitting museums’ hired guns against plaintiffs’ hired guns.

The search for justice over a massive crime of plunder tied to genocide has turned into an international legal slugfest. Instead of chasing airplane crash victims, it has become more profitable to seek out victims of plunder.

A small tribute to Charles Goldstein

Charles Goldstein

by Marc Masurovsky

Charles Goldstein, counsel to the Commission for Art Recovery and Ronald Lauder’s attorney, died on July 30, 2015. He was 78 years old. Mr. Goldstein was also affiliated with the New York law firm of Herrick Feinstein, which has developed over the years a prestigious art restitution practice. Herrick Feinstein’s most visible cases have been the Portrait of Wally by Egon Schiele and the missing paintings of the late Jacques Goudstikker. Mr. Goldstein's most significant case at the time of his death is CAR's representation of the Baron Herzog's heirs against the Republic of Hungary.

I will now refer to Mr. Goldstein as Charles because of the budding friendship that evolved between us. I cannot say for certain that there was a deep friendship, but it certainly went beyond acquaintanceship.

Nothing predisposed me from ever meeting Charles and even more so from developing a bond with him, however loosely you would like to define what a bond really is.

As Ronald Lauder’s lawyer and as counsel to the Commission for Art Recovery (CAR), there was much axe to grind over palpable differences between what he represented -- or what I thought he represented--and what I represented. Namely, as a co-founder of the Holocaust Art Restitution Project (HARP), I became embroiled together with my HARP colleagues, Ori Z. Soltes and Willi Korte, in the Portrait of Walli affair which erupted in late 1997 over the refusal by the Board of the Museum of Modern Art of New York (MoMA) and its director to even consider opening a dialogue with the relatives of the pre-war owners of two paintings by Egon Schiele with questionable ownership histories that were on display in MoMA’s galleries as loans from the Leopold Collection in Vienna, Austria.

Ronald Lauder was then the Chairman of the Board of MoMA. The perception to the outside world was that Mr. Lauder and the Board of MoMA had steadfastly refused to sit down with the proclaimed heirs of the two contested Schiele paintings and to try to “work something out” short of getting embroiled in costly legal entanglements. The claimants wanted the paintings to remain in New York until they could get a fair hearing. MoMA wanted to honor its contractual obligations with the Leopold Museum and get the paintings out of the museum at the end of the Schiele Exhibit scheduled for the first week of January 1998. At that time, Charles was not directly involved in art restitution matters. In a very frank exchange that Charles and I had over the Wally affair, Charles insisted that Lauder was not involved in MoMA's ill-treatment of the Wally affair.

Thus began a cold spell between HARP and CAR. It did not help matters that CAR had sought to silence HARP by offering to “buy” it out of existence in the summer of 1998.  Lauder represented CAR and there was no way of understanding how CAR could square art restitution and MOMA's handling of the Schiele paintings. As far as HARP was concerned, CAR had gone to the dark side, choosing to leave most art restitution claimants in the cold and catering to wealthy clients seeking the return of their priceless works. Those were the caustic days of the late 1990s embittered by the mixed results of the Washington Conference on Holocaust-era Assets of December 1998, fueled by the American government's inability and unwillingness to truly move forward on this last chapter of WWII, dealing with the fate of looted Jewish cultural assets. Much water has since flowed under the proverbial bridge. Cooler heads have somewhat prevailed and it is clear that HARP's initial assessment of CAR ended up being far from accurate, as attested by Charles' groundbreaking work in art restitution cases and that of his colleague, the extremely able and brilliant Agnes Peresztegi, Director of European Operations for CAR.

Seven years elapsed since the Wally affair and the Washington Conference. A mutual friend advised Charles to invite me to a very unusual (by my standards) international gathering of specialists co-sponsored by the London-based International Foundation for Cultural Diplomacy that was being held in southern Bavaria on the estates of the Duke of Bavaria. Charles/CAR agreed to sponsor my presence at this conclave. The topic at hand: databases and art restitution. I hadn’t set foot in Germany since 1972.

I drove through the Swiss-German border, laden with ancient memories of Jewish refugees being turned back in the 1930s and early 1940s. I was so terrified that I slowed down to show my passport. I was quickly summoned to keep on driving because… there was no passport check.

As I drove along the roads flanking the northern edges of Lake Constanz, names of towns echoed with direct associations to former slave labor camps, depots for looted Jewish property, and Allied battlefields. It was in this area that Jacques Doriot, leader of the PPF and a close friend of the German occupation forces in France had been machine-gunned on a lonely road towards the end of WWII. Charming!

I found myself arriving two hours earlier than I should have at the town of Salem---a curious name since in the US, Salem had hosted the first political trial of the New World accusing a group of young women of using sorcery and witchcraft against the town's "respectable" men.

My first stop was the local cemetery. You might find that strange but cemeteries are the best way of getting acquainted with the history of a community. The first “monument” that I saw was a plain, massive rectangular marble slab tacked to a small obelisk bearing the etched names of German soldiers from Salem who have gone “missing” during WWII. I found it truly moving and, no matter how much havoc those young soldiers might have wreaked in the former Soviet Union, it was still a compelling homage by their kin to indicate their fate as “missing”. Call it my ecumenical side but a human loss is a human loss, no matter which side of the fence you happen to reside on. My heart did leap when I saw several names with those familiar 'lightning bolts" etched next to them. Further along, tucked away behind the right wall of the church, around which the cemetery was formed, one stumbled on the Social Democratic section—made quite obvious by the tributes engraved on various tombstones. A good indication that Salem had experienced a complex political past reflective of Germany’s woes during the Weimar period. No Jewish graves in sight.

I eventually stumbled into my temporary living quarters, located on the estate of the Duke of Bavaria, down the street from the cemetery. I walked around the grounds and saw seated at a table outside the “inn” drinking a cocktail a small, balding, rotund figure topped with a roundish puffy face. He was wearing what the French call a grey “gilet” over which he wore a dark jacket. It was Charles. He motioned me to his table and we started chatting over nothing and everything. So began our “friendship”.

Over the years, we learned to trust each other. Although trust is a big word, maybe respect is more appropriate. I never worked for Charles, but he invited me over time to keep him “posted” on my activities and what I knew of specific occurrences in the art restitution field, a genuine hornest’s net crossed with a snake pit.

We did end up “working” together to stymie attempts by the American museum community to pass laws in Congress that would in effect eliminate claimants’ only recourse to plead their case in US courts over objects with contested histories. This collaboration, particularly centered around SB 2212 and its subsequent variants in the House of Representatives, defined the outer boundaries of our “bond.” The discussions provoked by the proposed legislation to “immunize” stolen works and objects of art entering the US for purposes of display, compelled us to find common grounds over issues such as barring statutes of limitations and other technical legal defenses in art restitution cases and Federal regulation of due diligence practices in the art world.

Charles, never one to mince his words, flatly stated that restitution litigation as we know it would die off quietly because of the paucity of claims coming forth in US civil courts. I could only retort that the huge cost of litigation, no thanks to Charles’ steep fee structure, discouraged most claimants from coming forward. His quip was to restate that he and his firm would not take any case where the object’s value was less than one million dollars. Period.

We left it at that.

The most important moment for me was when Charles broke rank with American Jewish organizations over the campaign to defeat SB 2212 by arguing that it was wrong and unethical to disregard other genocidal events against indigenous peoples and cultures around the world, including one of the most egregious which targeted the original inhabitants of the Americas. He recognized that it was in our common interest to seek support from those advocates of other groups and constituencies seeking redress for past genocides and from the archaeological community. It demonstrated his profound ethos and commitment to color-blind justice. The strategy worked and SB 2212 died a miserable death.

Charles and I ended up meeting several times a year in New York at some of his favorite watering and eating haunts, either on the upper west side across from the Lincoln Center, or across from his firm at 33rd Street and Park, or even on the upper East Side close to where he lived.

He gradually shared more elements of his personal life which were “entertaining” to say the least. I never considered Charles to be a ladies’ man, but, yes, he was, in his own special way. He had a disarming smile and a wicked sense of humor, almost disarming.




As he grew weaker due to his illness, he maintained a stoic poise and was quite frank about his few brushes with death owing to allergic reactions to the medication that he was taking which seemed to incapacitate him. But he was a fighter and he knew how fortunate he was to be so well cared for by a supportive network.

I end this small tribute to him with two last thoughts:

I thank him dearly for extending himself professionally by supporting projects dear to my heart.

He left behind a wonderful daughter, Deborah, who, in so many ways, is the antithesis of her father. But they both share a huge heart and openness of mind that are hard to find nowadays. I never had the pleasure of meeting his son, Graham, nor his ex-wives. But my heart goes out to all of them for their loss.

Charles: You are sorely missed. You were and continue to be a driving force and a huge influence on the restitution discussion both in the US and abroad. We have not yet measured the impact of your passing. The fact that your opponents representing museums and art dealers have already uncorked champagne bottles toasting your disappearance is premature and typical of their hubris. We’ll see who has the last word.

More importantly, you taught me to value and nurture a more pragmatic approach to seek a more ethical treatment of restitution claims and instill better practices in the management of objects with dubious histories. In that regard, you were an excellent teacher.

I do miss you, as a friend, a colleague and an intellectual foil.

You are a mensch.

1998: Year Zero of Art Restitution?

Highlights from that fateful year include, but are not limited to:

-the seizure of two paintings by Egon Schiele at the Museum of Modern Art in New York, which prompted some soul searching in Austrian government and museum circles, the outcome of which was the world’s only Art Restitution Law;

Logo, Source: PCHA

-Congressional hearings in Washington, DC, on the role of the US government in facilitating or hampering the restitution of assets looted from Jews and other victims of the Third Reich;

–the establishment of a Presidential Commission to examine the role played by the US government in the recovery and return of property stolen from Jews between 1933 and 1945,

–the recently established Holocaust Claims Processing Office (HCPO), a component of the New York State Banking Department broadened its mandate to include looted art claims,

–the organization of a landmark international conference aimed at creating a new consensus regarding the dispensation of justice in matters of plunder against Jews and other victims of Nazi and Fascist persecution,

–passage of the Holocaust Victims Redress Act and the aborted introduction of legislation to tighten due diligence practices in American museums (an attempt that was scuttled by then Congressman Schumer’s ambition to become Senator or his close relationships with New York museums, hard to say…).

What a year!

MoMA gets a discount on German Expressionists

Cafe Couple, Otto Dix
Source: MoMA

by Marc Masurovsky

Want a great deal on a painting by German Expressionist Otto Dix?

One such work--“Café Couple/Paar in Café”--belonged to noted German art dealer and collector Karl Buchholz who had sought refuge from Nazi Germany and greener pastures in New York in the mid-1930s, where money and opportunities flowed in the blossoming American market for Expressionists and other European modernists. The Alien Property Custodian (APC), an enforcement arm of the US Department of the Treasury, seized the painting and other works belonging to Buchholz after he was labeled as an “enemy alien”. His property became subject to “vesting” after the United States declared war on Germany following the Japanese raid on Pearl Harbor on December 7, 1941. Eventually, the US government made these types of seized assets available for purchase by anyone interested in bidding on them.

The Museum of Modern Art (MoMA) in New York acquired the Dix painting for a song in 1945. What a deal!

In 1952, the APC sold another Dix painting--Workers' Children [Arbeiterkinder] from 1922--as part of the "vested" Buchholz collection.  The painting was on display at the UWM Art Museum in Milwaukee, Wisconsin, in November-December 1986, as part of a larger exhibit entitled "Reactions to the war: European art, 1914-1925."

Many works by Otto Dix entered private and public collections in Weimar Germany but became subject to seizure and forced sale under the Third Reich due to their "degenerate" status.  One such painting belonged to Curt Glaser, an eminent art historian and critic under Weimar who lost his job within months of Hitler's accession to power in January 1933 and was forced to sell his property, including a vast collection of works of art and books in a now-notorious forced sale in June 1933.  One of those items sits in the Freiburg Museum of Modern Art.

O Canada! Where did you go wrong?

by Marc Masurovsky

What is the problem up there?

Way back when, at the turn of the twenty-first century, an international conference was held in Ottawa hosted by the National Gallery of Canada, where members of the art trade, civil servants, researchers, claimants, survivors, art historians, lawyers, and hangers-on from various nations met to discuss looted art and restitution as a global problem but more particularly as a Canadian problem.

After three intense days of deliberations and animated discussions, the participants to this conclave came up with a blueprint with could have led to meaningful reforms in Canada that might have raised the ethical bar, thus ensuring that museums, dealers, collectors—the private and public sectors—did the right thing, cleaned up their collections, stopped buying looted artifacts and stolen art, and educated their public and their personnel about the ethics of collecting and the evils of cultural plunder. In some respect, the Ottawa Conference had accomplished a small miracle, one that was out of reach of the Washington Holocaust Assets Conference of December 1998.

Lost opportunities. Had this blueprint been enacted, even in part, it would have placed Canada at the forefront of the art restitution movement, a title that Austria is fighting hard to gain, since it is the only country in the world with a basic and generically effective restitution law.

Twelve years later, nothing has happened of any significance in Canada, save for interesting declarations, expressions of good will, attempts at increased provenance research in various museums (three at last count) and an inability, more to the point, an unwillingness to return stolen cultural property to their rightful owners. All this inaction despite the presence of highly educated and aware specialists, art lawyers specialized in restitutions, at least in name only, as well as thousands of Jewish Holocaust survivors whose property was stolen but who somehow do not weigh in to these debates. Well-intentioned people everywhere, but no one to step up to the plate and tip the scales in favor of JUSTICE. Even the Canadian Jewish Congress has vanished from the very debates that it used to stoke with glee in the late 1990s. Times have changed, indeed.

Why the sour face?

Montreal is a poster child for everything that is wrong and that is right about Canada. Forget Toronto because no one is paying attention there.

Who gets it right? Why, the Max Stern Foundation at Concordia University. This foundation, established after the death of a German Jewish art dealer from Düsseldorf who was forced to leave the Third Reich for the obvious reasons after having been forced to sell his collection of several hundred Old Master paintings.

Max Stern's gallery in Dusseldorf, Germany
Source: Concordia University

Forced sale drove Max Stern into the ground and Nazi anti-Jewish policies drove him into exile to Canada where he became a successful businessman and bequeathed his estate to Concordia University, with the caveat that it would have to establish a project whose main goal would be to recover his lost works of art. Brilliant! The only project of its kind in the entire world… No kidding.

Musée des Beaux-Arts, Montreal
Source: Wikipedia

Who gets it wrong? The Musée des Beaux-Arts of Montreal, a wonderful, albeit eclectic, compilation of brilliant Old Master paintings abutting fairly tacky and should I say “pompier” art from the 19th and early 20th century.  Now is not the time to be snobbish about the quality of the art. Suffice it to say that, from the 1950s on, this charming museum benefited from the largesse of a handful of very wealthy donors who parted with their classical acquisitions, coupled with new acquisitions over the past several decades aiming to place the Musée des Beaux-Arts as close as possible to the pantheon of great museums in North America, if not in Canada. Mission accomplished? You be the judge. Meanwhile, in their great haste to acquire, the museum staff and board members forgot to do their due diligence and, in the process, absorbed a small trove of paintings of dubious origin. The most glaring examples are:

The Deification of Aeneas (1642-1644) by Charles Le Brun
Source: Wikipedia

The Deification of Aeneas (1642-1644), by Charles Le Brun, which once belonged to Jacques Goudstikker, a wealthy Dutch art merchant who perished accidentally on a boat in the North Sea shortly before the Nazi takeover of Holland in spring of 1940. The rest being history, several thousand pieces in his extraordinary collection were dispersed under the watchful eyes of Marshal Goering and his minions. Goudstikker’s heirs have spent decades seeking the return of these stolen works. Successes and failures have followed in quick succession, but the behavior of the Musée des beaux-arts of Montréal ranks as low as that of the Norton Simon Museum in California over its stubborn reticence to relinquish paintings that belong to the Goudstikker family, even if all of the evidence in hand is clear and incontrovertible.

“Das Duett” by Gerhard Honthorst, which used to be the property of a German Jew named Bruno Spiro before being sold under less than honorable circumstances in 1934. How it ended up at the Musée des Beaux-Arts remains unclear.

"Das Duett" by Gerhard Honthorst
Source: Lost Art

As with many cultural institutions, the Montreal museum’s leadership has been sitting pat on its hands, waiting for things to not happen. That is one strategy that characterizes most museums’ responses to restitution claims, the strategy of attrition. Tire them out, stall for time, until someone passes away, namely the claimant, or the plaintiff’s treasury runs dry, or a combination thereof.

It’s even more unfortunate to have to witness this callous state of affairs when one realizes that the chairperson of the Musée des Beaux-Arts of Montreal is one of the most successful Holocaust survivors in Canada. Yes, you heard it here. This is not esoteric or a mystery, no one is hiding under a rock here. Mr. Hornstein is a distinguished member of the Canadian Jewish community, a highly decorated member of Canadian society, someone to look up to and admire, especially after everything that he went through, least of which was to be deported to Auschwitz. And yet, with the moral sway and the burden of history that Mr. Hornstein carries on his frail shoulders, although he sounds like one tough guy, a man known for his boundless generosity, why does he not awaken from his dream and persuade the Museum’s board to relinquish those few paintings that are at issue to their rightful owners, thus transforming him into an even greater mensch than he already is? Why? Does anyone know? Maybe it’s because at least one painting in the collection was claimed by the Polish government. Who knows?

It’s always been a puzzle as to why it would have to come to this, time and time again, where Jewish claimants, some rich, most not, would have to butt heads against formidable members of the Jewish community, current possessors of their property, and bloody their heads against brick walls of indifference, verging on disdain and contempt. Yes, strong words these are, but truthful words, words spoken from decades of hapless and helpless observation. How many times have Jewish claimants come up against other members of the community in futile attempts to knock sense into them and invoke age-old communal ties to do the right thing much like the Torah commands them to do? Nothing doing. For some inexplicable reason, the principle of having acquired a stolen work of art in good faith primes over any moral, ethical, communal, communitarian, spiritual, religious, or plain commonsensical reason. It simply ain’t gonna happen.

So, what is to be done?

All-out war? Is that what where we are headed? Intra-communitarian warfare? Silly discourses about working hard and having suffered greatly and why should I simply hand this painting back to you? How do I know it’s yours anyway? And so forth and so on? So much unnecessary strife, so much grandstanding, why? As usual, it’s the principle that matters, on both sides of the fence. The current possessors reason like 2nd Amendment nut cakes who prize their guns over human life, while claimants invoke rightfully the wrongs of history, the certainty that injustice has been committed, brandish the incontrovertible proof that backs their claim, invoke and implore, and plead, in vain. Maybe the Mounties can resolve this, much like agents from Immigration and Customs Enforcement (ICE) do in the United States whose track record is practically unblemished. After all, it’s hard to challenge a badge and a gun, because there’s not much left to say. A crime is a crime. But if the hapless claimant comes unarmed, the current possessor eats him alive, arguing that there is no crime. Long live Kafka!

It is somewhat a fitting irony to have two antithetical institutions and modes of behavior co-existing within half a mile of one another in Montreal—the Max Stern Art Restitution Project on the one hand and the Musée des Beaux-Arts on the other. They embody the optimism that one can feel whereby it is possible to recover and to do right, while the other exudes cynicism and reinforces our endless pessimism that museum boards and their supporters live on another planet in some kind of art-fueled apartheid.

As yet another pessimistic sign of things to come, there is an event coming up at McGill University, also in Montreal, which appears to be underwritten by one of the top law firms in Canada. The event hosts none other than Glenn Lowry, director of the Museum of Modern Art in New York, to discuss the intersection of art and law when it comes to questions of restitution of looted art. Well, now, who else but Glenn Lowry to discuss in the most objective and impartial manner how his institution has refused steadfastly ever since the end of the Second World War to return anything to anyone.

Glenn Lowry
Source: The Lattice Group

Quite the contrary, MOMA is always happy to preserve, safeguard, store, display, acquire, and otherwise hoard works of art that do not necessarily belong to this fine cultural institution. Perhaps, these words are on the cusp of libel. Perhaps they are, but go ask the Georg Grosz heirs, go ask the heirs of the Redslob family, go ask anyone about Alfred Barr’s disingenuous and clever ways of acquiring looted art on the European market and then on the American market, hiding behind sycophantic dealers and collectors only too happy to minister to Barr’s wishes, in the hopes that he would …. what? Curry favors to them? The art world being what it is, anything is possible, of course. But Alfred Barr was no dummy, no he wasn’t. When looted art, art looted by the Nazi government from its own citizens and institutions was put up for sale in Lucerne, Switzerland, in late June 1939, Barr didn’t dare embarrass himself by bidding in person for those works. No, he hired “cut-outs” who acted on his behalf and turned the acquired works over to MOMA without dropping a hint that the purchases had been commissioned by good ol’ Alfred.

Alfred H. Barr
Source: Wikipedia

Back to Canada... Suffice it to say that for McGill to host a presentation on a subject as complex and contentious as restitution of looted art by asking the proverbial elegant fox to lead the discussion, the fox being Mr. Lowry of course, is already a very bad sign, an indication that there is no interest on the part of this fine academic institution to provide a forum where the complexities of plunder and its consequences for institutions such as MOMA can be brought to bear for the benefit of the audience. Or one senses callous indifference on the part of the organizers of this event as they prefer to display their talent at bringing in one of the most successful American museum directors on their campus to discuss a topic where he unfortunately behaves more like a perpetrator than a Solomon, thereby cheating its public of an unique opportunity to apprehend the role of cultural institutions as enablers of historic injustices by refusing to return objects that clearly do not belong to them.

The fight continues…

Come on, Canada! Wake up! Smell the coffee! Do something useful and honorable! Restitute!