Duress revisited

by Marc Masurovsky

Duress should be a no-brainer. It’s a tangible manifestation of State-sponsored persecution and marginalization exercised against a specific group of individuals, namely the Jews in Nazi Germany. A forced sale is not conceivable without duress. It is the duress environment that makes the sale of Jewish-owned property an inevitability and a logical outcome of a Jew’s loss of prerogative in making day-to-day decisions that affects her life and her future and that of her family. Although duress is not a difficult concept to grasp, it is characterized by a loss of individual freedom in making practical and existential decisions and loss of control over one’s resources and property fueled by an oppressive regime which extolled the racial inferiority of an entire group of people (the Jews) as a basis for using all the necessary levers of State power to oppress and marginalize them. Duress foreshadows the Holocaust.

Here are some examples of duress which were highlighted during restitution proceedings over the past decade or so.

Max Stern, Düsseldorf

Max Stern

In December 2007, in a case that pitted the heirs of Max Stern, a Jewish gallery owner based in Düsseldorf, against Maria-Louise Bissonnette, a resident of Providence (Rhode Island), US District Judge Mary Lisi ruled in favor of the late Max Stern’s estate with a landmark judgment in which she equated forced sales with looting and an act of theft. She justified her decision in part on the fact that Max Stern had never received any compensation for the 1937 forced sale of his gallery’s inventory, including a painting by Xaver Winterhalter which Ms. Bissonnette had acquired. In Max Stern’s case, the duress began as soon as he received an official notification from the Nazi-sponsored Reich Chamber of Fine Arts shortly after he had inherited his father’s gallery. The Reich Chamber asserted that as a Jew he was not qualified to run such a business and he should proceed expeditiously with the liquidation of the gallery’s inventory through an approved point of sale, in this case the Lempertz auction house in Köln. Max Stern had no other choice but to proceed with the liquidation. The absence of payment was an egregious manifestation of his persecution. (See 2008sternvbissonnette)

Are price and value essential guideposts to determine whether a Jew living in Nazi Germany was subject to acts of duress? Not necessarily. In fact, if one looks solely at value and price without appreciating the importance of the socio-economic and historical context surrounding the events that produced the state of duress, one may end up deciding the fate of a contested object without giving due attention to the “why”, “how” and “when” of the sale of a claimed object.

Max Emden, Munich

Max Emden

We see this in the case of the late Max Emden, a German Jewish department store magnate. The Nazis made Emden’s life increasingly difficult as noted by the German Advisory Commission (so-called Limbach Commission) when commenting on the 1938 sale of his three Bellotto paintings to Hitler’s Linzmuseum project, a sale that was brokered by a Munich-based dealer named Anna Caspari: “[the sale] was not undertaken voluntarily but was entirely due to worsening economic hardship… deliberately exploited by potential buyers…” However, the Houston MFA where one of the Bellotto works ended up, remained unflappable. It disagreed with the Commission’s assessment noting that Emden had obtained a fair price for the three paintings.

Houston Museum of Fine Arts

By solely looking at the price realized by the sale of 1938 and ruling it as reasonable given the time period and quality of the works, Houston essentially ruled out all other facts in making its determination, therefore implicitly denying that Emden had acted out of duress. Regardless of where one stands on the Emden case—for or against restitution—the fact is that Emden had to part with much of his property before leaving Nazi Germany. The German Advisory Commission (ex-Limbach Commission) reached this conclusion based in part on the facts surrounding the forced sale. The “worsening economic hardship” that Emden experienced as the main factor prompting the forced sale had become the bane of most Jews living under Nazi rule, especially in 1938.

Fritz Grünbaum, Vienna and Dachau

Fritz Grünbaum

In the case of Fritz Grünbaum who died at Dachau in January 1941, once arrested in Vienna by the Nazis in 1938, he lost control over his property and assets, including a rather significant collection of modern works of art. Four months after his transfer to Dachau, he was forced to sign a power of attorney, thereby effectively finalizing under duress the surrender of his art collection as a direct consequence of prevailing circumstances—racially- and politically-motivated incarceration, physical and emotional abuse. (See Bakalar v. Vavra).

Lilly Cassirer Neubauer, Munich

Lilly Cassirer Neubauer

In a complaint filed against the Thyssen-Bornemisza Collection Foundation in 2019, the heirs of Lilly Cassirer Neubauer argued that their great-grandmother “was forced to transfer [a painting by Camille Pissarro] to Jakob Scheidwimmer, a Nazi art appraiser [in Munich], in order to obtain exit visas for herself and her husband, Otto. Scheidwimmer transferred 900 RM [or 360 US dollars in 1939] in payment for the painting which he deposited in a blocked account as Ms. Neubauer was of Jewish descent and subject to Nazi anti-Jewish discriminatory laws since the advent of National Socialism in Germany on January 1933. 

Thyssen-Bornemisza Foundation

As an art market player in Munich, Mr. Scheidwimmer was very much a part of the Nazi machinery for recycling confiscated Jewish cultural assets as attested by his direct participation in high-level meetings with local, Bavarian and Reich officials around the time of Kristallnacht (9-10 November 1938) during which thousands of Jewish apartments were raided and their male occupants corralled and interned into camps, in part, to force them to disgorge their assets and leave Germany. Ms. Neubauer did not stand a chance against Scheidwimmer and was forced to relinquish the Pissarro painting.


Are there different shades of duress like a palette of colored hues ranging from very light to very dark? Or is there just one universal expression of duress, plain and simple, equally applied to all Jews living in Nazi Germany at all times between 1933 and 1945? Was it less severe in some parts of Germany? How quickly did Jews feel the paralyzing and oppressive nature of Nazi rule in all its petty manifestations? Can we periodize duress? Did it wax and wane like the tides or was it always dispensed in equal amounts to all Jews in Germany, regardless of status, class, income and geographical location? The question may seem unfair but it goes to the heart of how we view duress in Nazi Germany and the forced sale of cultural assets by Jewish owners desperately seeking to flee Germany at all cost. Unfortunately for the heirs and descendants of Jewish victims of the Nazis, their detractors in museums, auction houses, and private collections nitpick to death the “quality of the duress” that their families experienced as if to find a flaw in their argument, implying that they might be exaggerating the circumstances under which their ancestors sold works of art. This debasement of the experience of Jewish families in Nazi Germany has led to restitution claims being denied, thus allowing current possessors to retain the object(s) in their collection. The unwillingness of cultural officials to accept and acknowledge the circumstances of a family’s duress under Nazi rule is tantamount to revisionist and constitutes an implicit recasting of the Jewish experience under Nazi rule.

We have seen this scenario unfold many times since 1945.

It is essential to study and compare all forms of duress sustained under oppressive regimes like that foisted by the Nazis on the citizens of Germany and later on most of Europe. We need to deduce, outline, define and publicize the complex manifestations of duress in the daily lives of Jews using witness statements, contemporaneous reports, legal and governmental proceedings. Duress and forced sales are real phenomena that haunted Jews from the advent to power of the Nazis in Germany in late January 1933 to their forced exit from Nazified Germany with little or nothing left to their name.

Abrupt cancellation of an exhibit on Max Stern

by Angelina Giovani

The following text can be found on a petition to protest the cancellation of an exhibit on a Jewish art dealer named Max Stern, who lived in Düsseldorf, Germany, until forced to liquidate his gallery and its inventory because he was Jewish. An exhibit highlighting his life and accomplishments was scheduled to open at the Stadtmuseum of Düsseldorf in February 2018.

However, Thomas Geisel, the lord mayor of the city of Düsseldorf. decided to cancel the exhibit. It had been in preparation for the past three years, and was to travel from Düsseldorf to the Haifa Museum of Art in Israel and to the McCord Museum in Montreal.

Max Stern was a Jewish art dealer and collector who inherited his family’s renowned art gallery in Düsseldorf in 1934, at the time of his father’s death. A victim of Nazi persecution, he was prohibited by the Reichskammer der bildenden Künst (RKdbK) to practice as an art dealer and was instructed to liquidate his gallery and its assets. Stern auctioned off his gallery stock in two sales, selling the works at below market value. The first forced sale took place at the Lempertz auction house in Cologne on November 13, 1937; Stern sold the residual at a second forced sale in Düsseldorf on December 15, 1937. He left for Paris on December 23, 1937 and on July 12, 1939 he lost his German citizenship.

The exhibition on Max Stern’s life is a big step into bringing forward issues which emphasize problems of ownership history and the need for a continuous debate on how we approach provenance research. The reason given by the city government for the cancellation the exhibition is “the current demands for information and restitution in German museums in connection with the “Galerie Max Stern”. It is for these issues that it is of paramount importance for the exhibition to be allowed to take place in the hope that it will encourage other similar ventures in the future.

We urge Thomas Geisel, Lord Mayor of Düsseldorf, to reconsider his decision and allow the exhibition to proceed as planned. The Max Stern exhibition would encourage a positive and productive discussion about the events that took place in Nazi Germany and mark a decisive step in detaching the city’s history from its troubled past, which saw it welcome nationalist socialist ideas and characters of the likes of Hildebrand Gurlitt in the 1940s or 50s, when he became director of the Kunstverein in Düsseldorf.

A lot of effort, resources and hard work by serious individuals and institutions went into this project and it would be unethical to take such extreme measures at the eleventh hour, against a project that aims to educate and inform the public. This exhibition on Max Stern could very well be a giant leap towards addressing the very issues on restitution of Nazi cultural dispossessions of Jewish-owned property that seem to underscore the cancellation of the exhibition.

With the above in mind you are encouraged to sign this petition so that we can show that there are many who care and believe that the course of action chosen by the Lord Mayor of Düsseldorf is unacceptable and deeply troubling.

To sign the petition, click on the link.

Are German museums in favor of restitution?

by Marc Masurovsky

By the looks of it, the answer is a qualified NO.

Let’s take a quick run-through at the track record of German institutions through the glare of the media since 2006. If some cases have fallen off the wagon, just blame the author. No one else.

Generally speaking, collections owned by noted art dealers and collectors like Alfred Flechtheim have continued to plague and embarrass German museums because many items illegally removed from those Jewish owners have entered these public collections.

In 2006, German museums complained that restitution procedures were too easy and that anyway most claims centered on auction house sales. What does that have to do with anything?

According to the LA Times, German museums asked the German government for help in funding provenance research because they had no money for such purposes and their staff seemingly could not be tasked to perform such duties.

Oh yes! museum directors asked that the discussion about restitution be more “businesslike.” Somehow, they felt inconvenienced by the emotional tone underlying claims for restitution. It’s hard to imagine why since claimants are heirs to victims of a genocide perpetrated by German state institutions against their families during the National Socialist period.

In 2007, the grumbling by German museums persisted over restitution rules.

In 2008, Culture Minister Bernd Neumann convened a meeting in Berlin with representatives of German museums, art experts, and individuals concerned with questions of restitution. Once again, museums requested more money for provenance research. However, some museum researchers spoke up and complained that they worked in isolation, were overwhelmed by the dizzying amount of work to do for institutions that were understaffed and underfunded.

In January 2009, an international Conference took place at the Jewish Museum of Berlin which focused the spotlight on the state of affairs both in Germany and elsewhere regarding restitution matters.

We are skipping through history here. In November 2013, the Gurlitt case exploded onto the international scene, taking by surprise everyone remotely interested in issues pertaining to looted art, to restitution, to Gemany's handling of its past.

Some commentators have gone as far as saying that the “handling of this Nazi legacy (entartete kunst) is a moral disaster.”

During that time, a restitution claim filed by the Montreal-based Max Stern Restitution Project, landed on the desk of the leadership of the City Museum of Dusseldorf over a painting by Wilhelm von Schadow which belonged to the late Max Stern. Contrary to most German museums, the leadership of the city Museum proved to be sympathetic to the request for restitution and endeavored to work closely with the Max Stern Project in order to resolve the claim favorably. An odd moment when one considers the general hostility that permeates the German museum world regarding restitution claims.

It could be that the Montreal-based restitution project which is housed at Concordia University, relies heavily on international law enforcement agencies to facilitate its requests for restitution. An interesting model to keep in mind.

While German museums were giving short shrift to Holocaust-era claimants, the German government appeared to encourage the repatriation of looted antiquities to Greece and Iraq. The same could not be said for African countries like Nigeria, Chad and Gabon. Neo-colonialist double-standard or geopolitics gone awry?

If you think we are being too harsh on the German government and its cultural institutions, they should not feel singled-out since a similar negative assessment appeared in the New York Times accusing American museums of rolling back the clock on restitution: stalling, balking, and disengaging from the restitution discussion. Fair or unfair?

2014 let in a bright light of hope when the museum of art of Wuppertal decided of its own accord with the support of the local city council to do the right thing and restitute a gorgeous painting by Caspar Netscher entitled “Lady with the Parrot—Dame mit Papagei”, an exceptional moment in the annals of restitution in Germany, a moment that should have heaped kudos on the director of the Wuppertal Museum, Gerhard Finckh, for his willingness to keep an open mind even if it meant losing one of the museum’s prized possessions. A gesture that was largely ignored by German and foreign journalists, commentators, restitution officials, and the like. So, we take this opportunity to applaud Mr. Finkh’s decision to restitute the Caspar Netscher painting to the heirs of a Belgian Jewish family, as a shining example of what can be done if one wills it to be done.

Note that the world did not come to an end and that the art market is still in operation.

However, the restitution enthusiasm was short-lived, the window closed and the room went dark. In August 2014, the Bayerische Staatsgemäldesammlungen rejected a restitution claim for a painting by Jacob Octhervelt.

In the midst of the Gurlitt mess, 2015 has not gotten off on a positive footing. Indeed, the so-called Guelph treasure has been the subject of a restitution claim whereby the German institution holding the so-called treasure which is worth quite a bit of money has refused to return it on grounds that there is no proof of a spoliation, let alone duress. The family has turned around and filed a lawsuit.

In the minds of restitution lawyers both in Germany and the United States, the Guelph treasure case puts the lie to German pledges to do what is needed to facilitate restitution to claimants.

As a result of the constantly evolving Cornelius Gurlitt scandal, in death as in life, German promises of passing laws eliminating statutes of limitations have not come to fruition.

In response to the savagery displayed in Syria and Irak against people and property, especially cultural property, Germany woke up to the fact that its territory is used as a major turnstile for the reselling of looted antiquities originating in that conflict. Monika Gruetters proposed that provenances be required for all cultural items entering or leaving Germany which apparently come from the Mideast. A great idea that is not favored by the German art market. Let’s see.

Will there be more funding for provenance research in Germany? A new center requested by Monika Gruetters has reorganized and expanded the provenance bureaucracy in Germany, the largest of its kind in the world, but it does not appear to be the ideal way of addressing the problem that plagues cultural institutions in Germany. As a model, the world is taking note, but wonders whether this is what we should NOT be doing when addressing the question of research and due diligence in museum collections.

Nevertheless, it is easy to criticize the German government when the rest of the world is not doing a bloody thing to move forward on questions of research, due diligence, improved conditions for filing and resolving claims and so forth and so on.

We are therefore duty bound to acknowledge that, in its particularly clumsy way, Germany has been trying to improve the climate regarding research into histories of ownership of objects that might have been looted and which are present in German state collections. An improvement that does not allay the underlying problem: how willing are German museums to restitute objects once conclusive or convincing proof has established the illicit nature of the object in a German public collection?

The answer to our initial question is still NO. Unless proven otherwise, the vast majority of German museums are still not inclined to restitute.

As they say in the United States, proof is in the pudding.

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!

Seeking guidance from INTERPOL

The words vary but their meaning does not.

Plunder, looting, theft, spoliation, misappropriation, pillage—call it what you wish, it all comes down to the same thing: someone somewhere has committed a theft of cultural items either under cover of an international military conflict, a domestic uprising or insurrection or major civil unrest, or simply has broken into someone’s home, place of business, or public institution to commit the crime of art theft.

Lawyers will have a field day arguing that each word connotes something slightly different. But as one famous unnamed general said at the end of the Second World War, “Theft does not convey title”. Period.

Since 1945, much has been said but little has been done to address in absolute terms the global problem of cultural theft, especially when it has been fueled by considerations of race, ethnicity, belief, and/or greed and lucre.

INTERPOL
Source: Wikipedia

No global solution to the problem of cultural property theft, cultural plunder and looting, can be achieved without the full and engaged participation of international organizations, especially since the founding of the United Nations in 1945.  As part of an on-going effort to spark more interest in the role of the organized international community of experts and officials who take at least a nominal interest in questions of art crime, let’s take a brief look at one institution—INTERPOL—and its pronouncements between 2004 and 2007 regarding international art crime.

First off, we paid a visit to INTERPOL’s website datelined 2007 and found these remarkable items under the rubric of “frequently asked questions” or FAQs” :

• “In fact, it is very difficult to gain an exact idea of how many items of cultural property are stolen throughout the world and it is unlikely that there will ever be any accurate statistics. National statistics are often based on the circumstances of the theft (petty theft, theft by breaking and entering or armed robbery) rather than the type of object stolen. To illustrate this, every year, the Interpol General Secretariat asks all member countries for statistics on thefts of works of art, information on where the thefts took place, and the nature of the stolen objects. On average, we receive 60 replies a year (out of 186 member countries), some of which are incomplete or inform us that no statistics exist.”
• To the question, “Which countries are most affected by this type of crime?”, the answer is…….
  
  France
  Italy
  Russia
  Germany
• The most sought after items by thieves as reported by law enforcement agencies are:
  
  Paintings
  Sculptures and statues
  Religious items
• INTERPOL’s General Secretariat devised the following tools “to tackle the traffic in cultural property”:
  
  A "wanted" poster:
  
  In 1986, INTERPOL published “THE 12 MOST WANTED WORKS OF ART’ poster.  The following year, the poster was renamed “THE MOST WANTED WORKS OF ART", printed in black and white and updated twice. Since 1998, the poster has been printed in COLOR!
  
  A database of stolen works of art:
  
  As of 2007, Interpol’s computerized database contained 26,000 stolen works of art. The main caveat for eligibility to be entered into the Interpol Stolen Works of Art database is that the object be “fully identifiable.”  The most astounding development occurred in 2010 when, for the first time, INTERPOL agreed to publish a series of paintings stolen from Max Stern, a German Jewish art dealer once based in Duesseldorf whose business was liquidated by the Nazi government and he was forced to flee to Canada.  At his death, Concordia University became the executor of his estate and launched a unique program under the guise of the "Max Stern Foundation" to publicize the cultural losses suffered by Max Stern and promote the identification and restitution of his cultural property, with some measure of success, thanks in part to the crucial role played by the Immigration and Customs Enforcement (ICE) unit of the Department of Homeland Security in the apprehension and restitution of some of Stern's works from private collections in the United States.

Max Stern in Germany, c. 1925
Source: National Gallery of Canada, Library and Archives, Fonds Max Stern via Max Stern Art Restition Project, Concordia University

Since INTERPOL is comprised of representatives from police forces the world over, it is well-positioned to make recommendations that allow its law enforcement members to do their job more efficiently and curb the global crime wave of art theft.

When reading these recommendations, please keep in mind that we are now in the year 2011. Our planet has suffered through two global wars since 1914 which accounted for combined human casualties of close to 80 million individuals and massive thefts of cultural property. Since 1945, there has been at least one international military conflict in some part of the globe. Each conflict has produced its fair share of cultural plunder.

INTERPOL believes that the following conditions need to be met in order to achieve lasting long-term solutions to the problems of global art crime:

1. bring in laws to protect cultural heritage and regulate the art market. 
2.  become party to international conventions (1970 UNESCO Convention and the 1995 UNIDROIT Convention)
3. prepare inventories of public collections using standards which will make it possible to circulate information in the event of theft
4. develop a computerized database along the lines of those currently in use, to avoid duplication of effort. 
5. circulate information on thefts as rapidly as possible
6. raise public awareness with regard to the cultural heritage both in the country and abroad
7. set up specialized police units to tackle this type of crime
8. hold training courses for the police, other law enforcement services and customs, with the support of cultural institutions.

In order to appreciate the tedium of political discourse at the international level and the degree to which raising international awareness can best be compared to La Fontaine’s fable of the “Turtle and the Hare” (We know who won the race, right?), here are some highlights of meetings convened by INTERPOL between 2004 and 2007:

Meeting place: Sinaïa City, Romania 
Date: September 7-9, 2004
Title: 4th International Conference on the Illicit Traffic in Cultural Property Stolen in Central and Eastern Europe

The participants acknowledged that there were serious problems east of the Oder River “concerning the protection and documentation of cultural property”.

They recommended the following:

• “To monitor the art market including the increasing sales on the Internet.”
• “To encourage the completion of inventories including photographs of cultural property for public and private collections using international description standards such as Object ID.”

Castelul Peles, Sinaia, Romania
Source: Wikipedia

Meeting place: Washington, DC
Date: May 23, 2005
Title: 3rd Meeting of the Interpol Tracking Task Force to Fight the Illicit Trafficking of Cultural Property Stolen in Iraq

The participants realized that the Internet is becoming a favorite venue for the sale of cultural items stolen in Iraq.

Meeting place: Lyon, France
Date: June 21-23, 2005
Title: 6th International Symposium on the Theft of and Illicit Traffic in Works of Art, Cultural Property and Antiques

The participants recommended the adoption of a “model export certificate for cultural property jointly developed by UNESCO and the World Customs Organization.”

More importantly, albeit very diplomatically, the participants invite their members to “consider adopting legislation and developing procedures that require proper examination of appropriate documentation for all cultural goods entering their country.” Remember, we are now in 2005, not in 1955.

The participants agreed to provide “relevant law enforcement agencies” around the world access to Interpol’s Stolen Works of Art database.

This one is the clincher:

The participants asked that the governments of their respective nations should “consider whether their cultural heritage legislation should include a provision for proof of ownership of cultural property prior to their trade.” In other words, was there no requirement until 2005 to prove the ownership of a cultural item before it entered the art trade?

Other recommendations included:

“Countries seeking the return of their cultural property provide adequate relevant documentation detailing the date and place of the theft with a full inventory of the stolen objects including descriptions and photographs. For incidents of looting, date and place with documented justification of the provenance of the items should be provided.”

“Establishment of minimum documentation for all cultural objects and use of the Object ID checklist for this purpose.”

Meeting place: Lyon, France
Date: March 7-8, 2006
Title: 3rd Meeting of the Interpol Expert Group (IEG) on Stolen Cultural Property

The participants admitted that they needed the assistance of “art market professionals in the trade in cultural objects” in order to enable law enforcement agencies to locate stolen cultural items more effectively. Interesting… Should one surmise that the international art trade has not had to worry about the heavy arm of law enforcement until very recently?

As a result of high-profile looted art cases which required years of litigation and tentative outcomes, the participants focused on alternative dispute resolutions as one way of facilitating the restitution of stolen art to countries of origin.

Not only did they propose that “law enforcement agencies extend their co-operation efforts to art market professionals as valuable partners and sources of information,” but, in the same breath, the participants suggested that “creative solutions” be found to facilitate the “return of cultural objects.” These solutions might include: arbitration, conciliation, mediation or negotiation procedures. More worrisome is the notion that long term loans could be used as an acceptable compromise to achieve the return of coveted stolen objects. Worrisome in light of the deals struck by the Metropolitan Museum of Art, the Wadsworth Atheneum in Connecticut, the Getty Museum in Los Angeles. These institutions have sufficient clout, despite their egregious behavior concerning the harboring of looted art and antiquities, to convince the injured parties—in these instances, foreign nations—to accept complex deals whose outcome is to dilute the responsibility of the institution responsible for benefiting from the misappropriation of a cultural object.

In other words, the aiding and abetting of art crimes has a way of turning into a profitable moment for all parties concerned, fueled for the most part by commercial and financial incentives at the expense of ethics. Let's hope that INTERPOL and other like-minded well-intentioned organizations do not fall into this gilded trap.  Theft is theft, no matter how you look at it and cultural institutions that profit from it should be held accountable even if it costs them an exhibit or two and the ill-gotten items that they have acquired.