Silences that are Hardly Golden

by Ori Z Soltes

edited by Marc Masurovsky

With the untimely passing of Elie Wiesel, my mind wanders back to issues that, over the years, I discussed with him, and things that I wrote about him. A consistent subject of both processes was the kind of responsibility Jews have to make the world a better, more justice-ridden place—in general, given the rabbinic and particularly Lurianic mystical imperative of tikkun olam (“repairing the world”), and in particular given what we as a group endured during the Holocaust. I confess that I confessed to him my disappointments at times in the failure of the Israeli or American Jewish communities to do this or that where they might have responded more positively or aggressively to a given situation. 

In one conversation with Mr. Wiesel I mused over what it is that too often prevented Jews from doing what I thought was the right thing. On the other hand, in one article that I was asked to write on “Who Speaks for the Jews?”—in which one of the figures I discussed was Elie Wiesel—the assertion that I offered was that there is nobody, per se, who plays that role in the Jewish world—there is no Pope or universally embraced political leader. One of the things that has historically prevented Jews from engaging in religious or political wars with each other on anything approaching the scale of the Crusades or the age of Religious Wars in Europe was the widespread diaspora—a thirteenth-century Jew in Germany would have been unlikely to know much about the gastronomy on Passover of Jews in Morocco, and therefore to have objected to it, much less spilled blood over it.

We remain a fractious community of communities today. Depending upon whom you ask and his/her spiritual and/or political affiliations, a given Jew may see his rabbi or his rebbe or the Prime Minister of Israel or the President of the World Jewish Congress (WJC) or the American Jewish Congress (AJC) —or a charismatic speaker, writer and Nobel Prize winner like Elie Wiesel—as the most appropriate figure to whom to turn for guidance regarding how to think, speak and act as a Jew. Non-Jews might think it’s the President of B’nai B’rith where few Jews are likely to think so. So it would be a surprise if we all agreed on what constitutes the “right thing” in a given situation.

There is some irony that one of Elie Wiesel’s first divergences, (following his memoir, Night), from writing novels, was his work—a personal journalistic reportage—regarding the plight of Soviet Jewry, called “The Jews of Silence.” Published in 1966, it was one of those important literary sources for inspiring Jews in America to speak up and speak out, because their oppressed co-religionists in the USSR could not. American Jews have not always been afraid to speak up, it seems.

The questions of contemporary Jewish silence in the face of injustice reminds me of another signal instance, more than fifteen years ago, when the same queries might be proffered. I refer to the attempt by the then District Attorney of Manhattan, Robert Morgenthau, to hold back two Egon Schiele paintings—“Dead City III” and “Portrait of Wally”—that had been on display at MOMA as part of a loan exhibition from the Leopold Museum in Vienna. Morgenthau sought to keep them from immediately heading back out of New York with the rest of the collection when the exhibit ended so that the claims put in by two Jewish families that these two paintings had been plundered from them by the Nazis—and that Dr. Kurt Leopold had acquired them with full knowledge of that fact—could be explored and adjudicated.

The museum community was up in arms: amicus briefs, both formal and informal flew fast and furiously. The museums challenged the validity of government interference in cultural matters. They argued the threat that the economic base of New York City would be deleteriously affected by this: that base, the assertion went, was heavily dependent on culture, specifically large-scale tourist visitation to New York’s art museums, and if the government was successful at holding back these two works, museums across the world would cease and desist from lending objects to New York museums, causing a dynamic shrinkage in loan exhibition quantity and quality, and thus of museum visitation and thus of the New York City economy.

All the museums joined this doleful chorus. My colleagues, Willi Korte and Marc Masurovsky and I, who had joined together to create the Holocaust Art Restitution Project (HARP) in September 1997, were on the other side of the fence. Willi had done and continued to do an enormous amount of research to validate the two families’ claims. Marc and I met with Robert Morgenthau to explain it—and to argue that the very assertion of the museum community was the proof of its fallaciousness: that art is big business, and that, unless one is pretty certain that one’s painting or sculpture is an ill-gotten good, one will not to hesitate to lend it to the Met or MOMA or the Guggenheim, knowing that art that has been on display in such places will exponentially increase in value.

All of the museums joined the chorus, including, of course, the doyenne of Jewish museums, the Jewish Museum of New York. Moreover, nobody among the “leadership” of the New York Jewish cultural and political communities spoke up on behalf of the claimants. The WJC really couldn’t, since its then vice-president—who in establishing the Committee on Art Recovery, announced that they would be “taking paintings off museum walls,” and might have been expected to speak up but could not—was the vice-president of MOMA’s Board and had put half a million of his own dollars into the project of bringing the Leopold Museum exhibition to MOMA. His quadruple conflict of interest—his role at MOMA vs his role at CAR vs his role in the WJC vs his earlier ambassadorship to Austria, shortened by the Austrians’ objections to his purchasing and carrying away the likes of Schiele paintings that they considered part of the Austrian patrimony, by diplomatic pouch—certainly explains his silence.

But why the Jewish Museum? What of the rest of the Jewish world? It was clear that, having spent so many decades trying to define itself as both a museum of Jewish history and culture and of art, and closer than ever since the 1960s to being accepted as part of the art museum world without alienating the Jewish world (in the 1960s it had managed the first but not the second), the Jewish Museum did not want to oppose that art world and re-isolate itself—two paintings and two Jewish family claimants seemed a small price to pay for amicus brief acquiescence. (I am not even going to raise the question of provenance in the museum’s own collections).

And the Jewish community in general?

A pundit well over a century once observed—as Emancipation was gradually breaking down ghetto walls throughout Western and Central Europe and Jews found themselves more welcome into the mainstream of culture, socio-economics and even, almost, politics, between 1780 or so and World War I—that “you can take the Jew out of the ghetto, but you cannot take the ghetto out of the Jew.”

He meant the extreme care with which a Jew feels he must operate, in words and actions, not because a riot might sweep through the now-gone ghetto, but because full acceptance into the larger community and all of the advantages of being mainstream might be denied or retracted. Is that what the Jewish “leaders” of New York City were and still are afraid of, in an America whose principles of eschewing anti-Christian sentiment have always been under assault from some quarters? Where Jews could not run for political office in some places (the state of New Hampshire) until late into the nineteenth century? Are we still faced with fear of what the non-Jews will think about us—or has it resurfaced after a period, in the 1960s and 1970s when Jews marched in Selma, Alabama on behalf of Blacks and marched in New York City on behalf of Soviet Jews?

The question is not who speaks for the Jews these days, but how many and which Jews speak up when the situation is potentially awkward but when silence is acquiescence to the miscarriage of justice. We have justifiably become fond of pointing out—it was one of Elie Wiesel’s important contributions to our thinking about the Holocaust, and the specific subject of his third novel, The Town Beyond the Wall—that silent acquiescence is a form of passive collaboration. There is a particular irony when this issue falls into the context of Nazi-plundered art, when one considers the disturbing datum that Jewish dealers like Georges Wildenstein were often more than willing to see harm done to other Jewish dealers, like Paul Rosenberg, if it served art-dealing business needs—or that perhaps the key dealer on behalf of Hitler, Hildebrandt Gurlitt, was half-Jewish.

If the Jewish role in history and art history is a complex one, and if the role of art within the context of the Holocaust was complex (another long story for another time), then the failure of Jews to speak now, so many decades later, in too many contexts where the matter of restituting Nazi-plundered art to victims’ heirs is also complex, perhaps. Or perhaps simple: fear. Whatever the reasons, that failure would have rabbis like Isaac Luria—and no doubt Elie Wiesel—rolling in their graves.

Sometimes It Takes a Village to Correct a Historical Wrong

Madonna and Child in a landscape

by Ori Z. Soltes

No two cases that deal with Nazi-plundered art are identical. There always seems to be some twist or turn to one situation that hasn't manifested itself in other situations. And what leads to rectification can be complicated and also sometimes surprising.

Back in 1999, HARP was made aware of a 1518 painting by Lucas Cranach the Elder that was at the time (and remains) in the collections of the North Carolina Museum of Art. It appeared that the painting, a small, beautiful Madonna and Child in a Landscape, had been plundered from the collections of Phillip von Gomperz, a successful Jewish businessman from Vienna, Austria. His surviving heirs were, at the time of its discovery in North Carolina, two grand-nieces in their 80s, Marianne and Cornelia Hainisch, who were not Jewish--a reminder that this issue is not by any means always a simple Nazi-Jewish matter, since the Nazis plundered from others as well, but also since the vagaries of life can and sometimes did lead Jews after the Holocaust to abandon the faith that was the primary object of Nazi hostility.

One of the founders of HARP and a key figure within it, Willi Korte, did the exhaustive research that showed unequivocally the provenance chain of the painting, from Gomperz’ acquisition of it to March 10, 1938 when the Nazis officially arrived into Austria (the Anschluss) and the Gomperz family was forced to flee (Gomperz himself would survive until 1948, dying in Switzerland); from the 1940 Nazi confiscation of the Gomperz collection, including Cranach’s Madonna and Child, which was then acquired by Baldur von Schirach, the Nazi Gauleiter of Vienna; to its appearance in the New York art market in the 1950s, where it was purchased by a California collector primarily of medieval German art, Marianne Khuner; to her passing on the painting to the North Carolina Museum of Art (NCMofA) in 1964 on a long-term loan that, through her will, became an outright gift in 1984, at the time of her death.

Baldur von Schirach

One can find a brief resume of this chronology if one goes to the site, ArtThemis, operated by the Art-Law Centre at the University of Geneva, Switzerland. There are, however, several things missing from what is presented as the official account. If one references Emily Yellin’s February 4, 2000, NY Times article, as the ArtThemis website does, there are, not surprising, the same omissions. One absence is the far greater chronological detail that Willi Korte had provided than what is presented on the website. This is fair enough: the website is presumably designed to give a thumbnail summary of the case and not an exhaustive history of it. A second absence, however, is the lack of any reference to Mr. Korte at all. Aside from writing him out of history these two omissions also contribute to what is a fairly widespread failure to realize how tedious and time-consuming the tracking down of such a provenance history often is—and in this case, certainly was.

Willi Korte

There is another matter that is lost if one reads an account as limited as that on the ArtThemis website, or the NY Times article, both of which merely jump in their chronology to 1999 and credit the Commission for Art Recovery with sending a letter to the Director of the NCMofA. The letter is simply credited in the website, without comment, with “detailing evidence of the painting’s history... it also indicated the names of the two sisters” who were the claimants; the ArtThemis entry and the article present the Museum as simply deciding to investigate the provenance claim and the following year restituting the painting to the sisters who agreed, in gratitude, to sell the painting back to the museum at well below its market value.

What is missing are a number of key details, key players and key complications—aside from the enormous lacuna of credit to Willi Korte. The fact is that Korte himself could certainly not have induced the Museum to restitute the painting on his own. He turned to the NY Holocaust Claims Processing Office (HCPO) and its then-Associate Director, Monica Dugot, who corroborated Willi’s research and spearheaded the initial attempt to ask the Museum to consider the claim, with the hope that, as a government institution, albeit from another state, the HCPO might carry weight that would be more substantially felt by the Museum and its Director. For the fact is that, faced with letters from both CAR and HCPO, the Museum was recalcitrant about even entering into a discussion about the matter.

By that point, the Holocaust Art Restitution Project (HARP) was also involved beyond Korte’s initial efforts. HARP wrote to the Museum Director, offering its expertise and assistance in coming to some resolution of this issue, and received a minimal response—that the matter was “being looked into” and that no help was needed. At that time HARP was also able to view correspondence between the North Carolina Governor and the Museum Director—for the Museum is, by definition, a state-governed institution. The governor made it clear that the Museum need not feel obliged to abide by the proposals taking shape in the American Association of Museums (AAM) and the Association of Art Museum Directors (AAMD) and that had also been articulated by the so-called Washington Principles—these came out of a December 1998 conference sponsored by the State Department that HARP was instrumental in helping to organize—with respect to provenance in general, and specifically as it pertains to art concerning which there might be suspicion that it had been plundered by the Nazis due to provenance holes between about 1930 and 1945.

HARP was also aware of another chain of correspondence. The Museum had galvanized key members of the Jewish community of Raleigh-Durham to write letters to the Hainisch sisters, telling them how important the painting was for the museum and specifically how it could be an important instrument for Holocaust education, with an augmentation of its label and a series of programs built around it. (That campaign was apparently carried out with complete unawareness that the sisters were not Jewish!)

With the encouragement to the NCMofA to ignore the threefold—HCPO, CAR and HARP—request, together with its own strategic pushback against responding effectively to that request, the Museum remained far from forthcoming. But, in the end, it did come to the very sort of agreement suggested at the end of the ArtThemis chronology. How? Both because the Museum Curator (as opposed to the Museum Director) came to see the importance of facing the claim head-on, and because another member of the HARP team, Janine Benton, knew a very active and interested reporter in North Carolina, and spoke to him. He in turn wrote a serious and excoriating article about the matter in the local Press.

It was, more than anything, the embarrassment that the Museum experienced as a consequence of the media discussion—and criticism—that built on that initial article that pushed the Director finally both to “investigate the claim” and ultimately to reach out to the Hainisch sisters through Monica Dugot. They, in their graciousness and their gratitude that the situation had not come to a legal confrontation, agreed to the terms that are now part of the historical record—and in the end did set an example to the American Museum community with regard to non-legal discussion/negotiations in the face of this sort of claim . A far cry, however, from the ArtThemis summary that refers to “the swift friendly settlement of this case was possible thanks to the Museum’s refusal to rebuff the restitution claim”—which summary is also found in the NY Times article. The painting remains in North Carolina. Its label presumably tells some of the story of its ownership, plunder and wanderings until it arrived into the Museum, and one might suppose that there are indeed education programs that use it as a starting point for a discussion of a range of Holocaust-related subjects, particularly appropriate to a location that has a fairly long history of racial, if not religious oppression.

North Carolina Museum of Art

There is an epilogue to this narrative that arrives at its denouement through the power of the Press and in this case the ability of the Press to shame a public institution into righting a wrong in spite of itself. Currently, an elderly French woman struggles to regain possession of a small Pissarro painting, stolen from her father by the Nazis—that has, through a chain of sales and purchases similar to those of the Gomperz Cranach in which, at least in the 1950s, the gallery that was doing the selling ignored the obvious clues regarding its Nazi-era provenance, and misled or outright lied to the American purchaser who, perhaps, asked a few too few questions—that ended up two decades ago in the hands of the Fred Jones Museum of Art at the University of Oklahoma (OU) in Norman, Oklahoma. Its discovery there within the past two years by the claimant has led to an ugly battle. The President of OU apparently knows no shame, and even in the face of enormous adverse publicity, including vociferous excoriation on the part of state politicians, has refused to consider her claim.

What in the end will induce justice to arise in Oklahoma? That remains to be seen and is another story for another day with its own twists and turns. The outcome at this point is certainly not that of the outcome in North Carolina 15 years ago, in spite of the pressure of the Press—and in any case, no two of the many stories pertaining to Nazi-plundered art are identical.

Wild Weekend with Wally—Part One

Self-Portrait, by Egon Schiele, 1912
Source: Google Images

No, it’s not what it sounds like. I did not spend a wild weekend with Wally. 

Portrait of Wally, by Egon Schiele, 1912
Source: Google Images

The Wally in question is “The Portrait of Wally”, a new documentary which was screened at the TriBeCa Film Festival in New York, on April 28 and 29, 2012, and directed by Andrew Shea and co-produced by David D’Arcy and Barbara Morgan. Morgan and Shea hail from Austin, TX. D’Arcy is a veteran reporter, formerly affiliated with National Public Radio (NPR) who has filed many stories about the international art market especially in regard to looted art in American collections.

The Wally of which we speak is the now-iconic portrait of a Viennese woman, Walburga Neuzil, who was the mistress of the man who painted her, Egon Schiele. The painting dates from 1912. Schiele created it as a pendant to a self-portrait executed that same year, six years before his untimely death caused by the Spanish flu. Both works currently hang on the walls of the Leopold Museum in Vienna, Austria.

And that is the end of the story.

There would have been no “Wally Story” had this Schiele painting not been stolen from its rightful owner, Lea Bondi Jarai, a Viennese Jewish gallery owner.

Lea Bondi Jarai
Source: ArtsJournal

The thief was a self-avowed Nazi art collector and dealer, Friedrich Welz, who had become emboldened by the March 1938 Anchluss-the willing absorption of Austria into Hitler’s Greater German Reich. This would have been yet another story of Nazi thefts of cultural assets belonging to Jews had it not been for an unscrupulous art dealer and collector named Rudolf Leopold, who with his wife, Elisabeth, built up one of the world’s largest postwar collections of works by Egon Schiele, a collection that verges on idolatry and self-aggrandizing fetishism. By the time the Leopolds had “acquired” Wally through an illegal exchange with a leading Viennese museum in the 1950s, Lea was living in exile in London where she had resumed her art trading activities. She died in 1969, heartbroken at not having recovered the painting which she continually sought in the postwar years, pleading with Leopold to help her. Unbeknownst to her, Leopold now possessed it, despite the lies that he had spewed at her to disguise his machinations aimed at deceiving her so as to be able to acquire Wally and make her his to possess forever.

Rudolf Leopold
Source: The Arts Newspaper

Elisabeth Leopold
Source: Google Images

The story could have just ended there in all of its sordid details, a story of unremitting greed and lust displayed by a Viennese couple enraptured with Schiele’s works, who had openly flirted with and benefited from the Nazi years and the postwar continuum of Nazi influence in Austrian society, taking full advantage of the plight of Viennese Jews to build up their Schiele collection, revered the world over, in particular by American collectors and dealers, most explicitly those centered in New York City.

The official story of what we have come to know as the Wally Case entered its prelude in October 1997 when the Leopold Museum exhibited its treasures at the Museum of Modern Art, whose chairman, Ronald Lauder, was a self-admitted Schiele fan and collector. Needless to say, the exhibit was a success but the presence of Wally on its walls ruined it all for MoMA, for its director, Glenn Lowry, for Leopold, and especially for the Bondi family, next of kin of Lea Bondi Jaraj, who had discovered that the painting was in the United States exhibited under their very noses, with a provenance worthy of a second-rate work of fiction—no mention of Lea’s true ownership of the work, a fictitious sequence of individuals who had nothing to do with the painting’s pedigree. But, as we know, provenances, more often than not, are mere adornments, however fanciful they might be.

Willi Korte
Source: Zimbio

The “Wally case” began after the Bondis attempted to clarify the true ownership of the work and failed to convince MoMA’s leadership and Leopold to engage in a dialogue over the ownership of the painting so as to determine its fate. After numerous futile attempts, MoMA invited the Bondi heirs to sue them in order to prevent the painting from leaving the US and returning to Vienna where there would have been no “fair hearing.”

Willi Korte,  veteran researcher, historian, jurist and investigator of looted cultural property and a co-founder of the Holocaust Art Restitution Project (HARP) helped Henri Bondi get his research ducks in order to prepare for a full-frontal campaign to get Wally back. Others like Marc Masurovsky, Ori Soltes and their legal counsel, Jeanine Benton, also of HARP, were urging Senate Banking Committee staff, Jewish organizations and law enforcement agencies to step into the breach and do “something” to keep the painting in the US.

By early January 1998, it didn’t look good. After Senator D’Amato demanded the seizure of the collection, he recused himself almost as dramatically, having received a phone call from one of his most ardent campaign donors who asked him to reconsider his rash statement. And so he did. US Customs—now ICE—in the person of Special Agent Bonnie Goldblatt were ready to pounce but were left out in the cold because of D’Amato’s sudden withdrawal and the equally callous abandonment by other Federal officials at State and Commerce who had ruled that this was indeed a private matter which should not require official American governmental interference that might intrude on the good relations between the United States and Austria.

Special Agent Bonnie Goldblatt
Source: ArtsJournal

Robert Morgenthau
Source: Google Images

All this to say that all five of us were rather alone that first week of January, dismayed at the cowardice displayed by elected and appointed officials alike, the cynicism of the art world, and the apparent indifference of American Jewish groups including the World Jewish Congress and the American Jewish Committee, who refused to lift a finger on behalf of the Bondis, the legitimate heirs of a victim of Nazi persecution. Is it a coincidence that the chairman of the board of MoMA was also the secretary-treasurer of the WJC? We’ll leave that alone for now…

The last hope was Robert Morgenthau, District Attorney of Manhattan. He emerged as the ultimate mensch of the Wally story, consistent with his lineage—a grandfather, Harry, who had blown the whistle on Ottoman massacres of Armenian civilians in 1915 before resigning as a foreign service official during President Wilson’s tenure; a father, Henry, Treasury Secretary under Franklin Roosevelt (FDR) and the most ardent anti-Nazi member in FDR’s government—its only “cabinet Jew.”

HARP forwarded a set of documents to Morgenthau’s office before and after New Year’s of 1998 outlining the weaknesses of MoMA and Leopold’s position—in their haste to exhibit the Schiele works, MoMA and Leopold had forgotten to “immunize” or shield the collection against any possibility of legal challenges arising from claims to rightful ownership while the works were on display in the United States—a foreshadowing of the proposed Senate Bill 2212 currently stalled in the Senate Judiciary Committee. The paintings were thus vulnerable to any legal action taken against them on US territory, especially arising out of a claim of rightful ownership. For Morgenthau, the presence of stolen property in his jurisdiction was, in his own words, “unacceptable.”

During that first week of January 1998, the skies were bleak, the prospect of a fair hearing for the Bondi heirs seemed more like a remote fantasy than an impending reality. With no one left to uphold their interests, MoMA and Leopold were about to breathe a sigh of relief, except that they did not factor in the unlikely and outrageous possibility that something drastic might just prevent the paintings from leaving the United States. On January 7, 1998, Morgenthau obtained the necessary legal instruments by which to order the seizure of Wally and another painting, Dead City III, until the ownership of these works could be clarified. The men in blue entered MoMA’s front doors on 53rd Street and made arrangements to have Wally and Dead City III sequestered. For the first time in recent memory, an American official had directly intervened with a cultural event in an American museum by ordering the seizure of works on loan for display there.

End of Part One.

Jeudi 4 septembre 1997: colloque sur les conséquences juridiques et morales des restitutions d’oeuvres et d’objets d’art, Washington, DC

Un extrait de la conférence/colloque qui s'est tenue le jeudi 4 septembre 1997 à 9h30 sur les conséquences juridiques et morales des restitutions d’oeuvres et d’objets d’art dans la grande salle de l’Hôtel Ritz-Carlton, 2100 Massachusetts Avenue, NW, à Washington, DC.

C’est Ori Z. Soltes, directeur du Musée national juif du B’nai B’rith qui ouvre la conférence. Marvin Kalb, célèbre journaliste et commentateur de la télévision américaine, que l’on peut reconnaître instantanément par la cravate rouge vif qu’il porte, présente les différents interlocuteurs invités à participer à ce colloque. Ils sont :

Konstantin Akinsha, journaliste et conseiller à la rédaction du magazine ‘Art News’ et titulaire d’un doctorat de l’Institut d’histoire de l’art de l’Université d’Etat de Moscou

Monique Bourlet, directrice du bureau qui gère les collections des musées de France, dont 2000 œuvres qui ont fait l’objet de nombreuses discussions récemment.

Stuart Eizenstat, sous-secrétaire d’Etat aux questions économiques, agricoles et commerciales et envoyé spécial du Président Bill Clinton sur les demandes de restitution de titres de propriété en Europe de l’Est et centrale.

Hector Feliciano, auteur du ‘Musée disparu’, fruit d’une enquête de sept ans sur les pillages artistiques du Reich.

Robert Fohr, directeur de la communication pour les musées de France

Michael Hausfeld, avocat de la partie civile contre les banques suisses.

William Honan, correspondant national du New York Times pour les questions de l’enseignement supérieur, et auteur d’un livre qui vient de sortir, intitulé « Treasure Hunt » [Chasse au trésor]

Willi Korte, juriste allemande, spécialiste des restitutions d’œuvres spoliées

Jim Leach, député républicain, président de la Commission bancaire de la Chambre des Représentants

Constance Loewenthal, administratrice de l’International Foundation for Art Research [IFAR]

Nita M. Lowey, député démocrate, circonscription de Westchester, NY

Marc Masurovsky, chercheur et auteur du rapport du Ministère des Finances américain sur le rôle de cette agence durant et après la Seconde Guerre Mondiale dans la quête et l’élimination des biens nazis à l’étranger. Il sert également d’interprète pour les deux délégués du gouvernement français, Monique Bourlet et Robert Fohr.

Lynn Nicholas, auteur du ‘Rape of Europa’

Ori Z. Soltes, directeur du Musée National Juif Klutznick, au B’nai B’rith.

Thomas E. Starnes, avocat qui travaille gratis pour les demandeurs d’œuvres spoliées

Gary Vikan, directeur de la Walters Art Gallery à Baltimore

La séance commence officiellement à 9h40. Ori prend la parole :

« Cinquante ans après la fin de la Seconde Guerre mondiale, l’Europe continue de se refaire en posant des questions troublantes qui ressurgissent des pages jaunies de la mémoire de l’Holocauste.

Les victimes, juives et non-juives, l’or volé en dépôt dans les coffres des banques suisses, font partie d’un cadre plus large portant sur les complicités et les expressions d’innocence, d’un côté, et les vénalités, de l’autre.

La Suisse a occupé pendant un certain temps l’avant-scène médiatique, sur les questions de l’or volé… Néanmoins le public devient de plus en plus conscient des spoliations d’œuvres d’art, qu’il s’agisse de toiles provenant de collections françaises retrouvées en Allemagne, ou de toiles provenant de collections allemandes repérées dans l’ex-Union Soviétique… Ces dossiers nous obligent à définir ce que constituent les responsabilités morales et juridiques des gouvernements et des individus—commissaires d’expositions, marchands de tableaux, directeurs de musées, journalistes—face aux mouvements d’œuvres d’art spoliées il y a plus de cinquante ans.

Il faut que l’on définisse la portée historique de ces vols, qui s’étendent bien au-delà de la Shoah et de la Seconde Guerre mondiale. S’applique-t-elle aux antiquités du British Museum à Londres qui furent expédiées de la Grèce il y a plus de 190 ans ? S’applique-t-elle aux œuvres confisquées par la Corée il y a 50 ans, ou à une mosaïque qui fut retrouvée à Chypre il y a 20 ans ?

Est-ce que les lois actuelles suffisent pour fournir des réponses à ces questions ? Est-ce qu’un musée doit être tenu responsable pour produire une provenance absolument parfaite pour chaque œuvre qui se trouve dans ses collections ?

Kalb demande pourquoi se pose-t-on aujourd’hui la question des conséquences morales et juridiques des restitutions d’œuvres spoliées pendant la Shoah. Selon lui, les raisons en sont multiples : le siècle achève son cycle, les survivants et témoins de la Shoah se meurent. Peut-être la Shoah a redéfini les normes qui délimitent l’amoralité de l’homme—un phénomène qui doit être appréhendé, compris, et isolé, à moins qu’on ne lui permette de se répandre tel un virus de la haine au 21ème siècle.  Ou bien nous ressentons maintenant le besoin d’obtenir des réponses à des questions épineuses.

Kalb donne la parole à Monique Bourlet, pour laquelle je sers d’interprète. Elle explique le statut des quelques 2000 œuvres d’art qui bénéficient d’un statut particulier au sein des musées français : ces œuvres leur avaient été livrées à la fin de la guerre, et les autorités françaises examinèrent leur statut jusqu’en 1950. « J’ai dû examiner le statut juridique de ces œuvres d’art bien spéciales. Il est évident qu’elles peuvent être récupérées tant que l’on présente un document qui certifie que la personne demanderesse possède un droit de propriété légitime pour l’œuvre en question. » Elle poursuit : « Sur les 70 000 œuvres d’art découvertes en Allemagne qui furent spoliées en France, nous avons pu en rendre 45 000. En 1949, il y en avait pour lesquelles il était impossible d’établir un titre de propriété. Les musées décidèrent de les vendre en demandant que certaines soient mises de côté en raison de leur valeur. Il y en avait 2000 dans cette catégorie, les soi-disant MNR. » D’après Bourlet, les recherches s’intensifient dans les fonds d’archives pour établir l’identité des propriétaires de ces œuvres, en vue de leur restitution éventuelle. Ces œuvres, il s’avère, avaient été vendues pendant la guerre. »

Robert Fohr, directeur de la communication pour les musées de France, ajoute :

« On nous a accusé d’avoir caché ces œuvres, ce que contredisent les faits. On a fait tout notre possible pour les restituer. »

Kalb demande à Feliciano d’intervenir sur la question des MNR :

« En dépit de ce qui a été dit, il était très difficile d’obtenir un inventaire de ces objets et une provenance détaillée pour chacun. Enfin de compte, j’ai dû tout faire moi-même et j’ai pu retracer le parcours de certains tableaux. Au Centre Pompidou, par exemple, il y a 40 tableaux qui doivent être restitués. Environ 90 pour cent de ces tableaux ont été spoliés. L’un d’eux appartient à la famille Kann. C’est tout ce que je voulais dire pour le moment. Mais je ne sais pas si j’aurai le temps de parler d’autre chose. »

Kalb : « Ne vous en faites pas. Vous en aurez l’occasion. »

Feliciano : « Ah bon ? »

Kalb : « Mais, oui. »

Feliciano : « Ah ! Ce n’était qu’une discussion. Je comprends… »

La parole est maintenant à Konstantin Akinsha qui se spécialise dans les évènements d’Europe de l’Est. Il décrit une exposition d’art spolié qui s’est tenu au Musée Pouchkine de Moscou en 1995, intitulée « Sauvés deux fois. » Akinsha note que ces œuvres ont été volées, tout d’abord, par les Allemands aux juifs hongrois, puis par l’Armée Rouge et expédiées derechef en Union Soviétique à la fin de la guerre. Donc, il propose un nouveau titre pour l’exposition : « Spoliées deux fois » ce qui fait rire l’audience.

Akinsha maintient que des squelettes existent dans toutes les armoires de l’Europe sur la question des restitutions d’œuvres spoliées. A ses yeux, toute solution au problème des restitution se trouve ancrée dans le droit international et au niveau des Etats européens.

Puis Kalb se tourne vers moi, me remercie de servir comme interprète. Toutefois, il me rappelle que je suis présent parce que j’ai quelques mots à dire sur la restitution des œuvres d’art spoliées. Je prends donc la parole.

J’insiste surtout sur le fait que des milliers d’œuvres d’art spoliées ont traversé l’océan et intégrées aux Etats-Unis de nombreuses collections particulières, y compris celles tenues par des musées. « J’apprécie les commentaires de M. Akinsha, mais puisque ces œuvres se trouvent aussi aux Etats-Unis, le problème incombe également aux tribunaux américains où les demandeurs ont le droit de se faire entendre et obtenir gain de cause. C’est tout ce que je vais dire pour l’instant. »

Akinsha : «Vous dites que des milliers d’œuvres d’art ont fait leur apparition sur le marché américain. Est-ce que vous pouvez le prouver ? »

Masurovsky : « Pour l’instant, les preuves sont circonstantielles, mais ce que je peux vous affirmer, c’est que toutes les flèches pointent vers l’est, selon de nombreux documents d’archives. »

Akinsha : « Quels documents ? »

Masurovsky : « OSS, Ministère des Finances, Département d’Etat, documents émanant du gouvernement français. »
Kalb : « C’est très bien que vous puissiez vous interviewer mais ce serait préférable que cela se fasse à la fin des premières interventions. »
La salle s’esclaffe.

Masurovsky : « Avec plaisir. »

Kalb se tourne vers Lynn Nicholas qui remémore ce qu’elle perçoit comme des acquis positifs sur la question des restitutions. Tout d’abord, la résistance de nombreuses personnalités du monde de l’art face aux déprédations nazies, en particulier les administrateurs de musées européens, y compris ceux de certains musées allemands. « N’oublions pas aussi les efforts sans égal des forces armées alliées et des commissions de récupération artistiques organisées par les pays libérés. Leurs activités durèrent près de vingt ans après la fin de la guerre. Tous ces efforts produisirent des milliers de restitutions à leurs propriétaires attitrés. Bien évidemment, les procédures de restitution n’étaient pas toujours équitables, mais pensez donc aux complications résultant du déracinement de ces œuvres et de leur mobilité. Ces jours-ci, on appelle cela, « le phénomène du déracinement mobile. »

Nicholas remarque que le marché de l’art fut en pleine efflorescence pendant la guerre. « Des milliers d’objets étaient achetés et vendus et troqués dans tous les pays occupés, par toutes sortes de gens…Ces œuvres circulaient partout… Beaucoup d’objets ont fini dans les Amériques dès la fin des années trente, et ont été vendues ici, la plupart du temps légalement par leurs propriétaires, mais de temps en temps les mandataires ont trahi la confiance des propriétaires. Des objets ont survécu dans des cachettes improvisées comme les toiles d’une Rothschild qui furent enterrées dans une dune de sable sur une plage française. On ne sait plus laquelle… »

Pour finir, Nicholas met en garde ses collègues avec lesquels elle partage le podium : « En général, lorsqu’on découvre un objet que l’on suppose être spolié, il est trop facile de conclure qu’il doit être restitué sans savoir si son propriétaire légitime l’a récupéré après la guerre et les circonstances de ses déplacements. » Elle conclut en mettant en garde contre les chasses aux sorcières dénuées de fondement.

Tom Starnes, avocat, membre du cabinet d’Andrews et Kurth à Washington, DC, représente les héritiers Goodman contre M. Searle, milliardaire détenteur d’un pastel de Degas qui appartenait à leur grand-père ? ou grand-oncle, Fritz Gutmann, et qui refuse de le rendre. Néanmoins, Starnes pense que les tribunaux américains sont favorables à un règlement des contentieux concernant les restitutions d’œuvres d’art. La doctrine fondamentale à la base de ces procédures stipule que l’acte de spoliation n’accorde aucun droit de propriété au spoliateur, donc le possesseur d’un objet spolié non-restitué n’est pas le propriétaire légitime de l’objet spolié. Par contre, en Europe, les droits de l’acheteur de bonne foi prévalent souvent et accordent au détenteur d’un objet spolié les mêmes droits qu’à un propriétaire légitime.

C’est au tour de Constance Loewenthal, directrice de l’International Foundation for Art Research, future directrice de la Commission for Art Recovery, présidée par Ron Lauder, dont l’annonce surviendra trois semaines plus tard. Selon Melle. Loewenthal, « les vols d’œuvres d’art durant l’Holocauste peuvent être remédiés parce que les chefs-d’œuvre ont l’habitude de survivre aux pires calamités puisque leur valeur ne cesse d’augmenter. »

Le journaliste américain, Bill Honan, nous rappelle tous que 20 millions de personnes sont mortes pendant la Deuxième guerre mondiale (un chiffre bien trop conservateur, puisque le chiffre officiel se rapproche des 55 millions de morts) et qu’il ne faut pas mettre sur le même plan les vols commis par les troupes américains lors de la libération de l’Europe et les spoliations nazies. C’est lui qui dénicha, avec l’aide de Willi Korte, le fameux trésor de Quedlinguen au domicile d’un ancien combattant américain qui s’était retiré au tréfonds du Texas.

Quant à Gary Vikan, directeur du Walters à Baltimore, il s’attarde longuement sur les difficultés qu’éprouvent les dirigeants des musées lorsqu’il s’agit d’acquérir un objet pour leurs collections. Conscients de l’origine de l’objet, doivent-ils le rejeter parce qu’il provient d’une source douteuse ? ou devraient-ils l’intégrer dans leur collection en raison de sa beauté et de son importance historique et esthétique, quitte à embraser certaines personnes ?

Mon camarade, Willi Korte, se veut modeste. Néanmoins …. Affichant un certain scepticisme, Korte prend ses distances eu égard à Akinsha et sa foi en un règlement des restitutions par application du droit international. Comme l’indique Korte, la plupart des pays européens préfèrent invoquer leur code civil pour résoudre les questions de restitutions, ce qui favorise l’acquéreur de bonne foi. Donc, selon lui, il faut faire pression sur les gouvernements eux-mêmes pour qu’ils modifient leurs lois afin que les spoliés puissent se faire entendre dans leurs tribunaux.

Pour la première fois depuis le début de la conférence, Korte fait état des spoliations de biens juifs bien avant le déclenchement de la guerre. D’après lui, documents à l’appui, les ressortissants allemands d’origine juive se voient contraints de céder leurs biens à des prix cassés ou de les abandonner purement et simplement par crainte de représailles ou d’arrestation. Il admet que, depuis qu’il travaille sur ces questions depuis près de dix ans, il est inondé de requêtes d’aide venant d’anciens déportés ou d’héritiers de familles qui avaient fui le Reich, puis l’Europe nazie, laissant toutes leurs possessions derrière eux. Il espère qu’un organisme international puisse prendre en charge les demandes qui affluent sur son bureau pour que la petite vieille dame bien aimable du quartier soit en mesure de récupérer son bien après plus de 60 ans.

Entre en scène M. Stuart Eizenstat qui nous flatte de sa présence car il faut qu’il nous quitte presqu’aussitôt. Son calendrier, voyez-vous, est très chargé. Après un échange de plaisanteries avec Kalb, Eizenstat entame son petit discours qui, je dois le dire, n’a rien à voir avec le sujet de notre colloque, excepté vers la fin lorsqu’il mentionne les spoliations de biens culturels. Mais il saisit l’occasion pour nous rappeler ses travaux laborieux concernant les mouvements de lingots et de pièces d’or monétaire saisis par les Nazis et qui contiendraient les restes des bijoux que possédaient des centaines de milliers d’hommes et de femmes juives anéanties dans les camps de la mort.

Il mentionne les travaux de la Commission Mattéoli concernant les biens spoliés en France. D’après lui, « Il est certain que des œuvres d’art appartenant à des personnes juives ou à la communauté juive se trouvent dans les musées de France, dont le Louvre » et que le gouvernement français s’engage à restituer ces œuvres ou «prendre les mesures nécessaires pour que ces œuvres soient identifiables. »  Ici règne une certaine ambiguïté. Après tout, soit on restitue soit on ne restitue rien. Il est vrai qu’en France, la direction de la communauté juive favoriserait une restitution morale, autrement dit, la reconnaissance du pillage, l’admission du crime, peut-être un acte pédagogique qui commémore la mémoire des victimes, sans qu’il n’y ait de cession de biens favorisant le spolié. Le commentaire d’Eizenstat me laisse coi, car je me demande ce qui se passe dans les coulisses du Département d’Etat et ce que mijote le groupe Mattéoli. Enfin, il faut que je continue d’interpréter pour Mme. Bourlet et M. Fohr.

Tout le monde applaudit le discours élongué de M. Eizenstat qui nous quitte, comme prévu. Kalb annonce la suppression de la pause-café de 15 minutes dans l’intérêt du colloque qui entre dans sa phase de discussion ouverte.

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

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

August 17, 2010

Dear Marilyn:

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

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

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

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

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

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

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

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

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

More on that later…

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Regards,
Marc Masurovsky

“A new paradigm for restituting looted cultural property?”, by Marc Masurovsky

by Marc Masurovsky

This presentation was delivered during the Prague Conference of June 26-30, 2009. Although somewhat strident, it captures a number of basic points regarding the present state of affairs regarding the handling of art looted during the Second World War.


First, I would like to dedicate this presentation to the memory of Officer Stephen Johns who lost his life on June 10, 2009, at the hands of an American neo-Nazi, while protecting the US Holocaust Memorial Museum in Washington, DC.

Second, I regret the absence of a number of veterans of art restitution like Willi Korte, Ori Soltes, Konstantin Akinsha, Randy Schoenberg and many others.

Third, I would like to restate the obvious:

1. The Holocaust is a very personal matter. It engulfed the lives of six million Jews and five million non-Jews across continental Europe and North Africa. Those men, women, and children died in a network of 20000 prisons, ghettos, camps and extermination centers, stretching from the Channel Islands to the far reaches of Estonia and the shores of Tunisia.
   
2. The Holocaust, in particular, and the Second World War, in more general terms, went hand in hand with the forcible transfer and seizure of property of all kinds belonging to the victims of Nazi/Fascist persecutions.
   
3. These forcible transfers and seizures reshaped the wartime economies of Europe and laid the foundations of a new economic order that stretched into the postwar era.
   
4. The highly selective punishment of collaborators and war criminals prevented the victimized populations from achieving a badly-needed measure of justice and closure, which is one reason why we meet here in Prague, 64 years later.
   
5. All in all, after war’s end, 55 million people were dead, one third of Europe’s infrastructure lay in tatters, in some countries, like the Soviet Union, a third of the male population had been decimated, creating a multi-generational trauma with severe consequences on the social, cultural, economic and spiritual life of the survivors.

The artistic legacy of all nations under Nazi/Fascist occupation or control was amputated, embodied in the loss of creative power of thousands of visual and performing artists, most of them Jewish or belonging to groups targeted for special treatment by the occupiers and their collaborators. Those left to survive were for a large part either collaborators themselves or whose styles conformed to the needs of the regimes in place.

The works of art stolen by the Nazis and their local henchmen belonged to these persecuted artists, as well as to collectors, dealers, and institutions. If we look only at the Jewish community and accept a broad definition of cultural property, several million objects were looted. If we add cultural property forcibly removed from all other victimized households across occupied Europe, we can easily think of at least 5 million objects, excluding books, silverware and accessories.

Where are those objects? What are those objects? Who owned them? Who took them? Where did they go? Were they sold? Who acquired them? For those seeking restitution of their cultural losses, the answers lie in part in historical archives. It comes as no surprise, therefore, that restitution and documentation are organically linked. Ultimately, no one can argue against the fact that open access to historical archives can only facilitate the reconstruction of a racially- and politically-motivated criminal act associated with mass murder, genocide and persecution on a continental scale. Restricting access to those records would thus signal an avowed reluctance to come to terms with an obvious historical reality, an attempt to rewrite history through concealment of documentary proof of crimes which occurred over a twelve-year period.

Every nation on the continent of Europe is implicated because it is in the very nature of bureaucratic societies to build walls of silence and secrecy around the historical truth.

What is there to hide that is so dangerous after 64 years? For starters, the names of collaborators, their ties to ruling elites, their illegal and immoral transactions on wartime art markets, the protections they sought then and in the postwar, murky tie-ins with intelligence agencies, government bureaucrats, war criminals seeking refuge in safe havens. Cynical dealers, museum curators, and directors, politicians from right, left and center who profited from illicit acts. In sum, the many facets of a highly corrupt art world and its attendant coterie of politicians, businessmen and oddities from fading aristocracies.. I guess that might pose a problem, although it is a historical problem, but it might resonate today only because the sins of the fathers, mothers and uncles are transferred to their progeny and subsequent generations. It is true then: access to information is dangerous, at least for those who have built their careers on deceit, secrecy and the protection of their privileges.

Let’s go back to the end of the Second World War.

Although we’re not here to debate the pros and cons of Allied restitution policies, I would argue that, all in all, Allied officials—American, British, French, Soviet and others—were unable to address the full extent and scope of the plunder, despite valiant attempts by individual officials to mitigate the horrors of the war. For the Soviets, the solution was relatively simple. Faced with massive destruction at home, their armed forces resorted to wholesale removals of property under their care with some notable exceptions and they proceeded to appropriate those items manu militari. However, what was true on the west bank of the Oder River equally applied to the east bank of the Oder River. Cultural property from Russia, Poland, and Latvia ended up in the Western Allied zones of occupation, while Dutch, Belgian, and French collections found their way into Slovakia, Silesia and as far as the Ukraine, deep within the Soviet sphere of influence and control. Similarly, German and other administrative records pertaining to the special handling of cultural property in occupied territories ended up in hundreds of depots, administrative buildings, and bunkers scattered about battlefields. Those documents either went east or were apportioned like a deck of cards among the Allied powers. One could spend half a lifetime untangling the tortured path of those archives seized by military units, and my colleague, Pat Grimsted, is an extraordinary living example of such an endeavor.

When searching for information on stolen cultural property, Allied transfers and removals of property and records have only complicated the task of restitution-minded individuals to find the evidence needed to facilitate the return of stolen objects to their rightful owners.

And yet, documents in governmental archives only provide us with a partial understanding of how objects were seized, where they may have ended up, and who might have been their owners after war’s end. The rest of the story is buried in the records created by private owners, gallery directors, museum officials, art historians, insurance executives, corporate officers, foundations, auction houses and so forth.

When we speak of access to archives we must emphasize all archives, public as well as private.

In retrospect, the postwar era was characterized by the wholesale recycling of millions of stolen cultural objects, through private hands, institutions and corporate entities. Each transaction produced some kind of record, however flimsy, at some point in time. And yet, nothing has really been done to demand an accounting of such transactions since 1945.

Those who bought, sold, traded stolen cultural property in the immediate postwar years, did so oftentimes knowingly with the consent of public officials in all countries involved in the Second World War. The double standard which has shielded the art market from inconvenient scrutiny in the postwar era prevails even today with the silent consent of public officials, even those who clamor for restitution. It is a type of hypocrisy that should end here in Prague, but for that to occur, decision-makers need to display a modicum of courage.

I spoke about a new paradigm for restitution. A paradigm is a fancy way of saying that a number of conditions have to be met in order to produce a tectonic shift in the way we approach restitution.

For starters, there has to be a willingness to engage in such a process. Rather than using concerns over privacy rights of individuals as an excuse for denying access to historical records that are over 64 years old, each national government present today must examine ways in which historical research on racially and politically motivated thefts of cultural property can proceed without viewing these efforts as infringements on the rights of individuals who, for the most part, are long dead.

As hinted earlier, most of the negative fallout from any opening of archives pertaining to stolen property may result in embarrassment and red faces for those who are implicated in thefts that occurred two generations ago, assuming that they are still alive.

Added to a willingness to engage in such a process, there needs to be a recognition and acceptance that access to specific archival collections is inextricably tied to restitution

Any movement to open an archive must go hand in hand with a national commitment to enact laws to permit restitution or to enforce existing laws or establish new mechanisms to return stolen objects to their rightful owners.

An arrangement needs to be reached with the players—major and minor—of the private art market whereby access to information pertaining to the present whereabouts of a stolen object can be guaranteed without compromising sources.

Where institutions are the custodians of stolen cultural property which their governments view as war reparations, another discussion needs to take place between consenting adults who are mature enough to hold such a discussion. After all, 64 years have elapsed since the Allied victory brought to its knees the National Socialist behemoth and its fascist cohorts. For 64 years, an untold number of objects have been sitting in a netherland of omission, neither exhibited nor destroyed, just sitting. Once in a while, some surface. What does it take to obtain the release of these objects so that they can be identified, and returned to their rightful owners whoever they might be, Jew, non-Jew, private individual, institution?

The first baby step or Level 1 towards such an ambitious goal is the inventory. Inventories are important documents because they tell us something about content and scope of cultural property, sometimes value, identification of the work, and perhaps even something about an owner. Inventories also help recreate itineraries of works of art forcibly removed from homes, offices, display cases, walls.

If the inventory of the objects sitting in netherland exists, we should discuss ways of making that inventory available for consultation and study so that we can all understand what we are dealing with here. Without the inventory, we won’t know what is in storage, thereby continuing to deny restitution to someone and preventing that someone from achieving a painful closure after so many decades. If the inventory does not exist, then I would like to propose that a mechanism be put into place by impartial, fair-minded people to draw up such an inventory under the watchful eye of the current custodian, with the proviso that the contents of the inventory can be carefully studied with a view to matching works with owners.

It’s a baby step, but a necessary one if we are to engage in an irreversible process of putting the past behind us and moving on. We cannot move on without justice.

Such an inventory becomes a powerful tool, the basis for level 2—a discussion amongst fair-minded, pragmatic individuals who seek only to do the right thing, acknowledging past wrongs and traumas, founded on mutual empathy and desire to move forward in the name of justice for all. In other words, a dream. Level 2 consists in drawing up a plan of restitution of those objects that have been readily identified as rightfully belonging to someone, somewhere. Level 3 consists in drawing up a plan to dispose of property that is not identifiable. And there is the rub. Traditionally, back in the late 40s and early 50s, organizations responsible for heirless property took the simple way out and said: let’s sell! And assign proceeds to needy survivors. However, we might run into some serious opposition here since the custodian might want some type of compensation for having ‘held on’ to those objects for 64 years. This task might best be left to lawyers to hash out, but then, we might never get out of the barn, that’s assuming that we can even enter the barn… But, as in all dreams, we are in the barn, and we are discussing among individuals who may or not become friends, how best to handle so-called heirless or unidentifiable property. In today’s mercenary, hyper-materialistic and insensitive world, one approach is to share the proceeds of sales of heirless property along carefully delineated lines. It’s just an idea, but the issue of looted cultural property from the Second World War will never, and I mean never, go away without some form of global political and financial settlement of those stolen works that have been left in netherland.

So, when I speak arrogantly of a new paradigm for restitution, that paradigm requires the following elements before we even register a semblance of a tectonic shift on our restitution seismograph:

A will to act

Giving exclusive primacy to ethical and moral considerations, laying all legalistic and bureaucratic considerations aside.

Unfettered access to private and public archives that are directly relevant to the thefts of which we speak.

Cooperation with the private sector to locate and confirm the present whereabouts of stolen objects

Negotiated solutions with custodian institutions holding stolen works of art as war reparations, which might include financial or other incentives.

Cooperation of law enforcement agencies, national and international, in locating and recovering stolen cultural property

Creation of an international entity responsible for the return of such objects to their rightful owners and to dispose of so-called heirless objects in a manner that is of ultimate benefit to the families of victims, and which underwrites and promotes further research into the fate of such objects.

The least attractive solution is the one that no one dares to contemplate:

Regulating the art market to ensure cooperation in locating, identifying, and returning stolen cultural property to rightful owners.

I work for an institution in Washington, DC, called the United States Holocaust Memorial Museum. Its archives hold more than 120 collections of documents pertaining to the persecution of the Jews and other groups. These documents come from Europe, North Africa, Central Asia, and even Shanghai. There is no other institution of its kind in the world today which provides access to so much information under a single roof.

Why can’t such a similar but far more modest establishment exist that is solely devoted to the documentation of Nazi-Fascist plunder and spoliation of cultural property? If it were to be created, the history of plunder could be easily rewritten, the pace of restitutions substantially accelerated, as well as giving a quantum boost to badly-needed scholarship in an area stymied by continual obstructions on all fronts.

That is my dream and I hope that part of it will unfold before my dying breath.

Remember, historical archives help us write the story of wrongs committed against people as much as they help us right the wrongs committed against people.

Cardozo Law School follow-up—Larry Kaye and the 'Portrait of Walli'

Portrait of Wally, Egon Scheile
Source: MJH

Larry Kaye discussed the circumstances under which Egon Schiele's 'Portrait of Walli' had been seized under orders of the then-District of Attorney of Manhattan, Robert Morgenthau, in early January 1998 from an exhibit of Schiele's works held at the Museum of Modern Art (MOMA) in New York City.

According to Larry, the claimant family represented by the late Henry Bondi, on behalf of his deceased aunt, Ruth Jarai Bondi, had petitioned Morgenthau's office to intervene in the squabble between his family, the Museum of Modern Art, and the Leopold Foundation, current owner of 'Walli.'

Larry was unaware of the role played by the Holocaust Art Restitution Project (HARP) in the events leading up to the seizure of 'Walli'.  Indeed, Henry Bondi had sought HARP's help in November-December 1997 via Willi Korte, a veteran German-educated legal and historical researcher and investigator on looted art issues whom Henry Bondi had retained to flesh out the provenance of the 'Portrait of Walli.'

HARP conducted its own research and inquired into the legal circumstances under which 'the Portrait of Walli' had entered the United States.  It turns out that MOMA had made a number of mistakes both at the Federal and State levels which exposed it to possible legal action.  HARP recorded these flaws and transmitted them to Robert Morgenthau's office in the hope that it could use them to act on behalf of the Bondi family.  Previous attempts by HARP's chairperson, Ori Z. Soltes, then director of the B'nai B'rith Klutznick Museum in Washington, DC, to open up a dialogue with MOMA over the ownership of 'Walli' had been met by blunt dismissals and invitations to sue MOMA in order to keep the painting from being returned to Vienna, Austria.

As Larry pointed out, the rest is history.

Prelude to founding of HARP—Spring 1997

Truth be told, the founders-to-be of the Holocaust Art Restitution Project (HARP), Willi Korte and Marc Masurovsky, had approached the US Holocaust Memorial Museum in the spring of 1997 with a proposal by which the Washington-based Holocaust Museum would house all historical information pertaining to cultural losses suffered by Jews across Axis-controlled Europe.

The proposal met with a terse rebuttal from the Holocaust Museum's chief of staff, making it very clear that this project did "not fall within the mandate of the US Holocaust Memorial Museum."

Dejected and confused, Korte and Masurovsky then went to the only explicitly Jewish museum in the District of Columbia, the Klutznick National Jewish Museum of B'nai B'rith, whose then director was Ori Z. Soltes.  And the rest is history...

Origin of HARP—September 1997

The Holocaust Art Restitution Project was founded on September 4, 1997, in Washington, DC.  Its founders were Ori Z. Soltes, then director of the B'nai B'rith Klutznick National Jewish Museum, Marc J. Masurovsky, and Willi Korte.

At the time, HARP's mission was to provide the best possible information on the paths of dispersal of works of art and objets d'art stolen between 1933 and 1945 at the hands of the National Socialists and their Fascist allies across Europe.  The works in question included those on canvas, paper, rare books, manuscripts, furniture, decorative objects, sculptures, antiquities, and religious objects.