Why oppose the physical restitution of looted cultural objects?

by Marc Masurovsky

When a claim is filed for the return of an object that was allegedly misappropriated during the Nazi/Fascist era and especially as a result of anti-Jewish persecutions, the current possessor who receives the claim can either be an individual, a private entity, an entity controlled or owned by a public agency, and/or the public agency itself and its overseer (usually referred to as “the government”).

Individual possessors are mostly private collectors who have invested in the art market and whose main occupation is not necessarily the buying and selling of art. Objects in private collections are, by definition, the most difficult to trace because, unless there is a public record of all private transactions involving art objects of any kind, the chances are close to nil for a victim of cultural plunder or his/her heirs to locate the object unless several conditions are met:

1/ the person who took possession of the looted object dies and his/her estate is put up for sale. In this instance, the catalogue will list the item being claimed. If it is not deemed as important or “interesting” (whatever that actually means), there may not be a reproduction of the object in the sales catalogue, only a description. But if the object rises to the occasion and is worthy of being photographed, the process of identification is facilitated by the publication of a photograph. This does not mean that the claimant remembers what the object looked like but he/she might have a photo of it hanging or displayed in a room of the residence from which it was wrongly removed.

2/ the looted object is featured in a catalogue of a particular artist’s production. For instance, if you have lost a work by Degas, chances are that you will consult major publications pertaining to the artist who loved to paint young ballerinas and race horses. Catalogues raisonnés, exhibition brochures, specialized monographs, are all part of the arsenal of the claimant to locate the lost item. That does not imply that victims of cultural plunder spend eight hours a day, five days a week, looking for their stolen property. This should be a shared burden, whereby the current possessor should exercise reasonable multi-source due diligence before acquiring or displaying an art object.  In all cases, the onus is placed on the claimant to do her "homework" and search, and search.  Thankfully, judges have weighed in favor of victims when harassed by the current possessor's lawyers for not consulting art historical sources on a regular basis to prove that they were being diligent in the search for their lost property.

3/ the unimaginable: a claimant or a friend of hers walks into a residence, or a museum, or any building harboring works and objects of art, and recognizes (or thinks she recognizes) the lost item. It does happen, it has happened, and once over the shock, with some time elapsing from the initial (re)viewing of the lost object, the claimant initiates the process of confirming that it is in fact the same object and must decide whether to ask for its restitution. That can be the hardest decision to make. Since no statistics are kept about art claims resulting from Holocaust-era and Nazi/Fascist misappropriations, it is impossible to know how many individuals have mulled the idea of filing a claim and decided not to, in the end, because of financial and emotional cost associated with a long and burdensome legal entanglement.

Looted objects also end up with privately-held businesses whether or not these businesses base their commercial activity on the trade in cultural objects. Private entities that are most likely to hold and display works and objects of art are corporations, professional services firms which dispense legal, financial, and other types of specialized counsel for a fee and whose office spaces (including but not limited to hallways, lobbies, atria, enclosed gardens, and meeting rooms) are adorned with objects of art from all corners of the world. The theory goes that a visitor feels at ease in the presence of so much beauty on display and can only surmise that he/she will be encountering “cultured” individuals.

And of course, art and/or antiquities galleries, auction houses, flea markets, bric a brac stores, emporia.

Amazingly so, government offices do get decorated with important works of art and decorative objects either borrowed from state-owned museums or from government-run warehouses and storage depots where untold numbers of objects belonging to identifiable and heirless victims sit in limbo, the playthings of government-appointed civil servants and cultural officials.

When faced with a claim, there are numerous defensive postures that are used to repel the attempt to recover. What you will read below has been told to claimants more than once:

1/ you must be confused, it’s not the same object;

2/ do you have any proof that it is actually yours to claim?

3/ how dare you? I am insulted.

4/ I bought it fair and square.

5/ my parents gave it to me.

6/ I inherited it.

7/ I didn’t steal it. And in any case, even if it was stolen, it happened a long time ago. So go away…

8/ finders keepers losers weepers. In any event, we won the war. [the trophy art argument ad reductionem]

9/ It belongs to our museum. It will never leave.

and many more…

None of those responses are particularly inviting.  They discourage moral and ethical solutions leading to restitution so that the claimant can close the book on a very upsetting moment in history which affected her and her family very deeply. The knowledge of the presence of the un-restituted object reopens old wounds, brings back memories left to be forgotten, re-awakens ancient emotions that no one wanted to “feel” again. The process of restitution can be a very jarring emotional experience.

To make matters worse, most often, the claimant is forced to press her claim through a body of laws and legal theories that are better suited for recovering a stolen car. How do you compare a stolen car to a painting looted by Nazi henchmen? Unfortunately, the law is highly reductionist and lawyers retained to represent claimants or to defend against them, must take a traumatic historical event, shove it through a sieve, and reduce its complex components, to a simpler distillation of facts that can match one or more legal theories or strategies which were not designed to incorporate extraordinary human failures resulting in mass death and genocide.

After half a century of litigation involving Nazi thefts of art owned by Jewish victims, no country has frayed a clear path to aid victims and survivors of genocide recover their property without the humiliation and stress associated with years of litigation that might lead to defeat and huge costs.

It makes one wonder whether government officials, members of the art trade and their sycophantic allies would just wish "bad" history to go away so that they can enjoy the fruits of cultural plunder. and not have to incorporate THAT history into the retelling of the story of art. 

Or is that unfair?

In my view, they are the original revisionists, choosing to omit History from the history of art objects.

Provenance research—now and later (Third Installment)

In the spirit of an on-going "think-aloud" pertaining to the nature of provenance research and the art restitution movement, here are some additional thoughts for discussion.

There are no official statistics regarding:

a/ the total number of art objects claimed, b/ the total number of art objects restituted, c/ the total value of art objects sold after restitution, and d/ the total value of so-called “art restitution litigation.”

a/ the total number of art objects claimed:

By May 1945, somewhere between 15 and 20 million art objects of all sorts, from masterpieces to portraits of your favorite saints and relatives, had been misplaced due to civil unrest, persecution, war, genocide, and theft.

Of those misplaced cultural objects, a small number fit the moniker of “culturally-significant” or “national treasure” or both, depending on who was defining those two very odd expressions. For the sake of the argument, let’s just say 1 to 5 per cent of the misplaced objects fit those categories, or 100,000 (lowest number) to 1 million (highest number). The rest fell into the general bucket of culturally not so significant or insignificant, again, depending on who is expounding on this odd categorization.

Postwar Allied restitution policy ended up focusing on the 1 to 5 percent of objects lost or missing due to State-sponsored mischief between 1933 and 1945. For the rest, compensation schemes were foisted onto shell-shocked survivors and their kin due to an institutional absence of interest amongst postwar governments to aid those victims in locating and recovering their missing cultural property for reasons mentioned above. Many of the culturally significant objects and those earning the label of “national treasure” came from State collections plundered by the Axis and from private collections owned by wealthy individuals with close ties to State museums in countries dominated by the Axis. Those items received favored treatment in the eyes of the Allies and their representatives, referred to as “Monuments Men”.

The Allied powers’ prime directive was the economic, political, social and cultural rehabilitation of Europe (read that part of Europe not occupied or influenced by the Soviet Army and its government) especially as the incipient Cold War became a full-fledged game of geopolitical antipathy between former wartime allies.

As a consequence of the aforementioned factors and those tied to the inevitable human condition—people over property—most survivors did not file claims in the immediate postwar period and only did so after deadlines had passed and the only chance of physically recovering most if not all of their lost property was close to 0.

By 1956, the US State Department had estimated that approximately several hundred thousand cultural objects of all kinds and shapes and value were still being claimed through its good offices by individuals from more than 30 nations.

From the mid-1990s to today, in the absence of any concerted international effort to tally the total number of claimed objects registered as such with national governments, we can only guess that, perhaps, the aggregate total figure of claimed cultural objects is in excess of the number declared by the State Department in 1956.

Moreover, there is no available as to the number of claims filed against museums and other institutions that hold or trade in art objects.  The number of objects claimed might well be in the thousands but proof being in the pudding no one can be sure of anything at this point in time.

Recommendation: nations that are signatory to international compacts known as the Washington conference of 1998 and the Terezin Declaration of June 2009 should conduct a census of all outstanding claimed cultural objects registered as of now in their care and publish those results for public consumption and analysis.  The same appeal can be made to the members of the art market and ask that it provide figures representing the number of objects in their custody which are subject to claims without giving out names out of a concern for data privacy.

b/ the total number of art objects that have been restituted since the Washington Conference:

Historically, the most accessible statistics are repatriation figures from various postwar governments and official statistics regarding actual physical restitutions up to the early 1950s. Since then, there is very little public information that can be found about how many art objects were returned to rightful owners between the mid-1950s and the beginning of the 21st century.

Those nations that have established restitution committees (the United Kingdom, the Netherlands, France, Germany, and Austria) have compiled figures regarding the number of objects that have been claimed through their auspices. But no statistics are tallied pertaining to the number of objects returned through direct negotiations with museums, auction houses, institutions, corporations, and private individuals.

c/ the total value of restituted art objects is directly dependent on the answer to the aforementioned.

The recipients of restituted art objects are usually driven to sell them because they cannot afford to keep them in their possession as a result of their inflated value and the ensuing insurance and other expenses that accompany their maintenance as one's newly found property. Other successful claimants part with the restituted objects because there are a multitude of individuals who have a rightful claim to a share of the value of the restituted object(s). There can be as many 50 or 60 individuals who can benefit from the monetization of restituted objects, thus significanly diluting the actual amount earned from the sale of the restituted object(s).  And then, there are those folks out there who have recovered their objects and prefer to sell them for their own personal reasons which are theirs only to be treated as a private matter, free of outside commentary.

The only indication of value comes from press reports about items being auctioned after restitution. It can safely be assumed that the objects with an Austrian provenance—mostly oil paintings by Gustav Klimt and Egon Schiele—have fetched the highest prices at auction following their restitution, mostly due to the infatuation by the upper tiers of the global art market for such works, regardless of their inherent and implicit esthetic value. Those works alone have fetched in toto more than half a billion dollars. It might be safe to conservatively estimate the total value of restituted objects at slightly more than a billion dollars since the late 1990s. But that figure needs to be carefully verified through an elaborate survey of the field of art restitution.

d/ the total value of so-called “art restitution litigation”:

Although this question is unfair and unjust, it still needs to be answered out of a desire for transparency.  We can only surmise how costly litigation efforts can be once we fuse the fees earned from those seeking restitution and those working to prevent restitution. Usually, museums and art dealers will recruit fairly well-heeled law firms as outside counsel in order to safeguard the integrity of their collections and rebuff attempts by claimants to assert title. On the plaintiffs’ side, there is an odd mix of solo practitioners and small and large firms involved in art restitution. All told, there are not more than 100 or so attorneys—yes, you read it!—who work on art restitution cases as an integral part of their legal practice if we combine North America, Europe and Israel. Since most plaintiffs cases are adopted on a contingency fee basis, usually 30 per cent, you should take the estimated value of restituted objects and divide that figure by three in order to get an idea of the estimated value of the litigation for plaintiffs’ lawyers since the late 1990s. Likewise, for those lawyers defending their clients against outside claims, the fees can easily rise into the millions of dollars for each claimed object. Most of the claimed objects that are subject to intense years-long litigation hold values in excess of 1 million dollars.

Where does all of this leave the bewildered field of provenance research?

The two main incentives underlying provenance research since the late 1990s are to 1/ safeguard art objects which are part of a private or public collection or held by an individual collector or 2/ obtain the restitution of such an art object.

What does this mean in terms of the objective and empirical integrity of the research being conducted on the history of an object? How do these legal undertakings affect the very nature of provenance research as distinct from its initial intent as an art-historical practice?

What is the future of provenance research and can it be salvaged as an objective, scientific field of inquiry?