The Allentown settlement

Portrait of Georges the Bearded

by Marc Masurovsky

In late August 2024, the Allentown Art Museum in Allentown, PA, announced that it had reached an agreement with Henry and Herthe Bromberg, heirs of Martin Bromberg, a Hamburg-based German Jewish businessman regarding a painting by Lucas Cranach the Elder and his workshop entitled “Portrait of Georges the Bearded, Duke of Saxony.” The museum’s leadership celebrated the agreement as a “just and fair solution…in the spirit of the Washington Principles on Nazi-confiscated art…”. The museum’s lawyer, Nicholas O’Donnell, suggested that this agreement was a “reminder that zero sum thinking in restitution cases does not have to be the only way…”(1)  “Zero sum thinking” according to a recent New York Times article, implies that “life is a battle over finite rewards where gains for one mean losses for another.”

The Bromberg family’s losses were beyond their control due to the virulent Nazi-led implementation of anti-Jewish policies sweeping Germany after 30 January 1933. According to Max Weintraub, president of the Allentown Art Museum, the Cranach had not been confiscated by the Nazis nor had it been the subject of “a forced sale,” The museum argued that the painting had changed hands in the context of “Flight Goods [fluchtgut] while the Brombergs were fleeing from persecution…” In other words, the museum’s stance was that the Brombergs most likely sold the painting after they had left Germany.  It concluded that the historical research was inconclusive on the issue of duress and a forced sale.

However, Artnet on 26 August 2024 reported that the Brombergs had sold the painting to the Paris-based Galerie F. Kleinberger in 1938. The Allentown Art Museum did not mention the 1938 sale to Kleinberger Gallery in Paris. On that same day, the Art Newspaper indicated that the painting had been at the Bromberg residence in Hamburg until at least 1935, that its whereabouts thereafter were uncertain until the Brombergs approached Galerie Kleinberger in Paris in December 1938 at which point it sold the “Bromberg Collection” to Allen Loebl, the Parisian gallery’s representative. Allegedly, the Cranach was part of that sale. The article’s author is formal on one point: “the context of the loss was escape from persecution,” which is the starting point for a fleeing Nazi victim’s experience of duress.

The historical evidence surrounding the sale of the “Bromberg Collection” in late 1938 to a Parisian art dealer surfaced when the French government agreed in 2016 to restitute a painting by Joos van Cleve to the Bromberg heirs which was also part of the “Bromberg Collection.” The French National Museum Directorate (Direction des Musées de France) characterized the sale of the Bromberg Collection as not fitting within the standard definition of a commercial transaction but should be viewed as a forced sale resulting from the duress experienced by the Bromberg family as they fled Nazi persecution. 

This interpretation of the circumstances surrounding the sale of the “Bromberg Collection” contrasts sharply with the “Fluchtgut” theory advanced by the Allentown Art Museum. Fluchtgut cases are traditionally viewed as a diluted version of a Nazi victim’s “persecution scenario” because the claimed works were sold outside the territory of Nazi Germany, thus in a superficial context of “Freedom.” It’s hard to know if the French would have restituted the van Cleve had they had found it to be a product of “fluchtgut.”

Archival documents point to a subsequent sale of the Bromberg Collection by Kleinberger to Hans Wendland, a German art dealer who was heavily involved in recycling looted and displaced Jewish-owned cultural goods during the Nazi era. Wendland may have sold some of the Bromberg works to New York art dealers with whom he had longstanding ties, thus giving additional texture to the transfer of some of the Bromberg works from Europe to the New York art market shortly before the Allied-enforced Atlantic blockade came into force.

The Allentown settlement challenges the restitution paradigm enshrined in the physical return of the contested object to the claimants. The injection of grey hues into this supposedly black/white approach to restitution suggests that we can consider watered down “readings” of the impact of Nazi persecution on Jews fleeing to safety thus allowing us to “sand down” the rough edges of the “Nazi persecution scenario” as it applies to hundreds of thousands of Jews fleeing Nazi rule and leveraging their goods abroad in order to survive, thus once again pitting private property rights against the moral and ethical ramifications of genocide.

Brief recap of the Brombergs’ Lucas Cranach painting

30 January 1933: The Nazis come to power in Germany. It is the beginning of a vast and criminal anti-Jewish campaign sponsored by the Third Reich which will last until 8 May 1945 after the genocide of six million Jewish men, women and children.

Up to 1935: the Cranach is still at the Hamburg residence of the Bromberg family.

November-December 1938: sale to Allen Loebl of the Galerie F. Kleinberger Galerie in Paris. Hans Wendland was instrumental in dispersing the Bromberg collection including an unknown number to New York art dealers.

1939-1961: Bromberg paintings enter the New York art market, either across the Atlantic Ocean by boat, or by plane via Lisbon (The famous “Pan Am Clipper”) or via South and Central America (mostly Argentina, Mexico, Cuba and Venezuela) during WWII.

1961: the Allentown Art Museum acquires the Cranach painting from a New York gallery.

2016: A painting by Joos van Cleve is restituted to the Brombergs by the French Ministry of Culture under Audrey Azoulay’s impetus.

2022: The Allentown Art Museum receives a restitution claim from the Bromberg heirs for the painting by Lucas Cranach the Elder. The museum’s research points to a sale date which postdates the Brombergs’ exit from Nazi Germany, hence its insistence on categorizing the sale as “fluchtgut."

August 2024: the Allentown Art Museum enters into an agreement with the Bromberg heirs to sell the painting and share the proceeds thereof. Christie’s New York organizes the sale.

Notes

(1) comment excerpted from a statement by Nicholas O’Donnell on LinkedIn in February 2025.

Historians vs. lawyers

by Marc Masurovsky

The past two decades have witnessed hundreds of restitution cases whose purpose is to reclaim the return of objects looted during the Nazi era. Although the claimants are located around the world, the legal actions are concentrated in so-called market nations, namely in North America, Europe and occasionally in Japan.

These cases set out to fix, to repair historical wrongs. Ambassador Stuart Eizenstat came up with what turned out to be an enduring catch phrase to describe such actions: “just and fair solutions”. It’s anyone’s guess, frankly, what constitutes “fair” and “just” solutions. They vary greatly whether you are the current possessor or the victim’s heir/heiress.

Still, the wrongs being repaired took place during a historical act of genocide that spanned the greater part of 12 years, from 1933 to 1945. It was aimed principally at the citizens of European countries of Jewish descent. Thus, art restitution is an act of justice seeking to repair a historical wrong.

To establish the facts and circumstances surrounding the “historical wrong”, lawyers—who are not trained historians—rely on those who have made it their career to examine the historical past, understand its many sinews and meanders and interpret it for a larger public. Hence, lawyers need historians to compile evidence and build a persuasive case to convince a current possessor of the looted object either through mediation or before a judicial authority that the looted object should be returned to his/her client.

If lawyers need historians, historians do not need lawyers.

And yet…

The variegated ways by which art objects were forcibly removed from the ownership and control of their rightful Jewish owners can give us pause. Here are some, not all by any means:

-forced sales
-duress sales
-confiscations
-seizures
-sales while fleeing the site of persecution (flight sales or fluchtgut).

These complex “transactions” were deemed illicit by Allied powers fighting the Axis (Germany, Italy, and Japan) in a series of declarations during and after WWII making it clear that those responsible for aiding, abetting and/or provoking such illicit acts of forcible removal would be held accountable after the Allied victory over the Axis.

These illicit acts, in the eyes of those who study them—the historians—need to be clearly defined and all of their possible variations fully delineated and outlined so that their many permutations can be factored into legal proceedings.

By some perverse twist, American lawyers have increasingly opposed historians’ efforts to come up with clear definitions and delineations of these historical wrongs because any definition might impair their ability to successfully prosecute a claim against a current possessor.

The world is a strange place especially when, in order to repair a historical wrong tied to an act of genocide, a historian is asked to be silent on the exact details of these illicit acts.

Let’s be very clear here: historians need to do their jobs which is to apprehend the complexities of the past and explain them to the public in order to promote greater knowledge and enlightenment about what human beings do to other human beings so that, hopefully, we might not repeat such heinous acts in the future. Nice thought, I know.

Likewise, lawyers must do their job and protect their clients’ interests. For that, they need historians and other specialists to help them harness the facts of a case.

One thing they cannot do is order historians to censor themselves, just like historians do not ask lawyers to censor themselves.

Therefore, historians and researchers steeped in the tangled webs of persecution and exploitation of Jewish members of national communities between 1933 and 1945 will continue to study, examine, share in public and in private their findings and publish them where appropriate so that the many can have access to such knowledge.

Lawyers are intelligent people; they will surely find a way to adapt to such a state of affairs. After all, they cannot control the dissemination of knowledge anymore than governments can. And should not, under any circumstance.

Facts, ma’am, just the facts.

Some of the main Allied declarations:

"Inter-Allied Declaration on Axis Acts of Dispossession" (London Declaration) of 5 January 1943
Bretton Woods Resolution VI of 20 July 1944

 

Pondering “flight assets”-Fluchtgut

by Marc Masurovsky

Not to be flip, but “flight assets” is an odd expression. Its more appropriate use applies to aviation, airplanes, anything related to a state of being in the air, hopefully in a steel structure with wings, a tail and engines.

Assets that fly…

Assets don’t leave by themselves. They require human conveyance. And the implication is that they have to cross a border, otherwise why would they be “flight assets”?

The question then becomes: where are they coming from and where are they headed?

Assets can consist of very different elements, but the word connotes value. If we are speaking in historical terms, the expression has been almost exclusively applied to the Nazi era, from 1933 to 1945.

The word “flight” also embodies the notion of “fleeing," of running away from something terrible, something that is sure to cause the owner great harm and distress. Assets fleeing? Well, they have no soul so they cannot “flee”, but they can be made to cross a border quickly in the context of a distressing set of circumstances for their owner.

In 1933 Europe and subsequent years, there were valid reasons to flee from National Socialist Germany. We do not know the exact numbers but before Hitler came to power there were those who smelled something rotten taking hold of the body politic in the dying Weimar Republic. And they left with more than their shirt and coat on their backs. So, the expression “flight assets” does not apply to them.

Come January 30, 1933, the situation changed dramatically. An anti-Semitic, racialist government had just reached the pinnacle of political power in Germany. It took some time to enforce nationwide an ideological program that was meant to exclude entire swaths of the populace. In the chaos that ensued and enveloped millions of lives, those born in the Jewish faith and those virulently and explicitly opposed to the Nazi movement, felt the noose tightening around their necks. If you had the means to flee, you did so. If you had valuables that you wanted to place in a safe place, you packed them and shipped them to a safe destination. In 1930s Europe, there were a fair number of places that were considered safe. Switzerland was one of them. It’s next door to Germany, its financial institutions welcomed all kinds of assets. The newly-established Banking Secrecy Laws made it possible to cloak one’s identity away from prying eyes.

We have now framed the contours of “flight assets” as they apply to valuables belonging to people in distress, fearing for their safety and well-being, aware of the restrictions preventing them from functioning as empowered citizens of a country-Germany-that is now denying them the right to earn their livelihood and live a good life as Germans. They are of Jewish descent, the victims of a virulent anti-Semitic program that aims to rid the new Germany of “Jewish influence”, whatever that might entail, but in the initial years after Hitler’s ascent to power, hundreds of thousands of German citizens of the Jewish faith wondered what lay in wait for them.

For those who sought asylum elsewhere, like in Switzerland, they needed to survive. Fired from their jobs, losing their homes, forced to sell belongings at any price, they secured some valuable assets and shipped them abroad where they would use them as sources of badly-needed income until they could relocate and live in relative peace, restart their broken lives.

These German citizens of Jewish descent were fleeing a desperate and threatening environment to their persons. Are the valuables that they sold in Switzerland to support themselves to be considered as “flight assets”? In other words, had they not been threatened by the New Order/Neue Ordnung in Nazi Germany, would they have shipped those valuables abroad, including to Switzerland, not as long-term investments, but as short-term fungible assets to be realized so as to sustain the equivalent of a subsistence wage while reflecting on an uncertain future? Doubtless, the answer is negative. “Flight assets” are short-term fungible assets whose realization helped the owners to survive.

So, here’s the rub: there are many people, especially in the art world and in government circles in European countries and even in North America, who honestly believe that persecution stops when the fleeing refugee crosses the border into some kind of nirvana. There is this notion that “flight assets” do not exist because the refugee sells them without any immediate pressure from the authority that propelled her to flee in the first place. Hence, there is no reason why a valuable, in this case, a work of art, should be returned to the person who sold it as a “flight asset” because she did not have a gun pointed at her head in order to sell it.

To that assertion, one might respond: would she have sold the painting in the first place had she not been forced to flee to such a haven as Switzerland? Would she have fled in the first place, had there been no immediate threat to her person? The same argument, by the way, applies to all neighboring countries—Denmark, the Netherlands, Belgium, France, even the United Kingdom, Austria (for a short time only), the United States? Canada? What about Italy? And Spain? And Portugal? Anywhere?

Let’s suppose that our Jewish refugee shipped in an understandable panic several valuable works of art, expensive jewelry, stocks and bonds, bearer shares, and other fungible goods, to the United States. She was able to make her way west with the little that she could carry with her. If she left right after Hitler’s rise to power, she would have been able to take more than the clothes on her person and a suitcase packed with goodies. But that did not last long. Soon thereafter, crates were stuck in freight forwarding houses on orders from Reich authorities, bank accounts were frozen, excessive levies were imposed on departing German citizens. One had to resort to very creative scenarios to send out “flight assets” to foreign havens. Scenarios that often involved accomplices, non-Jewish accomplices. In many instances, these go-betweens, if motivated by lucre, could earn significant sums helping to smuggle these “flight assets” into safe havens outside of Nazi Germany.

What if our refugee sold her “flight assets” once she reached New York, Boston, or even Toronto, or Montreal? Would we still consider these assets as “flight assets” and therefore restitutable? If we are faithful to the definition that we laid out above, it does not really matter where those “flight assets” ended up because it does not alter the circumstances under which they were shipped in the first place.

If we decide that “flight assets” belong in the same category as “duress” and “forced sales,” we are obligated to consider them as items subject to restitution or compensation for the same reason as assets sold under “duress” in Nazi Germany or in territories occupied or annexed by the Third Reich.

Last but not least, price should have nothing to do with the realization of a “flight asset” or a sale under “duress” at a “forced sale” and cannot be used as a reason for denying restitution to the aggrieved party seeking the return of the “flight asset.” It is the circumstance under which the asset is sold which should determine whether or not this asset should be restituted to the person or her family, obligated to sell it in order to survive.

In the constantly contentious debate over restitution of Nazi looted art, a “flight asset” is a fungible asset which has been shipped across state borders to a safe place by an individual under severe distress in her place of residence whose government has imposed threatening, discriminatory, restrictive measures upon her as a result of her faith and beliefs. This dire state of affairs has compelled this individual to seek refuge outside the borders of her native land and to use whatever valuables she was able to ship or transfer to her new home as a short-term source of revenue to allow her to survive until she figured out what her next move would be.

Switzerland is not the only country that received “flight assets.” That thought is absurd through and through. The “flight asset” could end up anywhere, and could be sold anywhere as long as it served the purpose of providing critical means of subsistence to the persecuted owner.

Buehrle haunts Zurich

by Marc Masurovsky

In August 2015, a new book co-authored by Swiss historian and journalist, Thomas Buomberger, and art historian, Guido Magnaguagno, has called into question the ethics of Swiss arms manufacturer and major art collector, Emil Buehrle, in his wartime purchases of major paintings stolen by the Nazis in neighboring countries, mostly France and also from the Netherlands and from Germany.

Emil Buehrle

The book “Schwarzbuch Buehrle—the Buehrle Black Book” goes into great details regarding the dubious histories of many of the paintings, mostly Impressionists, which Buehrle had bought after they had been brought into Switzerland by dubious means, sometimes involving the German diplomatic pouch, other times, simply being shipped to Swiss dealers by who would then resell them to Buehrle.

Foundation Buehrle

The book’s publication coincided with the gradual transfer of the bulk of the Buhrle collection from the E. G. Buhrle Foundation to the Kunsthaus Zurich, to be displayed in a new wing of the Zurich museum completed in 2020. The question raised by the press is: can one morally defend the display of these works tainted by acts of genocide, especially in museums like the Museum of Fine Arts of Zurich that receive state subsidies?

According to contemporaneous press accounts, the Kunsthaus’ spokesperson, Bjoern Quellenberg, opposed a spirited defense of his institution against Mr. Buomberger’s criticism of the Zurich Museum’s policy regarding the Buehrle collection. Quellenberg dissented on several points with Buomberger’s critique:

On the one hand, he considered any works sold under duress as being different from “looted art” and therefore, legally, they should be treated differently. He emphasized that the Washington Principles of 1998 do not cover duress and only refer to works “confiscated by the Nazis.”

Technically, Quellenberg is right; the greatest failing of the Washington Principles is that they made no explicit reference to duress and forced sales, thereby endangering all claims for cultural objects displaced and misappropriated during the early years of the Third Reich within Germany proper. However, he is wrong in that subsequent international conferences and declarations on Nazi looted art have referred to duress or forced sales as constituting theft. Moreover, legal decisions outside of Switzerland have confirmed that duress sales are tantamount to State-sanctioned theft of property [Vineberg v. Bissonnette, involving a painting belonging to a Düsseldorf dealer, Max Stern, forced to sell his collection by orders of the Reich between 1935 and 1937.] Moreover, Swiss courts have never recognized as valid restitution claims involving works of art in Swiss institutions or collections which were misappropriated through duress or forced sales.

“Fluchtgut” or flight assets, according to Quellenberg, have no definitional legal basis, thus implying that objects falling under this category—sales out of necessity outside of Germany prompted by acts of persecution—cannot be considered as looted assets and should not be protected as restitutable property. At an international conference held in Winterthur, Switzerland, in 2014, the subject of “flight assets” was debated without any conclusive outcome. Opinions appeared to split along “party” lines—plaintiffs’ lawyers and their researchers leaning towards a more lenient reading of property sold by necessity in countries not under any short-term threat of invasion or occupation by the Nazis, as similar to “duress” sales, while others, mostly German and Swiss officials and museum professionals, feeling that this equation is a stretch.

A favorable reading on “flight assets” would affect thousands of objects having been sold out of necessity in Switzerland and pre-invasion Western Europe to help support fleeing German Jewish refugees who had been stripped of all of their property before their expulsion from the Third Reich.

With regard to the responsibility of the Kunsthaus to provide more background into the history of these displaced objects and how they entered Buehrle’s collection, Quellenberg was unequivocal: “we mainly focus on the works. We do not deal with the family history at all…”  This contention goes at the heart of museums’ responsibilities to re-contextualize in their proper historical framework objects under their care whose paths intersect with traumatic societal events during which the lives and fates of the owners of these objects change dramatically, affecting the ownership of these works; a subject worth sharing with the public.

Kuntdhaus Zurich

As we can see, there is a lot more work to be done in Switzerland and other countries, as far as the treatment of art objects is concerned. Once again, words carry an incredible amount of weight. The retelling of a story involving persecuted owners, broken chains of ownership owing to acts of persecution and other State-sponsored discriminatory policies, are an indelible part of the story of objects that we admire and study. It is the responsibility, both ethical and pedagogical, of museums to share these stories with museumgoers feasting their eyes on what they tout as “treasures.” In turn, these “treasures” should not be treated as “toxic material.”

Finally, it is unfortunate that there is still no consensus over definitions of “looted art,” “duress sales” and “flight assets.” Perhaps, 2017 should be the year when clear definitions are adopted, standardized and implemented by the international community in their respective nations.