THE HOLOCAUST ART RESTITUTION PROJECT DENOUNCES A “SHAMEFUL” AND “TRAGIC” DECISION BY THE FRENCH GOVERNMENT TO REFUSE THE SUSPENSION OF AN AUCTION SALE OF SACRED HOPI AND NAVAJO MASKS TO BE HELD AT PARIS’ HOTEL DROUOT ON JUNE 27, 2014.

Press Contacts:

In Washington, DC: Marc Masurovsky, (00) 1 202 255 1602 , plunderedart@gmail.com
In New York, NY: Pierre Ciric (00) 1 212 260 6090, pciric@ciriclawfirm.com

For Immediate Release
Washington, DC, USA – June 27, 2014 - The Holocaust Art Restitution Project ( “HARP”), based in Washington, DC, chaired by Ori Z. Soltes, is denouncing a “shameful” and “tragic” decision by the French “Conseil des Ventes” (“Board of Auction Sales”), an administrative body in charge of regulating and supervising auction sales on the French market, which is refusing to suspend an auction sale of sacred masks owned by the Hopi and Navajo tribes, scheduled for Friday, June 27, 2014.

On June 22, 2014, HARP, through its President, Ori Z. Soltes, wrote to the Conseil des Ventes, to request an administrative suspension of an auction sale scheduled for Friday, June 27, 2014, which involved sacred objects of both the Hopi and the Navajo tribes, and for which title never vested with subsequent possessors due to the sacred nature of these objects. Following a special hearing held in Paris on June 25, 2014, the Conseil des Ventes, which has the power to suspend such sales, just issued its decision, refusing to impose a suspension.

“The decision by the Conseil des Ventes is both tragic and shameful. The Conseil has refused to consider the provenance information for these objects in its decision, when everyone agrees in the United States that title for these sacred masks could have never vested with subsequent possessors. Furthermore, adding insult to injury, the Conseil held that the Hopi tribe, in fact ANY Indian tribe, has no legal existence or standing to pursue any cultural claim in France. This dismissive denial of access to justice flies in the face of the progress made in international law by all tribes and indigenous peoples, as the French government had expressed its support for the legal status of indigenous peoples by its endorsement in the UN General Assembly in support of the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP),” said Soltes.

HARP is a not-for-profit group based in Washington, DC, and chaired by Ori Z. Soltes, dedicated to the identification and restitution of looted artworks require detailed research and analysis of public and private archives in North America. HARP has worked for 16 years on the restitution of artworks looted by the Nazi regime.

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?

Provenance research—now and later (Second Installment)

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

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

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

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

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

Provenance research—now and later (First installment)

This “think-aloud” is neither the first nor the last on a topic that has become, despite its innocuous phrasing, far more contentious than it ought to be.

For now, it is best to throw out some questions for which answers are not necessarily forthcoming.

Why all the fuss about provenance research?

Up until the mid-to late 1990s, provenance research remained within the province of trained art historians working in cultural institutions where art objects are cared for and displayed for the benefit of the public. The research aims to enhance the understanding of the object—its author, its physical attributes, the period in which it was produced, the reasons for its existence, and how it evolved over time and space.

This kind of research is an academic/intellectual exercise that helps ascertain the authenticity of an object and its place in the history of art, writ large.

It is not a requirement incumbent upon its practitioner. Provenance research is one of many duties that “come with the job.” If it does not get done, no one gets fired. More often than not, the information that is collected about the object does not enter the “public record” insofar as it is communicated to the general public. If it is communicated, that is left up to the discretion of the institution where the research is conducted.

Then, the 1990s came and went, and, all of a sudden, “provenance research” became something else entirely.

If I had been working in a museum in the wake of the scandal surrounding the misuse of Swiss bank accounts owned by persons of Jewish descent who may or may not have perished during the Holocaust, I would have been rather oblivious to any debate about loot in general. Once the debate about the mishandling of “Jewish bank accounts” (I hate that expression!) transferred into the (mis)handling of art objects nestled in the permanent collections of countless museums both in North America and Europe, provenance research entered the spotlight front and center.

If I had been working in a museum at the time that the “Portrait of Wally” by Egon Schiele was seized at the Museum of Modern Art of New York in early January 1998, I probably would have wondered: what is that all about? And I would have naturally sided with the then owners of the painting, the Leopold Foundation of Vienna, and the exhibitors, the Museum of Modern Art, wondering what Robert Morgenthau, then district attorney of Manhattan, had had for coffee on the day that he decided to order the New York Police Department to seize the painting.

I would have done so because my training would have precluded me from even wondering if I should even worry about whether or not the institution that I served had actual title to the objects under my care and examination. Why should I have worried about title since I simply assumed that my institution was the rightful owner?

I write these words simply because it is the right thing to do: acknowledge that the beast that has become “provenance research” has been transformed from an innocuous art-historical practice into a tendentious, litigation-laced, means to an end: does the research into the origins of an object lead to the maintenance of that object in the collection that I help steward or does it lead to the de-accessioning of the object because of some historical wrong that broke the chain of ownership of the object, thus changing its status to “restitutable”?