Holocaust restitution: Lack of funding and cooperation have resulted in failure and injustice

A short history of nazi loot restitution efforts

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Ten years ago, in the wake of the international outcry against Swiss banks holding millions of dollars of dormant assets that belonged to Holocaust victims, a number of organisations emerged in the US and Europe whose declared mission was to seek the restitution of works of art taken by the Nazis and their collaborators from Jewish owners. First, the Holocaust Art Restitution Project (HARP) was established under the aegis of the B’nai B’rith Klutznick National Jewish Museum in Washington, DC, then the Commission for Art Recovery (CAR) in New York under the auspices of the World Jewish Congress (WJC). The main European organisation is the London-based European Commission for Looted Art (ECLA).

These three organisations professed to produce a central registry of works that had been looted or sold under duress between 1933 and 1945 in countries either controlled by the Nazis or allied to them as well as to intervene on behalf of claimants in matters directly related to the restitution of stolen works of art. As a first success in early January 1998, HARP convinced the District Attorney of Manhattan, Robert Morgenthau, to order the seizure of two paintings by Egon Schiele which were on loan from the Leopold Foundation of Vienna to the Museum of Modern Art. This spectacular intervention by a public prosecutor against a leading art museum resulted in part from the reluctance of the two institutions to negotiate in good faith with the families claiming ownership to these works and allowing them sufficient time to do the necessary research to support their claims. Meanwhile, the efforts of CAR to produce a registry of stolen works of art failed, and, instead of dealing with individual cases, they limited themselves to supporting “strategically” important claims. ECLA, while contributing to a number of recoveries, focused mostly on creating legislation at the European level to allow claimants to file for restitution in those particular countries. In the end, due to lack of funding and cooperation, none of these initiatives became a recognised and reliable force for the victims of Nazi art looting.

In 1998, the US Congress established the Presidential Advisory Commission on Holocaust-Era Assets (PCHA). Its purpose was to examine the fate of Holocaust victims’ assets which had come under US jurisdiction and control during and after World War II. In deciding not to investigate how the art market absorbed the fruits of Nazi-sanctioned plunder, the Commission failed to break new ground on this highly sensitive matter. More importantly, neither the While House nor Congress ever implemented its recommendations.

In December 1998, the Washington Conference, with over 40 countries participating, laid out a set of non-binding principles to guide the art world with respect to looted art. In turn, government agencies and museum associations incorporated these principles into their guidelines regarding works with inexplicable gaps in their provenance dating back to the Nazi years. Unfortunately, these principles did not lead to a universally accepted understanding of what constitutes a loss due to Nazi persecution and after ten years and numerous claims for hundreds of millions of dollars, we still need to lean on the restitution fundamentals established by the Allies after World War II.

Since then, a number of European countries established national commissions to adjudicate postwar art claims, albeit with limited success. Claimants who brought forth their petitions after painstaking and expensive research were at times either rejected or forced to engage in lengthy proceedings. As a result of these institutional failures, lawyers and agents who offer contingent fee arrangements have entered the field of cultural property restitution (see pp1, 4).

At present, the Holocaust Claims Processing Office (HCPO), run by the state of New York, is the only agency offering its services free of charge. The high cost of provenance research, which lies at the crux of these claims, remains prohibitive, in particular for those who do not have seven- or eight-figure paintings to pursue. For-profit commercial operations like the London-based Art Loss Register (ALR) only exacerbate the issue by charging additional fees. Even Jewish groups have tended to ignore the magnitude and severity of these thefts, thus denying to thousands of claimants a powerful tool of advocacy and mediation between them and the present custodians of their lost property.

History cannot be reduced to a financial equation by which we judge whether a victim was operating under duress or not. The factual and legal discussion must privilege the place of residence of the victim and the pressures exerted upon him and his peers by the Nazi authorities.

Under the Nazis at least 15 million objects in 20 countries were plundered: works on canvas and paper, sculptures, antiquities, rare books and incunabula, as well as Judaica, musical instruments, rare coins and medals, tapestries, high-end furniture and accessories. These stolen objects and the information documenting their fate must be included in a central registry to aid claimants and cultural institutions determine their present status. Although the art world has been clamouring for the last ten years for such a registry, no one has lifted a finger yet to underwrite its creation.

• Willi Korte is an historian and lawyer; Mark Masurovsky is an art restitution expert. Both work in Washington, DC.

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