Untangling the knot
Recovering 'dislocated' art
If someone steals your car, everyone will agree that your car was stolen. If you were a Jew in Europe during the Nazi era and someone took your artworks, whether they are considered stolen property depends on who took them, how many times they changed hands in the last seven decades, and who has them now, according to Marilyn Henry, a columnist for the Jerusalem Post.
Henry, a Teaneck resident, spoke about the recovery of Nazi-looted art on Tuesday at the JCC in Manhattan and is scheduled to deliver a second lecture there on Oct. 13.
The author of “Confronting the Perpetrators: A History of The Claims Conference,” Henry spent many years as a reporter for the Jerusalem Post and was a contributing editor to ARTnews, “covering the whole question of looted and displaced art.”
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Her forthcoming book is “Twice Stolen: Recovering Nazi-Looted Jewish Art.”
According to Henry, the issue of untangling Holocaust-era art claims is very problematic.
“Many people involved in the field are exhausted, frustrated, and financially tapped out,” she said. “Claimants feel they will not get justice and museums are terrified. They fear that claims for [this] art would strip museum walls bare.”
|Museums were in an uproar when New York’s Robert Morgenthau seized Egon Schiele’s painting “Portrait of Wally,” above.|
The case of Egon Schiele’s painting “Portrait of Wally” instigated what Henry calls the “Nazi-era looted art craze.” Detained in January 1998 by Manhattan district attorney Robert Morgenthau while on loan from the Leopold Museum in Vienna to New York’s Museum of Modern Art, “Wally’s” fate has yet to be resolved after 10 years in federal court.
“It really was a craze,” she said. “The fear was, if the New York district attorney was going to impound art, no one would lend to [N.Y. museums] and they would lose their ‘pre-eminent position’ in the cultural universe.” They also worried about losing other assets.
Neither scenario materialized, said Henry, labeling the outcry “pure overreaction.”
Henry explained that the word “loot” is misleading.
“It’s a shorthand,” she said. “While the terminology we have come to use is ‘Nazi-looted art,’ there’s a problem with that.”
Some of the art, she said, was not looted but went missing, was stolen by neighbors, or was sold under duress during the Nazi era, from 1933 to 1945. “The owners themselves may have sold art like other possessions, at fire sale prices for food or flight,” she said.
In these cases – while it was Nazi terror that caused the sale – the Nazis never had access to the art itself or to the income from the sale. The art may also have been abandoned, because many deportees were compelled to leave everything behind.
Dealing with this art now is “interesting, irritating, and complicated,” said Henry, “depending heavily on where the art surfaces these many years later.”
While scholars agree that the Nazi era brought about the greatest displacement of art in history, “after the war, the Allies were able to locate and create collecting points where they amassed all the art that they could find and returned it to their country of origin,” said Henry.
However, she stressed, while it represented a “huge restitution effort, it was not to individuals.” Of great importance is how well these countries went about finding the owners and heirs.
Under international and legal pressure, nations in 1998 agreed to non-binding “Washington Principles.” These called for “just and fair solutions” to ownership disputes and for “alternative dispute resolution mechanisms for resolving ownership issues.”
|Gen. Dwight D. Eisenhower, Supreme Allied Commander, inspects art treasures looted by the Germans and stored away in the Merkers salt mine. Behind Eisenhower are Gen. Omar N. Bradley, left, Commander General of the 12th Army Group, and, right, Lt. Gen. George S. Patton, Jr., Commander General, 3rd U.S. Army. 4/12/45. National Archives, Holocaust-Era Assets|
The Netherlands and Germany have done fairly well in following the principles, said Henry. “The British do a little, the French claim to, and the Austrians have an odd system, kicking and screaming the entire way.”
Different countries use different criteria to determine whether something qualifies as Nazi-looted art, she said.
“I use the term ‘restitution roulette,'” said Henry. “The idea is that if you are a claimant, original owner, or heir, your ability to recover [art] depends on where it ends up all these years later. It’s random. It might end up in a restitution-friendly location that has broad definitions of what constitutes looted art to which you are entitled, or it might end up in an area or institution that is much more strict as to what constitutes loot.”
In that case, she said, the country in question might require proof that a Nazi agent took it – something not easy to come by.
Henry pointed out that there is no entity monitoring how nations and institutions are resolving these claims.
“There’s no ‘policing’ agency,” she said, noting that the Claims Conference does not advocate for individuals. “It’s frustrating, because customary law is not designed to deal with this. No one wants to come up with an alternative mechanism.”
There have been instances, she said, “where it looks like a fairly clear case but as it racks up expenses and drags on, people feel compelled to abandon the claims.”
In addition, she said, with the passage of time, “we have the phenomenon of heirs totally unaware of what their families may have owned, and what they are entitled to.”
Some museums, the Utah Museum of Fine Arts, for example, have returned art “without question,” giving back a painting to heirs without litigation, “even though it left a hole in the heart of the museum. They’re good guys,” said Henry.
Still, said Henry, some museums raise fair questions, such as how the pre-war owner came to lose possession and whether the Nazis sold looted art on the open market.
“If the Nazis were selling artwork to raise cash and someone goes and buys this, have [the buyers] done anything wrong?” asked Henry, noting that the issue raises “lots of moral questions.”
“The Nazis should not have been taking these [artworks]. But when other people happen to acquire them, the result is that a lot of art is moving and there is a lot for sale. A lot of buyers and current possessors … are not the thieves. Should they give it back? Who will compensate them? Should they be compensated?”
The recourse for the original owner depends on the country he or she is in, Henry said, adding that one problem with establishing an international system is national sovereignty.
“Even with the world’s greatest system for mediating disputes, there would be no incentive for France, say, to accept an American system. It has nothing to do with art. It’s about national sovereignty. That becomes a tremendous issue.”
Henry said the idea behind her new book is that while the Nazis stole or created the conditions under which people lost art, a second problem occurred after the war, when paintings were returned by the Allies to countries of origin that did not look for the victims and return the art. Nor – using devices such as confiscatory fees, export bans, or impossible demands for proof of ownership – did they offer victims the ability to recover the art.
“It does [the victims] a disservice when the focus is on looting but not on how victims and their heirs struggled after the war to recover artwork that was located,” she said.
The trauma and emotional scars of the Shoah and people’s passions about art are a combustible mix.
“Art makes people nuts,” said Henry. “I’m confident after 15 years of writing [about this] that resistance to restitution is not about anti-Semitism. Something about art makes people lose all common sense.”