Holocaust memory under siege in political and art worlds
Art provenance cases test Germany’s resolve on restitution
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This portable altar is part of the Guelph Treasure, a collection at the center of the latest legal dispute over artwork that was separated from its Jewish owners during the Holocaust. Photos Courtesy Nicholas M. O’Donnell
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April 27, 2017
What is shaping up to be another “Woman in Gold” court case involving Nazis and Jewish-owned artwork is playing out in the District of Columbia federal court.
A key difference is that the art in question is not a priceless family heirloom — as was “Woman in Gold” (Portrait of Adele Bloch-Bauer I by Gustav Klimt), the painting that was the subject of a court battle and later of a movie of the same name — but rather an art collection that one lawyer described as Germany’s “crown jewel.”
Germany is waging a legal battle over the collection, known as the Guelph Treasure, even as the heirs of the Jewish art dealers who sold the collection contend that the 1935 sale was forced. The move appears to fly in the face of Germany’s commitment to abide by both the Washington Principles of 1998 and the Terezin Declaration of 2009, in which participating countries pledged not to use legal technicalities to avoid returning Nazi-looted art.
It also appears at odds with Germany’s announcement last month that it has created a $3.6 million national fund to subsidize provenance research into privately owned artwork suspected of being looted by the Nazis. Germany has already reportedly spent about $6.5 million for provenance research into the Gurlitt collection — artwork inherited by Cornelius Gurlitt, whose father, Hildebrand, was a dealer who traded in Nazi-looted art.
Germany’s court fight over the Guelph Treasure as it simultaneously funds provenance research suggests the competing interests at play as the country reckons with its past.
The Guelph Treasure is a collection of medieval German church art bought in June 1929 from the Duke of Brunswick by a consortium of four German-Jewish art dealers. They intended to quickly resell it at a considerable profit, but art prices collapsed when the stock market crashed four months later. In 1935, after selling 40 of the 82-piece collection during exhibits in Germany and a tour of the United States, the art dealers sold the rest to the Dresdner Bank in Germany, which was acting on behalf of Hermann Goering, the second-most powerful man in Nazi Germany. He in turn presented it to Hitler.
The art dealers’ heirs are suing Germany, contending the Nazis forced the sale. Germany argues it cannot be sued in the United States because of the Foreign Sovereign Immunities Act (FSIA), which limits suits against foreign countries. But on March 31, DC District Judge Colleen Kollar-Kotelly rejected that and other arguments and ruled the case could be heard.
It is the first time a court has held that Germany can be sued for the return of Nazi-looted art and artifacts under the FSIA. Germany and the foundation have until April 21 to appeal the decision to the Court of Appeals for the DC Circuit.
In the Woman in Gold case, Maria Altmann sued Austria in federal court in Los Angeles for the work’s return, along with four other family-owned paintings. The judge dismissed Austria’s claim that the court lacked jurisdiction, and the Ninth Circuit Court agreed. Austria appealed to the U.S. Supreme Court, citing FSIA, but lost in June 2004 in a six-to-three ruling. After an arbitration panel in Austria also sided with Altmann, Austria returned the five paintings.
Nicholas M. O’Donnell, a Boston lawyer representing the art dealers’ heirs, said the Guelph Treasure is “on the same trajectory” as Altmann’s case. He noted that his case was given added weight last December when President Barack Obama signed into law the Holocaust Expropriated Art Recovery Act, which bars the use of legal technicalities to prevent a family’s claims from being heard on the merits.
But in their court papers, lawyers for both Germany and the Prussian Cultural Heritage Foundation (SPK) — which is also being sued as manager of Berlin’s Museum of Decorative Arts, where the Guelph Treasure is now exhibited — insisted that the lawsuit “flies in the face of the Washington Principles and the Terezin Declaration, neither of which contemplates second-chance litigation.”
They were referring to the fact that the panel of experts Germany set up to verify looted art claims two years ago concluded the art dealers’ sale “was not a compulsory sale due to persecution.”
Their assertion that the sale “predated the Holocaust by several years” was deleted in an amended complaint after historians pointed out that Nazi persecution of Jews began immediately after Hitler came to power in January 1933.
The lawyers also pointed out that since 1999, SPK has received more than 50 Nazi-looted art restitution claims and has “responded by returning more than 350 works of art and more than 1,000 books …. Along with SPK, German museums and institutions have returned more than 14,300 Nazi-looted items.”
Indeed, many have applauded Germany for its recent decision to help fund provenance research. Wesley Fisher, director of research for the Claims Conference, called it “a very good move on the part of…Germany, and it does not exist in other countries.”
O’Donnell, the heirs’ lawyer, said he has been an “outspoken critic of Germany’s measures” regarding restitution. “Any assistance is progress; the question is whether it is meaningful. What is lacking is comprehensive provenance research. It is hard work, it takes a lot of time, but a lot more could be done.”
O’Donnell pointed out that in the 1990s, the Association of Art Museum Directors in the United States called on members to determine if their collections held anything requiring restitution. “The German government could have asked their museums” to do the same, he said.
Jehuda Evron, president of the Holocaust Restitution Committee, a New York-based group of Polish survivors, said, “It may be too little, but it is better than nothing, [and] anything being done to enable survivors to reclaim assets is always good news.”
Mel Urbach, a Manhattan lawyer who is O’Donnell’s co-counsel, said he too believes that “after all these years, any gesture to help families recover their belongings is the right step.” But such provenance research “is something that should have been done years ago.” Starting the process now means finding gaps that would have been avoided “had we had testimony from the living heirs.”
Urbach’s German colleague, Markus Stoetzel, said he and Urbach, as restitution lawyers, have “heard excuses and arguments for holding onto art.… We get the impression that there is some sort of amnesia going on, especially when it comes to provenance research.”
In addition to helping German families determine if any art they hold was looted by the Nazis, Germany has for the first time agreed to help finance one family’s search for its Nazi-looted art collection.
The collection is that of Berlin publisher, art collector, and philanthropist Rudolf Mosse and his son, Hans, who succeeded his father in 1920 as publisher of the leading liberal newspaper the Berliner Tageblatt. It is claimed that the Nazis confiscated the collection’s estimated 4,000 works shortly after the party came to power, according to J. Eric Bartko, a California investigator spearheading the family’s search.
“In March 1933 — three months after Hitler became chancellor — the Nazis inventoried the collection,” Bartko said, and compelled Hans to leave the country.
Before he fled, Mosse was forced at gunpoint to sign over the publishing house to a foundation that allegedly helped German war veterans. The Nazis also seized the rest of the Mosse family’s property — including a castle and the newspapers they owned across Germany and in Switzerland, Poland, and Bulgaria — and its art collection, which it later sold at auction.
Bartko said he has located the catalogues of two of the auctions, but that they don’t represent the family’s entire collection. Since beginning his search in 2012, he said, he has documented 1,115 pieces from the collection and has recovered about 18 pieces from institutions in Germany and Switzerland.
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