Nazi Spoliation – Illicit Cultural Property

Supreme Court to Hear Case involving Nazi-era sale of the Guelph Treasure

The United States Supreme Court has granted certiorari and will weigh in on a Nazi-era dispute over artworks, involving the sale of a collection of medieval artworks known as the Guelph Treasure. The collection is described as something out of a film: gold, silver, and jeweled liturgical objects from the Church of St. Blaine in Brunswick, Germany. Many of the objects were crafted in what is today present-day Germany, but other objects came from the Italian peninsula or the Byzantine empire.

Here’s a quick background on the dispute. The Welfenschatz, or Guelph trove is currently in the possession of the Prussian Cultural Heritage Foundation and has been claimed by successors of art dealers who were fleeing the holocaust. These objects were originally housed in the cathedral in Braunschweig, owned by the House of Guelph. During the First World War, the House of Guelph lost reign over Braunschweig and in the 1920s the pieces were sold to a consortium of Frankfurt art dealers, including 82 items in 1929. Later in 1935 the Prussian state, led by Hermann Goering, bought the remaining pieces of the treasure in what the claimants allege was a “genocidal taking”. In 2014, a German government commission found that the transaction was not a forced sale.

The claimants then brought suit in the United States. The current possessors, the Prussian Cultural Heritage Foundation have defended that action on the grounds that as a Foreign Government, they are immune from suit in the United States under the Foreign Sovereign Immunities Act. Claimants have argued that the actions of the Prussian government fall under one of the exceptions to that law, that the actions of the Prussians was a violation of International law, namely genocide. The Supreme Court has agreed to consider two issues:

Whether suits concerning property taken as part of the Holocaust are within the expropriation exception to the Foreign Sovereign Immunities Act (FSIA). This is the legal treasure which gives the claimants a jurisdictional foothold to sue a foreign government in the United States, something that ordinarily is not allowed under American law.
Whether a foreign state may assert a comity defense that is outside the FSIA’s “comprehensive set of legal standards governing claims of immunity in every civil action against a foreign state.” In essence the appellants are attempting to use the idea that Courts should refrain from entering into the realm of foreign policy in a broader way. At least that is how I understand that issue.

Nicholas O’Donnell, an attorney for the claimants stated:

[W]e are grateful for the opportunity to address the Supreme Court on these important questions about holding Germany accountable for its Nazi-looted art. A 1935 transfer from German Jews to notorious art looter and war criminal Hermann Goering is the quintessential crime against international law, regardless of Germany’s Holocaust distortion in defending this case. Germany seeks to eliminate recourse for Nazi-looted art and the Court will have the chance to answer this question of critical importance for Holocaust victims.

Being on the side of the possessors and having to defend that possession by justifying the acquisition by such an evil historical figure as Hermann Goering cannot be an easy legal argument. The Court will likely hear the case in the Fall, likely via telephone if the never-ending pandemic continues to outwit the hapless policy makers here in the United States. The case could impact the future of Nazi-era claims, and claims for wrongdoing more generally during similar periods of atrocity. The Court will also hear a case involving Hungarian nationals who lost property during World War II.

Stewart Ain, Supreme Court to Hear Guelph Treasure Case, Jewish Week New York (Jul. 2, 2020), https://jewishweek.timesofisrael.com/supreme-court-to-hear-guelph-treasure-case/.

Christopher F. Schuetze, U.S. Supreme Court to Rule on Medieval Treasure Bought by Nazis, The New York Times, Jul. 10, 2020, https://www.nytimes.com/2020/07/10/world/europe/guelph-treasure-germany-us.html.

Supreme Court agrees to hear Nazi art case, AP NEWS (Jul. 2, 2020), https://apnews.com/3fe60cf650bee8997d7f091fe2e8d84e.

Masurovsky compares ‘Nazi plundered art, looted antiquities, and stolen indigenous objects

Marc Masurovsky, cofounder of the Holocaust Art Restitution Project (HARP) has published “A Comparative Look at Nazi Plundered Art, Looted Antiquities, and Stolen Indigenous Objects” in the North Carolina Journal of International Law and Commercial Regulation. The Piece is an ambitious and serious look at the different kinds of State-sponsored taking of art and heritage, and attempts to connect the different kinds of takings across different historical periods and cultural groups.

From the introduction:

The dispersal of Jewish collections during the Nazi years interestingly compares with the recycling of looted cultural property from conflict zones and the plunder of ritual objects from indigenous groups worldwide. There should be a common response by the international community to cultural plunder and crimes committed against culture, within the framework of State-sponsored persecutions of entire groups. And there should be common standards for prevention, seizure, and restitution. This Article explores these issues.
Marc Masurovsky, A Comparative Look at Nazi Plundered Art, Looted Antiquities, and Stolen Indigenous Objects, 45 N.C. J. Int’l L. & Com. Reg. 497 (2020).
Available at: https://scholarship.law.unc.edu/ncilj/vol45/iss2/8

Supreme Court waiting on Solicitor General before deciding on certiorari in the Guelph Treasure dispute

The Art Newspaper has a useful update on the current state of the Guelph Treasure dispute. The Supreme Court has asked the Executive Branch, specifically the Solicitor General of the United States for an opinion on the case, in order to aid in its decision over whether or not to hear an appeal of the case from the D.C. Circuit Court of Appeals.

Here’s a quick background on the dispute. The Welfenschatz, or Guelph trove, a collection of 42 objects dating from the 11th-15th centuries is currently in the possession of the Prussian Cultural Heritage Foundation and has been claimed by successors of art dealers who were fleeing the holocaust. These objects were originally housed in the cathedral in Braunschweig, owned by the House of Guelph. During the First World War, the House of Guelph lost reign over Braunschweig and in the 1920s the pieces were sold to a consortium of Frankfurt art dealers, including 82 items in 1929. Later in 1935 the Prussian state, led by Hermann Goering, bought the remaining pieces of the hoard in what the claimaints allege was a “genocidal taking”. In 2014, a German government commission found that the transaction was not a forced sale.

For some further helpful background from the perspective of the claimants, Nicholas O’Donnell, counsel for the claimants, has an excellent blog where he often updates this dispute.

Martha Lufkin, Supreme Court Delays Guelph Treasure Appeal so US Government Can Add Its Views to Case, The Art Newspaper, Jan. 21, 2020, http://www.theartnewspaper.com/news/supreme-court-delays-guelph-treasure-appeal-so-us-government-can-add-its-views-to-case [https://perma.cc/3UGP-SCJ2].

“loot” at Texas A&M Law on September 9

LOOT-web-banner2-crop

Next Friday Texas A&M Law school is sponsoring a symposium on looted art, cultural property and repatriation. They’ve announced an impressive lineup of speakers:

Don Burris, Senior Founding Partner, Burris & Schoenberg, LLP
Megan Carpenter, Co-Director, Texas A&M Center for Law and Intellectual Law (CLIP)
Monica Dugot, Senior Vice President, International Director of Restitution, Christie’s
Simon Frankel, Chair of Intellectual Property, Partner, Covington & Burling LLP
Deborah Gerhardt, Associate Professor of Law, University of North Carolina
Jennifer Kreder, Professor of Law, Northern Kentucky University
Marilyn Phelan, Paul Whitfield Horn Professor of Law Emeritus and former Professor of Museum Science, Texas Tech University
Lucille Roussin, Board of Directors, The Lawyers’ Committee for Cultural Heritage Preservation, and Director, Holocaust Restitution Claims Externship at Benjamin N. Cardozo School of Law

For the details, visit the event page here.

Germany sued over Nazi-era Medieval art sale

The 13th-century Dome Reliquary, part of the Welfenschatz or Guelph Treasure, is displayed at the Bode Museum in Berlin

“Any transaction in 1935, where the sellers on the one side were Jews and the buyer on the other side was the Nazi state itself is by definition a void transaction”.

So argues Nicholas O’Donnell, an attorney representing descendants of the Jewish art dealers who sold a collection of medieval artworks known as the “Guelph” or “Welfenschatz” Treasure, allegedly under duress and threat of persecution. The complaint for the two heirs was filed in U.S. District Court in Washington D.C. to recover yesterday afternoon. The objects were part of the treasury of the Braunschweig cathedral and were used to store and display relics. The claimants allege that a group of Jewish art dealers were forced to sell the objects in 1935 to the German state of Prussia.

One unfortuante aspect here is that the German commission charged with resolving the claims of Nazi-era claimants was unable to achieve a satisfactory result for the claimants and the German government. One of the likely issues in this dispute will be one the timelinesss of this suit, whether a court will examine the circumstances surrounding an alleged forced sale nearly 80 years after it took place. The complaint alleges that the objects were sold under persecution for 4.15 million Reichsmarks (RM). If we do some rough back-of-the-envelope calculations, the exchange rate was 2.45 RM for $1. So that means the objects were sold for just shy of $1.7 million in 1935 dollars, which be nearly $28 million today. Considering the treasure may be worth as much as $226m, the German State seems to have received a pretty good bargain. The legal question will be whether that sale was under duress.

O’Donnell argues in his blog this morning:

Continue reading “Germany sued over Nazi-era Medieval art sale”

Litigation seems inevitable in the Gurlitt case

Next week the Kunstmuseum in Bern will announce if it will accept the bequest of 1300 works of art from Cornelius Gurlitt. Gurlitt’s father was art dealer Hildebrand Gurlitt, operating during World War II. As a consequence a large number of these works will have possibly been stolen or forcibly taken during the Nazi regime. Receiving these works will be a challenge for whoever ultimately gets them. But the likely result no matter what will be litigation. There has never been such a large and contested body of artworks collected in one estate, but even if this were just a mundane estate without Nazi-era art association, large estates often carry with them the likelihood of litigation.

The Wall Street Journal reports that the Kunstmuseum is expected to accept the works:

The Kunstmuseum Bern’s legal team has been researching the artworks’ provenance since the museum was informed of the bequest on May 7. Barring a last-minute legal discovery that could scuttle the deal, the museum’s board of directors will accept the gift at its meeting on Saturday, the last of half a dozen deliberations regarding Mr. Gurlitt’s bequest. . . . Much of the delay in accepting the trove has come because the tiny museum needed to secure seven-figure private funding from Swiss donors to be as free as possible of German funding that the museum thought could taint the neutrality of their provenance research, people familiar with the deliberations said.This was a daunting task for the board members. The museum lacks the financial backing of other Swiss museums like Fondation Beyeler. Unlike European and American museum boards filled with wealthy collectors and art world insiders, the Kunstmuseum Bern’s board comprises local government officials and academics.

Continue reading “Litigation seems inevitable in the Gurlitt case”

Cornelius Gurlitt has died (but leaves a lot of art behind)

The apartment block in Munich where 1500 works were discovered in 2011

Cornelius Gurlitt, the 81-year-old German man who gained prominence in the fall because he was revealed to have a massive amount of artwork has passed away after a heart procedure.

The Financial Times reports:

Several claims have been lodged on behalf of the descendants of people whose works were allegedly stolen under the Nazis. Among them are the heirs of David Friedmann, a German Jewish businessman, who have laid claim to the Max Liebermann painting “Two Riders on the Beach”. August Matteis, the US lawyer in the Friedmann case, said Mr Gurlitt “never had a role in the claim” because the painting clearly belonged to Mr Friedmann’s heirs.His death removed the tax investigation as a cause of delay because any tax owed to the authorities could be covered by the sale of Mr Gurlitt’s other works. “There must be no more paralysis for the sake of delay,” said Mr Matteis.

The NYT reports on the reaction by German officials:

Monika Grütters, who oversees cultural affairs for Germany’s federal government, issued a statement on Tuesday lauding Mr. Gurlitt for allowing the investigation of his collection. “As a private person, he set an example in his commitment to moral responsibility in seeking out fair and just solutions,” the statement said. “For this step, he was rightly accorded recognition and respect.” The German authorities have held the trove at an undisclosed location, citing security reasons for the secrecy. In February, an additional 238 works — some of them said to be top-quality paintings — were removed from Mr. Gurlitt’s second home, in Salzburg, Austria, and relocated also to an unnamed location. Mr. Gurlitt was last known to have sold a painting in December 2011, when the “Lion Tamer” by Beckmann fetched 864,000 euros, or $1.17 million, at an auction in Cologne, Germany. The auction house, Lempertz, said it brokered an agreement for some of the money to go to heirs of Alfred Flechtheim, a Jewish art dealer who was forced to leave Germany and died a poor man in London in 1937. Although reporters from around the world camped outside his Munich apartment for weeks after his art collection was revealed, Mr. Gurlitt gave only one interview, to the news weekly Der Spiegel. In that conversation, he revealed little about his life, saying that the only thing he had loved were his pictures.

The question now is what becomes of Gurlitt’s estate, as reported by the Wall Street Journal:

Although that investigation will lapse now that Mr. Gurlitt is dead, fresh hurdles abound, mainly surrounding a simple question: who has inherited Mr. Gurlitt’s estate? Christopher Marinello, a lawyer for the Rosenberg heirs, says the family will continue pursuing the case, but that “we’ll have to wait for the estate process to run its course.” It is unclear, though, whom Mr. Marinello should even contact or who will be handling the estate process.

Given Mr. Gurlitt’s perpetually frail state of health, a German court appointed Munich-based lawyer Christoph Edel as his legal guardian late last year. But Mr. Edel’s position was “voided as soon as Mr. Gurlitt died,” his spokesman, Stephan Holzinger, told The Wall Street Journal. Mr. Holzinger says he doesn’t even know if Mr. Gurlitt has a will and that his own contract will only continue for “the next few days.”

Melissa Eddy & Alison Smale, Cornelius Gurlitt, Scrutinized Son of Nazi-Era Art Dealer, Is Dead at 81, The New York Times, May 6, 2014.

Mary M. Lane, German Art Collector in Nazi Loot Uproar Dies, Wall Street Journal, May 6, 2014.

Stefan Wagstyl, Cornelius Gurlitt, Son of Nazi Era Art Dealer, Dies, Financial Times, May 6, 2014.

An immunity from seizure bill makes museums havens for stolen art?

One of the works at issue in the Malewicz v. Amsterdam immunity from seizure litigation, titled Suprematism 18th Construction, by Kazimir Malevich

In a provocatively-titled op-ed in the conversation, Tess Davis and Marc Masurovsky argue that a proposed bill would make American art museums a haven for stolen art by allowing them to “knowingly exhibit stolen art”. Their argument:

On March 25, backed by the art trade lobby, Republican Congressman Steve Chabot reintroduced the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act to the House of Representatives. On its face, HR 4292 asks Congress to “clarify” a small section of the the law. But in truth, the bill goes far beyond mere clarification.

It would instead undo established US law and policy by allowing American cultural institutions to block legal claims to artwork on loan from abroad. Museums would knowingly be able to exhibit stolen and looted art and antiquities. It would leave the rightful owners without any legal recourse to recover their property in US courts.

This bill is just the latest attempt by the less responsible players in the art market to weaken US law. American legal principles have long held that a thief cannot transfer good title. The receipt, possession, and transport of stolen property is a crime. US legislation has carved out a narrow exception to prevent the judicial seizure of art imported for exhibition, but only in very limited circumstances, which it clearly enumerates. HR 4292 would greatly expand this exception by divesting our courts of all jurisdiction over such objects.

Those are strong statements. And it must be said that the text of the proposed bill, at least by my reading, seems to do just the opposite. It makes it easier for Nazi-era claimants to pursue claims against possessors who send their art on temporary exhibition to the U.S.

It clarifies the concept of “commercial activity”; something needed after a 2005 case, Malewicz v

. City of Amsterdam, which saw heirs of Malevich bringing suit against Amsterdam in federal court in Washington D.C.

Since 1965 the Exemption from Judicial Seizure of Cultural Objects Imported for Temporary Exhibition act grants immunity for temporary exhibitions for material being brought into the U.S. if the loan is in the national interest, and the objects are of cultural significance. Rick St. Hilaire and others have supported this clarification. And on its face the clarification seems necessary. Perhaps what Masurovsky and Davis really want is an end to all art immunizations—but they don’t really come out and say that. Instead they accuse Americn Museums of knowingly exhibiting and gathering stolen art. Though there are certainly examples of this on the extreme margins, the examples that the authors use both cut against their underlying position. The Portrait of Wally litigation never involved Federal immunity, only New York State immunity. And the Koh Ker material was not loaned to the United States, it was acquired or up for auction, and the Federal Prosecutors initiated forfeiture actions.

I am not a provenance researcher, and I am not familiar with how in-depth the State Department grants of immunity checks are, but it seems to me the authors have exaggerated their position. Perhaps I’m missing something, but I don’t see any example of any museum in North America being able to knowingly exhibit stolen material.

Victoria Reed on Monuments Woman Ardelia Hall

Ardelia Ripley Hall at a ceremony returning a Rubens to Germany

Victoria Reed (Sadler Curator for Provenance at the MFA Boston) has a republished piece in the International Journal of Cultural Property titled: “Ardelia Hall: From Museum of Fine Arts to Monuments Woman“. From the abstract:

Ardelia Ripley Hall (1899–1979) served from 1946 until 1962 as the Fine Arts and Monuments Adviser to the U.S. Department of State. In this role she oversaw the recovery and restitution of movable cultural property that had been displaced during the Second World War. In spite of her vast accomplishments, almost nothing has been written on Ardelia Hall, and little is known about her life. She began her career at the Museum of Fine Arts, Boston, but personal circumstances led to her resignation in 1941. During the war, she was employed by the Office of Strategic Services. The expertise she established as an art historian working with the Roberts Commission at this time led to her appointment at the State Department in 1946. This essay traces for the first time Hall’s remarkable journey from curatorial researcher to adviser on international art restitution.

Victoria Reed, Ardelia Hall: From Museum of Fine Arts to Monuments Woman, FirstView International Journal of Cultural Property 1–15 (2014).

60 minutes tackles the Gurlitt art hoard

The interesting story is how Gurlitt and his father were able to explain and justify the possession of these works for so many years, else keep it so well-hidden. The 30-year German statute of limitations on stolen art claims now also supports his current possession (though if there is any evidence Gurlitt knew these works were stolen would surely be grounds for challenging his possession).

His lawyers claim that with “clear evidence” Mr. Gurlitt will return works to claimants. Gathering that evidence is of course extremely difficult. And how clear is clear:

Continue reading “60 minutes tackles the Gurlitt art hoard”