The Forward 5 August 2005
By Marilyn Henry
Nine years ago, the financial losses suffered by Nazi victims suddenly received an extraordinary amount of attention. Dormant bank accounts in Switzerland and European insurance companies' unpaid policies became headline news. But while victims found that their losses were of great public interest, few agencies were prepared to assist individual Holocaust survivors with their claims.
Into the breach stepped George Pataki, who announced last week that he will not run for re-election as governor of New York. In 1997, during his first term, Pataki created the Holocaust Claims Processing Office of the New York State Banking Department to assist survivors and heirs with claims for assets deposited in European banks and for payments for policies issued by European insurers. The state, the governor said, "will utilize our jurisdiction and regulatory oversight of the world's financial institutions to ensure that those who do business in our state will not be permitted to disavow the debts they owe to survivors."
The office's mission was quickly expanded to include artworks that had been seized or looted from European Jews. To this day, the department remains the only agency diligently helping individual victims to locate and recover Nazi-looted art — without fees or fanfare. Its reach is worldwide, assisting claimants from 45 states and more than three dozen countries.
Those seeking to recover artworks, unlike victims with bank and insurance claims, still largely must fend for themselves. Banking and insurance are regulated industries that are subject to market, political and public pressures. And European banks and insurers, under threat of lawsuits or regulatory action, have been examining their institutions.
Furthermore, since Pataki created the Holocaust Claims Processing Office, mechanisms have been developed to resolve claims against banks and insurers. In Switzerland, an independent Claims Resolution Tribunal was established in 2001 to adjudicate claims for assets in Swiss banks. Insurance has been handled by the International Commission for Holocaust Era Insurance Claims, chaired by Lawrence Eagleburger. Although the commission has been roundly criticized for its structure, administration and staggering expenses, it did manage to launch a claims process in 2001.
Those who lost artworks, by contrast, have none of these advantages. Despite vows by the American Association of Museums and the Association of Art Museum Directors, there has been little in the way of extensive provenance research of museum collections. The same is true for most European museums.
Provenance research is neither an exciting nor an easy task. Since the Nazi era, artworks have moved among museums and private collections worldwide through auctions, trades, bequests and private sales. The art market is unregulated, and there are no tribunals to mediate claims. Art transactions over the last seven decades are subject to conflicting laws in different jurisdictions governing good-faith purchases and statutes of limitations. There have even been bizarre situations in which public policy has supported restitution and museums have acknowledged a claim's validity, but as was true in one recent British case, laws or regulations have barred the removal of a particular object from a collection.
Given the unfortunate state of art restitution, the burden has remained on the individual to identify, locate and document a claim for art, which has proven to be anything but an easy task. A victim's ability to find a specific painting often depends on serendipity. A victim's rights depend on fate, or what law professor Norman Palmer of University College London calls "adventitious facts." "Foremost among these facts," Palmer said, "are the current location of the object and the depth of the claimant's pocket."
For most survivors, litigation is simply not an option for recovering looted art. Lawsuits are time-consuming and expensive. The heirs of Friedrich Gutmann, for instance, filed suit in 1996 to recover an Edgar Degas painting that had been plundered from the family's collection. Two years later, their funds exhausted, Gutmann's heirs placed an ad in the Forward, seeking donations for a "legal defense fund" to cover such basic costs as research and translations. Their financial appeal failed. Litigation is also a nightmare for museums, dealers and collectors, none of which wants to be accused of trafficking in stolen art.
It is in this restitution climate that Pataki's Banking Department has served as an "adventitious fact." Through mediation, the office has resolved 12 claims for looted artwork.
To be sure, it is a small number given the incalculable Jewish losses. But the limited recoveries demonstrate that even the small successes require painstaking research and financial resources that are beyond the means of individual claimants.
In May 2004, Pataki came to the Leo Baeck Institute to celebrate the recovery of an Anselm Feuerbach painting, "Mädchenkopf" ("Head of a Girl"), which had been confiscated in 1938 as the Jewish owner fled from Leipzig. The painting was subsequently sold in Germany and ultimately bequeathed to the Prussian Cultural Heritage Foundation, from which it was recovered by the Banking Department. "So long as there is a claim out there, we are going to pursue it," Pataki said at the ceremony.
There is something unbearably tragic in the idea that survivors would have to abandon their claims because they cannot afford to pursue what was forcibly taken from them. However improbable the scenario, Pataki's Banking Department has been distinguished by its commitment to Holocaust survivors. It is a noble mission his successor as governor should retain. Marilyn Henry is author of a forthcoming book on the Conference on Jewish Material Claims Against Germany, to be published by Vallentine Mitchell. http://www.forward.com/articles/2517/