US courts will rule on Nazi loot

The Art Newspaper 1 January 2013
By Martin Bailey

National commission to deal with claims is impractical, says US government, unlike in Europe

The Hague: The US government has finally decided against setting up a commission to deal with art looted by the Nazis. Douglas Davidson, America's special envoy for Holocaust issues, announced the decision at a conference held in the Peace Palace in The Hague on 27 November.

The announcement came 14 years after the introduction of the Washington Conference Principles on Nazi-Confiscated Art, which encouraged museums in the US and Europe to look more sympathetically at claims from Nazi victims and their descendants. It recommended "alternative dispute resolution mechanisms", rather than recourse to the courts, which often ends up with statutes of limitations blocking claims. Four years ago, the State Department proposed a commission of five people, which would issue non-binding opinions on claims for works in US museums. But Davidson admitted that this proved "easier to describe than to realise".

The special envoy said that the US, unlike most European countries, does not have a federal ministry of culture. "Given our history, traditions and inclinations, it also strikes me as highly unlikely that we will create such a cabinet department any time soon," he added. Few US museums are under direct federal control or even subsidised by the government.

Davidson concluded that the European model is unworkable. "The ability of an advisory panel to recommend to a minister that a work be removed from the wall of a state-owned museum and restored to its rightful owner is not, practically speaking, a possibility in the American context." Claimants against US museums will have to work within the present legal framework.

Support from museums...

There has been little enthusiasm for a commission recently among US museums, so the government's climb-down is being welcomed. According to Christine Anagnos, the director of the New York-based Association of Art Museum Directors, a commission would be expensive and receive few claims. "We believe that resources are better used to research and publish works that were in Europe between 1933 and 1945 with gaps in their provenance," she says.

...and from US lawyers

The association states that there are probably fewer than 20 works of art in North American museums that "were looted by the NazisaEUR | [and] may be returned to Holocaust victims or their heirs". However, this may be a low estimate, considering that US collectors were buying extensively from 1933 to 1945 and that US museums are highly dependent on private donations of art.

Not surprisingly, US lawyers tend to prefer the current system, which ultimately depends on recourse to the courts. Lawrence Kaye, who is handling the Goudstikker claim against Pasadena's Norton Simon Museum, agrees with the association. "We do not think that a US commission would prove to be viable because museums here are generally private institutions," he says. The decision to drop the national commission idea "reinforces the importance of court cases as the only way in which claimants can vindicate their rights".

European lawyers generally feel, however, that the US government's decision to drop the proposal is ill-judged. The French lawyer Corinne Hershkovitch describes it as "regrettable", suggesting that the 1998 Washington conference principles are "less and less respected by US museums".

Norman Palmer, a UK legal specialist in art restitution, also believes the decision is flawed. "Anything that reduces the anguish and risk of litigation and opens a forum for claimants is worth pursuing," he says. "As in the UK, the body need have no legal sanctions to be effective: moral decency and intellectual cogency can accomplish much."

European model


The Hague conference, convened by the Dutch Restitutions Committee, was the first time that Europe's five national commissions on Nazi-spoliated art had met.

In Germany, after the Second World War, the occupying powers made great efforts to restitute art. The German commission (established in 2003) has received few claims, partly because claimants can go directly to state collections: only five cases have been decided, with four recommended for acceptance and one rejected.

Austria put in less effort after the war, but the government is now making concerted moves to track down owners, with 22 researchers at work. The Austrian national commission, established in 1998, has dealt with 274 cases, recommending restitution in all but 29 instances.

The French commission, established in 1999, has dealt with 762 claims; all but 115 have been accepted, mainly leading to financial compensation. France still has around 2,000 unclaimed, looted works in the Musées Nationaux Récuperation.

The Netherlands' commission, established in 2001, has handled 107 cases; 56 were recommended for restitution and 34 were rejected, with 17 partially accepted. 

The UK commission, launched in 2000, has decided on ten claims, half of which were accepted.

The general view at the conference in The Hague was that the national commissions should continue to operate without a cut-off date for claims (the UK panel has a 2020 "sunset clause", although this could be extended).

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