Another Bombshell in Munich—Bavarian Government Sold Looted Art to Nazi Families

Art Law Report 27 June 2016
By Nick O'Donnell

Works returned by Monuments Men to Bavaria for restitution to victims instead sold to Nazis’ families

Journalists Catrin Lorch Jörg Häntzschel published this weekend an explosive revelation in Sueddeutsche Zeitung entitled "the Munich Looted Art Bazaar," reporting on the work of the Commission for Looted Art in Europe (CLAE): the government of Bavaria sold artworks returned to it after World War II by the famed Monuments Men that were supposed to be restituted to the victims of Nazi looting. Not only was the art given back to the German state on the explicit condition that it be restituted to the victims of Nazi art plunder, in some cases it was literally returned to the families of Nazi officials, such as Emmy Goering (Hermann's daughter) and Henriette von Schirach rather than to the victims themselves. Less than a month after the Federal Republic of Germany's toxic and revisionist reply brief in the Welfenschatz case (which argued, among other things, that individual claimants cannot sue because the U.S. policy was this national level restitution), the ramifications are far reaching for Germany's self-professed adherence to the Washington Conference Principles on Nazi Looted Art of 1998. While the specific artwork in question may be less significant than most of the works found in Cornelius Gurlitt's apartment four years ago, the revelation is in many ways much, much worse. The CLAE scholarship that lead to this schocking development cannot be praised enough.

Some initial context is important. While the recent Monuments Men movie, widely and deservedly panned, focused on the race to save noteworthy artifacts while the hostilities of World War II were still ongoing, the far greater proportion of the Monuments, Fine Arts and Archives division (the MFAA, known to history as the Monuments Men [and women]) work was the task of dealing with the vast quantities of art in Nazi hands when the war ended. As is now well known, the U.S. and other allies opted for an approach of national-level restitution. That is to say, rather than search Europe for individual victims, the Allies returned the objects to the government of the country from which they were taken. The Allies returned some 10,600 objects to Bavaria with explicit instructions "that the investigation into the ownership of the pictures be continued."

As the Washington Conference and subsequent studies have shown, this massive and laudable work often allowed the government in question simply to ignore the problem thereafter. Worse, in the modern era of restitution, recalcitrant European sovereign defendants have argued to U.S. courts that individual heirs have no standing to file claims because lawsuits conflict with the policy that the U.S. adopted after the war. Germany took this position less than a month ago.

This revelation confirms what that argument is so noxious. As Lorch and Häntzschel reveal, the response in Bavaria was a complete sham. The article is lengthy and, so far as we know, no English-language publication has yet picked up the story. Der Spiegel followed suit today followed suit today. The exhaustive detail is worth reading every word, but here are the highlights:

The print article (not available online, though a summary is) focuses on (and reproduces) a painting hanging in the Xanten cathedral, Dutch Plaza, by an unknown Dutch painter after a painting by Jan Van der Heyden. It was stolen from a Jewish family in Vienna in 1938, the Krauses. Yet this, and many other works were returned not to the families that survived or to their heirs, but to actual Nazis like Baldur von Schirach (one time minister of education and later Gauleiter of Vienna) or Heinrich Hoffmann.

The article gives a summary of the tragic, and sadly common, history of the Vienna family that was victimized. Gottlieb Kraus was born in Bohemia in 1867, then very much part of the Austrian Empire. He and his wife Mathilde were quintessential members of Vienna society. The Krauses collected drawings by Rudolf von Alt and romantic landscapes by Georg Waldmüller. After the Anschluss, they were required like all Austrian Jews to register their property (a prelude to confiscation) and identify themselves as "Isaac" and "Sara" rather than their real names. They left Vienna, heading towards Prague (another common and tragic choice by Vienna's Jews and other targets of the Nazi regime). Their possessions and house in the leafy hill neighborhood of Grinzing (home to many of Vienna's Heurigen) were auctioned off, with the proceeds going to the Nazi government.

The article also skillfully paints a parallel narrative of Henriette von Schirach, Baldur's wife. While her husband was properly punished as a war criminal, not least because of his role in the deportation of 185,000 Austrian Jews, she quietly retired to Munich. She lives, incredibly still, in the same neighborhood that Cornelius Gurlitt did, under her maiden name, Hoffman. Yet while the Krauses obtained no relief from the Bavarian government, she did. Hermann Goering's widow also made a successful personal appeal to the general director of the State Paintings Collection.

The execution turned out to be even more diabolical. In the face of specific claims by victims' families, the Bavarian government in some instances resold the works to Nazis like von Schirach, who then resold them for considerable profits. Now out of the hands of Bavaria, private owners are not even bound by the Washington Principles (though this and other episodes call into question the federal states' commitment to those principles).

There is too much going on here to justify with a brief summary. But the most important point is this: it cements Bavaria's role as the worst outlier among the German federal states (so much so that several dozen U.S. Representatives sent a disapproving letter to the Bavarian government recently). It also underscores why Germany's plaintive claims to be leading the way in restitution are wrong. This scandal also explodes one of the most dangerous ideas often whispered around the edges of restitution cases: that claimants only care about the valuable works.

Far more so than the Gurlitt case, in which it could at least be said that the privacy rights of an individual citizen at least ostensibly explained the secrecy, this is a far reaching scandal. Resignations could soon be in order, and that is just the beginning. The Kraus heirs wisely reached out to the CLAE for help, and their work and scholarship is to be commended. What the heirs do next will bear watching. At least some of the heirs are Americans. Don't be surprised to see Bavaria defending itself in U.S. court.
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