A New York art lawyer said a recent decision in The Netherlands to return works of art held in Dutch museums to the descendants of a Jewish collector who sold them under Nazi occupation has "enormous precedential value" that could influence similar cases in the U.S.
The Dutch restitutions committee ruled in May that two paintings should be returned to the descendants of Amsterdam art collector Jacob Lierens, who sold them during World War II, after five years of research by independent investigators working on behalf of the family.
Orna Artal is co-founder of Ramos & Artal LLC, a New York City alternative dispute resolution firm that works on helping to return art looted by the Nazis to the heirs of those it was stolen from. The Lierens case sets an important benchmark that she can utilize in America.
She told Newsweek that the Lierens decision is significant because it established the principle that "any sale made by a Jewish owner of artwork during the reign of the Nazis is per se invalid because of the circumstances and conditions of extreme and severe persecution so that no sale could be considered voluntary."
Noting that there are several Nazi art cases currently on appeal, Artal said: "Without question, it is of enormous precedential value... It's important that practitioners or experts in the field openly discuss some of these issues and even analyze or criticize where some courts have gotten it right and some courts have gotten it wrong."
The two Lierens-owned paintings are by the 17th-century artists Dirck Franchoisz Hals and Dirck van Delen, and are currently in the possession of the Dutch government which has them on display at public museums. They were sold by Lierens at auction in October 1941.
Gert-Jan van den Bergh of the firm Bergh Stoop & Sanders is the attorney who handled the legal work in the Lierens case.
"It's always difficult because you have to take into consideration that we're dealing with complicated family and factual matters, and circumstances of almost 80 years ago. So the assessment of the facts is time-consuming and difficult," van den Bergh told Newsweek.
"But basically the central questions are rather straightforward and simple because two questions will have to be answered: Was the family in possession of these paintings and is there a case of involuntary loss?"
He agreed with Artal that the decision sets an important and useful precedent that may unlock similar cases in the future.
"That sends quite a strong message," he told Newsweek. "Where in the past families would think, OK, we sold this painting during the war in order to fund the possibility to flee the country or to survive the war, now the Dutch Restitution Committee accepts that a sale in principle has to be regarded as an involuntary loss of possession."
The ruling was in keeping with the two fundamental values of The Washington Principles on Nazi-Confiscated Art, those of justice and fairness.
The Washington Principles were a 1998 statement signed by 44 different countries, including the U.S., committing to a set of non-binding principles on how to deal with restitution claims made against works of art stolen by the Nazis.
However, there is inconsistency in application of these principles across the jurisdictions that committed to uphold them, and the U.S. is, Artal suggested, guilty of failing to live up to the standards set out in that historic agreement.
"The challenge is that U.S. courts that are looking at these claims are really not applying these overarching principles uniformly," she told Newsweek.
"And I would say to that, that's a huge mistake in part because it goes against the official declaratory policy of the United States Government and many others who signed on to this Washington Principles."
Van den Bergh said many countries pay lip service to The Washington Principles but do nothing to uphold them in practice and sometimes even contradict them. He gave an example of a museum in St. Petersburg, Russia, where a client has a claim.
A representative of the museum told van den Bergh's client "We'd rather burn your painting than give it back to you even if The Washington Principles would force us to give it back to you."
He also cited Italy's Anselmi Commission, set up to explore any Nazi-looted art that may be in the possession of the country's museums. "With very superficial research they came to the conclusion that Italy holds no Nazi-looted art, which is a ludicrous conclusion," van den Bergh told Newsweek.
"Throughout the world, a lack of progress on restitution exists at all levels. No provenance research, no identification of claimants, etc, etc. And Austria and the U.S. are the only countries with restitution acts. There are only five E.U. countries who established a body to address claims: France, the U.K., The Netherlands, Austria, and Germany."
It is a complex area legally and ethically, raising profound questions about justice, history, and the ownership of art. Owners of such works, often private collectors or public museums, can be reluctant to cooperate because they had no responsibility for the original crime.
Artal said the only way of wrapping up these issues justly, especially under the pressure of time moving us further away from the Holocaust, is comprehensive legislation by governments that forces courts to treat such cases uniformly.
She described art looted by the Nazis—of which 100,000 pieces are estimated by the U.S. to still be missing—as "an open wound."
"We won the war. The war is over. We didn't start the war," Artal said. "Why is it that so many years after…there's still wrongs out there stemming from the conditions created by that aggressor and it's perplexing to me that our courts wouldn't recognize that. And it's perplexing to me why they would rely on technical legal arguments as obstacles for families to try to get a tiny bit of justice."
James Palmer is the founder of Mondex Corporation, a consultancy that specializes in researching stolen art so that it may be returned to the rightful heirs. He can now count the Lierens case among his successes.
Palmer worked for half a dozen heirs of Jacob Lierens to do the years of archival research necessary to establish the provenance that enabled them to make a claim at the Dutch Restitutions Committee. The family has not yet decided what they will do with the paintings.
After the decision, Palmer called the granddaughter of Lierens, who he had met, to deliver the good news. "She was crying," Palmer told Newsweek.
For her, it was deeply personal. She was a child in the 1930s and lived through the Nazi occupation, spending three years confined to an apartment in hiding.
She showed Palmer childhood photos of herself and her classmates, all of them wearing yellow stars. Just two of them survived. "We've since found two other artworks that belonged to her grandfather," Palmer said. "So it's quite a journey emotionally and on all other levels."