Nazi art dispute goes to US supreme court in landmark case

Th Observer 6 December 2020
By Philip Olterman in Berlin

Heirs of Jewish art dealers bring case over Guelph Treasure that defence lawyers say could open floodgates

A cross from the Guelph Treasure

A 12-year wrangle over a rare collection of medieval ecclesiastical art sold by Jewish art dealers to the Nazis in 1935 will arrive in front of the highest court in the US on Monday, in a landmark case defence lawyers say could open the floodgates for restitution battles from all over the world to be fought via the US.

The supreme court will hear oral arguments on whether the dealers’ heirs can sue in US courts to retrieve the church reliquaries, known as the Guelph Treasure or Welfenschatz, from Germany.

Named after the princely House of Guelph of Brunswick-Lüneburg and containing 42 objects made between the 11th and 15th centuries, the Guelph Treasure has since 1963 been on display in Berlin’s Museum of Decorative Arts. The collection includes a cross encrusted with rock crystals and bone fragments, supposedly of saints, brought back from the crusades.

The plaintiffs are descendants of two men in the quartet of Jewish dealers who originally bought the Guelph Treasure for 7.5m reichsmark in 1929. They claim their ancestors’ consortium was coerced into selling the works at a reduced price of 4.25m reichsmark five years later as part of the Nazis’ campaign to persecute Germany’s Jewish population and strip them of their possessions.

They demand the return of the treasure, which they estimate to be worth about $260m (£190m).

The Prussian Cultural Heritage Foundation, a semi-private foundation that technically owns the Guelph Treasure, says it is sworn to adhere to the Washington principles on Nazi-confiscated art, under which it has since 1998 restituted 2,000 books and more than 350 works by artists including Edvard Munch, Vincent van Gogh and Caspar David Friedrich.

The Guelph Treasure is a different story, the foundation says. Its president, Hermann Parzinger, says research has shown that the Jewish consortium tried to sell the reliquaries in the US but struggled to fetch a good price in an art market still reeling from the stock market crash of 1929.

The 1935 sale to the German state, the foundation argues, was the result of tough but fair negotiations that also resulted in the dealer Saemy Rosenberg receiving precious artefacts from the Berlin museum in a specially arranged swap deal to circumvent post-crash capital controls.

“Our foundation has been proactively engaged in restitution work for over 20 years,” Parzinger told the Guardian. “The key question we ask is whether a work in our collection was withdrawn from its previous owner as a result of persecution. The work’s artistic value, and its importance to our collection, is irrelevant in this process.

“There are very few works subject to a restitution claim whose paperwork makes it as clear that it wasn’t seized as a result of persecution as the Guelph Treasure. Neither was the sale forced, nor was the sale price unfair.”

In 2014, a German expert commission on Nazi looted art agreed with Parzinger’s foundation and rejected the heirs’ claims. That the case has nonetheless ended up in American courts is a result of a rarely used clause in the US’s 1976 Foreign Sovereign Immunities Act. While the act generally bars foreign states and their agencies from being sued in US courts, it has an “expropriation exception” for lawsuits concerning the taking of property “in violation of international law”.

The plaintiffs argue the allegedly coerced sale of the Guelph Treasure was in violation of international law because it was part of the Holocaust, which they argue started with Hitler’s rise to power in 1933 and escalated in stages to the mass extermination of Jews from 1939.

Yad Vashem, Israel’s official Holocaust memorial, uses a similar definition of the “Holocaust period” running from 1933 to 1945, though a historian from the centre stressed to the Guardian that this was not a “legal” definition.

The plaintiffs’ lawyer, Nicholas O’Donnell, claimed in October that the Guelph Treasure sale was pushed along by participants in the conference where the Final Solution was decided and directed by Hermann Göring himself: “If such a coerced sale is not a taking in violation of international law, then nothing is.”

Two lower US courts have agreed with O’Donnell’s reasoning, after which the Prussian Cultural Heritage Foundation appealed to the supreme court. If, as some legal observers expect, it rules that the fate of the Guelph Treasure remains a matter for the German judiciary, it could be because of concerns about dramatically expanding the jurisdiction of US courts.

A bust reliquary of Saint Blaise.

A ruling in favour of the plaintiffs, argues the heritage foundation’s American lawyer, Jonathan Freiman, could lead to the Foreign Sovereign Immunities Act being used to drag all kinds of international disputes – not just those involving art restitution or concerning the Holocaust – in front of US courts.

“The US has for a long time relied on countries taking care of their own legal affairs, or disputes being settled through efficient international mechanisms,” Freiman told the Guardian. “This ruling could change that.

“It would let foreigners use US courts to sue their own nations for alleged human rights or law-of-war violations that happened in those foreign countries. And that, of course, would risk foreign nations deciding to make the United States a defendant in their own courts for the US’s own historical injustices.”

Such concerns are voiced not only by the defence. An “expansive reading” of the expropriation exception, noted one judge from the lower court whose ruling the supreme court is reviewing, “would likely place an enormous strain not only upon our courts but, more to the immediate point, upon our country’s diplomatic relations with any number of foreign nations”.
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