Art in Time of War: Pillage, Plunder, Repression, Reparations & Restitution

Article 16 of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977,  states:

The July 1998 Rome Treaty setting up an International Criminal Court gives the Court jurisdiction over war crimes against cultural property under customary international law and the Geneva Conventions in both international wars (Art. 8, para.2(a)(ix)) and non-international conflicts (Art. 8, para.2(e)(iv)). The court would have jurisdiction for war crimes committed by a signatory state (Art 12, para. 1) or committed in the territory of a signatory state (Art. 12, Para. 2(a)).

Iraq

In the first Gulf War, direct military damage to Iraqi cultural and historic sites was relatively minor. At the close of the war in 1991, nine of Iraq's regional museums were looted by rampaging mobs opposed to Saddam Hussein's government. In all, about 4,000 items were stolen or destroyed during the 1991 looting spree, including some that were thousands of years old. Some of the pieces were later smuggled out of Iraq, and were, by the following year, turning up at art auctions and in the hands of dealers in London and New York. See Joanne Mariner, Liberation and Looting in Iraq, Findlaw legal commentary, Monday, Apr. 14, 2003.

The UN embargo, however, had a more serious impact. Iraq protected its museums and its archaeological sites forcefully, with general cooperation from the Iraqi people. The economic pressures of the embargo, however, loosened these protections significantly and looting became a serious problem. See John Malcolm Russell, Stolen Stones in Archaeology magazine, December 30, 1996.

Prior to the second Gulf War, the archaeology and museums communities - who do not always see eye-to-eye on issues involving the antiquities trade - each warned the US government of the potential for damage following hostilities. The Archaeological Institute of America, the College Art Association, the International Committee of the Blue Shield, and others issued statement of concern for Iraqi heritage resources before war broke out. After the burning of the National Library and the looting of the National Museum, of course, many expressions of outrage were heard over the failure of US forces to protect these sites. Citing "the wanton and preventable destruction" of Iraq's National Museum of Antiquities, the chairman of the President's Advisory Committee on Cultural Property submitted his resignation to President Bush.

The IFAR Journal devoted a special double issue to art loss in Iraq that includes

In the beginning of the war, information on the situation in Iraq and the status of cultural heritage protection there could be found in many places. The AIA maintained a news archive called Taking Stock in Bagdad and the University of Pennsylvania Museum of Archaeology and Anthropology maintained an extensive web site on the Cultural Heritage of Iraq, but neither have been kept current. The Oriental Institute of the University of Chicago maintains a database on Lost Treasures from Iraq.

The Museum Security Network maintained several web pages covering the impact of the conflict in Iraq on the protection of cultural property:

The H-Museum had one of the most complete and current pages devoted to the impact of armed conflict on the cultural heritage of Iraq: Iraq - The cradle of civilization at risk. The Art Newspaper posted illustrations of about 300 of the most prominent objects lost from the Iraq National Museum. The US State Department even maintains a page on protection of Iraqi cultural property. Most of these have little recent information.

To what extent might the coalition forces be liable for damage or loss of Iraqi cultural heritage? See Harvey Thompson, US occupation damages ancient sites at Babylon: Imperialism and cultural vandalism in Iraq, on the uruknet.info website. Should any special legal steps be taken now? Several bills were been introduced in the US Congress to prevent the importation of Iraqi antiquities. None have passed. See Patty Gerstenblith, Legal Damage Control for Iraq's Looted Cultural Heritage: the Need for U.S. Import Restrictions (JURIST February 23, 2004).

Iconoclasm

General Eisenhower seems to have been concerned with accidental and incidental damage to cultural property. But the deliberate destruction of enemy property of all kinds has a long history. Carthago delenda est!

Iconoclasm, or image-breaking, has a long history, from the destruction of the golden calf by Moses to the destruction of the Bamiyan Buddhas by the Taliban. Having survived  the campaigns of Genghis Khan, Tamerlane and, more recently, twenty years of modern warfare, the Buddhas of Bamiyan were unable to withstand the religious zeal of the Taliban. All monotheistic religions have opposed the worshiping of idols but religions have also used art to enhance the spiritual experience. The proper role of icons was the subject of intense debate in the Byzantine empire. The proper role of religious symbols is still a debate in many modern societies, from head scarves in France to religious clothing in the US.

Degenerate Art

One aspect of the Nazi's arts policy included various actions taken internally and prior to any onset of hostilities against "degenerate art," particularly German Expressionism. The confiscation and destruction by the Nazis of Entartete Kunst was one pillar of the Nazis justification for the massive confiscations of art in Jewish hands, though it went further as well. Hitler, himself an unsuccessful artist, saw true art as linked with the country life, with health, and with the Aryan race.The far-reaching attacks on avant-garde art in Germany culminated in the infamous Entartete Kunst exhibition mounted by the Nazis in Munich in 1937.

The NAZI's Society for German Culture was formed to halt the corruption of art. By 1933, the terms "Jewish," "Degenerate," and "Bolshevik" were in common use to describe almost all modern art. In 1937 German museums were purged of thousands of works the Party considered to be degenerate. Heinrich Hoffmann would direct his wheelchair through a museum pointing “accepted” or “rejected” 2,000 times in a morning. The process was subjective; the definition vague. For Inntal Landscape by Lovis Corinth, the landscape was found to be sound, but the sky was degenerate! 650 of these confiscated works were chosen for a special exhibit of Entartete Kunst. Only a handful of these artists were Jewish.

The seizure of the artworks was legalized in May 1938 by a retroactive law which stated "products of degenerate art that have been secured in museums or in collections open to the public before this law went into effect…maybe appropriated by the Reich without compensation." Many of the artworks not put on display were sent for sale in other countries; the Nazis had a strong need for foreign currency. At an auction held in the summer of 1939 at the Fischer Gallery in Lucerne, 125 painting and sculptures were sold . The auction grossed over 500,000 Swiss francs (around $115,000). Most of the art was sold to US private collectors; a small amount went to museums in Liege and Basel. Some museums stayed away from the sale on the grounds that it in effect rewarded the Nazis for their invasion and occupation of Austria and Czechoslovakia. But private collectors like Maurice Wertheim and Joseph Pulitzer Jr. chose to bid on van Gogh’s Self-Portrait Dedicated to Gauguin (1951.65) and Matisse’s Bathers with a Turtle in order "to safeguard this art for posterity," as Pulitzer said at the time. The legal legitimacy of this sale has not been seriously questioned.

Ethnic Cleansing

The destruction of the library at Sarajevo or the bridge at Mostar are but two instances of deliberate attacks on cultural symbols that caught the world's attention. Are any parties to the Hague Convention responsible for these acts? Do prohibitions of such acts have any deterrent value?

The jurisdiction of the International Criminal Court for the Former Yugoslavia includes prosecuting the destruction of cultural heritage sites as war crimes. "Such violations shall include:

Should scarce prosecutorial resources be devoted to preparing such cases if it means not prosecuting some of the many injuries to individuals? Annex XI. Destruction of cultural property report of the UN Commission of Experts investigating war crimes in the former Yugoslavia, which deals with the cases of Dubrovnik and Mostar as examples of cultural destruction recommended for prosecution. In the case of Dubrovnik, an indictment - specifying the destruction of historic monuments among the charges - was recently unsealed by the ICTY Chief Prosecutor (2 Oct. 2001). Counts 10-16 address the destruction of cultural property.

An illustrated article in UNESCO Courier  describes the damage from the autumn 1991 siege of Dubrovnik by the Serbian-Montenegrin army: 

About 2,000 shells rained down on the walled city, damaging 563 of its 824 buildings and two-thirds of its famous "fifth facade" - the roofs which provide a large part of the city's beauty and harmony. Public and religious buildings, homes, cobbled streets, sculptures - all Dubrovnik's ancient heritage was threatened with destruction. At the beginning of the bombardment, the city was placed on the List of World Heritage in Danger.

In Killing Memory: the Targeting of Bosnia's Cultural Heritage, Testimony Presented at a Hearing of the Commission on Security and Cooperation in Europe, Andras Riedlmayer demonstrates that the problem of protecting cultural property from intentional damage is no academic matter. Mr. Riedlmayer, Bibliographer in the Aga Khan Program at Harvard's Fine Arts Library, became even more involved in this issue when, at the request of the UN war crimes tribunal for the former Yugoslavia, in October 1999 he and his architect colleague, Andrew Herscher, conducted a field survey on the destruction of cultural heritage in Kosovo. 

For web presentations of some of their preliminary reports, which raise a number of different issues regarding art law (ownership/appropriation, protection in armed conflict, etc.), see

The destruction of cultural property in Croatia (the Dubrovnik siege indictments), in Bosnia-Herzegovina, and in Kosovo is included among the charges in a number of cases before International Criminal Tribunal for the Former Yugoslavia (ICTY), including both the Karadzic-Mladic indictments and the indictment against Slobodan Milosevic et al.  For the full texts of the indictments and of the judgments (in cases that have been concluded) see the UN war crimes tribunal's website. For example, Pavle Strugar was indicted and convicted of the deliberate shelling of the Old Town of Dubrovnik, a UNESCO World Cultural Heritage Site in its entirety. More information on many the above topics is also available at http://www.kakarigi.net/manu/moreinf.htm

Cultural crimes have also been implicated in Bosnia-Herzogovina's case against Serbia and Montenegro in the International Court of Justice for genocide. See Bosnia Launches ICJ Genocide Suit (3 March 2006), Witness testimony begins (17 March 2006), Mladic was Milosovic's agent (28 March 2006). The transcript of Andras Riedlmayer's testimony on cultural destruction appears in the proceedings for March 1, 2006, at pages 44-59.

See Hirad Abtahi, The Protection of Cultural Property in Times of Armed Conflict:: The Practice of the International Criminal Tribunal for the Former Yugoslavia, 14 Harv. Human Rights J. 1 (Spring 2001)

Looting/Spoliation

An problem exacerbated by war is looting, either to enrich the coffers or museums of the victorious state or as a means of paying soldiers. See Wojciech Kowalski, Introduction to the International Law on the Restitution of Works of Art Looted During Armed Conflicts, in the Spoils of War Newsletter:

As demonstrated in the video, Treasure: In Search of Nazi Plunder, World War II saw a particularly extensive and organized set of confiscatory practices on the part of Nazi Germany that led to the forced transfer of thousands of works of art. The motives were mixed. A brief overview can be found in Nazi Conspiracy & Aggression, Volume I, Chapter XIV, The Plunder of Art Treasures from the Nizkor Project.

Even before Hitler invaded neighboring countries, he had his eye on their art. German cultural property, he believed, had been plundered over the centuries and must be repatriated. Napoleon stocked the Louvre with German masterpieces. The crown jewels of the Holy Roman Empire were taken from Nuremberg to Vienna. The Treaty of Versailles that ended the First World war included art as reparations – repayment for damages and loss incurred by a war initiated by Germany. Widely perceived by Germans as unfair, the Treaty of Versailles increased the German sense of victim hood. Otto Kümmel, the director of the Reich's museums, and three leading art historians - Dr. Franz Rademacher, Dr. Otto Apfelstädt, and Dr. Hans Baumann, prepared a three-volume work listing German art held in foreign countries since 16th century. Other leading pieces of art were also targeted to replace works "stolen" at times past. Though the Kümmel Report remained secret, it served as a picking list for military and diplomatic units after war began.

In May 1940, the Kunstschutz was created as a unit of the Wehrmacht (German army). Led by Count Wolff-Metternich, its mission was to protect and take inventory of artworks in war zones, in accordance with international agreements. Only one month later, Hitler orders the "securing" of art objects belonging to the French state or to private individuals, notably Jews. Foreign Minister von Ribbentrop puts Otto Abetz, the German ambassador in Paris, in charge of the project. Abetz sends the Gestapo a list of fifteen major Parisian art dealers. He demands an urgent search of their homes and confiscation of artworks. Among the art dealers are Seligmann, Wildenstein, Kann, Paul Rosenberg, and Bernheim. On July 15, 1940, the French living in occupied territory are notified that they must declare all objects that could be moved worth over one hundred thousand francs to the Kommandantur concerned. A second order, issued July 30th,prohibits any transfer of art objects without the required authorization.

Though working somewhat at cross purposes, the Kunstschutz and the Foreign Ministry were gaining possession of many artworks nominally for safekeeping, to inventory and protect according to the laws of war. The Einsatzstab Reichsleiter Rosenberg für die Besetzten Gebiete, however, had a different mission. Under the leadership of the Nazi's chief ideologue, Alfred Rosenberg [not to be confused with Paul Rosenberg, famous Parisian dealer], the ERR, whose initial mission was battling Judaism and Freemasonry, expanded its work to confiscating "degenerate art" and possessions of "undesirable" persons. Degenerate art was sold or exchanged for permissible art through Parisian, Swiss, and Dutch dealers, as well as overseas. This brought the ERR into conflict with the Foreign Ministry and the Kunstschutz. Eventually Rosenberg won out because confiscation was necessary to acquire the foreign currency so desperately needed and to enhance the collections of the Linz Museum- Hitler's vision of the best of European art. By war's end, these official confiscations were sometimes in conflict with the efforts of Reichsmarschall Hermann Göring to enhance his own private collection. A summary of these activities can be found in Anne Rothfeld, Nazi Looted Art: The Holocaust Records Preservation Project, Prologue, Vol. 34, No. 3 (Fall 2002) published by the National Archives and Records Administration.

On January 5, 1943, the seventeen Allied governments and the French National Committee issued the Inter-Allied Declaration Against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control, 8 Dept. State Bull. 21 (1943), better known as the London Declaration. The measure declared that the allies would no longer recognize the transfer of property in occupied countries even if it appeared legal. The allies were aware that the Nazis were forcing people in occupied countries to sell or transfer their property to them under force. Up until this date the Nazis had painstakingly created the illusion that such transfers were legal.

After the war, and after some debate, the US decided not to follow the Russian view that "trophy art" was legal reparation for war damage. The US and Britain decided to return loot and forced sale items, but it was a huge problem. The Monuments, Fine Arts, and Archives (MFA&A) Section of the U.S. Army (never more than 80 men) and similar units from other countries had uncovered large deposits of art and other valuables secreted by the Germans. Despite the organization of the objects and the inventory records found, tracing individual provenances for hundreds of thousands of objects, while preventing the objects from being looted by allied troops, seemed impossible. So each artwork was returned to its country of origin for disposition.

In the immediate aftermath of the war, restituting spoliated art was not the top priority for most countries. Legal differences from country to country, from state to state, on issues such as property rights, good-faith purchases, and statutes of limitations prevented a uniform approach from being taken. Most countries returned what they easily could, held open a short window for claims, and sold any unclaimed art works unwanted by state museums.

In France more than 45,000 works and objects of art are given back to the legitimate owners or to those entitled. At the end of this period, the management of Public Lands is put in charge of selling the some15,000 objects and works of art still unclaimed. The management of the National Museums Board asks that the most important works be entrusted to their care awaiting their possible reclamation and some 2,000 art works and objects are protected from being sold off. An exhibition at the National Museum, Château de Compiègne, of these 2,000 works gives those entitled an opportunity to recognize their possessions. After this exhibition, the works remain in the possession of the National Museums or are placed in trust in provincial Museums. In the provisional inventories, differing from the inventories of the National Collections, they are designated by certain identification marks but as a unit they are collectively known as "MNR" (Musées Nationaux Récupération).

In Menzel v. List, 22 A.D.2d 647, 253 N.Y.S.2d 43 (1st Dept 1964) and 49 Misc. 2d 300, 267 N.Y.S.2d 804 (Sup. Ct. N.Y. Co. 1966) [LEXIS WESTLAW], plaintiff requested the return of a Chagall painting taken in Belgium by the ERR. The court held the Act of State doctrine did not apply because the ERR was an arm of the Nazi party and the taking occurred in Belgium. The New York statute of limitations had not run so the suit proceeded.

Thirty more years were to pass before another holocaust case made headlines. The coincidence of the movie Shindler’s List with the 50th anniversary of the Holocaust, the opening of many national archives that had been sealed for fifty years, books by Lynn Nichols and Hector Feliciano, investigative reporting into museum holdings by Walter Robinson and the Boston Globe Spotlight team, the creation of various stolen art registers, all brought the Holocaust to the forefront again. Now there seem to be a flood of cases, especially in the US – but legal situation remains surprisingly murky.

Trophy Art & Reparations

The practice of a victorious party returning home with valuables from the defeated foe is sometimes justified as recompense for the costs of having to go to war in the first place. Napoleon justified his stocking of the Louvre on these grounds. After WWII, the Soviet Union confiscated much treasure from Axis properties as reparations for the costs of being invaded. The Spoils of War Newsletter, published by the German Coordination Office of the Federal States for the Return of Cultural Property, contains several interesting articles on this and broader subjects. The following short pieces are especially recommended:

Lyndel Prott, Principles for the Resolution of Disputes Concerning Cultural Heritage Displaced During the Second Word War [Prott is the former Chief, International Standards Section, Division of Cultural Heritage, UNESCO]

Federal Law on Cultural Values Removed to the U.S.S.R. as a Result of World War II and Located in the Territory of the Russian Federation

Thomas R. Kline, The Russian Bill to Nationalize Trophy Art: An American Perspective

Also very interesting is Spoils of War Returned: U.S. Restitution of Nazi-Looted Cultural Treasures to the USSR, 1945­1959, by Patricia Kennedy Grimsted.

How effective are international agreements protecting cultural property? To what extent should attacks on cultural property be prosecuted as war crimes or as crimes against humanity? To what extent should claims for restitution ever be considered stale? What interests weigh against these claims?

Restitution/Repatriation

In the immediate aftermath of the war, the United States in particular undertook an unprecedented program of cultural restitution, but the problem was large and complex and the results were imperfect. Even today, museums, auction houses, and individual collectors face claims from prior owners and the competing claims of law and ethics complicate the politics of restitution.

In fact, after years of relative inattention, the general topic of restitution for victims of Nazi persecution and abuse has taken on new life, for a variety of reasons. A roundtable discussion on Nazi-looted art held at the US Holocaust Museum in June 1998 produced a set of Principles On Nazi-Confiscated Art that informed the discussion of the Washington Conference On Holocaust-Era Assets in April 1999. The International Council of Museums, the American Association of Museums, and the Association of Art Museum Directors have all issued statements or guidelines for their members on how to react to claims for restitution by holocaust survivors. The Art Dealers Association of America issued a statement on Nazi-looted Art in September of 1998 and published an interview with Hector Feliciano in its ADAA Report of Winter 1999.

Switzerland's role in providing an outlet for Nazi loot has come in for much criticism . For a good resource page on Switzerland's role click here. But see also Detlev Vagts, Switzerland, International Law and World War II, 91 American Journal of International Law 466-475 (No. 3, July 1997) (Editorial Comment).

National interest in restituting Nazi-looted art was reawakened when the Museum of Modern Art was prevented from returning two works by Egon Schiele on loan from the private (state subsidized) Leopold Foundation in January 1998, when the Manhattan District Attorney confiscated the two paintings ("Portrait of Wally" and "Dead City III") and started a criminal investigation into their ownership. 

The procedural history is complicated. The NY Supreme Court quashed the subpoena citing a state law exempting from seizure works on loan to a museum, but the Appellate Division reversed, holding that the statute applied only to civil disputes and therefore did not limit a Grand Jury's subpoena powers. The Court of Appeals reversed again  and granted the Museum's motion to quash the subpoena. The US Attorney brought a  forfeiture case, claiming the work was stolen property. The federal District Court ruled in July 2000 that the artwork lost its status as "stolen" property when US forces seized it after the war but returned it to the wrong party. After first denying reargument, the court in January 2001 decided to let the government present new arguments. After reargument, judge Michael B. Mukasey supported the forfeiture proceeding and permitted the heirs of Leah Bondi Jaray to stay in the case.

    1. Matter of Application to Quash Grand Jury Subpoena Duces Tecum Served on Museum of Modern Art, 177 Misc.2d 985, 677 N.Y.S.2d 872, 1998 N.Y. Misc. LEXIS 387, 1998 N.Y. Slip Op. 98469 (N.Y.Sup. May 13, 1998)
    2. Reversed by In re Application to Quash Grand Jury Subpeona Duces Tecum, 253 A.D.2d 211, 688 N.Y.S.2d 3, 1999 N.Y. App. Div. LEXIS 2969 (N.Y.A.D. 1 Dept. Mar 16, 1999) (NO. 2570)
    3. Leave to Appeal Granted by In re Grand Jury Subpoena Duces Tecum Served on Museum of Modern Art, 93 N.Y.2d 807, 712 N.E.2d 1245, 691 N.Y.S.2d 2, 1999 N.Y. LEXIS 1267 (N.Y. May 11, 1999) (TABLE, NO. 440)
    4. AND Reversed by In re Grand Jury Subpoena Duces Tecum Served on Museum of Modern Art, 93 N.Y.2d 729, 719 N.E.2d 897, 697 N.Y.S.2d 538, 1999 N.Y. LEXIS 2856 (N.Y. Sep 21, 1999) (NO. 139)
    5. Related proceeding at United States v. Portrait of Wally, 105 F.Supp.2d 288, 2000 U.S. Dist. LEXIS 10029 (S.D.N.Y. 2000)
    6. Reargument denied by, Motion granted by United States v. Portrait of Wally, 2000 U.S. Dist. LEXIS 18713, 2000 WL 1890403 (S.D.N.Y. Dec. 28, 2000)
    7. Summary judgment granted by, Claim dismissed by, Motion denied by United States v. Portrait of Wally, 2002 U.S. Dist. LEXIS 6445, 2002 WL 553532 (S.D.N.Y. Apr. 11, 2002)

The Art Newspaper has a series of articles on this case:

Friday, 12 April 2002. U.S. District Judge Michael Mukasey issued a ruling allowing the US to proceed with its lawsuit aimed at forcing an Austrian museum to forfeit Egon Schiele's "Portrait of Wally" stolen by the Nazis from a Jewish family during World War Two. In a stunning reversal to years of litigation thought to be almost over, the judge now says the case will go to trial and the Bondi heirs will be permitted to stay in the lawsuit.

Friday, 5 January 2001. Government can present new arguments in Schiele lawsuit. In a ruling on 28 December, federal district judge Michael B. Mukasey has allowed the lawsuit over a painting by Egon Schiele to continue, delaying the work’s recently anticipated return to the Leopold Museum in Austria.

Friday, 21 July 2000. Case dismissed: Schiele painting "not stolen" after all. Cutting through a multitude of arguments offered for and against US Government seizure of a painting said to be looted by a Nazi, a federal court in New York dismissed the case on 19 July based on one sole point: that the artwork lost its status as "stolen" property when US forces seized it long ago in Austria, only to hand it to the wrong party.

Friday, 21 July 2000. Much ado about much to consider in Schiele case.

Friday, 21 July 2000. Unease over Schiele causing more lost loans, museums say.

Friday, 14 July 2000. US should stay out of Schiele dispute, museums tell federal court. Perhaps the central objection being made in the lawsuit over a loaned Egon Schiele painting, and the question raising the most chilling worries for museums, is whether the extraordinary forfeiture powers of the US can be brought to bear in what is essentially a private ownership dispute.

Friday, 7 July 2000. Claims are long extinguished, Leopold Museum tells the US in alleged Nazi theft case. Citing the passage of time, the Leopold Museum is arguing that the painting allegedly stolen from a Jewish owner by a Nazi is not stolen, and that it has clear title to the painting.

Friday, 30 June 2000. Museums oppose US Bid to confiscate “Wally. The lawsuit over a contested painting by Egon Schiele, detained in New York since 1998 under two separate court orders under claims that it had been stolen by a Nazi, now awaits rulings in federal court, on questions of law that turn at times on long-shadowed fact.

Monday, 8 November 1999. How do I sue thee? Let me count the ways. Ending a twenty-month lawsuit that had snared two paintings on loan to the Museum of Modern Art (MoMA), New York’s high court released the works on 17 September, saying that the subpoena that sought them was barred by a State law which protects loaned art from “seizure.”

See also Martha Lufkin, Whistling Past the Graveyard isn't Enough: US May Seek to Confiscate Painting Lent by Austrian Museum which Allegedly Knew it was Nazi Loot , 7 Art, Antiquity & L. 207 (2002). 

The Boston Museum of Fine Art and even Harvard's art museums have been cast into the spotlight as holding spoils of war. Marilyn Henry reports in "Plundered art on the line," Jerusalem Post (February 7, 2000) that Germany will inaugurate a Web site to help restore Nazi-looted art to its rightful owners.

A recent survey by the dean of American museum lawyers of the issues raised by "holocaust art" can be found in: Stephen Weil, "The American Legal Response to the Problem of Holocaust Art," 4 Art Antiquity and Law 285-300 (1999). Mr. Weil cites in particular the saga of Henri Matisse's Odalisque, stolen by the Nazis from Paris dealer Paul Rosenberg during World War II, acquired later by the New York gallery Knoedler & Co., and sold by Knoedler in 1954 to Seattle collectors Prentice and Virginia Bloedel. The Bloedels willed the Matisse to the Seattle Art Museum (SAM) in 1991, but in 1997 the work was discovered to be plunder. The Seattle museum sued Knoedler for defrauding the Bloedels and a complicated series of actions ensued. The case was settled in the summer of 1999. SAM has dropped its $11-million suit against the gallery in return for one or more works from Knoedler's inventory. The gallery has also agreed to reimburse the museum for legal fees and other related costs, including a $143,000 fine imposed by the judge presiding over the case for SAM's delays in showing proof of legal ownership and in obtaining from the Bloedel heirs assignment of their fraud claims. SAM returned the Odalisque to Rosenberg's heirs -- who sold it to casino mogul Steve Wynn for an undisclosed amount estimated to be approximately $2 million.

Another recent cause célèbre also ended in settlement. In 1998 Daniel Searle, patron of the Art Institute of Chicago, settled a claim against him for the return of Edward Degas' Landscape with Smokestacks. The work had been owned by a Jewish banker in the Netherlands who sent it to Paris before he and his wife were killed by the Nazis. However, as Howard J. Trienens' book Landscape With Smokestacks: The Case of the Allegedly Plundered Degas demonstrates, the story may not have been the typical holocaust art situation. The banker might well have sent the work to Paris to be sold. The monotype never appeared on any Nazi inventory. The bankers heirs failed to find the work in the ensuing fifty years despite many public showings. But even the most careful and bona fide purchaser might hesitate to submit such a case to a jury, given the strong emotions raised even by an allegation of connection to the Holocaust.

California has recently extended the statute of limitations for recovering some art lost during the Holocaust until 2010:

Notwithstanding any other provision of law, any owner, or heir, or beneficiary of an owner of any article of artistic significance taken as a result of Nazi persecution during the period of 1929 to 1945 may bring an action to recover said Holocaust-era artwork from any museum or gallery that displays, exhibits, or sells any article of historical, interpretive, scientific, or artistic significance, if the action is commenced on or before December 31, 2010. [paraphrased]

The number of art works claimed to have been illegally removed from owners during WWII is growing. See Stephen W. Clark, Cultural Property Update, presented at the ALI-ABA Course of Study, Legal Problems of Museum Administration, March 26-28, 2003, New Orleans, Louisiana.

Austria has received much criticism for its lack of response to requests to return art works forcibly removed from their owners by the Nazis, many of which ended up in state museums, like Schiele's "Portrait of Wally" discussed above. For one, Austria requires a deposit to cover court costs based on the value of the objects under litigation. Some plaintiff's have persisted in their lawsuits regardless, while some have resorted to the press. One has resorted to the web. Gustav Klimt’s famous Portrait of Adele Bloch-Bauer is one of six paintings by that artist which were taken from Ferdinand Bloch-Bauer by the Nazis after March 1938 and never returned. Ferdinand’s niece and heir, Maria Altmann,  has been actively trying to recover the paintings for the past few years. Her attorney, E. Randol Schoenberg, has mounted a vigorous public relations campaign centered on the web site www.adele.at. In May 2001, a US District Court in California gave leave to Maria Altmann to have her case heard in federal court. Her allegations that the paintings were taken in violation of international law and that Austria had failed to provide her an adequate forum to plead her case led a US court to take jurisdiction, although her arguments to the SUpreme Court were skeptically received. 

But not even the U.S. government is immune from criticism. In Plunder and Restitution: Findings and Recommendations of the Presidential Advisory Commission on Holocaust Assets in the United States and Staff Report (December 2000), the description of how the U.S. Army handled the interception of the Hungarian "Gold Train" led to a suit against the U.S. government by Holocaust survivors and descendents. See the Staff Report accompanying footnote 201. In Rosner v. United States, 231 F. Supp. 2d 1202, 2002 U.S. Dist. LEXIS 17632 (S.D. Fla. 2002), judge Patricia Seitz did not let the statute of limitations or the Administrative Procedure Act bar an action for implied-in-fact bailment and violation of international law. The New York City Council is considering a resolution supporting thr Hungarian Holocaust survivors in the Gold Train case and some members of Congress are upset with the slow progress of the case.

The issue of Holocaust art seems to be reviving in Europe as well. The Committee on Legal Affairs and the Internal Market of the European Parliament released on 17 September 2002 a Working Document on "A legal framework for free movement within the internal market of goods whose ownership is likely to be contested." (Rapporteur: Willy C.E.H. De Clercq).

Liechtenstein v. Germany

For the last 10 years, Prince Hans Adam II of Liechtenstein has been suing Germany in various courts - including the German Federal Constitutional Court, the European Court of Human Rights, and the International Court of Justice – in an attempt to recover a painting seized from the Prince's father by Czechoslovakia at the end of WWII. So far his efforts have not born fruit.

The painting, Szene an einem römischen Kalkofen (“A Roman Lime Quarry”) of Pieter van Laer, had formed part of his family's art collection since at least 1767. Until the end of the Second World War the painting had been in one of the family's castles on the territory of the now Czech Republic. In 1946 the former Czechoslovakia confiscated the painting under the Beneš Decrees.

During World War II, Czechoslovakia was an allied country and a belligerent against Germany. After the war it seized German and Hungarian property located on its territory as reparations. Czechoslovakia applied those decrees not only to German and Hungarian nationals but also to other persons allegedly of German or Hungarian origin or ethnicity. For this purpose it treated the nationals of Liechtenstein as German nationals. The property of these Liechtenstein nationals seized under these decrees has never been returned to its owners nor has compensation been offered or paid. The application of the Beneš decrees to the Liechtenstein property remained an unresolved issue between Liechtenstein and Czechoslovakia until the dissolution of the latter, and it continues to be an unresolved issue as between Liechtenstein and the Czech Republic, on whose territory the vast majority of Liechtenstein property is located.

Under the Convention on the Settlement of Matters arising out of the War and the Occupation, signed at Bonn on 26 May 1952, Germany agreed that it would "in the future raise no objections against the measures which have been, or will be, carried out with regard to German external assets or other property, seized for the purpose of reparation or restitution, or as a result of the state of war".

 In 1951 the Bratislava Administrative Court dismissed the appeal lodged by Prince Hans Adam's father finding him to be a person of German nationality within the meaning of the provision in Article 1 §1(a) of Decree no. 12.

In 1991 the municipality of Cologne obtained the painting as a temporary loan from the Brno Historical Monuments Office in the Czech Republic. Prince Hans Adam II the applied to the Cologne Regional Court for an interim injunction ordering the municipality of Cologne to hand over the painting at the end of the exhibition. The injunction was granted and a hearing was held. The Prince submitted that the painting had not been subject to expropriation measures in the former Czechoslovakia and that in any event such measures were invalid or irrelevant on account of violation of the ordre public of the Federal Republic of Germany. The Brno Historical Monuments Office argued that the applicant's father had lost his ownership of the painting as a result of the confiscation in 1946 and that the lawfulness of this confiscation had been confirmed by the Bratislava Administrative Court in its decision of 21 November 1951.

In 1995 the Cologne Regional Court rejected the Prince's claim. Under the Convention on the Settlement of Matters arising out of the War and the Occupation, signed at Bonn on 26 May 1952, Germany agreed that it would "in the future raise no objections against the measures which have been, or will be, carried out with regard to German external assets or other property, seized for the purpose of reparation or restitution, or as a result of the state of war". In the court's view, the Settlement Convention precluded German courts from taking jurisdiction over the case.

In 1996 the Cologne Court of Appeal upheld the lower court. In the court's view, the Settlement Convention was the procedural consequence of the notion that the legal relations resulting from the liquidation of German property abroad by foreign powers for the purpose of reparation were “final and unchallengeable” for the Federal Republic of Germany and the private persons concerned.

In 1998 the German Federal Constitutional Court refused to hear the Prince's appeal. In 2001 the European Court of Human Rights found no violation of the Prince's rights under the European Convention on Human Rights. At that point, Liechtenstein filed an application with the International Court of Justice generalizing the Prince's claim to all Liechtenstein assets seized by Czechoslovakia after the war. The gist of the claim is that Liechtenstein was recognized as a neutral country by all belligerents in WWII and that property of Liechtenstein nationals should not have been seized as reparations. Arguments before the ICJ concluded in June 2004 and a decision could appear at any time.

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Many organizations are involved in the restitution of Nazi-spoliated art. The Commission for Art Recovery is dedicated to reuniting works of art looted by the Nazis with their rightful owners or heirs. The University of Oxford Centre for Hebrew and Jewish Studies maintains a Central Registry of Information on Looted Cultural Property 1933-1945. The European Commission on Looted Art (ECLA) assists families and institutions in Europe with the research, identification, and recovery of Nazi looted art and other cultural property. The Lost Art Internet Database is a relatively recent project of German government for registering cultural assets that were relocated, transported and, confiscated during the Nazi period. Musées nationaux recuperation is a relatively recent, searchable catalog of 2,000 unclaimed works of art recovered after World War II and held in French museums. The Holocaust Claims Processing Office of the New York State Banking Department is one of the most effective.

The Arts Journal maintains a thread that focuses on the Nazi Art Trail. The Museum Security Network maintains a list of websites devoted to WW II looted art at WW-2-art recovery. The Museum of Modern Art maintains an excellent list of online resources on provenance research, particularly those useful for tracking WWII spoliated art.

For further links on the issue of holocaust art see Jacqueline Tescott's article "Museums to Facilitate Search for Nazi-Looted Art," from the Washington Post; the Art Newspaper list of the lasting effects of the Second World War on the art trade; and Law-Related Resources on Nazi Gold and Holocaust Assets (Lyonette Louis-Jacques, University of Chicago).

Some of Hitler's own watercolors are still the subject of controversy, as the US government refuses to return them to Hitler's heirs.

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