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Returning World War II Art to Its Rightful Owners - Can Moral Obligations Be Translated Into Legal Duties?

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Returning World War II Art to Its Rightful Owners - Can Moral Obligations Be Translated Into Legal Duties? DePaul Law Review Volume 51 Issue 4 Summer 2002 Article 7 The Last Prisoners of War: Returning World War II Art to Its Rightful Owners - Can Moral Obligations Be Translated into Legal Duties? Emily J. Henson Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Emily J. Henson, The Last Prisoners of War: Returning World War II Art to Its Rightful Owners - Can Moral Obligations Be Translated into Legal Duties?, 51 DePaul L. Rev. 1103 (2002) Available at: https://via.library.depaul.edu/law-review/vol51/iss4/7 This Comments is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. THE LAST PRISONERS OF WAR: RETURNING WORLD WAR II ART TO ITS RIGHTFUL OWNERS-CAN MORAL OBLIGATIONS BE TRANSLATED INTO LEGAL DUTIES? INTRODUCTION "We will from now on, lead an unrelenting war of purification, an unrelenting war of extermination, against the last elements which have displaced our Art."' Throughout World War II, Adolph Hitler and the Nazi troops looted and confiscated thousands of works of art2 as part of a massive art theft program designed to transform Hitler's Reich government into the cultural capital of the Western World.3 By the time Paris was liberated from the Nazi troops in 1944, it is estimated that between one-fourth and one-third of all the art in Europe had been pillaged.4 Although the Allied forces worked to locate and return these and other assets to their original prewar owners, 5 thousands of works of art were integrated into the international art market where they soon disappeared. 6 Today, tens of thousands of works of art are still miss- ing, but many of the clues as to the current whereabouts of these works lead straight to American museums, auction houses, art dealers, and individual private collectors. 7 Now, current possessors of valua- ble artwork, many of whom purchased or acquired the works in good faith, are faced with a moral dilemma-should the works be returned to their true, prewar owners or should good faith purchases and acqui- sitions be protected? Does society have a moral obligation to Holo- caust survivors, and if so, can that moral obligation be transformed 1. Stephanie Cuba, Stop the Clock: The Case to Suspend the Statute of Limitations on Claims for Nazi-Looted Art, 17 CARDOZO ARTS & ENT. L.J. 447, 471 (1999) (quoting LYNN H. NICHOLAS, THE RAPE OF EUROPE, 20 (1995) (quoting and translating P.O. RAVE, KUNS DUNSTDIKTATUR IM DRirIEN REICH, 55-56 (1949))). 2. HECTOR FELICIANO, THE LOST MUSEUM: THE NAZI CONSPIRACY TO STEAL THE WORLD'S GREATEST WORKS OF ART 3 (1997). 3. Matthew Lippman, Art and Ideology in the Third Reich: The Protectionof CulturalProperty and the Humanitarian Law of War, 17 DICK. J. INT'L L. 1, 96 (1998). 4. Id. at 4. See also James Rosen & Tom Hamburger, Looted Treasures: Museums Confront the History Behind the Canvas, STAR TRIB., Nov. 9, 1999, at 2, available at 1999 WL 7517159. 5. See infra notes 47-57 and accompanying text. 6. See infra note 58 and accompanying text. 7. See FELICIANO, supra note 2, at 4. 1103 1104 DEPAUL LAW REVIEW [Vol. 51:1103 into an affirmative legal duty? These are some of the questions cur- rently facing the American legal system. This Comment will consider whether moral obligations can be translated into affirmative legal duties to reinforce the efforts to re- turn art looted during World War II to its true owners. Part II briefly surveys the history surrounding today's claims to World War II looted art8 and traces the development of case law that addresses the quest to restore looted and stolen art to its true owners. 9 Section III examines and analyzes the legal doctrines that courts have applied in cases in- volving looted and stolen art and notes the trends, problems, and shortcomings in the courts' reasoning. 10 Finally, Section IV looks at the effect that the existing case law has had on art owners, be they institutions or individuals, and considers how the law should develop in the future. Specifically, this section will consider whether federal legislation is necessary to better ensure that looted art is returned to its rightful owners." However, in order to reach solutions to the problems of World War II looted art, it is important to begin by look- ing at wartime Europe as the backdrop for current claims regarding the return of such art. II. BACKGROUND In order to discuss how to resolve claims for the recovery of World War II looted art, it is necessary to first examine the history and cir- cumstances surrounding the claims for the return of missing works of art, as well as case law that addresses the issue of stolen art in general. A. History of Art in World War II On January 30, 1933, Adolph Hitler was sworn in as Chancellor of Germany. 12 The following year, on August 2, 1934, just hours after the death of President von Hindenberg, Hitler assumed the posts of 8. See infra notes 12-63 and accompanying text. 9. See infra notes 64-271 and accompanying text. 10. See infra notes 272-351 and accompanying text. 11. See infra notes 352-426 and accompanying text. 12. See Lippman, supra note 3, at 5. Hitler was sworn in as Chancellor by the "increasingly senile" President Paul von Hindenberg. Id. Because he lacked majority support in parliament, Hitler persuaded von Hindenberg to call for new elections. Id. Then, when the Reichstag burned (historical evidence indicates it was set fire by the National Socialist Party, or Nazi activ- ists) on February 27, 1933, Hitler seized the opportunity to consolidate his control. Id. Nazi officials warned of a Bolshevik uprising, and the following day, Hitler convinced von Hindenberg to adopt defensive measures against the Communist Party. Id. By March 1933, Hitler had managed to attract enough votes in parliament to pass the Enabling Act, which au- thorized the Reich government to disregard the constitution and turn plenary power over to Hitler. Id. at 6. In May 1933, the Reich government declared that their National Socialist Party, 2002] THE LAST PRISONERS OF WAR 1105 both Chancellor and President. 13 On the same day, it was announced that henceforth Hitler would be referred to as Fiihrer and Reich Chancellor. 14 Despite his political successes, however, Hitler consid- ered himself to be a true artist. 15 Twice rejected from the School of Fine Arts in Vienna and once rejected from the Vienna School of Ar- chitecture, 16 Hitler dreamed of seizing and consolidating Europe's most prized works of art in order to establish Germany as the cultural 7 capital of the Western World.' "Inherent in Hitler's dreams of a pure Germanic race was a vision of pure Germanic art. His two-fold plan involved ridding his empire of 'degenerate art' and amassing a vast collection of pure Germanic art . ."18 "Degenerate art" was unacceptable art and included mod- ern or abstract works, art by Jewish artists or depicting Jewish sub- jects, and anything that was critical of Germany or did not depict Germany as the Nazis perceived it.' 9 For the most part, "degenerate art" was associated with the Jews and was considered inferior because the human form was often unfinished or exaggerated. 20 Hitler warned that German culture "was on the verge of being irrevocably contami- nated ... by the Jewish-Bolshevik disease."' 2' Hitler believed that [t]he triumph of the modern artistic sensibility had led to a loosen- ing of morals which, in turn, had resulted in rampant crime, sexual licentiousness, prostitution, the proliferation of inter-racial sexual relations and to the spread of venereal disease and crime. It was led by Hitler, was Germany's sole political party and that the formation of other parties was prohibited. See Lippman, supra note 3, at 6. 13. Id. 14. Id. 15. Hector Feliciano, The Aftermath of Nazi Art Looting in the United States and Europe: The Quest to Recover Stolen Collections, 10 DEPAUL-LCA J. ART & ENT. L. 1, 2 (1999). 16. Id. 17. Lippman, supra note 3, at 1-2. Hitler aspired to rewrite art history "in order to highlight Aryan supremacy." Id. at 96. He believed that the future of the human race depended on the creative abilities of the Aryans. Id. at 4. 18. Kelly Ann Falconer, Comment, When Honor Will Not Suffice: The Need for a Legally Binding InternationalAgreement Regarding Ownership of Nazi-Looted Art, 21 U. PA. J. INT'L ECON. L. 383, 394 (2000). Hitler aimed to rid the world not only of degenerate artworks, but also the artists who had created the works. Id. 19. Kelly Diane Walton, Leave No Stone Unturned: The Search for Art Stolen By the Nazis and the Legal Rules Governing Restitution of Stolen Art, 9 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 549, 555 (1999). 20. Id. 21. Lippman, supra note 3, at 3. "The Nazis viewed modern art as a Jewish invention which was designed to ensure Semitic domination over contemporary culture." Id. at 27. In fact, Hitler's concerns were more than just aesthetic; he "attributed the collapse of German society to ... cultural corrosion." Id. at 4. 1106 DEPAUL LAW REVIEW [Vol. 51:1103 imperative to cleanse art . and to place art in the 'service of a 22 moral, political and cultural idea.' For these reasons, in 1937, Hitler ordered German museums to rid their collections of "degenerate art.' '23 The Nazis then sponsored "de- generate art" shows throughout Germany in order to stress the need for racial and cultural purity.24 Following the shows, the "degenerate art" was traded, sold, or destroyed.25 The Nazis traded what they con- sidered to be "degenerate art" for any type of German or Germanic art, even if the German artworks were in bad condition or anonymous.26 Beginning in 1938, Hitler and the Nazis began confiscating private art collections, "in part for propagandistic reasons, in part for reasons related to Hitler's extreme dislike for anything of cultural significance 28 to be owned by Jews or other 'inferior' races ....",27 Nazi officials organized military groups and empowered government branches with staffs of art historians and other scholars to assist with the looting 2 9 campaign.
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