Is There Any Way Home? A History and Analysis of the Legal Issues Surrounding the Repatriation of Artwork Displaced During the Holocaust By David S. Gold I. Introduction Part VII analyzes Vineberg v. Bissonnette,4 a recent case “There is an age old argument: which is more valu- in which the Rhode Island District Court, and later the able, a work of art or a human life?”1 It is impossible to Rhode Island Court of Appeals, overcame the abovemen- compare the value of human life with that of a work of tioned hurdles and reached the merits of a highly publi- art, regardless of how great or unique that work may be. cized repatriation claim. The courts ultimately ordered There is little debate that the systematic extermination the return of “Girl from the Sabiner Mountains,” a paint- of nearly six million Jews during the Holocaust was, by ing sold under coercion as part of the Nazi program, to itself, one of the greatest humanitarian atrocities of all its rightful owner. The analysis shows that although some time.2 This argument is not an attempt to diminish the commentators have rightly deemed the case a notewor- human tragedy that defi ned the World War II era, but thy moment in the history of Holocaust-era repatriation instead acts as a constant reminder that in myriad ways claims, the underlying legal obstacles to a successful “[t]he Holocaust was not an event that ended in 1945—at claim remain unchanged. 3 least not for the survivors.” II. Historical Background This article presents a history and analysis of the legal From 1937 to 1945, the Nazi regime under Adolf issues surrounding the repatriation of artwork displaced Hitler not only attempted to deliberately and systemati- during the Holocaust. Part II provides the reader with an cally exterminate an entire race of individuals, but also historical background of the systematic and deliberate succeeded in looting and confi scating nearly a quarter confi scation and displacement of art by the Nazi regime of a million pieces of art throughout conquered Europe.5 under Adolf Hitler from 1937 to 1945. It also includes According to some estimates, during World War II the some information regarding early post-war recovery Nazi party controlled between one-third and one-fourth efforts and the various practical and political barriers of the art in Europe,6 approximately “one-fi fth of all hindering these efforts. Part III discusses the development Western art then in existence.”7 Described as “the greatest and application of certain major international conventions displacement of art in human history,”8 the total value of and repatriation agreements such as the Hague Conven- art stolen or displaced as a result of Nazi policies has been tion of 1907, the 1970 UNESCO Convention on Cultural estimated as high as $2.5 billion, or a present value of ap- Property, the 1995 UNDROIT Convention on Stolen or proximately $20.5 billion.9 Illegally Exported Cultural Objects, and the 1998 Wash- ington Conference on Holocaust-era Assets. This discus- The seizure of art was a fundamental aspect of sion includes an evaluation of the inherent limitations Hitler’s plan to create a purely Germanic empire. “Being of multilateral agreements in the successful repatriation associated with great works of art became another charac- of cultural property. Part IV focuses specifi cally on the teristic defi ning the Aryan conception of moral, intellectu- United States’ legislative repatriation efforts, including al and genetic superiority, and looted artworks were con- 10 the Holocaust Victims Redress Act, the U.S. Holocaust sidered treasures.” In 1937, Hitler publicly declared that Assets Commission Act of 1998, and the Nazi War Crimes the Nazi regime would “lead an unrelenting war of puri- Disclosure Act. fi cation…an unrelenting war of extermination, against the last elements which have displaced our Art.”11 As such, Part V introduces the reader to the legal issues sur- the systematic confi scation of European art “was carried rounding Holocaust-era repatriation litigation in the out with typical German effi ciency, planned beforehand United States. It unpacks the wide range of legal issues and ruthlessly executed.”12 More specifi cally, Hitler had that must be addressed prior to reaching the merits of any two main goals. First, he wanted to rid Europe of all “de- repatriation claim. These issues include: (1) jurisdiction generate” art, works that he and his associates considered and the Foreign Sovereign Immunity Act, (2) the political “barbarous methods of representation,” “Jewish trash,” question doctrine, (3) international comity and the act of and “total madness.”13 Second, Hitler was attempting to state doctrine, and, most signifi cantly, (4) the determina- fulfi ll his dream of creating the Fuhrermuseum, a complex tion and application of state statutes of limitations. Part series of museums that would be the centerpiece of a VI presents these legal issues through the lens of specifi c redevelopment plan in his hometown of Linz, Austria, Holocaust-era repatriation claims that have been brought a city that was to become a standing testament to Hitler in United States courts. and The Thousand Year Reich.14 Hitler initiated a three- 12 NYSBA Entertainment, Arts and Sports Law Journal | Spring 2010 | Vol. 21 | No. 1 phase plan to achieve the Fuhrermuseum.15 First, the Reich art to the rightful owners was frustrated, in large part, by Chamber for the Visual Arts removed over 16,000 works the actions of those entrusted to protect it. from public and state collections in Germany.16 Second, Allied policy mandated the return of any recovered Hitler ordered the seizure or forced sale of all privately art to the respective government of the country from owned Jewish assets in Germany and Austria.17 Finally, 28 These governments, focused Hitler passed the Ordinance for the Registration of Jewish which the art was stolen. primarily on the rehabilitation and reconstruction of their Property, which offi cially transferred ownership of all inhabitants and territories, were often less than thorough Jewish property to the Third Reich.18 in their attempts to return displaced art to the rightful Over the course of World War II, the Nazis expanded owners.29 Furthermore, the government of the Soviet their efforts to consolidate all Jewish art that had not yet Union, which had accumulated a tremendous amount been seized on behalf of the Third Reich. Agencies, such of public and privately owned art throughout its period as the Einsatzstab Reichsleiter Rosenberg (ERR) were created of occupation, publicly declared all such art to be the to seize and secure any work of art in conquered territo- property of the Soviet Union.30 The Soviet government ries that appeared to have value.19 To facilitate this effort, maintained that because Germany had control of the art the ERR was provided with detailed lists of specifi c items at the time the art was seized, and because the Soviet that were to be confi scated and transported “back” to Union was owed reparations for the destruction of its Germany.20 When the art arrived in Germany, it was me- own cultural property throughout the war, the art now thodically distributed, with Hitler having fi rst preference, rightfully belonged to the Soviet Union.31 More recently, high-ranking Nazi offi cers such as Reichstag President though, the Russian government agreed to establish a Hermann Göering having second preference, and the database in which it will archive displaced art in its pos- remainder of the art being relocated to Nazi-controlled session, and has asserted that “in Russia there exists no German art museums.21 law which would stand in the way of just and legitimate restitution of cultural assets…if convincing evidence…is Due to the magnitude of the amount of art, the Nazis provided.”32 established mechanisms other than physical confi scation to transfer possession of art from the Jews and other “de- III. International Repatriation Efforts generate” individuals in conquered territories. The Reich Chamber of Culture (RKK) designated certain individu- The period immediately following World War II was one of “blissful ignorance” with regard to the repatriation als as Nazi-approved art dealers and ordered Jewish art 33 collectors to immediately sell all remaining inventory of displaced artwork. Although the Hague Conven- through these dealers, often for far below their actual tion of 1907 explicitly forbids any occupying force from market value.22 Also, the RKK established “Jew auctions” “destroy[ing] or seiz[ing] the enemy’s property, unless such destruction or seizure be imperatively demanded as a convenient and effi cient forum to sell Jewish art for 34 the fi nancial benefi t of the Third Reich.23 While the forced by the necessities of war,” the atrocities of World War sale of art is fairly well documented, less clear is the num- II and the actions of the Third Reich required revisitation ber of individuals who sold their art and art collections in of international law regarding the confi scation, destruc- order to escape, survive, or as a general consequence of, tion, forced sale, and subsequent repatriation of cultural the persecution of the Nazi regime.24 Moreover, in many property. cases, this art may have changed hands multiple times The fi rst major discussion of the repatriation of cul- over the course of the war, which complicated estimating tural property displaced during World War II took place the amount of coerced sales even further. at the United Nations Education, Scientifi c and Cultural In the period immediately following World War II, Organization (UNESCO) Convention on Cultural Prop- erty in November 1970.35 As part of this Convention, 102 the Allied forces attempted to discover, document, and 36 process the thousands of pieces of art now scattered of the 190 United Nations member states, including throughout Europe as a result of the Nazi hoard.