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The Restitution of World War II-Era Looted Art: Case Studies In Table of Contents Abstract ………………………………………………………………………… 1 Introduction ………………………………………………………………… 2 Research Statement …………………………………………………………. 3 A Review of the Literature …………………………………………………. 5 Legislative Historical Context …………………………………………. 5 Current Literature …………………………………………………………. 19 Methodology …………………………………………………………………………. 30 Case Studies …………………………………………………………………………. 32 Museum of Fine Arts in Boston, Kokoschka Case Study …………………. 32 Holocaust Claims Processing Office in New York: Klimt Case Study …… 35 New York Legal System: Modigliani Case Study ………………………… 39 Recommendations …………………………………………………………………. 42 Annotated Bibliography …………………………………………………………. 44 Figure A: Kokoschka …………………………………………………………. 57 Figure B: Klimt …………………………………………………………………. 58 Figure C: Modigliani …………………………………………………………. 59 References …………………………………………………………………………. 60 Decker 1 Abstract World War Ⅱ is one of the most researched topics in the field of history, with repercussions still impacting the international museum and art communities. Because the Nazis looted an estimated one-third of European art,1 works of art were scattered across Europe and North America, appearing in both public museum collections and private collections.2 Internationally, restitution efforts were revived in the 1990s, arising from the field of Holocaust- Era Art Restitution.3 This is known as Transitional Justice, addressing previous generations’ wrongs through legislative or non-legislative efforts. Since the early 1990s, museums have come to be at the center of legal battles, conferences, and national declarations as they confront the issue of looted art in their collections, specifically Holocaust-era. This study will explain the United States’ legal, historical context for Holocaust-era art restitution and the difficulties with the current restitution efforts through litigation as well as analyze alternatives to this paradigm through three case studies of recent restitution efforts in the US.4 The goal of this study is to assist museum professionals by explaining the complications of litigation as a solution and evaluating two alternatives for those who are concerned about public trust, transitional justice, 1 The Rape of Europa, directed by Jon Shenk (2007; Venice, CA: Menemsha Films, 2008), DVD. 2 Hector Feliciano, The Lost Museum: The Nazi Conspiracy to Steal the World’s Greatest Works of Art (New York: Basic Books, 1997). 3 Michael Bazyler; Roger Alford, Holocaust Restitution: Perspectives on the Litigation and its Legacy (New York: NYU Press, 2005). 4 Multiple countries continue to wrestle with Looted-art Restitution, including Canada. For more information on Canadian Restitution efforts such as the Max Stern Restitution Project, see http://www.concordia.ca/arts/max-stern.html Decker 2 and the practice of high ethical standards regarding the restitution of works looted in connection with the events of World War Ⅱ. Introduction During World War Ⅱ and immediately afterwards, the American Commission for the Protection and Salvage of Artistic and Historic Monuments in War Areas, colloquially known as “The Monuments Men”, was charged with protecting and recovering cultural assets in Europe.5 The approximately 345 men and women worked to prevent the destruction of, track, locate, and eventually return stolen art and cultural artifacts when possible. Their work was unprecedented, and, despite limited funding and staffing, the Monuments Men returned more than 5 million artifacts and artwork to their countries of origin. This feat was instrumental to the rebuilding of cultural life in the devastated nations of Europe after 1945.6 Unfortunately, after the Monuments Men were sent back to the US in 1951, the restitution of Holocaust-era art paused, with a few exceptions. Thousands of works of art without clear provenance were distributed to museums, due to a lack of provenance information, dearth of funds for cultural reconstruction, and the minimal monetary value or knowledge of these works of art. There was neither legislation nor literature in place to effectively facilitate restitution, nor would there be for another fifty years. Art restitution efforts continue to lag in terms of legislation and litigation. This research fits into a larger conversation among museum professionals concerning the 5 Robert Edsel, The Monuments Men: Allied Heroes, Nazi Thieves, and the Greatest Treasure Hunt in History (New York: Center Street Publishing, 2009). 6 "The Heroes," The Monuments Men Foundation for the Preservation of Art, 2016, https://www.monumentsmenfoundation.org/the-heroes/the-monuments-men. Decker 3 reevaluation of deaccessioning policies, as well as the ethical and legal accountability of museums and private collections regarding Holocaust-era art restitution. Research Statement and Significance Leading up to and during World War II, the Nazis pillaged art from bank vaults, sacred spaces, and living room walls. The Nazis also raided entire museum collections in Europe and Russia. What art they did not sell or save for officials, the soldiers destroyed for being what the Nazis called “degenerate.”7 “Degenerate” art and artists did not fit the Nazi framework for aesthetic taste or definitions of fine art. The framework that was instead promoted focused on realism and historically Germanic themes, whereas any subject or medium that deviated from that definition of “traditional beauty” was deemed threating to the German people. The Nazis looted for the money, but they also stole cultural property as another way to dehumanize entire groups of people by damaging their collective identity.8 These acts of either destroying or stealing works of art were meant to declare that the current owners did not deserve the art they had. Nazi looting was an intentional seizure of property that foreshadowed and accompanied the destruction of Europe. Many of these works of art, called by Mastroberadino in 1997 “The Last Prisoners of the Second World War,”9 are spread throughout the world in cultural institutions that the public holds in trust for their communities. 7 "The “Degenerate Art” Exhibit, 1937," National Library of Israel, 2012, http://web.nli.org.il/sites/NLI/English/collections/personalsites/Israel-Germany/World-War- 2/Pages/Degenerate-art.aspx 8 Jonathon Petropoulos, Art as Politics in the Third Reich (Chapel Hill: University of North Carolina Press, 1996). 9 Margaret M. Mastroberardino, “The Last Prisoners of World War II,” Pace International Law Review 9, no. 1 (1997): 315. Decker 4 This research is a continuation of decades of research concerning the ethics of the topic; however, it builds upon previous conclusions about the historical realities and legal limitations of restitution by discussing solutions to the established problem in the status quo. For example, the research recognizes the assumption that the artworks’ presence and history, often unknown or unrecognized, are a perpetuation of the dehumanization of the Jewish people by the Nazis. Furthermore, this research is conducted under the assumption that the public’s enjoyment of stolen art, especially when legal heirs are seeking that part of their families’ history back, is both ethically compromised and contradictory to the role of museums in society as repositories of cultural material held in trust for its beneficiaries—the general public. This statement of the purpose of museums in society is in line with the Standards Regarding Public Trust and Accountability published by the American Alliance of Museums (AAM), mainly: “The museum is a good steward of its resources held in the public trust”.10 In a denial of public trust and ethical collections management policies, works of art with uncertain provenance11 remain, and heirs must struggle to have their rightful inheritance returned to them. Existing research shows that litigation in the U.S. for art restitution includes numerous unnecessary roadblocks, as established by previous research, such as statutes of limitations, good faith purchasing, extreme cost, burden of proof, and deaccession policies that hinder the equitable transfer of property. This study builds upon the widely held assumption that despite numerous attempts to amend the litigation polices affecting art restitution in the U.S., there are still limitations to transitional justice which are 10 American Alliance of Museums, “Public Trust and Accountability Standards” Ethics, Standards and Professional Practices, (Washington, DC: AAM, 2000). 11Alexander Kaplan, “The Need for Statutory Protection From Seizure for Art Exhibitions: The Egon Schiele Seizures and the Implications for Major Museum Exhibitions,” Journal of Law and Policy 7 (1999). Decker 5 holding the law back from its full potential. Therefore, interdisciplinary and enforceable measures for pursuing justice and ensuring the means of return of the “last prisoners” of Nazi Germany must be fully examined. My project will analyze and compare three case studies of art restitution both with and without litigation. This comparison will reveal options for museum professionals with questionable collections as well as claimants seeking restitution. Specifically, I will analyze the restitution of Gustav Klimt’s, Woman in Feather (c. 1909)12 through the New York Holocaust Claims Processing Office, the ongoing case of Amedeo Modigliani’s Seated Man with Cane (1918)13 in the New York state legal system, and Oskar Kokoschka’s Two Nudes (Lovers) 191314 in the Museum of Fine Art in Boston. Through a comparison of these case studies I will identify gaps in
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