Memorandum submitted by the Commission
for Looted Art in Europe
A. SUMMARY
1. Cultural property seized by the Nazis between
1933 and 1945 was stolen from both individuals, Jewish and non-Jewish,
and from communities, usually in brutal and terrifying circumstances.
2. As a result of the looting, cultural
property was dispersed throughout Europe and beyond and many thousands
of works have not yet been returned to the owners or their heirs.
3. From 1933 until today, the international
art market has traded Nazi-looted works. No legal controls have
been exercised over this trade. The effect of this unregulated
trade is that looted works are to be found today in every country
and in the world's most reputable museums and galleries.
4. There is no legal standard for provenance,
the history of ownership of a work of art, which has further enabled
the trade in looted works to continue unimpeded. Binding codes
of practice or statutory regulation are necessary to prevent such
trade continuing.
5. In order to identify looted works, a
commitment by the museums and the art trade to both full disclosure
of and access to archives and records is necessary.
6. Until today families have had to search
the world single-handedly for their looted works. They were met
often with a wall of silence and a lack of co-operation by dealers,
auction houses, museums and governments. Any new publications
listing possibly looted works should include images to enable
families to recognise their property.
7. The looted families retain a deep desire
to find and recover their looted cultural property which, in every
case, has great personal meaning as the last link with lives that
were utterly destroyed or irrevocably damaged by the Nazis. This
emotional and symbolic value of these looted works to their rightful
owners cannot be underestimated, nor can the profound wish for
their restitution which is viewed as a simple matter of justice.
8. In both domestic and international law,
the principal remedy for theft is the restitution of the stolen
object.
9. Internationally, looted art is now being
returned to its rightful owners, as a matter of natural justice,
political will, and moral behaviour.
10. In some countries laws have been passed
to enable restitution. Elsewhere, governments have waived existing
laws in order to be able to return looted cultural property.
11. Museums throughout the world have acknowledged
that it is wrong for looted art to be hanging on their walls,
and they have been returning them to their rightful owners, despite
the passage of time and any applicable limitations and other laws.
12. The British Government has published
draft terms of reference for a Claims Panel to adjudicate claims
for looted works in British museums and galleries, as an alternative
to legal proceedings.
13. British Government proposals for claims
handling do not commit to restitution as the principal remedy
to be available in all proven cases.
14. British Government proposals provide
no assurances that, even if the claims panel were to recommend
restitution, legal impediments to such restitution would be removed.
15. British Government proposals suggest
that museums will contest claims on the grounds of statutes of
limitations. Proposals also set out no standard on the evidence
required to substantiate or contest claims. Both points must be
elucidated before claimants are asked to enter such a procedure.
16. Claimants must have confidence that
any proposed claims process will provide justice. Restitution
is the sine qua non of justice. Without a commitment to
it, and to a claims procedure that is transparent, fair, neutral
and balanced, claimants may prefer to seek justice elsewhere.
B. COMMISSION
FOR LOOTED
ART IN
EUROPE (ECLA)
1. The Commission for Looted Art in Europe
(ECLA) is a non profit-making organisation, established in February
1999 in London, following the Washington Conference on Holocaust
Era Assets of December 1998. It is an expert and representative
body which deals with all issues relating to the looting of art
and other cultural property by the Nazis between 1933 and 1945.
It is co-chaired by David Lewis and Anne Webber.
2. ECLA acts as an international centre
of research and expertise for all interested parties, conducts
original research on all categories of looted cultural property—art,
books, silver, statuary, manuscripts, sacred objects—and
is creating a central registry of all information known on looted
art and other cultural property.
3. ECLA advises governments and museums
across the world on looted cultural property matters, and assists
on issues including the identification of looted items in public
collections, the availability of archives and records, the dissemination
of information, and the establishment of international claims
procedures for looted works.
4. ECLA promotes public policy and legislative
change on cultural property issues throughout Europe, monitors
international developments in the implementation of the Washington
Principles on Nazi-confiscated Art, and is working to establish
codes of practice with the auction houses and art trade.
5. ECLA worked closely with the Council
of Europe on formulating the resolution providing for legislative
change to enable the restitution of cultural property in Europe,
passed unanimously by the Parliamentary Assembly of the Council
of Europe in November 1999. The Council of Europe recognises ECLA
as its expert non-governmental partner in dealing with looted
cultural property issues across the European continent.
6. ECLA provides guidance and assistance
to claimants, both non-Jewish and Jewish, and is the only representative
organisation in the world to help and pursue individual restitution
claims. ECLA is committed to aiding the recovery of looted works
by the rightful owners or their heirs.
7. Anne Webber is a member of the Advisory
Committee on the Spoliation of Art, chaired by Sir David Neuberger,
which supervises the work of the National Museum Directors' Conference
Working Group on Spoliation. Anne Webber advised on the guidelines
for museums and galleries in checking their collections for looted
works, and assisted closely in the production of the National
Museums' First Progress Report on Provenance Research of 29 February
(see www.nationalmuseums.org.uk/spoliation).
C. LOOTING OF
CULTURAL PROPERTY
BY THE
NAZIS
8. It is estimated that up to one-fifth
of the world's art treasures, and up to one-third of all art in
private collections, was taken by the Nazis, in what has been
described as the "the greatest art robbery in history".
All precise figures on the numbers and type of works taken can
only be speculative.
9. The systematic looting of property was
an integral part of the Nazi programme to exterminate the Jews
and their cultural heritage. As a result of the looting, art and
other cultural property was dispersed throughout Europe and beyond,
both during the war and all the years after, and many thousands
of items have never yet been returned to owners or their heirs.
D. POST WAR
RESTITUTION
10. At the end of the war, the Allied forces
collected up many thousands of works of art from the 2,000 Nazi
caches in Germany and Austria. They were committed to restitution
of this cultural property. They decided to return these items
not directly to their owners, but to the countries from which
they believed they had been looted. The governments of those countries
were charged with their restitution.
11. That restitution effort was circumscribed
by time limits and beset with bureaucratic obstacles for claimants.
The onus, then as now, was on claimants to find their missing
property and prove ownership, rather than on the government to
return the items to their rightful owners. Families were often
asked to provide death certificates for parents murdered in the
concentration camps, or to supply within a very short time limit
other substantial proofs of ownership in a post-war context where
such evidence was not readily available.
12. In the last three years, research has
shown that, despite the restitution agreements, many European
governments did not return this looted property to its rightful
owners.
— the Dutch, for example, appropriated
4,500 of the looted works of art and absorbed them into their
national collections, and sold off many thousands more; and
— in 1949, the French invited their
museum directors to make a selection from the looted works, and
over 2,000 such looted and unrestituted art works, unknown to
their rightful owners and the public, have been displayed in museums
throughout France for the last 50 years. In the late 1940s the
French also auctioned off 13,000 of the looted works which they
deemed to be "heirless".
13. Overall, thousands of works returned
by the Allies to European countries were either quietly appropriated
without serious attempts to return them, or secretly liquidated
without any compensation to the rightful owners, and with the
proceeds taken to enhance government funds.
E. TRADE IN
NAZI LOOTED
CULTURAL PROPERTY
1933-2000
14. From the earliest days of the confiscations
or forced sales imposed by the Nazis, the international art market
has been involved in the lucrative trade in looted cultural property.
15. Even before 1939, plundered works were
traded on through Europe and the United States, with dealers vying
for these new business opportunities. Throughout the war, the
Nazis laundered looted works through various dealers in Switzerland,
Spain, Portugal and elsewhere. From 1945 onwards, sales of such
works have flourished throughout Europe and North and South America.
16. Today looted works regularly come up
for sale in the auction houses and dealing rooms of the world.
The effect of this unregulated trade over so many years is that
looted works are to be found today in every country and in the
world's most reputable museums and galleries. The initial research
undertaken by the British national museums to identify looted
works has revealed several thousand works with uncertain provenances
for the relevant period.
17. Sir Nicholas Serota, Director of the
Tate Gallery, stated last year that museums were "less fastidious"
about what they acquired, until very recently. Little attention
was paid to provenance, the history of the ownership of a painting.
Many curators and dealers simply turned a blind eye to the origins
of the works being acquired, and behaved as if this had been victimless
crime.
18. Provenance reflects a key area in which
the absence of regulation of the art market has enabled the trade
in looted objects to flourish unhindered.
19. The information supplied on a provenance
can be as accurate or as inaccurate as the seller chooses. The
law demands neither due diligence on the part of the buyer nor
proof of provenance from the seller. It is quite routine for provenances
not to be questioned. The majority of works in current sales catalogues
from Sotheby's and Christie's, for example, still list very few
or no details of the ownership of paintings between 1933 and 1945.
F. WASHINGTON
CONFERENCE ON
HOLOCAUST ERA
ASSETS
20. The December 1998 Conference, sponsored
by the US State Department, brought together 44 nations and 13
NGOs to discuss the issue of looted cultural property. Eleven
principles were endorsed (see Document 1, "Washington Principles
on Nazi confiscated Art"*). The major goals were: to identify
looted works; to open archives and records; and to enable just
and fair solutions to be reached regarding the return of such
looted works to their rightful owners.
21. The British commitment to check museum
holdings for looted works and to publish the research results
arises out of the Washington Principles, and is a very impressive
undertaking. Some other countries are following suit, but by no
means all. To date, for example, US museums have not yet published
any research.
22. Other Principles, such as making available
all relevant documents, records and archives, are not being achieved.
In Britain, the museums are stating that they will make only "relevant"
documentation available to those seeking to identify their looted
works. There must today be full disclosure of all documentation,
both by the museums and by the art trade, so that these issues
can be fairly dealt with at last.
23. The art trade in Britain and the auction
houses internationally have made inadequate commitments either
about self-regulation, or about making all relevant records and
documentation available. It is urgent that the art trade commits
knowingly not to sell looted works; to publish as complete provenances
as possible for the years 1933-45; and, most urgently, to make
all records available both to museums and to claimants attempting
to locate and to establish the history of a looted item of cultural
property, and then to recover it.
24. The Washington Conference arose out
of a recognition that claimants had been effectively blocked for
over 50 years from both finding and recovering their looted property.
The uneven and selective take up of the Principles throughout
the world is a matter for major concern.
G. POSITION OF
LOOTED FAMILIES
25. The significance of looted works to
families has been little understood, and the deep desire for their
recovery often ignored. The looted works are often the last tangible
reminders of a family's taste, personality and very being, as
well as the last link with lives that were utterly destroyed or
irrevocably damaged by the Nazis.
26. These looted items were the very landscape
of those lives. They have huge emotional and symbolic value, and
there is not a family of the many whom we represent, that does
not want the restitution of their looted property, even today,
and perhaps specially today, as some grow old and are beset by
painful and sad memories of their lost families.
27. For over 50 years families have had
to search single-handedly through the museums and private collections
of the world if they were to find their looted works. They have
had to do so with little help from the art world, which has had
no interest in revealing the location of looted art. The result
is that many families are still searching for their looted paintings,
Since Washington, the climate has shifted, and the publication
of research such as that by the National Museums, can only be
helpful to these families.
28. We would add though that for many families
the works are visual memories, and a title without an image will
not often help identify a looted work. We propose that the National
Museums, and all the other museums in Britain yet to publish their
research, ensure that both the web site (www.nationalmuseums.org.uk/spoliation)
and any documentary publications include images of the works in
question.
H. CURRENT
INTERNATIONAL RESTITUTION
PRACTICE
29. The principle of restitution of looted
property, whether taken in forced sales or through outright seizure,
has been acknowledged since the 1943 Inter-Allied London Declaration,
by post-war treaties to which Britain was a signatory, and most
recently by the Council of Europe's unanimous Resolution on the
Restitution of Looted Jewish Cultural Property passed in November
1999.
30. Developments under international law
since the end of World War II with respect to human rights and
the property rights of individuals all support the establishment
of a consistent way of resolving claims, under clear rules of
law and procedure, and which provide for restitution as the principle
remedy. These developments include:
— The Nuremberg Charter which recognised
the looting of private property as both a war crime and a crime
against humanity;
— The Universal Declaration of Human
Rights;
— The European Convention for the Protection
of Human Rights and Fundamental Freedoms;
— Changes in international commerce
that have made a global art market increasingly subject to conflicting
national laws and regulations;
— The special nature of art;
— The unique legal and moral issues
presented by art looted or stolen during the Holocaust;
— Various bilateral treaties, among
them the 1954 Hague Convention, the 1970 UNESCO Convention and
the 1995 UNIDROIT Convention, protect cultural property and in
some cases provide for the restitution of cultural objects; and
— The US Holocaust Victims Redress
Act of 1998 which states that "all governments should undertake
good faith efforts to facilitate the return of private and public
property, such as works of art, to the rightful owners in cases
where assets were confiscated from the claimant during the period
of Nazi rule and there is reasonable proof that the claimant is
the rightful owner".
31. International law generally supports
the return of looted art and other cultural property—books,
manuscripts, silver, sacred objects, statuary, etc—and can
be said no longer to tolerate its free movement in international
commerce.
32. The rights of private owners are now
afforded comparable protection to that originally extended only
to museums or other public bodies.
33. The Washington Conference on Holocaust
Era Assets of December 1998 did much to change the international
climate regarding the resolution of these issues. It stressed
the need finally to provide justice to those who had been looted
by the Nazis of their cultural property.
34. Throughout 1999 and early 2000, museums,
galleries and art foundations in Europe—in Austria, France,
Germany, Holland, Israel, Switzerland—and the USA—agreed
to return looted works to their rightful owners, despite the passage
of time and any applicable limitations and other laws.
35. The most authoritative statement indicating
the international perspective today came in June last year from
Claus-Dieter Lehmann, President of the Prussian Foundation for
Cultural Heritage in Berlin, when he said that "The expiration
of legally set deadlines cannot be a reason that injustices are
not set right".
36. Whatever the constraints of national
laws, and of laws governing museums, a consensus has emerged internationally
for a just and fair resolution of the problem. Some countries
in Europe are actively amending or waiving their national laws
in order to recognise the property rights of looted families and
enable restitution.
(See, for example, Documents 2: Law of 1998
from Austria; Document 3: Declaration of 14 December 1999 from
Germany; Document 4: Russian Law on Trophy Art of 1998 and the
Ruling of the Constitutional Court of 1999; Document 5: Council
of Europe Resolution for the Removal of all Legal Impediments
to Restitution of Looted Cultural Property. *)
37. It is a matter of concern that Britain
is standing outside of this consensus.
J. CASE
HISTORIES
38. Glanville Family—"Three stages
of Life" by Leopold von Kalckreuth.
Ownership
Elizabeth Glanville, Vienna, gift from parents
on wedding in 1923. Fled to England in 1938 and became British
citizen. Catholic family.
Seizure
1938 Vienna.
Evidence
Photographs of painting in family homes in 1920s
and 1930s.
Precise description and measurement of painting.
Acceptance by Austrian Federal Monuments Office
in 1948 of painting's ownership and its having been looted from
Mrs Glanville.
Provenance uncovered
Glanville until 1938.
Countess von Reigersberg Vienna (no date or
details of "acquisition").
Neue Pinakothek Munich from 1942.
Attempts at recovery
Claim filed 1948 with Austrian authorities and
Interpol.
Continual efforts to find painting.
Restitution claim filed with German authorities
in 1971 after painting was located in Munich's Neue Pinakotek,
which had acquired it in 1942.
Claim turned down on grounds that restitution
deadlines had expired in 1948.
Further efforts made in 1988, turned down as
"too late".
Restitution
13 March 2000, Royal Academy London, where painting
was on loan, 10 weeks after a formal claim was submitted to Munich.
Munich reviewed the documentary evidence and
restitution was agreed.
Munich acknowledged wrongs and injustices of
past, that painting had been acquired in dubious circumstances,
museum had questionable legal title, and no moral right to own
painting which should be returned to "rightful owners".
Procedure
No court proceedings, no claims tribunal.
39. Gomperz Family—"Madonna and
Child in a Landscape" by Lucas Cranach the Elder.
Ownership
Philipp von Gomperz, Vienna. Fled to Switzerland
1940.
Seizure
By Gestapo October 1940.
Evidence
Nazi documentation recording the painting's
confiscation from von Gomperz.
Nazi documentation recording the "purchase"
by Baldur von Schirach, Nazi Governor of Austria.
Photographs of painting during and shortly after
war confirming the painting seized and that claimed were the same.
Provenance uncovered
von Gomperz to 1940.
Gallery Herzig, Vienna, February 1942.
Baldur von Schirach, August 1943.
Dr Helmut Jacob 1944.
Dr Siegfried Thalheimer, Art dealer, New York,
1950.
A Silberman, Art dealer, New York, 1952.
George Khuner, California to 1984.
North Carolina Museum of Art from 1984.
Attempts at recovery
Protracted attempts over several decades.
Restitution
3 February 2000, from North Carolina Museum
of Art, four months after a formal claim was submitted.
The Museum reviewed the documentary evidence
and "overwhelmingly concluded" that the painting had
been looted and should be returned to its "rightful owners".
Procedure
No court procedure, no claims tribunal.
40. Silberberg Family—Boulevard Montmartre:
Spring by Camille Pissarro.
Ownership
Max Silberberg, Breslau. Subsequently murdered
by Nazis with wife. Son and daughter-in-law fled to England and
became British citizens.
Seizure
Forced sale at "Jew Auction" 1935.
Evidence
Catalogue of sale.
Documentation of sale showing no fair price
received and proceeds not available to Max Silberberg for own
use.
Nazi documents available from 1988 in the former
East Germany.
Provenance uncovered
Silberberg until 1935.
German Collector 1935.
Wildenstein Gallery, New York 1953.
Nathan Cohn 1953.
Knoedler & Co.
John and Frances L Loeb 1960-96.
Israel Museum, Jerusalem from 1997.
Attempts at recovery
Unsuccessful attempts made to locate paintings
(over 160) in 1950s and for compensation from German authorities.
Restitution
18 February 2000, from Israel Museum, Jerusalem,
four months after a formal claim was submitted.
The Museum reviewed the evidence and conducted
extensive research into the history of the painting's ownership.
The Museum stated that it hoped the resolution "can serve
as a model for other institutions and individuals who face similar
claims".
Procedure
No court procedure, no claims tribunal.
Other claims
The Silberberg family have had five other paintings
returned to them since June 1999, including three from Germany,
and one from a Swiss museum. Both Germany and Switzerland stated
that the return of paintings stolen during the Nazi era is governed
by general principles of law which must prevail over other laws
such as statutes of limitations, good faith etc.
41. Please see attached Schedule (Document
6[14])
for several other recent examples of the restitution of looted
works of art.
K. GOVERNMENT
PROPOSALS FOR
CLAIMS FOR
LOOTED WORKS
IN BRITISH
MUSEUMS AND
GALLERIES
42. In November 1999, the DCMS produced
a two page document setting out the proposed terms of reference
of a Claims Panel which was "to advise Ministers on issues
and claims arising from the work of the NMDC Spoliation Group
and of the Advisory Committee". It was proposed that the
Panel be chaired by a senior member of the judiciary with six
panellists, drawn from various categories—a representative
of the art trade, a historian expert in the Holocaust period,
a representative of the Jewish community, etc. Neither ECLA nor
the representative organisations were told about this document,
or enabled to consult about it, save for one meeting between ECLA
and government advisors where no drafts were made available. The
NMDC Advisory Committee was told about it, but no consultation
was made available.
43. On 17 February 2000 a further document
was published by DCMS announcing the establishment of the panel,
Sir David Hirst as Chairman, and setting out its draft terms of
reference. (Document 7[15]).
This document was made public without appropriate consultation
with the expert or representative organisations, including the
NMDC Advisory Committee, who were only informed of the document
at a meeting later the same day. A further meeting took place
on 14 March, where representations were made.
44. Both documents have raised serious concerns,
not only with regard to the lack of prior consultation with the
expert and representative bodies.
45. The most important concerns have regard
to the draft terms of reference. Three key issues emerge.
46. Firstly, the basis on which any claim
would be upheld has not yet been made clear. The applicable laws
must be decided and made public from the outset, if claimants
are to enter into this claims procedure and be sure that at least
the same opportunities of justice will be available as in the
courts. As set out above, in other countries a claim is upheld
where the works are accepted to be looted and unrestituted. General
principles of law prevail over other laws such as statutes of
limitations, good faith defences, etc. The Treasury Solicitor
has suggested that in Britain the Panel will be giving weight
to legal defences by the museums, such as limitations rules.
47. Secondly, restitution must be the key
purpose of the Panel and made available in all proven cases. The
draft terms of reference provide for four alternative remedies
where a claim is upheld, of which restitution is only one. One
of the four involves the putting up of a plaque alongside the
object with "an account of its history . . . and with special
reference to the claimant's interest therein". This would
be most inappropriate as a sole remedy. The Panel will be dealing
with property stolen from its owners. Restitution must be available
to all successful claimants, as in other countries, and as international
law sets out. Not to do so would prejudice the reconciliation
process a priori. Any subsequent disposal, such as a decision
to leave the work in the museum, as happened in the case of the
Pissarro above, should be a choice available to any successful
claimant.
48. Thirdly, the Panel has powers only to
recommend solutions to government. We believe therefore that government
must provide assurances from the outset that all legal impediments
to restitution will be removed.
49. Other concerns relate to the composition
of the Panel. Proposed members have been selected without consultation
with the expert and representative bodies. The opportunity for
ECLA and other representative bodies to propose members was only
made available after the draft terms of reference were published
on 17 February. It has also been suggested by the Minister that
the membership will include representatives of museums, who must
be considered interested parties and so debarred from deciding
on a claim. The Minister has also suggested that up to 10 panellists
might be called upon to adjudicate a claim. No more than three,
with a chairman, with the possibility of calling on expert advice,
should be necessary. The nature of these claims, and of the distress
such procedures evoke in families who have lost these items in
terrible circumstances, needs to be born in mind.
50. Claimants must have confidence that
in every way the Panel is neutral, fair and balanced, and that
it has such powers as may be necessary to achieve justice and
fairness. The rules and procedure must be transparent and accountable,
created through proper consultation. The Panel's objectivity and
independence must be beyond question. Otherwise claimants may
feel that they do not want to enter into a procedure which may
prejudice their purpose and in whose impartiality they have no
confidence.
51. In all cases, we are dealing with complex
legal and ethical issues surrounding culturally, historically
and materially valuable works of art, where there are conflicting
interests and where the ownership is in question. Society's judgement
and moral standards must be an integral part of the process of
claims determination.
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