RESTITUTION OF NAZI-LOOTED ART
AND THE “RIGHT TO A LEGAL POSITION”
by Henning Kahmann
originally published in Barbara Vogel (Ed.): Restitution von NS-Raubkunst heute und der “Anspruch auf eine Rechtslage”, Essen 2016.
Proceedings of a conference of the historical commission with the executive board of the Social Democratic Party in Hamburg on April 29, 2015.
Translation by Laurent Faasch-Ibrahim under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License.
Restitution of Nazi looted art today and the “Right to a Legal Status”
The subject of Nazi looted art will be illustrated using three typical examples drawn from practice. They show that the so-called “Rechtslage”, which can be translated as the ‘balance of rights’ or ‘legal position’ — in other words who is entitled to derive which claims and rights against whom and from what — often plays no more than a secondary role. For in the many cases where the works of art concerned are held by museums in the state sector, the question of who is the true owner of the work is often of less importance than the question of which political obligations the bodies responsible for the museums in Germany have committed themselves to. I should perhaps add that the body responsible for a museum (Museumsträger) is the one that operates it, e.g. one of the federal states. In most cases I have tried to keep things simple by referring just to a museum.
The first task is to define the subject of the efforts to achieve restitution, so-called Nazi looted art. This is followed by a brief introduction to the most important political appeals in this field. They set the standards typically used when solving cases such those described as examples. All of the cases take place in Germany, meaning that the spoliation took place in Germany and during the Nazi period. In each case the work has now been discovered in Germany. In the first example the work is found in a public museum in Germany, and the evidence is very clear. The second case is similar to the first, except we know much less. In the third case the work is found to be in the possession of a private individual, shortly before it is about to be auctioned.
Definition of “Nazi looted art”
Causal nature of Nazi persecution
The term “Nazi looted art“ (“NS-Raubkunst”) or simply “looted art” (“Raubkunst”) is used to describe works of art of which their owners were due to Nazi persecution. To put it another way: the owner must have been someone who was persecuted by the Nazis, for example someone who was Jewish. That person must have been deprived of ownership of a work of art‚ and his persecution must have been causative for that loss. In summary, one can speak of “art dispossessed as a consequence of Nazi persecution” (“NS-verfolgungsbedingt entzogene Kunst”). Causation is not just a legal category. One doesn’t have to be a lawyer to decide whether a work is looted art or not, indeed the task may perhaps be better tackled by historians. There are, however, some works of art which could perhaps put one in mind of looted art, but which are not looted art. A precise distinction has to be made.
What isn’t Nazi looted art
One often finds that the concept of looted art as used in press, radio and television reports and films is much broader. The assumption frequently made without any further analysis or discussion is that all the art which Nazi officials acquired for themselves or for the state must have been looted art. Media reports on the subject of looted art often include pictures showing, for example, American soldiers like the “Monuments Men” standing around in big art depots in baroque churches or mines. The information stated in the caption or suggested by the context is: all this was looted by the Nazis. Yet most of the artworks deposited in those repositories were works which had belonged to their state or private sector owners since long before 1933, in other words art that had not been looted.
And turning to works of art which were acquired by Nazi officials, the simple fact that a work is the possession of an art thief does not in itself mean that he stole it. Nazi officials did acquire works of art from people who were not Jews. Where Nazi officials bought art from non-persecutees, there was often no coercion involved. I leave it up to the historians to investigate whether this might not have been what happened in most cases. However, where a Nazi official bought art from a non-persecutee there are still some cases where one can make an exception and speak of looted art, namely in situations where the previous acquirer of the work obtained it from a Nazi persecutee during the period of Nazi rule.[A] Even so-called “degenerate art” is something completely different from Nazi looted art. In this case it was the German state that caused injury to itself by removing works of art from its own collections, usually to sell them but in some cases to destroy them. Although seen in terms of the hierarchy and structure of state institutions this may have made the museums into victims of other state institutions, the public museums were and remain part of the “perpetrator state”. They were not persecuted. The position German state museums have as victims cannot be compared with the position which Nazi persecutees, such as Jews, have as victims. Although where the state forced private individuals or entities to hand over such works of “degenerate art” one can speak of forced loss and of those private parties being in the position of victims, this does not make the works into Nazi looted art. The problems arising in that context belong elsewhere.
Example 1: A work of art assigned to a museum by the Gestapo in 1940
A Jewish lady fled in 1940 to avoid being arrested by the Gestapo. She left her household effects behind in the apartment, among them a work of art. The Gestapo confiscated the goods. They showed the work to an art expert at the Devisenstelle (foreign exchange unit attached to the tax authorities). In most cases the expert appointed was a director of a major regional museum. At the time in question the expert in Hamburg was the acting director of the Hamburger Kunsthalle, Werner Kloos. The art expert was of the opinion that the work was worthy of a museum. The Gestapo then transferred the work to the state museum. The museum paid a certain amount to the Devisenstelle. The work survived the war in the custody of the museum. It has now been found there. The question which a lawyer would typically ask is: What is the legal position? In this case the question is: What is the restitution practice?
Where a case is as clear cut as this one, it may be assumed that any state museum in Germany would return the work to the Nazi persecutees or their successors. The key question in a case like this is not whom a work belongs to or who has a claim to restitution, for quite apart from the question of ownership, these days public museums in Germany are willing to return such works or to pay financial compensation for them. This is usually done by entering into an agreement with the persecutees’ heirs or successors. A legal position shaped by agreement does after all have precedence over the legal position as shaped by statute. Most of the federal states in Germany have also amended their budgetary laws explicitly so as to allow such agreements to be concluded.
Political appeals as framework conditions
Washington Principles of 1998
The typical practice described above follows on from a political appeal. In 1998 a number of countries, including Germany, met in Washington for a conference on the subject of Nazi-confiscated art. As finding a legislative solution to suit each of the participating countries would have been impossible, the explicit decision was made to agree on “non-binding principles”, in other words on a political appeal. It was addressed to the 44 participating states as well as to private individuals. Most of the eleven principles adopted by the Washington Conference concern the procurement and dissemination of information about the current fate of works of art. The most important principle is an appeal, calling for steps to be taken in case of looted art so as to “achieve a just and fair solution”. The states gathered in Washington called upon one another to develop national processes to implement the principles.
Joint Declaration of 1999
To this end the German federal government, the federal states and the national associations of local authorities adopted a Joint Declaration in 1999 (Gemeinsame Erklärung). It shows what a “just and fair” solution to issues of looted art means in the eyes of German state actors: in principle that works held by the state should be restituted. The driving force at the time was a Social Democrat, Michael Naumann in his role as Secretary of State for Culture. At the initiative of the state of Hamburg, the German parliament’s upper chamber, the Bundesrat confirmed the Joint Declaration in March 2014. The Bundesrat also assigned the Federal Government the task of reviewing whether there was a need for legislative changes der legal position. The Federal Government has still not expressed an opinion on the question of whether the successors to persecutees have a right to claim an (improved) legal position.
Guidelines of February 2001
In February 2001, the authors of the Joint Declaration and some public sector cultural foundations agreed on the so-called Guidelines (Handreichung). These can be described as recommendations for implementing the Common Declaration of 1999 and thus the Washington Principles of 1998.
By agreeing to the documents mentioned above the German state committed itself to compliance with the political obligations they contain at all levels of the state. This means that in a situation such as that in Example 1, a state sector museum would typically restitute the work of art. After all, the reason the Jewish lady was deprived of her property was that she was persecuted by the state. The value judgement behind this approach is: the German state has no right to a work of that kind.
Example 2: A work of art purchased by a state museum in July 1935
In the second case, a Jewish banker sold a work of art to a state museum in July 1935. The purchase price is known. The picture has now been found in a state museum. Again, the question is: What is the restitution practice? Typically, a state sector museum would restitute a work of that kind.
The most important of the preconditions for restitution which museums apply in practice, is that it must have been Nazi persecution that caused the loss of the artwork. The factual background information available is not in itself enough to allow one to judge whether the persecution of the banker during the Nazi era caused the sale. In some cases better information is quite simply not available. In theory there might have been other reasons for the sale, such as a need for funds due to poor business or quite simply a wish to use the proceeds to buy something else.
This is the point at which one of the Washington Principles comes into play. It requires that when considering the evidence to prove that a particular work is looted art, account must be taken of the fact that there are gaps in the knowledge available today. The German federation, federal states, municipalities and major cultural foundations have found a solution in the Guidelines. When examining restitution claims, the museums should abide by the “guiding principles of post-war restitution policy”. Among the most important elements of post-war restitution policy were Art. 3 of the Berlin Restitution Decree issued by the Western powers in 1949 and the almost identically worded provisions in the Western zones of occupation, according to which where a sale by a Nazi persecutee took place in the period between 1933 and 1945 there is a presumption that Nazi persecution was the cause of the sale. This presumption reverses the burden of proof. For this reason it is up to the acquirer to prove that the Nazi persecutee was not coerced into selling. If the acquirer cannot do that, he must restitute.
Nevertheless, the Western powers did recognize that there were also cases of “entirely normal” transactions between persecutees and non-persecutees. Although the statutory presumption can thus be rebutted, the acquirer cannot do so by putting any old argument. In order to refute the presumption that Nazi persecution of the seller was causative for deprivation of the work, the person in possession must prove that the seller
- received a fair purchase price and
- was free to dispose of the purchase price.
In connection with the statutory presumption it is important to note: the question of whether the acquirer’s actions were immoral is irrelevant. Restitution does not bring with it any accusation of fault on the part of the acquirer.
In the case of Example 2, the presumption cannot be successfully rebutted. As the museums usually abide by the Guidelines, the picture would be restituted. For all we know is how high the purchase price was. We do not know whether the purchase price was fair or whether the picture was worth more than was paid.
Even if the museum were able to demonstrate that the price it agreed with the Jewish banker at the time was fair, that would not be enough to justify keeping the work. The museum must also show that the persecutee actually received the money and was free to dispose of it. What often happened was that although the buyer did pay the money, the seller was forced to use it to pay discriminatory taxes and charges. We do not know whether the seller received the money and was free to dispose of it; this too constitutes grounds for restitution.
At this point it is important not to allow the impression to arise that the statutory presumption makes the restitution of works of art from German museums a simple task. One must first reach the stage where the matter falls within the scope of the statutory presumption. The path which anyone seeking restitution of a work of art must tread before achieving that is long and stony.
“Just and fair”?
Is such a distribution of the burden of proof “just and fair”? It makes it very hard for a museum to keep a work if it acquired it from a Nazi persecutee. The statutory presumption will result in restitution, even where there are clues suggesting that in the specific case concerned the persecutee did not sell because of persecution. Such clues are not taken into consideration. Under the Guidelines, the person in possession of a picture may only keep it if he can show that the persecutee did receive and was free to dispose of a fair purchase price (and thus did not suffer any direct economic loss from the transaction). Some museum professionals perceive this as unduly harsh and an excessive indemnification (Wiedergutmachung) in situations where one does not really know whether the Nazi persecutee did actually suffer loss or damage in the specific case in question.
However, in the absence of the statutory presumption, there would have been many cases of spoliation where indemnification would never have occurred even soon after the war ended. The German term used for indemnification “Wiedergutmachung” (literally “making good again”) is — like the term looted art — imprecise. In practice it is used as an umbrella term referring both to restitution (Restitution) and compensation (Entschädigung). It is not meant to suggest that the injustices committed in the Nazi era can be undone. After the war the cases where it was possible to provide evidence proving that Nazi persecution was the cause for the sale of a particular work of art were the exception. Thus, in the absence of the statutory presumption, there would have been no indemnification in the majority of cases. As the evidence shows that from the very outset the persecution by the state and the Nazi Party was targeted at the economic foundations of the Jewish population, i.e. that it was a typical cause for dispossession, the normal distribution of the burden of proof would also have been unjust.
The Western Allies thus had to decide to whom to allocate the risk of hardships: the Nazi persecutees or the acquirers. They decided that if in doubt it was reasonable for hardships to be borne by the acquirers. In my view, the decision they made at the time was the right one. It is also just for this rule to still apply today in the field of art restitution. This is all the more true where the work of art is currently located in a state sector museum. It is reasonable to expect the “perpetrator state” to bear the risk of hardships in connection with indemnifying or providing redress (Wiedergutmachung) for the injustices it itself committed.
The Behrens-Recommendation by the Limbach Commission
In February 2015 the Limbach Commission issued its recommendation in the Behrens case. I have modeled Example 2 on this case. The Limbach Commission is a group of very distinguished individuals, a kind of “committee of Wise Men and Women” chaired by the Social Democrat and former President of the Federal Constitutional Court Jutta Limbach, which may be called upon in disputes about Nazi looted art and which issues non-binding recommendations. The establishment of the Commission can be traced back to one of the Washington Principles. There are many other cases where the Limbach Commission has done excellent work. But not in this case. In its recommendation in the Behrens case the Limbach Commission failed to take account of the statutory “fair and just” presumption. I should perhaps add, this is not a case which was handled by my firm.
The situation was approximately the same as that outlined above in Example 2: The Hamburg banker Mr. Behrens — deemed to be a Jew under Nazi regulations — sold a work of art to the City of Düsseldorf or to a Düsseldorf gallery, probably in July 1935. The purchase price is known. The work is currently in a museum in Düsseldorf.
The Limbach Commission expressed the view that in July 1935 Jewish bankers had not yet become subject to collective persecution, and that persecutory measures against Behrens individually were not apparent. It held that this in itself meant that Nazi persecution could not be regarded as having been the cause of loss. The Commission also decided that the burden of proving the fairness of the purchase price lay with the Behrens heirs. In addition to that the recommendation ignored the circumstance that the City of Düsseldorf cannot prove that the money was received by Behrens and that he actually was free to dispose of it.
There is reason to doubt whether the Limbach Commission is entitled to depart from the standards recommended by the authors of the Guidelines for resolving cases relating to looted art, which have applied and been put into practice for about 15 years now. Given that the recommendation by the Limbach Commission contains a number of obvious mistakes  in its description of the historical facts it may be assumed that this is a one-off lapse which will not be taken as a model to be repeated.
Example 3: As in Example 2, but found in the possession of a private individual
In the third and last example, the situation is similar to that in Example 2. However, this time the buyer was not the state but a private individual. We do not know whether he undertook any acts of persecution himself. The private individual bequeaths the work to his heirs. The heirs then take it to an auction house to put it up for auction. The heirs of the Nazi persecutees discover the work in the auction catalog and claim that they are entitled to some kind of indemnification (Wiedergutmachung).
What is the restitution practice in such cases? There are two typical solutions to the case.
The picture disappears again
One typical outcome is for the auctioneer to remove the picture from the auction list, return it to the consignor and to refuse to provide any further information about the work or the consignor. Even if one does know who consigned the picture to the auction house, a right to recover possession would apply only in very exceptional circumstances. In most cases the consignor can simply hang the picture back on his living room wall and keep it. The Washington Principles or the Joint Declaration do not help. Although the political appeal is addressed to private individuals as well, it is up to them to decide whether to follow it or not. The result is a stalemate, unsatisfactory for all sides.
At least the work cannot be sold at auction. That is not because of a ban on selling it, it is down to the market. A suspicion that a work is looted art results in many people being unwilling to buy it, at least not at its true value. In this respect help comes from the German Lost Art Foundation (Deutsche Stiftung Kulturgutverluste) and its Lost Art Database which registers and publicly documents looted art and suspected cases of looted art at www.lostart.de. Without this documentation it would still be possible to realize the full value of such works of art, simply because nobody would know that the work concerned has a problematic — and price-reducing— provenance. It should be added that until recently it was uncertain whether the Register would be able to continue performing its task of documenting (undisputed and disputed) cases of looted art and suspected looted art. It was only on February 19, 2015, that the Federal Administrative Court ruled that the Lost Art Register is allowed to perform this task even though its activity is not regulated by statute.
There is another typical outcome which is more satisfying. The acquirer’s heirs and the Nazi persecutee’s heirs reach an agreement, thus creating legal certainty (Rechtsfrieden).
The Nazi persecutee’s heirs give their consent to the sale and as a precautionary measure waive all rights to the work which they might still be entitled to claim. Such consent has the effect of bringing the work back into circulation. In some ways it can be said to regain its true value. And because nobody can force the Nazi persecutees to do the consignor a favor, the parties will agree that the Nazi persecutees are to receive a share in the proceeds of the sale. The amount of the share agreed between the parties will depend on a variety of factors, among them the available evidence. In such cases the persecutees’ heirs do at least have some help from the market and the state-run Lost Art Register, where the person currently in possession of the work tries to convert it into cash.
Conclusion regarding restitution practice
In the cases outlined here, the solution does not depend primarily on the legal position, i.e. on the examination of the question of who is the owner of the work. The political obligations requiring state actors to restitute voluntarily by entering into an agreement and the reduced marketability of looted art are more important factors than a statutory right to recover possession. There is a more or less functioning system for dealing with works of art lost to their owners because of Nazi persecution. In many cases it leads to “fair and just” solutions. In this restitution practice the position which the heirs to Nazi persecutees have vis-a-vis private possessors of a work is weaker than they have against the state actor responsible for a museum. Arguments can be made in favor of this difference. The “perpetrator state” bears a greater burden of responsibility towards its former victims and their successors than do the successors to private sector acquirers, who will generally not have carried out any persecutory measures themselves. This is not to say that no improvements can be made in this area. There are, for example, cases in which the state provides private collectors with grants so they can operate museums for their collections. A strong argument can be made that continued subsidies of that kind should be made conditional on the private collectors compliance with the Washington Declaration and the German declarations implementing it. The system which has developed since the Washington Principles ultimately also depends on a political consensus such as that expressed in the Joint Declaration of 1999. In recent times the number of voices deviating from that consensus has grown. Against this background the Hamburg Initiative to Confirm the Joint Declaration has made a contribution towards achieving just and fair solutions.
Conclusion regarding the “Right to a legal position”
The question of whether and if so which legislative changes are needed is a very difficult one. It might be that there is nothing more one can do through legislation, perhaps even in the majority of cases and at least where the art is in the hands of private individuals. In this respect I am to be frank uncertain whether this a field in which the state ought to legislate. In addition to that the political question arises as to whether the state can introduce stricter liability for the private sector, while still not complying with the duties it has set itself and failing to ensure that these standards are observed at least by all state sector actors. A more urgent objective and one which would be easier to achieve than a new law would be to make sure that the Washington Principles are implemented at least by the museums in the state sector. The first step would be to ensure that state museums do not simply ignore the Guidelines (and the Washington Principles they implement). Having said that, I have not yet arrived at the end of my deliberations on whether one ought to introduce such a duty by legislative means. On the one hand the notion of providing a persecutee’s successors with a claim at least against the state giving them the genuine right to an official decision made in accordance with the “guiding principles of post-war restitution policy” as referred to in the Guidelines, is certainly attractive. On the other hand: finding the right wording, and doing so in a way that ensures that the opponents of the practice to date do not manage to legislate tougher standards, would presumably be difficult. The demand for such a law would thus bring with it a number of risks.[B] Another argument that could also be made against legislative changes is that it would presumably eat up a great deal of political and administrative capital, the absence of which would be felt elsewhere where there a lack of solutions to specific problems, e.g. in connection with making information generally available. It appears to me that the debates about whether to tighten the standards applying to the private sector, for example by means of changes in the law governing prescription, are a case in point where such capital is used up, and not in a particularly efficient way. Thus, I have to admit that I have not quite managed to do justice to the topic I set myself. Although I have been able to describe the way in which “restitution today” takes place, I have had to leave open the question of whether there is a “right to legal position”, i.e. a political claim to an improvement in the legal situation. The first step in that direction would be for someone to develop a well thought through and comprehensive legislative concept and to place their political weight behind it to make a convincing case. Were that to happen, the prospects offered by the legislative process would probably outweigh its risks. Sadly, there is no such concept on the horizon so far.
Need for action: Documentation of suspected cases
Although it may be that a concept of that kind is nascent, even in the present legal position improvements can be imagined as regards compliance with the political obligations under the Washington Declaration, more specifically in the field of information. The circumstance that the “perpetrator state’s” own state museums have not yet publicly documented on the Internet all the works where suspicions exist, i.e. all the works where one cannot rule out the possibility that they changed hands during the period of Nazi rule in Europe, flies in the face of the Washington Declaration duty to collect and publish information. Ideally this should be done together with the information available about the provenance of the works. This is an approach which has already been adopted by some museums, albeit too few.
The proposal applies to all cases where there is an abstract suspicion. Only if the abstract cases are made public will it become possible for the persecutees’ heirs to compare the works of art concerned with their own information about lost art. Where this allows an abstract suspicion to become more definite, the provenance researchers can then focus their efforts on the relevant object. This might (in some cases) perhaps even result in the discovery of genuine cases of Nazi looted art. This would also be in line with the interests of the museums themselves. The longer their documentation shows them to have held a work, the more certain they can be that there are no issues with its provenance.
Many museums content themselves with only publicizing the cases where there is a specific suspicion of looted art, i.e. where there are indications not only of a change of ownership during the Nazi period but also that the change was involuntary. The great disadvantage here is that the museum concerned must first conduct intensive and expensive research. The museums are hardly ever given sufficient resources to carefully check all the works they hold. Even in the case of the Gurlitt Collection, which is relatively small when compared with the holdings of the state sector, it will take years before the provenance of each work has been properly researched. This method is indeed particularly prone to mistakes, as it is often impossible to tie in the knowledge of those deprived of the works with the knowledge held by the museums and as the research options available to the formerly persecuted families— and their lawyers and research staff — remain unused to a large extent. Furthermore, the current method could also result in the subject of “indemnification” (Wiedergutmachung) being postponed forever. For all these reasons, the attempts made by the museums and the allocation of subsidies should be focused more on providing funding for such documentation work.
There are examples in other countries illustrating how my proposal can be implemented. The Netherlands has a state-run website which lists cases where there are abstract suspicions together with brief summaries of the results of research conducted over a deliberately limited period. It documents art in the Nederlands Kunstbezit-Collectie and describes around 4,000 works, which German state and private actors acquired (in most cases bought) from Dutch collections during the occupation of the Netherlands. Since 1999 the National Gallery in London has publicly documented all 120 works in its holdings where there is an abstract suspicion that they might be looted art. It should be noted that these two examples suggest both, that the heirs of former Nazi persecutees should not get their hopes up too high, and that the museums have no need to be too anxious about the fate of the works in their collections. Between 2001 and the end of 2014 the Dutch database and its 4,000 or so cases of suspicion provided the starting point for 130 requests for restitutions, most of which related to more than one work. In the 116 recommendations made, 61 requests were approved in full, 38 requests were completely denied. In 18 cases the applicants met with partial success. Of the cases of suspicion which the National Gallery has documented over more than 15 years none have yet been claimed by a formerly persecuted family. Regardless of the question of the degree of success or failure — depending on ones perspective— the digital documentation of cases of suspected looted art might bring to those involved in issues of restitution: Seen from the standpoint of an art historian it would be a great gain if the Washington Principles were to result as a by-product in much more information about the works and their provenance becoming available for use by all. That in itself would be well worth the effort.