Cultural Property, Looting and the Rules of War

[Peter H]

Of interest:

The Central Registry of information on Looted Cultural Property 1933-1945
http://www.lootedart.com/home

OSS (USS Office of Strategic Services) Art Looting Intelligence Unit (ALIU) Reports 1945-1946
http://www.lootedart.com/MVI3RM469661

[michael mills]

I will offer another version of the example I previously gave, so as to make the issue clearer.

Let us suppose that a German owns a painting of considerable market value. He falls into financial difficulties and needs to raise cash urgently. A Jewish neighbour offers to help him out by buying the painting at considerably less than its market value. The painting passes into the ownership of the Jewish neighbour, and the German receives the cash he needs.

A few years later, it is the mid 1930s. The Jew who bought the painting desperately wants to get out of Germany, and needs to sell his property and raise cash. A neighbour who is a Party big-wig offers to help out by buying the painting at considerably less than its market value. The picture passes into the ownership of the Nazi bigwig and the Jew escapes from Germany with the cash he needs.

A few years later, it is 1945. The Nazi bigwig is captured by a member of the US armed forces, who offers to let him go, no questions asked, if he signs the painting over to him. The picture passes into the ownership of the member of the US amred forces, who takes it back to his home.

Some years later, the former member of the US armed forces sells the painting to a museum for its full market value.

It is now the present, and the heirs of the Jew who sold the painting to the Nazi bigwig make a claim for restitution, on the basis that the sale of the painting to the Nazi bigwig was in fact an act of extortion, since the seller had been under extreme duress. Do those heirs have a legitimate claim to the painting? Is their right to the painting any more legitimate than that of the heirs of the original German owner? Or indeed of the heirs of the Nazi bigwig?

The above scenario is not fanciful. Quite of lot of claims for restitution of property sold by Jews who emigrated from National Socialist Germany have been based on the proposition that the sales were illegitimate and amounted to confiscation, since they were carried out under duress and the prices paid were far below true market value.

[michael mills]

Here is a very intesting piece of information:

However, restitution efforts initiated by German politicians have not been free of controversy either. As the German law for restitution applies to "cultural assets lost as a result of Nazi persecution, "which includes paintings that Jews who emigrated from Germany sold to support themselves[119], pretty much any trade involving Jews in that era is affected, and the benefit of the doubt is given to claimants. German leftist politicians Klaus Wowereit (SPD, mayor of Berlin) and Thomas Flierl (Linkspartei) were sued in 2006 for overly willing to give away the 1913 painting "Berliner Straßenszene" of expressionist Ernst Ludwig Kirchner which was in Berlin's Brücke Museum. On display in Cologne in 1937, it had been sold for 3.000 Reichsmark by a Jewish family residing in Switzerland to a German collector. This sum is considered by experts to have been well over the market price.[120]. The museum, which obtained the painting in 1980 after several ownership changes, could not prove that the family actually received the money. It was restituted[121] to the heiress of the former owners, and she had it auctioned off for $38.1 Million.[122]

Source: http://en.wikipedia.org/wiki/Looted_art

So it would appear that there can be a difference of opinion over whether a particular piece of cultural property has been looted or not. Nor are all the Jews who claim restitution of property the victims they appear to be; some are apparently hucksters.

[michael mills]

More information showing that this issue is a lot more complex than the rigidly legalistic approach taken by some:

http://www.spiegel.de/international/0,1 ... 75,00.html

http://www.spiegel.de/international/spi ... 36,00.html

[David Thompson]

Michael -- You wrote:

A few years later, it is the mid 1930s. The Jew who bought the painting desperately wants to get out of Germany, and needs to sell his property and raise cash. A neighbour who is a Party big-wig offers to help out by buying the painting at considerably less than its market value. The picture passes into the ownership of the Nazi bigwig and the Jew escapes from Germany with the cash he needs.

A few years later, it is 1945. The Nazi bigwig is captured by a member of the US armed forces, who offers to let him go, no questions asked, if he signs the painting over to him. The picture passes into the ownership of the member of the US amred forces, who takes it back to his home.

Some years later, the former member of the US armed forces sells the painting to a museum for its full market value.

It is now the present, and the heirs of the Jew who sold the painting to the Nazi bigwig make a claim for restitution, on the basis that the sale of the painting to the Nazi bigwig was in fact an act of extortion, since the seller had been under extreme duress. Do those heirs have a legitimate claim to the painting? Is their right to the painting any more legitimate than that of the heirs of the original German owner? Or indeed of the heirs of the Nazi bigwig?

Under your new and drastically revised scenario, recovery depends on whether or not the Jewish heirs can make out a case in court for extortion by the Nazi. The American who took the painting from the Nazi may or may not be a robber, depending on the circumstances. If there was no extortion of the Jew by the Nazi, the Nazi is a bona fide purchaser for value, and has good title to the painting. If there was no extortion of the Nazi by the American, the museum has title to the artwork. If the transfer by the Jew to the Nazi was coerced, or if the transfer by the Nazi to the American was coerced, all the museum has is a financial loss, to which we can add attorneys' fees. Caveat emptor (let the buyer beware), as they used to say in Rome.

As for this remark:

So it would appear that there can be a difference of opinion over whether a particular piece of cultural property has been looted or not. Nor are all the Jews who claim restitution of property the victims they appear to be; some are apparently hucksters.

I can only say that courts have their hucksters, as do internet forums. As our readers have doubtless noticed, not all of the hucksters are Jews.

[uberjude]

The story of the painting is apparently less clearcut than you suggest. According to this

http://www.artnet.com/magazineus/featur ... 1-7-06.asp

For her part, Halpin released a statement through her New York attorney, David J. Roland, citing an affidavit of Apr. 1, 1958, in which Tekla Hess stated that she was coerced by two Gestapo agents in 1936 to have paintings from her family collection returned to Germany from Switzerland. The statement also cites a 1961 interview of Hans Hess, the couple’s son, at the German Embassy in London. The son reportedly affirmed the Gestapo’s threat to his mother and said she had no choice but to sell the works, often at prices below their market value, in order to have funds to live.

But I like your hypothetical story. I think it's sweet that in your world, Nazi party bigwigs are so eager to "help out" their Jewish friends.

[michael mills]

Here is some more information from the article linked by Uberjude:

Was Kirchner’s Berlin Street Scene one of the paintings whose sale was coerced by the Gestapo? The evidence does not, in fact, prove that it was. What’s more, board members of the Brücke Museum point to various documents, including a letter written in 1953 by Tekla Hess to gallery owner Ferdinand Möller, which indicate that most of the works that had been sent back to Cologne from Switzerland were stored in the Cologne Art Association’s basement. If this is the case, the Brücke Museum board argues, coercion in the sale of these works seems unlikely. Had the Gestapo been interested in them, the board claimed at a press conference held at the museum last month, the works would have been confiscated as "degenerate" art instead of remaining in safe storage during the war.

The Tekla family has long been working to recover its art collection, which included 40 paintings and many more works on paper. A few years ago, the family claimed another Kirchner painting that had once been part of its collection, Potsdamer Platz, from the Neue Nationalgalerie in Berlin. However, a photograph was found showing the painting in the private home of an art collector in 1931, which was taken as proof that the work had actually been sold properly between private individuals without any undue Nazi influence. Therefore, the painting Potsdamer Platz was determined to be not subject to restitution.

Still another claim by the Teklas, concerning a work by August Macke, was rejected by the Swiss museum Kunsthaus Aargau in April 2006, after the museum determined that all the sales transactions regarding the work had been lawful and proper.

So it is clear that the current members of the Tekla family are hucksters out to make a buck. While it is true that not all hucksters are Jewish, in this case the hucksters are definitely exploiting their own jewishness and the alleged racial persecution of their parents in order to create a basis for their claims. But it is clear that some of their claims have been phony; some of the sales in respect of which the Tekla family has made claims for restitution were not the result of extortion, but rather unforced sales in which fair prices were paid.

Another element in this issue:

The recent wave of restitution claims -- issues of merit aside -- are clearly fueled by the booming art market and its hunger for fresh masterpieces, according to arguments made by Ludwig von Pufendorf, chairman of the Brücke Museum board, and Martin Roth, general director of the Dresden State Art Collections, both of whom anticipate losing still more works in the future.

Roth has said that he suspected that secondary players like lawyers and art dealers are the driving force behind many new restitution claims, since as specialists they understand both the law and the art market and the windfall profits that can result in such cases.

Others have cautioned against such speculations, however. Hanno Rauterberg wrote in the weekly newspaper Die Zeit that the assumption that moral issues are being instrumentalized for commercial gain only cater to anti-Semitic clichés. And Roth, too, despite his criticism of recent restitutions, admitted that the question remains sensitive. After all, he said, German museums have had plenty of time to initiate their own solutions to this problem by identifying works in their collections with ambiguous histories, tracking down their original owners and negotiating restitutions more to their liking. For artworks of a special significance, Roth said, German museums should establish a special fund to regularly acquire such restitution works.

The above shows the tactic often adopted in these sorts of cases; when a claim made by persons with a Jewish connection is subjected to criticism, the claim of "anti-Semitic cliches" is made.

And the final irony:

Adding to the irony of the case is the revelation that Anita Halpin is head of the Communist Party of Britain, and is on record as being opposed to both the state of Israel and inheritance. One argument in Germany even suggested that Fierl, a member of the East German communist party, may have been motivated to approve the restitution in order to "rob" a "capitalist" museum to help fund the movement!

So it would appear that in this case the hucksterism by a person of Jewish origin is not for personal gain, but rather motivated by political idealism. So there are certainly two "anti-Semitic cliches" involved here, one of the Jew as greedy money-grubber, the other of the Jew as a Communist conspirator. But in this case the cliches correspond to the observable facts; it is almost as if the person involved is acting out the cliches, in a sort of self-parody.

[uberjude]

I have no problem with saying that there are hucksters of all religions, creeds, etc, but that's irrelevant to the question at hand. I think it fair to say that most of the people here would agree with the statement:

People who weren't robbed are not entitled to restitution.

Now that we've gotten that out of the way, how about the people who were robbed?

Also, you offered a quote and said:

"he above shows the tactic often adopted in these sorts of cases; when a claim made by persons with a Jewish connection is subjected to criticism, the claim of "anti-Semitic cliches" is made."

Could you show me a source for this being a "tactic often adopted in these sorts of cases?"

[David Thompson]

At this point I think it's time to get back to the subject matter of the thread. We have wasted enough space on, and seen more than enough examples of, anti-semitic obsessions and hypotheticals designed to derail the discussion into monomaniacal tracts on cultural properties in "Jewish hands." This forum is dedicated to the study of history -- not abnormal psychology. There are many other victims of art looting practices, who seem to have been forgotten or deliberately overlooked in these rants. Further digressions will be deleted as off-topic impositions on the good sense and patience of our readers.

[michael mills]

Here is another interesting extract from the Wikipedia article on "Looted Art":

Another French general looted several pictures, including four Claudes and Rembrandt's Descent from the Cross, from the Landgrave of Hesse-Kassel in 1806. The stolen goods were later bought by the Empress Josephine and subsequently by the tsar. Since 1918, when the Bolshevik government signed a peace treaty with Germany and Austria have German negotiators demanded the return of the paintings. Russia refused to return the stolen goods, the pictures still remain in the Hermitage.[8]

So the Hermitage Museum in St Petersburg contains paintings that were originally "liberated" from a German princeling by French soldiers of Napoleon in 1806.

Let us suppose that the German invaders of the Soviet Union had captured the Hermitage, removed those paintings and transported them back to Germany, for display in a museum there.

How would that act be classified? Nazi looting of the cultural property of the Soviet people? Or restoration of the looted cultural property of the German people?

That example shows the complexity of this issue.

[michael mills]

Perhaps a distinction should be made between individuals stealing objects of cultural value for personal gain, and the appropriation of such objects held in one collection for the purpose of adding them to another collection for scientific purposes.

Rob-WSSOB has waxed indignant about German units such as the Sonderkommando Künsberg and the Einsatzstab Rosenberg wandering around Europe and the Soviet Union and confiscating various collections of objects of cultural value. But if those confiscations were for the purpose of creating a collection in Germany that could be used for scientific purposes, and in which the objects would on display for appreciation by the public, then one has to wonder at how much harm was done by the process, given that the purpose of such collections is to preserve cultural heritage.

Does it matter all that much whether a collection of gold artefacts from Troy is preserved and displayed in Berlin or in Moscow? I think not, so long as the artefacts are preserved and available for study and for our appreciation.

[michael mills]

Rob-WSSOB referred to the Leiber Convention which contained this clause:

36. If such works of art, libraries, collections, or instruments belonging to a hostile nation or government, can be removed without injury, the ruler of the conquering state or nation may order them to be seized and removed for the benefit of the said nation. The ultimate ownership is to be settled by the ensuing treaty of peace.

Surely that clause sanctioned the seizure by German forces of cultural property in the Soviet Union and in other countries and its removal to Germany. The only restriction is the injunction not to injure that property during removal.

Perhaps Rob could show us how the activities of German agencies such as the Sonderkommando Künsberg and the Einsatzstab Reichsleiter Rosenberg offended against that clause of the Leiber Convention. Perhaps they were not such naughty boys after all.

[bf109 emil]

But if those confiscations were for the purpose of creating a collection in Germany that could be used for scientific purposes, and in which the objects would on display for appreciation by the public, then one has to wonder at how much harm was done by the process, given that the purpose of such collections is to preserve cultural heritage.

Perhaps the key word is confiscated rather then donated...by this scenario would it be okay if German heritage or artifacts where likewise confiscated as long as they where shown or displayed in New York with the intention of preserving ones (German) heritage? I don't know as it seems the right for one to display ones heritage should be under control of the country whose heritage it is that is being preserved, not for the say or duty of another nation to display these items taken by force or confiscated against the wishes of their rightful owners.

Perhaps the biggest glitch is whether the items in question where collected through a sale or donation or by force!

[Peter H]

The bulk of the looted works,at least in Western Europe,was from private collections.

In France alone 20,000 art works,jewelry and other antique objects were stolen.

The more than 20,000 items looted came from 203 Jewish-owned collections,including the Rothschilds(5,009),Alphonse Kann(1,202),David-Weill(2,687),Levy de Benzion(989) and Seligmann Brothers,the art merchants(558).

Source: America and the Return of Nazi contraband: The Recovery of Europe's cultural Treasures Michael J. Kurtz,page 28.



Franz Graf Wolff Metternich,the head of the Wehrmacht Kunstschutz in 1940(later discharged),stated that the plundering damaged Germany's prestige and "denounced the seizures as violations of Article 46 of the Hague Conventions,which shielded private property from confiscation".( Prohibiting plunder:how norms change ,Wayne Sandholtz,page 142).

Article 46:
http://www.icrc.org/IHL.NSF/WebART/195- ... enDocument

Art. 46. Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.Private property cannot be confiscated

[henryk]

Germany does not make it easy to reclaim stolen art:
http://en.wikipedia.org/wiki/Nazi_plund ... uote]After the occupation of Poland by German and Soviet forces in September 1939, the Nazi and Stalinist regimes attempted to exterminate its population as well as culture.[3] The establishment of the General Government by the Nazis, which eventually included all Soviet-occupied areas, as a means to eventually convert Poland into a German province aided in this process.

Thousands of art objects were looted, as the Nazis systematically carried out a plan of looting prepared even before the start of hostilities. 25 museums and many other facilities were destroyed.[4] The total cost of Nazi theft and destruction of Polish art is estimated at 20 billion dollars, or an estimated 43% of Polish cultural heritage; over 516,000 individual art pieces were looted, including 2,800 paintings by European painters; 11,000 paintings by Polish painters; 1,400 sculptures; 75,000 manuscripts; 25,000 maps; 90,000 books, including over 20,000 printed before 1800; and hundreds of thousands of other items of artistic and historical value. Germany still has much Polish material looted during WWII. For decades there have been mostly futile negotiations between Poland and Germany concerning the return of the looted property.[5] [/quote]