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Art Pot x Law Review: Artistic Debates Surrounding Repatriating WWII art

This article is part of a series of exciting collaborative work with St Andrews Law Review. Head over to their site to read the second half of this exciting and informative history.

https://www.standrewslawreview.com/articles


Nazi-Looted Art, its Restitution, and the Obstacles — from an historical and art historical perspective

Written by: Haomin Li


Restitution (n.) - the restoration of something lost or stolen to its proper owner

The issue of restitution has become increasingly important in the present-day art world, with almost all major players — public museums, auction houses, and private collectors — profoundly involved in restitution movements and their implications in recent time.


Within the surging restitution movements of recent decades, restitution of art stolen by the NSADP (Nationalsozialistische Deutsche Arbeiterpartei, or more commonly known as the Nazi Party) was perhaps the gravest problem in that, essentially, the quantity of stolen and confiscated art is inconceivably gargantuan and that those surviving artworks more often than not have changed hands numerous times on a global scale.


Adolf Hitler, the notorious leader of the Nazi Party and later the Third Reich, was heavily involved in the arts, especially the fine arts. Hitler himself was an ardent architecture aficionado and a rather unsuccessful landscape painter. As Peter Paret pointed out in his book, An Artist against the Third Reich: Ernst Barlach, 1933-1938, “Hitler’s interest in the arts, far from being a marginal luxury he permitted himself, touched the core of his politics.” Immensely influenced by Hitler, the Nazi Party politicised aesthetic issues to an unparalleled extent in modern history — as a matter of fact, the first official building the Nazis erected in Germany was the Haus der Deutschen Kunst (House of German Art).


Haus der Deutschen Kunst


Art confiscated and stolen by the Nazis from 1933 to 1945 can be approximately classified into two categories: (i) the entartete Kunst (“degenerate” art), which includes the Modernist artworks of Impressionism to Expressionism, and (ii) the große Deutsche Kunst (“great German art”), which mainly includes the Old Master paintings and sculptures together with the Academicist paintings and sculptures of the nineteenth century.


Nazi Officials at the Degenerate Art Exhibition


Hitler’s utter abhorrence of Modernist artworks is well-known to everyone who is familiar with the content of Mein Kampf. The Nazi Party, accordingly, sought to omit what we now know as the Avant-Garde from the history of modern art. Immediately after the Nazi Party came into power, artworks falling under the category of entartete Kunst were systematically confiscated by the Nazis from public museums to “purify” German art and culture. The 1930s was surely an extremely harsh and wicked time for German Modernist art and German Avant-Garde artists. In 1937 alone, there were more than 16,000 examples of Modernist art deemed “degenerate” and confiscated by a committee led by Adolf Ziegler and empowered by Joseph Göbbels, the Reichsminister für Volksaufklärung und Propaganda (Reich Minister for public Enlightenment and Propaganda). In the summer of 1937, some of these Modernist artworks (created after 1910) were displayed and publicly humiliated at the Entartete Kunst (“Degenerate” Art) Exhibition; before and during the Second World War, some of these Modernist artworks were “fenced off ” for hard currency at auction houses in Switzerland; finally, the rest of these confiscated artworks, which Göbbels infamously called “dregs”, were simply destroyed. Throughout the Second World War, the Nazis continued their plunder of art, extending their claws to the private collectors. If some of these collectors were of Jewish descent, not only would their art be confiscated, but they would also be sent to concentration camps, and a considerable number of these Jewish art owners eventually perished during the War.


Führermuseum’s model


Abhorring Modernist art, Hitler and his Nazi Party attempted to promote Academicist genre painting, the most recent achievement in a continuum of German art, as Third Reich’s accepted mainstream art form. Hitler and his Nazi regime also favoured the idyllic, heroic, historical-patriotic, and allegorical paintings of the nineteenth century, claiming that these paintings are representative of the “truly German” arts. To illustrate the Nazi Party’s “purified” version of the history of art, the Nazi Party continued to seek and plunder Old Master paintings and sculptures across the occupied Europe, ultimately to display these “truly German” arts in Hitler’s ambitious, aggressive, and culturally Chauvinist project — the Führermuseum (Fuhrer’s Museum), a fine arts gallery that was planned to be established in Linz, Austria to become the new cultural centre in a Nazi-occupied Europe. This category of Nazi-looted artworks was comprised mostly of an array of bought and looted French and Italian Old Master masterpieces and 19th Century Austrian and German artworks approved by the devil Hitler himself and the high-ranking Nazi officials, and this category most famously includes Michelangelo Buonarroti’s only marble sculpture outside of Italy, Madonna of Bruges (1501-4), the van Eyck brothers’ “Ghent Altarpiece” (1430-2), and Jan Vermeer’s The Astronomer (c.1668), a painting that was rumoured to have been planned to be burned along with Hitler in his Führerbunker (Fuhrer’s Bunker) in 1945 when Nazi Germany was defeated. Führermuseum as such an ambitious Nazi cultural project to amass Europe’s finest traditional artworks could explicitly demonstrate the extent to which the Nazis were interfering in and taking control over Germany’s arts, culture, and its history of art.


Hitler and Göbbels in front of a Nazi-looted painting


The Nazis have, en masse, stolen approximately 600,000 artworks from both public museums and private collections during the period of 1933 to 1945. If including other collectibles (rare books, stamps, coins, etc.), the figure would rise staggeringly from a “mere” 600,000 to the millions. According to official statistics and records obtained from the Nuremberg trials, it cost the Nazis 29,984 railroad cars to haul all these confiscated, stolen, looted artworks and collectibles from countries like Italy and France back to Nazi Germany. Besides the quantity, the total value of the plundered art was so astounding that it exceeded total value of all art in the United States in 1945. The total value of these artworks is estimated to be $2.5 billion at 1945 price, the present-day equivalent of which is an astounding $20.5 billion. If this number is too large to have a good grasp, here is a comparison — $20.5 billion takes up almost a third of the sales value in the global art market in 2019. The Nazi confiscation program was the greatest and gravest ever displacement of art and cultural objects in the entire history of humanity.


“The Monuments Men” with recovered paintings


Besides the gigantic quantity of Nazi-stolen art, the transactional circulations of these artworks have been extremely complex as well, contributing to the currently extremely complicated ownership situation, especially after seventy five years when the majority of the original rightful owners have passed away and a considerable portion of these plundered artworks have already changed hands, many more than once. Even during the height of the War, art dealers based in Europe and even in the United States were actively involved in the transactions of Nazi-looted art. Within Europe, Hermann Göring traded the Modernist artworks despised in Nazi Germany for the much more coveted Old Master art. On a larger global scale, from neutral states such as Switzerland, Spain, and Portugal, many of the looted artworks went on a mass exodus to the wider world with their new possessors. This widespread trade in looted art during the Second World War was theoretically not illegal; however, it was decidedly collaborationist. This massive scale of trading of Nazi-plundered artworks led to the very intricate situation regarding provenance (or transaction histories) in the present days — some of these plundered and then fenced artworks would resurface in absolutely surprising places such as Jerusalem and Kyoto.


There were even some artworks, most likely Modernist and Avant-Garde, that did not survive to the stage of transactions. These artworks heartbreakingly perished in some not so obscure backyards when the Nazis burned piles after piles of works by Modernist Avant-Garde artists including Pablo Picasso, Paul Klee, Max Ernst, etc.. In a single public burning of art in 1939, 1,004 paintings and 3,825 watercolours, drawings, prints were burned to ashes…


Towards the very end of the Second World War, the Nazis were no longer the sole perpetrator. Joseph Stalin created the “trophy brigades” approaching the end of the War, and, adding to the millions of collectibles stolen by the Nazis, the Soviet “trophy brigades” transported more than one million cultural objects as war booties and “compensations to the Russian people” back to the Soviet Union between 1944 and 1947. Tens of thousands of artworks simply vanished into a Soviet “black hole” at the conclusion of the war. In spite of the fact that Stalin’s Soviet Russia did arguably save Europe from the devilish grip of Hitler’s Nazi Germany, the plundering of artworks can never be justified.


All these afore mentioned historical and art historical factors contribute, to different but equally significant extent, to the harsh contemporary status quo of restitution of stolen art during the Second World War. Immediately after the War, tremendous progress has been made — 60,000 artworks were returned to the Republic of France, with 45,000 returned to their Jewish owners or their rightful heirs. In recent years, after the issue of Nazi-stolen art came in the limelight of the art world, more than 2,000 artworks have been returned to their rightful owners around the world without litigation. Facing Nazi-stolen art restitution in today’s world are yet some more commercial and legal challenges, obstacles, and dilemmas, but fortunately, the art world has been changing, adapting, and evolving into a much fairer place than before.


Public collections did not have enough funding or resources to carry out thorough due diligence, so lots of these artworks with problematic provenance and title were, in fact, quietly sitting in a museum storage and even on public display. Some of the world’s most well-known and prestigious museums, including the Metropolitan Museum in New York City and National Gallery in London, cannot even avoid such incidents as discovering the possession of a “problematic” artwork in their incredulously enormous collections. Rather counterintuitive it might seem, the fact that no major institution is able to steer clear from the issue of owning works with disreputable provenance is probably because they own gigantic collections, and quite simply because of the sheer multitude of artworks stolen and then fenced during the Second World War. Presently, very fortunately with the aid of increasingly convenient and comprehensive online looted art databases such as lootedart.com, public museums and institutions have taken the initiative to carry out much more careful and thorough due diligence and provenance check to tackle the problem of improper possession of stolen artworks.


Another obstacle to the cause of art restitution comes from the global art market. For all major stakeholders in this increasingly vibrant market, they would like the issue of stolen art restitution to be cautiously and conservatively tackled. According to these stakeholders and some economists, a large-scale return of these World War II-looted art could disrupt the global supply and demand of modern art, especially for the sub-market of French Impressionist paintings, which were, during the War, a favourite target of the Nazi looters.


Within the art market, there is this persisting mode of operation — “if you (the clients) pose no questions, and I (the vendors) will tell you no lies”. Before very recent time, around the mid-1990s when the Holocaust restitution campaign initially commenced, there was little to no proper or thorough provenance check or due diligence in the art market. The art market was also an extremely opaque world back then, and the art business has always been careful dealing with issues entailing clientele privacy, so the logic shared by all — the art consignors, the art vendors (i.e. art dealers, commercial galleries, auction houses), and the art purchasers — was quite naturally “the fewer questions asked, the better”. In such an opaque market, it is never legally obligatory for the consignor of an artwork to disclose and provide the auction houses with the full provenance of this specific work. Therefore, in the decades after the War there have been countless artworks with dubious background and possession status changing hands without any difficulties through the private and opaque art market mechanisms, and some have even been transacted through major international auction houses. Nowadays, auction houses, especially those based in major art business hubs (e.g. New York City, London, etc.), are taking more precautions than ever regarding the handling of dubious or outright stolen property.


Currently in countries abiding by the ancient English legal maxim “nemo dat quod” (“you cannot give what you do not have”), such as the United Kingdom and the United States, one could only own an artwork properly if and only if the previous owner from whom they have purchased the artwork had a clear title to the artwork. In the UK and the US, a good-faith purchase of a stolen artwork is not exactly a valid pretext; in continental European countries like Switzerland, however, a good-faith purchaser can obtain clear title to the stolen property after five years of purchasing and possessing the work. This creates an ethical dilemma for restituting stolen artworks: should society give those good-faith purchasers the nod to properly own the artworks, or should society pressures those good-faith purchasers, who have absolutely no knowledge or suspicion of their controversial heritage, into giving up “their” property?


At the end of this article, an opinion about this ethical dilemma eloquently put forth by one commentator is endorsed. “Nazi-looted art is no Elgin Marbles controversy. The Nazis weren’t simply out to enrich themselves. Their looting was part of the Final Solution. This gives these works of art a unique resonance. The objects are symbols of a terrible crime; recovering them is an equally symbolic form of justice.”



References:


Barron, Stephanie. Degenerate Art: The Fate of the Avant-Garde in Nazi Germany (Los Angeles: Los Angeles County Museum of Art, 1991), 6-22.


Bazyler, Michael J.. “Litigating Holocaust Looted Art”, Holocaust Justice (New York: NYU Press, 2003), 202-268.


Bullock, Alan. Hitler and Stalin: Parallel Lives (New York: Knopf, 1991), 383–84. Fletcher, Gareth. Lectures (London: Sotheby’s Institute of Art, 2019).


Paret, Peter. An Artist against the Third Reich: Ernst Barlach, 1933-1938 (Cambridge; New York: Cambridge University Press, 2003), 6-32, 127-131, 185.


Sutton, Benjamin. “What You Need to Know from the Art Market 2020 Report”, Artsy Editorial. https://www.artsy.net/article/artsy-editorial-art-market-2020-report



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