The Jerusalem Post Internet Edition <http://www.jpost.com/> 

Metro Views: Restitution roulette

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, THE JERUSALEM POST    Jan. 5, 2008   
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It's been a decade since the art world was thrown into a tizzy about Nazi-looted art. It began when an exhibition of artworks by Egon Schiele was just about to close at the Museum of Modern Art (MoMA) in New York.

Two families claimed that two artworks, on loan from the Leopold Foundation in Vienna, had once belonged to Austrian Nazi victims.

MoMA told the families that it was obliged to return the paintings to the Leopold Foundation. Manhattan District Attorney Robert M. Morgenthau stepped in, turning two families' claims into an international incident when he issued a subpoena on January 7, 1998, to detain the paintings until ownership could be resolved.

It was a dramatic, if largely unpopular, move. The Wall Street Journal, for instance, said the DA had taken "momentary leave of his senses." But he got everyone's attention. International conferences were organized, while some nations - notably Austria - began to review the Nazi-era history of paintings in their museums.

In New York, the museums seemed less concerned about the origins of artworks than whether Manhattan would lose its status as an international cultural venue. Morgenthau's actions, they feared, would cause museums abroad to stop lending art to New York exhibitions. There is no evidence, however, that foreign lending has diminished to any appreciable extent in the last 10 years.

If museums' fears did not materialize, neither did most Nazi victims' dreams about recovering family paintings.

EVENTS IN the last decade seem to show how far we have not come despite the frenzied focus on Nazi-looted art. Take the Schiele case: Although one of the two paintings claimed during the MoMA exhibition has been returned to the Leopold Foundation, the second - called "Portrait of Wally" - is at the center of a federal lawsuit in US District Court in Manhattan, dragging on some 10 years after the art was due to leave the city.

Although there have been some settlements and blockbuster returns, for the most part, the recovery of Nazi-looted art proceeds at a snail's pace, and the burdens generally remain on Nazi victims and their heirs.

In 1998, 44 nations made a moral commitment to resolve matters of Nazi-looted art. However, no standard procedures or mechanisms have been established to locate and return art that was looted or displaced during the Nazi era. Claimants get aid and sympathy, in part, based on an unfortunate "restitution roulette," in which the chances of recovering artworks depend on the arbitrary location of the objects so many decades after the war. A claimant, for instance, has far better prospects if the object is in a British institution than one in Spain. Germany, with great fanfare, five years ago created a blue-ribbon "ethics commission" to make recommendations on art claims. Chaired by Jutta Limbach, the former head of the Federal Constitutional Court, its members included Richard von Weizsäcker, the former German president, and Rita Süssmuth, the former head of the Bundestag. They lent their prestige to a structurally flawed plan. The Limbach commission can hear claims only if both sides agree; if a German museum declines to participate, the claim dies for lack of a forum to resolve it. The commission's first case exposed its doom. The panel was expected to hear the claim of the Israeli heirs of a Breslau attorney and art collector, Ismar Littmann, who were seeking an Emil Nolde painting at the Wilhelm Lehmbruck Museum in Duisburg. No such luck. The Duisberg museum refused to participate, stranding the claim in perpetual limbo.

Sweden, which in 2000 was host to the third international conference on Holocaust-era issues, has a languishing claim for a painting, also by Nolde, in the Moderna Museet. Although the museum must defer to the government for decisions about de-accessioning, the government dumped the claim in the Moderna's lap. The heirs located the Nolde in 2003; one has to wonder how seriously the museum or Sweden takes the restitution commitment if a claim requires so many years of review.

IF IT TAKES a legal maneuver to shake up the art world, the latest is likely to be a ruling last month by US District Judge Mary Lisi in Providence, Rhode Island. She ruled that a German baroness living in the US should turn over a small painting by Franz Xaver Winterhalter, called "Girl from the Sabiner Mountains," to the estate of Max Stern. A German Jewish art dealer, Stern fled the Nazis, resettled in Montreal and bequeathed his assets to Concordia and McGill universities in Canada and the Hebrew University of Jerusalem.

Because the Nazis compelled Stern to liquidate the artworks in his Dusseldorf gallery in 1937, the sale was involuntary, Lisi ruled.

Stern's surrender of the painting "for auction was ordered by the Nazi authorities and therefore the equivalent of an official seizure or a theft," she wrote.

Lisi's ruling effectively expands the definition of "looted art," which often was understood as referring to objects specifically taken by an agent of the Nazi regime.

Although the ruling concerned one painting, it should apply to more than 200 additional Stern paintings sold under the same conditions, said Willi Korte, an investigator in Silver Spring, Maryland, who assisted the Stern estate. Further, it is expected to be cited in other claims where Nazi victims lost artworks through extortion or duress, if not outright confiscation.

Of the recent cases of Holocaust litigation, the federal court in Providence may be the first to acknowledge the persecution the Jews endured before World War II was declared. "Judge Lisi's decision recognizes how the majority of German and Austrian Jews lost their artworks during the early years of the Nazi regime," Korte said. "These were not taken at gunpoint, but lost through forced sales."