Earlier this month, a spectacular cache of more than 1,400 artworks surfaced in Germany—works that had been unknown to the public or presumed to be lost. And as details have emerged, one elderly American has been on the phone to his lawyer every day.
For the past five years, 88-year-old David Toren and his 92-year-old brother—both Holocaust survivors—have been trying to track down a beautiful painting that their great-uncle, the collector David Friedmann, lost due to Nazi persecution: "Two riders on the beach," by the German Impressionist Max Liebermann. Their lawyer spotted the long-lost painting on TV when it was presented to the public as one of the pieces discovered in an apartment in Munich. But whether the brothers will ever get it back is far from clear.
Between 1933 and 1945, the tightening grip of the Third Reich facilitated one of history's biggest art thefts. Initially, Jewish dealers were effectively forced to sell their precious collections at bargain prices before fleeing abroad. Later, Jewish-owned collections—such as those of David Friedmann, who died of natural causes in 1942—were systematically confiscated. Other pieces were looted after their owners were deported to concentration camps. Paintings that were deemed modern or subversive were snatched from museums and exhibited as "degenerate" art.
After the war, an Allied task force of some 345 men and women nicknamed the Monuments Men hunted for the lost pieces. They eventually returned more than five million stolen cultural objects, a daring operation that has inspired the film The Monuments Men, starring George Clooney, to be released early next year. But the massive art grab from 1933-45 is perhaps the last open chapter of Germany's Nazi past. No one knows exactly how many lost works are still circulating. The deadline for claims under the original restitution laws expired in the late 1960s, long before the Internet and cheaper travel made tracing lost art easier. Today there is no active restitution law in Germany. In many cases, the art has simply become the property of its new owner.
As other publications have noted, the recent Munich art haul has cast a global spotlight on the murky legal status of art that was stolen by the Nazis, some of which has ended up in the world's most prestigious collections. Under the 1998 Washington Conference Principles, state-owned museums have the responsibility to identify and restore art lost as a result of Nazi persecution to its rightful owners. Over the past few years, Germany's government has spent millions on provenance research to uncover Nazi-looted pieces in public collections, according to its central office for provenance research.
This restitution drive does not, however, apply to private owners. While lawyers are fighting over property rights and restitution claims and lobbying for an overhaul of the entire art restitution system, families continue to feel the deep pain behind the legal tussle.
Victims, heirs, and art historians were outraged by Germany's initial refusal to give full details of the newly unearthed stash in Munich, which was actually uncovered in early 2012 as part of a tax investigation. Cornelius Gurlitt, the German citizen who allegedly kept all these hundreds of pieces—including paintings by Henri Matisse, Otto Dix, Franz Marc, and Marc Chagall—in his Munich apartment, inherited the collection from his father, Hildebrand Gurlitt. (Hildebrand worked as an art dealer for the Nazis and was tasked with selling paintings abroad. Archived material shows that the Monuments Men actually confiscated some of Hildebrand Gurlitt's pieces, but eventually returned them after he insisted they were his.) According to media reports, German authorities were only focusing on Cornelius Gurlitt's tax situation and treated the pieces as confidential private property.
"It's already a political disaster," said Markus Stoetzel, a German lawyer who represents the heirs of Jewish art dealer Alfred Flechtheim, of how authorities handled the find. Flechtheim had to sell his collection under duress in the 1930s before emigrating to London, where he died a penniless and emotionally broken man. "This certainly doesn't do anything to improve Germany's reputation in the world. The state is intertwined with its history, and we can't get away from that. We can only deal with it transparently and openly," Stoetzel told me in German. German officials, on the other hand, argued initially that unveiling the cache would endanger the tax investigation that led them to it in the first place.
"The investigation takes priority, I can't speculate who might be the owner of some random objects," German prosecutor Reinhard Nemetz told an early press conference, according to German media.
Liebermann's "Two riders on the beach" was already registered in Germany’s official Lost Art database. Yet authorities never alerted the brothers or their lawyer, who eventually spotted the work on TV, of their find. Only later, after many had expressed outrage, did Germany agree to publish more paintings from the cache on the Lost Art website. It has now set up a task force to investigate the possible Nazi-theft background of 970 works in the cache, 590 of which might have been taken from Jewish families.
"You can imagine their state of mind," said Lothar Fremy, the brothers' lawyer, in German—referring to their reaction to the news that German authorities had been sitting on their painting all along. "Their father died in the Holocaust. Several family members died in the Holocaust. It would have been a nice gesture [for Germany] to act a bit more responsibly with this find."
In the case of privately held art, the new owners may agree to a settlement out of moral or practical considerations. The time limits for claims under the original German restitution laws expired in 1966, while another law concerning the return of assets situated in the former GDR expired in 1992. However, the new owners are, after all, not the original thieves—it’s more likely that they bought or inherited the pieces long after the war, unaware of its true origins. They may recoil at the thought of being the benefactors of Nazi art theft, and if their own families were involved in it, even welcome the opportunity to make amends. On a more practical level, a dubious provenance combined with an evolving legal situation can make a painting almost impossible to sell.
"That happens quite often," Fremy, the lawyer, said of such deals. "The artworks are so tainted that no auction house would touch them, and no sensible collector or investor would want to get involved because it's much too risky."
Many cases are settled discreetly for undisclosed sums. In 2010, Andrew Lloyd Webber, the composer, settled over a Picasso painting he had bought at an auction in good faith but which turned out to have been sold under pressure by its Jewish owner in 1934. The Flechtheim heirs actually reached a settlement with Cornelius Gurlitt himself, the Munich collector, some years ago over a masterpiece he was trying to sell through an auction house: "The Lion Tamer," by Max Beckmann. They were not informed that he had hundreds of other paintings in his possession, the lawyer told me, and indeed only found out about the attempted sale through their lawyer's active research. In the art market, then, the burden of identifying stolen paintings in private collections still tends to be on aging Holocaust survivors and their descendants.
While some celebrate such settlements as a satisfactory compromise, others say they only highlight the need for a proper restitution law or similarly comprehensive solution. The Washington agreement has created hope for late justice among many heirs, further heightened by surprise discoveries like the one in Munich. As a result, there is also greater pressure on Germany to come up with a restitution system that is acceptable to all.
"In the last five years, Germany has been taking steps towards dealing with this issue. But I don't think even they realized how significant and how widespread the problem is," said Clarence Epstein of the Max Stern Art Restitution Project at Concordia University in Canada. "They have not addressed the private and commercial concerns that we all have, wherein these works in private collections are protected by German law. And that's really the problem."
Others say that settlements are only a second-best option.
"Restitution means the physical return of the object," Marc Masurovsky, co-founder of the Holocaust Art Restitution Project in Washington, said in a phone interview. "There is no other definition for it. Restitution is not compensation."
Toren, the 88-year-old heir to collector David Friedmann, echoed that sentiment when asked about the painting of two horsemen he used to look at as a boy:
"I want my painting back, and soon," he told Reuters.
Given the terrors the original owners faced, and the fact that the art grab happened in the context of a genocide, Masurovsky warned against sending the wrong moral signals. The message of the current laws, he argues, is that plunder pays.
"The crime of plunder is a crime that people can get away with," he said. "It'll pay for itself. The thief can get good title after a certain period of time in Europe."
For the victims, however, the lost paintings are inextricably linked to memories of terror and persecution. After the war, most Holocaust survivors were busy trying to rebuild their lives in a new country. They wanted to forget about the past. One of the Flechtheim heirs, for example, has said that he only found out about his art-loving great-uncle when he discovered some silver cutlery in his emigrant parents' kitchen in London. It was engraved with an A, B, and F, for Alfred Flechtheim and his wife, Betty. Betty committed suicide in Berlin when notified of her imminent deportation to a death camp.
It was often only much later that families began to open up, confront painful memories and seek late justice. This makes restitution about much more than a transfer of goods. During a recent interview with Britain's BBC radio, 88-year-old Ernest Glanville described the day the Nazis came into his family's home in Vienna.
"They came in, said ‘Heil Hitler,’ went around the apartment, and took what they could," he said. This included pictures from a collection of beautiful pieces by Gustav Klimt and others. "Then somebody came up and dragged us down to the street to clean it."
Glanville managed to escape to London with his parents. An aunt and a cousin were gassed in Theresienstadt. Seven decades later, he says he has built a life in his adopted country and is grateful for his happy marriage and children. But while one lost painting has been returned to his family, the majority of their collection remains lost. Regarding the chances of him and others in his situation finally finding their heirlooms in the Munich cache, he offered a resigned comment: "Good luck to anybody who can identify them and get them back."
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