by Marc Masurovsky

When a claim is filed for the return of an object that was allegedly misappropriated during the Nazi/Fascist era and especially as a result of anti-Jewish persecutions, the current possessor who receives the claim can either be an individual, a private entity, an entity controlled or owned by a public agency, and/or the public agency itself and its overseer (usually referred to as “the government”).

Individual possessors are mostly private collectors who have invested in the art market and whose main occupation is not necessarily the buying and selling of art. Objects in private collections are, by definition, the most difficult to trace because, unless there is a public record of all private transactions involving art objects of any kind, the chances are close to nil for a victim of cultural plunder or his/her heirs to locate the object unless several conditions are met:

1/ the person who took possession of the looted object dies and his/her estate is put up for sale. In this instance, the catalogue will list the item being claimed. If it is not deemed as important or “interesting” (whatever that actually means), there may not be a reproduction of the object in the sales catalogue, only a description. But if the object rises to the occasion and is worthy of being photographed, the process of identification is facilitated by the publication of a photograph. This does not mean that the claimant remembers what the object looked like but he/she might have a photo of it hanging or displayed in a room of the residence from which it was wrongly removed.

2/ the looted object is featured in a catalogue of a particular artist’s production. For instance, if you have lost a work by Degas, chances are that you will consult major publications pertaining to the artist who loved to paint young ballerinas and race horses. Catalogues raisonnés, exhibition brochures, specialized monographs, are all part of the arsenal of the claimant to locate the lost item. That does not imply that victims of cultural plunder spend eight hours a day, five days a week, looking for their stolen property. This should be a shared burden, whereby the current possessor should exercise reasonable multi-source due diligence before acquiring or displaying an art object.  In all cases, the onus is placed on the claimant to do her “homework” and search, and search.  Thankfully, judges have weighed in favor of victims when harassed by the current possessor’s lawyers for not consulting art historical sources on a regular basis to prove that they were being diligent in the search for their lost property.

3/ the unimaginable: a claimant or a friend of hers walks into a residence, or a museum, or any building harboring works and objects of art, and recognizes (or thinks she recognizes) the lost item. It does happen, it has happened, and once over the shock, with some time elapsing from the initial (re)viewing of the lost object, the claimant initiates the process of confirming that it is in fact the same object and must decide whether to ask for its restitution. That can be the hardest decision to make. Since no statistics are kept about art claims resulting from Holocaust-era and Nazi/Fascist misappropriations, it is impossible to know how many individuals have mulled the idea of filing a claim and decided not to, in the end, because of financial and emotional cost associated with a long and burdensome legal entanglement.

Looted objects also end up with privately-held businesses whether or not these businesses base their commercial activity on the trade in cultural objects. Private entities that are most likely to hold and display works and objects of art are corporations, professional services firms which dispense legal, financial, and other types of specialized counsel for a fee and whose office spaces (including but not limited to hallways, lobbies, atria, enclosed gardens, and meeting rooms) are adorned with objects of art from all corners of the world. The theory goes that a visitor feels at ease in the presence of so much beauty on display and can only surmise that he/she will be encountering “cultured” individuals.

And of course, art and/or antiquities galleries, auction houses, flea markets, bric a brac stores, emporia.

Amazingly so, government offices do get decorated with important works of art and decorative objects either borrowed from state-owned museums or from government-run warehouses and storage depots where untold numbers of objects belonging to identifiable and heirless victims sit in limbo, the playthings of government-appointed civil servants and cultural officials.

When faced with a claim, there are numerous defensive postures that are used to repel the attempt to recover. What you will read below has been told to claimants more than once:

1/ you must be confused, it’s not the same object;

2/ do you have any proof that it is actually yours to claim?

3/ how dare you? I am insulted.

4/ I bought it fair and square.

5/ my parents gave it to me.

6/ I inherited it.

7/ I didn’t steal it. And in any case, even if it was stolen, it happened a long time ago. So go away…

8/ finders keepers losers weepers. In any event, we won the war. [the trophy art argument ad reductionem]

9/ It belongs to our museum. It will never leave.

and many more…

None of those responses are particularly inviting.  They discourage moral and ethical solutions leading to restitution so that the claimant can close the book on a very upsetting moment in history which affected her and her family very deeply. The knowledge of the presence of the un-restituted object reopens old wounds, brings back memories left to be forgotten, re-awakens ancient emotions that no one wanted to “feel” again. The process of restitution can be a very jarring emotional experience.

To make matters worse, most often, the claimant is forced to press her claim through a body of laws and legal theories that are better suited for recovering a stolen car. How do you compare a stolen car to a painting looted by Nazi henchmen? Unfortunately, the law is highly reductionist and lawyers retained to represent claimants or to defend against them, must take a traumatic historical event, shove it through a sieve, and reduce its complex components, to a simpler distillation of facts that can match one or more legal theories or strategies which were not designed to incorporate extraordinary human failures resulting in mass death and genocide.

After half a century of litigation involving Nazi thefts of art owned by Jewish victims, no country has frayed a clear path to aid victims and survivors of genocide recover their property without the humiliation and stress associated with years of litigation that might lead to defeat and huge costs.