During the War of 1812 between England and the forerunner of Canada and the United States of America, the Marquis de Somerueles, a French vessel sailing under the American flag, set off from Italy to sail to Pennsylvania. On board were 21 paintings and 52 prints, destined for Philadelphia’s newly established Pennsylvania Academy of the Fine Arts. Unfortunately, the ship encountered a British naval vessel, was captured and taken to Halifax. The art works were claimed as a war prize.
The Academy, dismayed that at such an early stage in its life it had lost part of what was intended as a foundation part of its collection, went to court in Halifax to seek the release of the art. The case came before Sir Alexander Croke, who wrote in his Judgment:
Heaven forbid, that such an application should ever be ineffectual. The same law of nations, which prescribes that all property belonging to the enemy shall be liable to confiscation, has likewise its modifications and relaxations of that rule. The arts and sciences are admitted amongst all civilized nations, as forming an exception to the severe rights of warfare, and as entitled to favour and protection. They are considered not as the peculium of this or that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species.1
For good measure he added, as is the wont even now of some judges, a Latin quotation:
Ingenuas didicisse fideliter artes
Emollit mores; nec sinit esse feros
which translates, more or less, to:
To have faithfully studied the noble arts
Refines behaviour: nor does it allow [one] to be savage.
There was little if any judicial precedent for Croke’s approach. As John Merryman notes:
His anecdotal account of Napoleon’s release of an Englishman in response to an application from the president of the Royal Society hardly supports this position. Even if release of a Fellow of the Royal Society were equated with the release of works of art, Napoleon’s isolated and idiosyncratic act provides dubious authority to Dr Croke’s legal proposition. This was the same Napoleon who recently had systematically stripped Italy and the Low Countries of art treasures to fill the Musée Napoléon, now the Louvre.2
The paintings and prints were sent to Philadelphia by a truce ship and remained, largely unremarked and unnoticed, in that institution for more than a century. In 1845 a fire at the Academy saw most of the works destroyed, but three of the paintings, all by the seventeenth-century Italian Salvator Rosa, survived. In 1948, when an Arts and Monuments Officer from the State Department tried (unsuccessfully) to track down the original petition, the Academy remembered the history and decided, in a gesture of gratitude (and perhaps because the history of the paintings is more interesting than the paintings themselves), to give two of the remaining three paintings back to Nova Scotia. These paintings, upon their return, were put on display at the Nova Scotia Archives on the Dalhousie campus, itself located on what was originally part of Dr Croke’s estate.
The Marquis de Somerueles was the first privately litigated claim for the return of art stolen during an international conflict. It set the scene for everything that was to come.
If an original owner, or his or her or its heirs, discovers that a stolen art work has resurfaced in another country, the first option explored should be to seek to persuade the present possessor voluntarily to hand it back. This can be either by direct negotiation, or by some form of facilitated mediation or the like. But if that fails, the disposed owner will most likely need to go to an appropriate court to seek an order that they, not the current possessor, are entitled to it and should get it back.
Most likely the appropriate court will be a court of the jurisdiction where the work presently is, either permanently or even temporarily. That is not always the case – United States law, for example, allows a claim against a possessor even if the art work itself is not within the United States but if, in summary, the possessor does business in the United States (for an example of this, see the Portrait of Adele Bloch-Bauer case study, below).
There are obvious factual and evidential problems presented by the passage of time, the tyranny of distance, and the necessity to cross international borders and to navigate unfamiliar languages, customs and legal systems. But two legal hurdles loom particularly high for any such claimant: the limitation period and the bona fide purchaser rule.
A limitation period is a defined period – usually two, three or six years, but other periods can and are chosen in individual jurisdictions – after which a legal claim cannot be made. Limitation periods were part of Roman law, and the first Limitation Act was passed in England in 1623. The underlying purpose is to achieve certainty and finality, as noted in an extended Harvard Law Review casenote in 1950: ‘There comes a time when [a defendant] ought to be secure in [their] reasonable expectation that the slate has been wiped clean of ancient obligations, and [they] ought not to be called on to resist a claim when “evidence has been lost, memories have faded, and witnesses have disappeared”.’3
In the end, what period is chosen by a given jurisdiction is arbitrary – each national parliament or legislature makes its own choice. But the relevant period in the appropriate jurisdiction, governing both the nature of the claim and the nature of the property, must carefully be ascertained. Even once that has been done, then a difficult issue in an individual case is often to determine at what moment the relevant period starts to run.
Many jurisdictions, including both the United Kingdom and New York State courts, apply the ‘demand and refusal’ rule – that is, the limitation period does not begin to run until the dispossessed owner, having located the stolen art work, makes a demand for its return, and is refused by the person or entity in possession.
By delaying the commencement of the limitation period until these two things happen, these jurisdictions favour the dispossessed victims. The victim cannot, however, unreasonably delay making a demand which will trigger, upon being met by a refusal, the start of the period.4 This qualification might operate to require of the victim something akin to ‘a duty of reasonable diligence in attempting to locate stolen property’, but the New York Court of Appeals has declined to extend the absence of unreasonable delay so as to constitute a positive requirement of reasonable diligence by the plaintiff.5
The alternate approach to triggering the start of the limitation period is the ‘discovery’ rule, under which the limitation period starts when either the victim discovers where the art is or, having exercised ‘reasonable diligence and intelligence’ in endeavouring to do so, should have discovered its location.
This encourages diligence on the part of disposed owners, whilst at the same time preserving the art market’s interest in the innocent purchaser’s certainty of possession. But that happens at the expense of predictability, given the very fact-specific enquiry required in each case to assess the reasonableness or otherwise of the steps taken by the owner. Different standards of endeavour are required of different kinds of disposed owner – less is expected of an individual with few ties to the art world, compared to a sophisticated collector or an institution such as a museum or a gallery.6
So, in summary, a dispossessed owner confronted with the necessity to make a claim in a foreign court to recover a stolen art work must first and crucially establish what the proper law of the claim is: is it the law of the country or state where the art work now is, or some other legal system or jurisdiction? Having done that, the applicable limitation period must be determined, and the vital question of whether the claim is still within time answered. There should be no unreasonable delay: dispossessed owners cannot sleep on their rights.
The second main hurdle that can operate to defeat the claim of the dispossessed arises because of different approaches in different legal systems and jurisdictions to the problem of what to do about the claim of the bona fide purchaser for value without notice – a possessor (not the original thief) who, down the chain of possession, has purchased the art work in good faith, for a proper price, and without knowing, or having grounds to know or suspect, that the work had earlier been stolen.
In common law countries (so in the United Kingdom, the United States, Canada, Australia, New Zealand, and in the other jurisdictions that derive their fundamental legal principles from the English common law), it was and remains a bedrock principle that a thief can confer no good title to property that the thief stole, irrespective of the circumstances of the final possessor.
In his Digest, prepared in the mid-sixth century, the Byzantine Emperor Justinian stated: ‘Nemo plus juris ad alium transferre potest quam ipse habet’, which translates to: ‘No one can transfer to another greater right than he himself has.’ This principle entered the common law as the maxim, ‘Nemo dat quod non habet’, or ‘No one can give what they do not have’. Lawyers sometimes refer to it as the ‘nemo dat’ rule.
The rigour (and simplicity, thus leading to predictability of outcome) enshrined in this principle for present purposes remains dominant, albeit in marked contrast to another great principle of English commercial law: ‘In the development of our law, two principles have striven for mastery. The first is for the protection of property: no one can give a better title than he himself possesses. The second is for the protection of commercial transactions: the person who takes in good faith and for value without notice should get a good title.’7
In stark contrast, in civil law countries, predominantly but not exclusively those that derive their legal systems from the Napoleonic Civil Code, the bona fide purchaser can, as against the original, dispossessed owner, obtain good title after the expiration of differing periods of time as determined by local legislation.
For this reason, stolen art often re-emerges in civil law countries years after the original theft, as both sellers and purchasers know that, after the passage of a known period of time, the purchaser will be able to resist any claim by an original owner. So, determining the proper law of the claim becomes even more important: other factors being equal, a claimant should seek to have the claim litigated in a common law country, whilst a bona fide purchaser will strive to have the claim determined in a civil law jurisdiction.
An attempt has been made to reconcile the two opposing approaches set out above, and to create a set of private law principles that ratifying countries can incorporate into their own laws, by the creation in 1995 of the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects. This convention is the private law counterpart to the public international law provisions (and as such, outside the scope of this chapter) in the compatible and complementary 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.
Article 3 of the UNIDROIT Convention states, simply: ‘The possessor of a cultural item that has been stolen shall return it.’ That somewhat stark requirement is modified, to an extent, by the convention’s provision to the effect that, if a State legislates to this effect, compensation to a bona fide purchaser should be paid. Article 4 of the convention states: ‘(1) The possessor of a stolen cultural object required to return it shall be entitled, at the time of its restitution, to payment of fair and reasonable compensation provided that the possessor neither knew nor ought reasonably to have known that the object was stolen and can prove that it exercised due diligence when acquiring the object.’ But this is immediately followed by: ‘(2) Without prejudice to the right of the possessor to compensation referred to in the preceding paragraph, reasonable efforts shall be made to have the person who transferred the cultural object to the possessor, or any prior transferor, pay the compensation where to do so would be consistent with the law of the State in which the claim is brought.’ This is a clear compromise between two conflicting stances, which were apparent, and conflicting, during the six or so years of negotiations that lead up to the signing of the convention in 1995 in Rome:
One grouped supporters of the free movement of cultural objects worldwide, while the other campaigned for national protection of the cultural heritage. The former group were intent on limiting the future Convention’s scope of application to the utmost and on safeguarding the protection afforded to the good faith buyer within their jurisdictions. Their opponents on the contrary wished to extend the principle of restitution of stolen or illegally exported cultural objects as far as possible, thereby ensuring optimal protection of the national cultural heritage on the international stage.9
What follows are a number of case studies where the competing principles and issues discussed in this chapter are illustrated.
Menzel v. List, which led to the establishment of the ‘demand and refusal’ rule in New York, concerned a painting called Le Paysan à l’échelle or The Peasant and the Ladder, (or perhaps other names), by Marc Chagall.10
The following summary of the facts is taken from the New York court’s judgment:
In 1932 Mrs. Erna Menzel and her husband purchased a painting by Marc Chagall at an auction in Brussels, Belgium, for 3,800 Belgian francs (then equivalent to about $150). When the Germans invaded Belgium in 1940, the Menzels fled and left their possessions, including the Chagall painting, in their apartment. They returned six years later and found that the painting had been removed by the German authorities and that a receipt for the painting had been left. The location of the painting between the time of its removal by the Germans in 1941 and 1955 is unknown. In 1955 Klaus Perls and his wife, the proprietors of a New York art gallery, purchased the Chagall from a Parisian art gallery for $2,800. The Perls knew nothing of the painting’s previous history and made no inquiry concerning it, being content to rely on the reputability of the Paris gallery as to authenticity and title. In October, 1955 the Perls sold the painting to Albert List for $4,000. However, in 1962, Mrs. Menzel noticed a reproduction of the Chagall in an art book accompanied by a statement that the painting was in Albert List’s possession. She thereupon demanded the painting from him but he refused to surrender it to her.
Mrs. Menzel then instituted a replevin action against Mr. List and he, in turn, impleaded the Perls, alleging in his third-party complaint that they were liable to him for breach of an implied warranty of title. […] The jury returned a verdict for Mrs. Menzel and she entered a judgment directing the return of the painting to her or, in the alternative, that List pay to her the value of the painting, which the jury found to be $22,500. List has, in fact, returned the painting to Mrs. Menzel.11
The court held that the claim arose, for limitation purposes, not upon the stealing or the taking, but ‘upon the defendant’s refusal to convey the chattel upon demand’. There was no abandonment of the painting, because the Menzels had to flee for their lives, nor was the taking lawful booty of war by a conquering army. In reaching the latter conclusion the court cited the 1907 Hague Convention, and noted also that private plunder was both unlawful and did not extinguish the title of the original owner.
Having decided that issue, the judge was caustic, and commendably brief, both in his categorical rejection of the bona fide purchaser defence, and in his conclusion:
It is of no moment that Perls Galleries may have been a bona fide purchaser of the painting, in good faith and for value and without knowledge of the saga of the Menzels. No less is expected of an art gallery of distinction.
Throughout the course of human history, the perpetration of evil has inevitably resulted in the suffering of the innocent, and those who act in good faith. And the principle has been basic in the law that a thief conveys no title as against the true owner.
[…]
The jury has found plaintiff to be the sole and rightful owner of the painting. The court has found that she never abandoned it but that it was pillaged and plundered by the Nazis. No title could have been conveyed by them as against the rightful owners. The law stands as a bulwark against the handiwork of evil, to guard to rightful owners the fruits of their labours.12
In 1897 Camille Pissarro painted Rue Saint-Honoré in the Afternoon, Effect of Rain. Forty-two years later, in 1939, Lilly Cassirer Neubauer, a member of the prominent Jewish publishing family that had owned the painting since it was created, was faced with a stark choice: hand the painting over to a Nazi art dealer and be given, in return, an exit visa to leave Germany with her husband and young grandchild, or remain in Germany amid the swirling and deadly storm engulfing the country’s Jews.
She chose the former. Lilly and her husband Otto and grandson Claude fled Germany. The painting disappeared. The ridiculously low sum that Lilly had been promised as the ‘price’ of the painting disappeared into an inaccessible German bank account.
After the war, Lilly sought and was granted partial financial compensation, but without foregoing her claim to the painting. In 1958 she was recognised as the rightful and legal owner of the painting. But the painting itself was lost.
Or so Lilly thought. In fact, in 1951 it had been sold through a gallery to a collector in Los Angeles. Less than 12 months later it was sold again, through another gallery, to a St Louis, Missouri, collector.
Two decades later, in late 1976, Baron Thyssen-Bornemisza of Switzerland purchased it through yet another dealer. Some years later the baron lent his entire collection of over 700 paintings to Spain, which established a non-profit state-owned foundation to own, house and display the collection, and redesigned and rebuilt the Villahermosa Palace in Madrid for the purpose.
Subsequently the Spanish government purchased the baron’s collection, for over $300 million. Apart from two short periods when it was on loan elsewhere, the Pissarro thereafter was on public display at the foundation’s museum in Madrid.
Lilly Cassirer died in 1962. Her heir, her grandson Claude, discovered in 2000 that the painting was on display in Madrid. Since then he, and after his death in 2010 his heirs, have been trying to recover the painting, through an extended and complicated series of court cases in both Spain and California.
The most recent twist in this ongoing saga happened on 4 June 2015, when a California court ruled that Spanish law, and not Californian law, was the governing law of the merits of the dispute.13 Under Spanish law the foundation was the legal owner of the painting, despite the acknowledged theft from Lilly.
The court explicitly recognised the competing policy decisions underlying the legislative choice between the two approaches:
Generally, [the civil law approach] serves the important interests of certainty of title, protecting defendants from stale claims, and encouraging plaintiffs not to sleep on their rights.
[…]
[The common law approach] recognizes the difficulties faced by owners in discovering the whereabouts of personal property even when held openly and notoriously, and serves to protect the interests of ‘the rightful owner’ over subsequent possessors. It also serves to encourage subsequent purchasers to determine the true owner of property before purchasing that property.14
Thus, yet again, the crucial choice of law issue was determinative of the claim.
As this author has written elsewhere, private litigation to recover stolen art is prolonged, difficult, expensive and uncertain:
The results of such contests often are reached only after a long, tortuous, expensive and emotionally draining process. This is well illustrated by the protracted journey of Gustav Klimt’s luminous portrait of Adele Bloch-Bauer. The dispute over this portrait, together with other Klimt paintings owned originally by Ferdinand Bloch and his wife Adele Bloch-Bauer, involved over many decades the Austrian national courts, the United States courts all the way to the United States’ Supreme Court, and finally an Arbitration Panel agreed to by both sides. Some 65 years passed between the unlawful forfeiture to the Austrian Gallery in 1941 and the return of the paintings to Maria Altmann in early 2006.15
Ferdinand Bloch-Bauer was, before the Second World War, a wealthy Czech industrialist and president of the Österreichische Zuckerindustrie AG, a major sugar company. He commissioned a portrait of his wife from Gustav Klimt, and after about a year’s work, the golden, shimmery picture was delivered in 1907. Adele died in 1925, from meningitis, and in her will, ‘requested’ Ferdinand to leave the several Klimt paintings the couple owned to the Austrian state gallery.
Ferdinand fled Austria in 1938, and the invading Nazis confiscated both his businesses and the Bloch-Bauers’ home, containing the portrait and the other Klimt paintings. They assessed spurious ‘taxes’ as being owed, thus forcing liquidation of the assets. An attorney was appointed, and unlawfully he disposed of the paintings with three, including the portrait, ending up in Vienna’s Belvedere gallery.
Ferdinand died in Switzerland in 1945 and, understandably, by his will he did not leave the Klimt portraits to the Austrian national gallery. Two nieces and a nephew, including Maria Altmann, by that time living in Los Angeles, were his heirs, his estate consisting mainly of claims to seized property.
Despite efforts by and on behalf of the heirs over many years, the three paintings held by the Belvedere gallery in Vienna remained there until the late 1990s, and as Simon Houpt notes, they ‘became synonymous with Viennese culture and Austrian pride, especially Klimt’s Portrait of Adele Bloch-Bauer I, which has been reprinted endlessly on T-shirts, postcards, and dormitory room posters. It seemed fruitless to Maria Altmann and the other Bloch-Bauer heirs to put up a fight.’16
But the legal landscape changed in 1998. The Austrian parliament passed legislation the effect of which was to require all the Austrian national museums to identify in their collections any Nazi-era stolen art and, in appropriate cases, to return it.
As a resident of California, and frustrated by procedural and technical delays and obstacles which had stalled her Austrian legal proceedings, Maria Altmann sued in the United States. Ultimately the United States Supreme Court held that she was not (as asserted by Austria) barred from suing by the doctrine of sovereign immunity. However, the case did not go to trial in the United States – in May 2005 Ferdinand’s heirs and Austria agreed to arbitration in Austria.
Thus the case was decided before an Austrian arbitral tribunal, governed by Austrian law and procedure. The tribunal concluded: ‘The conditions of the Federal Act Regarding the Restitution of Artworks from Austrian Federal Museums and Collections dated 4th December 1998, […] for the return of the five paintings […] to the heirs of Ferdinand Bloch-Bauer are fulfilled.’17
Despite the fate of the paintings having been, in the end, determined by arbitration, the case established the United States as a popular forum for determining international claims for the recovery of stolen or looted art, if the required conditions for litigating such a claim in the United States can be established.
After the return of the portrait, it was purchased by Ronald Lauder’s Neue Galerie in New York, dedicated to German and Austrian Art. The work is a centrepiece of its collection. The innocuously worded provenance statement from the Neue Galerie’s website conceals the storied tragedies of the painting’s history:
Provenance
Adele and Ferdinand Bloch-Bauer, Vienna (Acquired from the artist).
Seized by the Viennese Magistrate (following the Nazi Anschluss, March 1938).
With Dr. Erich Führer, Vienna (the state-appointed administrator for Ferdinand Bloch-Bauer).
Österreichische Galerie Belvedere, Vienna.
Restituted to the heirs of Adele and Ferdinand Bloch-Bauer by the Republic of Austria.
Neue Galerie New York.18
The history of Egon Schiele’s Portrait of Wally well illustrates the rule that a country’s jurisdiction extends to works of art which, although ‘owned’ and normally resident elsewhere, are temporarily, or indeed almost fleetingly, within its borders.
Between 8 October 1997 and 4 January 1998, the painting was on loan from the Leopold Gallery in Vienna, Austria, to New York’s Museum of Modern Art. Alerted by a story published in the New York Times on Christmas Eve, 1997, the Manhattan District Attorney Robert Morgenthau seized the painting as potentially stolen property that had been brought into New York State. The dramatic seizure triggered widespread uncertainty within the art world, anger in Austria, and launched a court battle that lasted nearly a decade, during which time the painting was apparently stored in a warehouse run by the Department of Homeland Security.
Egon Schiele painted the portrait of Walburga (‘Wally’) Neuzil in 1912. Sometime before 1925 it was acquired by Lea Bondi Jaray, a Jewish art gallery owner who occasionally exhibited it in her gallery, the Würthle gallery, but largely kept it in her apartment. Around 1937, and in financial difficulty, she negotiated to sell the gallery to Friedrich Welz, but an agreement was not concluded. In 1938, the gallery was catagorised as ‘non-Aryan’, and thus under the Nazi regime subject to confiscation. In about mid-March 1938 she sold the gallery to Welz, who shortly thereafter became a member of the Nazi Party. He obtained permission to ‘aryanise’ the gallery a year later, on 15 March 1939. A month later, Bondi left Austria for England.
The circumstances in which Welz gained possession of the portrait are disputed – by one account, the day before Bondi left Austria, Welz visited her apartment, saw the picture and pressured her into giving it to him, in part, perhaps, because Bondi’s husband was fearful that if she resisted Welz could imperil their departure. By the competing account, Bondi had voluntarily sold the picture to Welz as part of the gallery sale, a year earlier.
In 1945 Welz was detained by US forces and his property, including the portrait, was seized. On 4 December 1947 the Reparations, Deliveries and Restitution Directorate of the US Forces released the portrait, at the request of the heirs of a Dr Heinrich Reiger, who had sold several Schiele works to Welz to finance his flight from Austria in 1938, to an Austrian federal agency on behalf of the Austrian government. The Reiger heirs then had the portrait restituted to them in May 1950, and in late 1950 the work was sold, with other Shiele paintings, to the Belvedere gallery.
After the war, Bondi successfully obtained the return of her art gallery, but never recovered the portrait. Dr Rudolf Leopold, a prominent Schiele collector, had visited Bondi in London in 1953. They had discussed the portrait and Leopold may have promised to help her recover it. Instead he acquired it himself from the Belvedere in September 1954, without much enquiry or documentation and without telling Bondi he had done so.
In 1994 the whole of the Leopold collection was bought by the Austrian government in controversial circumstances, for the newly established Leopold Museum. Thus it was that, in 1997, the portrait became part of a loan of works from the Leopold Museum for an exhibition at New York’s Museum of Modern Art.
The legal issue for determination when the case finally came to trial in New York in July 2011 was whether Dr Rudolf Leopold knew the portrait was stolen (by Welz) when it was brought into the United States for the exhibition in New York. If he did, then the portrait would be subject to forfeiture by the US Customs Service (on behalf of Bondi’s heirs) as knowingly imported stolen goods.
On the eve of the trial the case was settled. The gallery agreed to pay US$19 million to the heirs, in return for them allowing the gallery to retrieve and retain the painting. It now hangs in the Leopold Museum in central Vienna.
Although ultimately the dispute was settled by agreement, the saga demonstrates that a court can acquire jurisdiction over a stolen art work if that art work is, even temporarily, within that court’s territorial jurisdiction.
The discussion in this chapter, and the case studies, illustrate vividly that when an art work is stolen but subsequently discovered to be in another country:
It is important to stress with respect to art plundered during World War II that the possessors of the works, and particularly museums and other ‘public’ institutions, should evaluate claims not purely on legal grounds but also on moral grounds, recognising that such cases, as with other stolen art cases, often involve two innocent parties. Works could have been stolen by the state or by individuals, for public or private collections, by Nazis, Russians, or Americans. Sales occurred under implied threat of force – ‘sell me the works and you live’ – or under the economic duress of needing to flee. The facts surrounding these cases are often difficult, if not impossible, to establish, and cooperation is not always forthcoming. In many cases, those who knew the facts have died or were murdered, or their memories have faded. The varying circumstances presented by World War II-era claims may have differing legal consequences, but, as the governments and institutions that have restituted such works have recognized, they are morally indistinguishable. Resolving these disputes on the basis of statutes of limitations, laches, jurisdiction, or other legal defences in a court of law should be a last resort.19
The balance of this chapter considers an alternative route to private litigation recently established in the United Kingdom, relevant to a particular class of cases and available even if the relevant limitation period has commenced and expired.
The Spoliation Advisory Panel was established in 2000, and is chaired by a retired Lord Justice of Appeal – a senior United Kingdom judge. This panel is a group of expert advisers who can be asked to consider claims for the return of an object plundered or lost during the Nazi era, and which is currently part of the United Kingdom’s national collections.
The governing instrument that directs the panel’s function is its Constitution and Terms of Reference. This permits the panel to consider claims ‘from anyone (or from any one or more of their heirs) who lost possession of a cultural object during the Nazi era, where the object is now in the national collection or in a museum or institution established for the public benefit’. It can also consider a claim to an object in a private collection at the joint request of both parties.
Whilst the panel can consider legal issues, it cannot make determinations as to legal rights, including title. The panel’s process is explicitly an alternative to litigation, and the panel is required to give due weight to the ‘moral strength’ of the claim, to consider whether any moral obligation rests on the institution, and to seek a ‘fair and just solution’.20
Aspects of the operation of the panel are well illustrated by a claim for the return of a twelfth-century missal lost by the cathedral city of Benevento, northeast of Naples, between September 1943 and April 1944.
The missal had been purchased by one Captain D.G. Ash from a second-hand bookseller in Naples in April 1944. It appears that Captain Ash, an English Military Intelligence Officer, posted the book from Italy to England ‘wrapped in several yards of deep maroon or plum coloured satin-like fabric as well as card and paper’, thus exporting it illegally (albeit on his part probably unknowingly so) from Italy.21
It was purchased by the British Museum at public action on 24 June 1947 for £420. It was subsequently transferred to the British Library in 1973. A previous recovery attempt had been unsuccessful partly on the basis of the expiration of the limitation period.
In respect to the missal, the panel found, in its first report in March 2005, that ‘it would be just and fair’ that the Missal should be returned to the claimants, but that a return was precluded by the British Library Act 1972.22 The panel recommended that the missal be loaned to the claimants, but it seems that the British Library’s standard conditions for outgoing loans could not be met by the claimants.
In its report, the panel had also recommended that legislation should be passed to allow for restitution of items falling within its terms of reference, in light of the ‘significant legal barriers to restitution by national bodies, most of which are established under statute. Trustees are only permitted to dispose of objects in very narrowly defined circumstances, none of which would permit return in the likely circumstances of a case considered by the Spoliation Advisory Panel.’
A United Kingdom High Court judgment in 2005 had also earlier found in another case (which subsequently also came before the panel) that despite the British Museum wishing to be able to make restitution in that case, the express terms of the then governing statute precluded it from making such restitution.23
Against that background, on 12 November 2009 the Holocaust (Return of Cultural Objects) Act 2009 was passed. This Act allows listed museums and other public institutions in England, Scotland and Wales to return an object from their collection, where, firstly, the Advisory Panel has recommended that they do so, and secondly, the Secretary of State has approved the recommendation. The Act applies only to events occurring during the ‘Nazi Era’, defined in the Act as beginning on 1 January 1933 and ending on 31 December 1945.
The claim for the return of the missal was renewed. The panel noted in its Second Report of September 2010: ‘8. The Panel recommends, in conformity with its original conclusion, that the Missal should be returned to the claimants. If the Secretary of State approves this recommendation, the British Library will be free pursuant to Section 2(2) of the Act to transfer the Missal to the Chapter Library in Benevento.’24 In 2010 the missal was in fact returned, amid much celebration.
Most reports by the Spoliation Advisory Panel have been accepted by all parties involved. But the June 2009 Report of the Spoliation Advisory Panel: 8 Drawings in the Courtauld Institute of Art (the most important of which was Renoir’s Laundresses) did not receive unanimous approval.25
The eight drawings involved were originally owned by Professor Dr Curt Glaser, a German Jew who in 1924 was appointed Director of Berlin’s state art library, and who was a collector of, and authority on, post-nineteenth-century modern art. He had strongly supported the Weimar Republic. The death of his first wife in 1932 devastated him, and this was closely followed by his dismissal as Director and the seizure of the library by the Gestapo in early 1933.
At two auctions in May 1933 Glaser sold the bulk of his collections. Shortly afterwards he wrote to his friend, the Norwegian artist Edvard Munch:
Since the death of my wife the whole world of my past has gradually crumbled […] until there was nothing left. […] I had to give up my apartment, I lost my position. Since I found it pointless to rent a large new home at this point, I have freed myself of all my possessions, so that I might start over again completely new.26
Glaser married his second wife shortly afterwards, and in June or July 1933 left Germany, never to return. The couple stayed in Switzerland for a while, and Glaser had a large number of art works, silver, porcelain, carpets and other similar items delivered to him there, plus he was successful in retrieving some paintings that had not been sold, including a number of pictures by Munch, which were deposited with a museum in Zurich. In 1941 the Glasers travelled to the United States, where he died in 1943. His widow submitted claims to the compensation agencies in Germany in the 1950s and 1960s, which were settled in 1959 and the early 1960s.
Against that background, the panel had to decide, in order to assess the moral strength of the case brought by Marie Glaser’s heirs: were the two auctions forced sales, resulting in sales at an undervalue, so as to justify a recommendation to transfer the drawings to the heirs?
The panel endeavoured to balance the competing cases, noting that the decision to sell up was probably driven by ‘mixed motives’, and that the letter he had written to Munch established that at least in part he was looking to make a fresh start unburdened by previous responsibilities, but at the same time accepting that in 1933 the threats to Glaser were ‘intimidating’, so that on balance: ‘We have concluded that Nazi persecution was the predominant motive in this case. However, we do not accept the claimants’ submission that this is itself decisive, since, as already noted, our moral assessment must take account of all relevant circumstances.’27
The panel went on to adjudge the prices achieved at the two auctions as reasonably in accord with the prevailing market, and there being no other decisive factor telling in favour of the moral claim of the heirs,28 the panel concluded:
In all the circumstances, we consider that the claimants’ moral claim is insufficiently strong to warrant a recommendation that the drawings should be transferred to them. We also consider that, whenever any of the drawings is on show, the Courtauld should display alongside it a brief account of its history and provenance during and since the Nazi era, with special reference to the claimants’ relationship with and historical interest in the drawings. We recommend to the Secretary of State accordingly.
The hybrid jurisdiction conferred on the Spoliation Advisory Panel, enabling and requiring it to decide claims not only on legal but also on moral grounds, has much to recommend it. Inevitably, much will be lost or confused or misunderstood when years or decades pass after a theft, and the striving for a ‘fair and just’ result in light of any established moral claim, will avoid many of the evidential, legal and practical obstacles that traditional litigation imposes on claimants. This fresh approach could usefully be adopted elsewhere.
Arthur Tompkins is a District Court Judge based in Wellington, New Zealand. He teaches the ‘Art in War’ component course at the Association for Research into Crimes against Art’s annual Postgraduate Certificate Programme in Art Crime and Heritage Protection Studies, in Umbria, Italy.