Twice Looted, Twice Returned?

November 5, 2018

By Shlomit Heering. 

Anyone familiar with art law cases today knows the importance of Nazi-era art claims and the restitution of artworks. However, while there may be a consensus regarding the moral imperative to return pieces looted during the Holocaust to survivors or their heirs, the murky provenance of such art sometimes extends prior to World War II, further convoluting questions of ownership. Two recent examples highlight the tricky considerations that arise when it is discovered that artworks probably looted by the Nazis had possibly been looted previously as well.

Commemorative Head of a Queen Mother (19th Century)

The first example concerns a bronze royal Benin head auctioned in Germany by Zemanek-Münster in March 2018. In February of that year, provenance research by the auction house revealed that the bronze had previously belonged to the family of German-Jewish publisher and art collector Rudolf Mosse.[i] Mosse died in 1920, and his son-in-law Hans Lachmann-Mosse took care of the estate for the next decade. However, Hans and his family were driven to leave Berlin in the spring of 1933, following the rise of the Nazis and the beginning of the “Aryanization” process for the Lachmann-Mosse business and property, leaving behind his father-in-law’s art collection. Placed under the Rudolf Mosse Trusteeship set up by the Nazis, the collection was auctioned off in Berlin by Rudolph Lepke’s auction house on May 29 and 30, 1934.[ii] The Benin head in question was identified using images in the catalog of this forced sale. According to Zemanek-Münster, they contacted Mosse’s heirs and came to an “amicable agreement” that allowed them to proceed with the 2018 auction of the piece.[iii] Other works, though, have been restituted to the Mosse family, including nine from the Berlin State Museums. The Mosse Art Research Initiative (MARI), instituted in 2017 by the Freie Universität Berlin in partnership with Mosse’s heirs, has been working on identifying and locating additional works from the Mosse collection.

While it seems clear that the Benin head auctioned last spring was looted from the Mosse family by the Nazi regime, the surrounding discussion has ignored the matter of how it originally came to be in Mosse’s possession. In 1897, hundreds of bronze plaques and sculptures were looted from the kingdom of Benin (now in Nigeria) as part of the British “punitive expedition”. Amid tensions over trade, a delegation of British officers set out for Benin City; when they approached the city in January 1897 they were ambushed, and the officers were killed. The British soon organized a large retaliatory expedition that devastated the city, exiled its king – and took thousands of objects from the palace as spoils. Some of these were sold to pay for the invasion, and many ended up in European museums and private collections.[iv] Of course, it is not necessarily the case that every Benin bronze in a European collection today was acquired as a result of the 1897 sacking of Benin – some pieces may have been given as gifts or purchased either before or after that date. However, the majority of the bronzes were seized in the 1897 expedition, and claims of other acquisition methods would have to be proven.[v]

According to Zemanek-Münster, they were unable to trace the provenance of the Benin head further back than 1920. Nevertheless, they stated that they found no evidence that this piece was “colonial looted art” and that it would be wrong to claim it was looted based on speculation.[vi] But would it not also be wrong to profit off a piece that may have been looted from Benin, when its provenance from the relevant period is still unclear?

A group of museums from the UK and Europe forming the “Benin Dialogue Group” have been grappling with the issue of Benin artifacts and plan to establish a display in modern Benin City with rotating loans from various institutions.[vii] One member of this group, the Hamburg Museum für Kunst und Gewerbe, “is confronting the uncomfortable history of three bronzes in its collection, which it says were unquestionably looted from the Kingdom of Benin”. The objects are currently the focus of the museum’s “Looted Art?” exhibition series and “will then be passed on to Hamburg’s ethnological museum, which holds other Benin artefacts”, for further research.[viii] What about the Mosse Benin head? Though this specific piece has already been auctioned, the case raises some important questions about twice-looted objects.[ix] Looking into the artwork’s Holocaust-era history is critical, but did the auction house do its best to trace its pre-1920 provenance? And whose responsibility would it have been to pursue the matter further? Should the auction house have reached out to Nigeria about this piece, or Mosse’s heirs – or perhaps the new owners of the piece?

“Adam” and “Eve” (c. 1530) by Lucas Cranach the Elder

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The second example is the much-contested pair of Cranach paintings – “Adam” and “Eve” – currently at the Norton Simon Museum in California. The two paintings were acquired by Norton Simon in the early 1970s, but they had previously belonged to the renowned Dutch art dealer Jacques Goudstikker. Goudstikker, together with his wife Desi and son Edo, fled the Netherlands in May 1940, leaving behind his collection of over a thousand artworks. The Goudstikker firm was subsequently sold to Alois Miedl, an agent of prime Nazi looter Hermann Goering, who controlled the firm for the remainder of the war.[x]Jacques died in an accident during the family’s escape, but the notebook he used to record the collection’s inventory remained with his widow. After World War II, the Dutch instituted strict rules for restitution: there was a short statute of limitations and a narrow view of what constituted a “forced sale”, meaning that any “claimant still had to prove direct or indirect coercion or force by the buyer, not just the special circumstances of the occupation”.[xi] It seems possible that Desi did not pursue restitution of the hundreds of works from the Goudstikker collection recovered after the war because under the Dutch rules, she would have had to return payment received from the Germans. Thus, the Cranach “Adam” and “Eve” – and many other paintings – entered the Dutch national collection. In 1966, the two Cranachs were sold to George Stroganoff-Scherbatoff, heir to the “Stroganoff art collection, from which he believed the works had been confiscated during the Russian revolution”, on the condition that he drop another claim against a Rembrandt. Stroganoff-Scherbatoff subsequently sold the Cranachs to Norton Simon a few years later.[xii]

Since then, Goudstikker’s daughter-in-law Marei von Saher had been pursuing a convoluted case to reclaim “Adam” and “Eve”. Von Saher discovered that the Cranachs were located at the Norton Simon Museum in 2000, and in 2007 she filed a lawsuit for their return following failed attempts at mediation. The case was dismissed by the California district court, but in 2010 the Ninth Circuit Court of Appeals gave von Saher leave to amend.[xiii] Von Saher later did amend her complaint, which was dismissed a second time by the district court and remanded by the court of appeals in 2014.[xiv] In 2016, the case was yet again dismissed, and returned to the court of appeals in February 2018.[xv] In the most recent incarnation of the case, the district court focused on the fact that Desi Goudstikker had not pursued a claim for these works following the war and that the Netherlands had therefore acquired and transferred good title for them to Stroganoff-Scherbatoff and Norton Simon. Ironically, the court relied on post-war Dutch rules for restitution, whereas the Netherlands instituted a new, more lenient policy for considering restitution claims in 2001, and in 2006 returned over 200 works to von Saher using this revised approach.[xvi] The case seemed to finally reach it conclusion in July 2018, when the Ninth Circuit “affirmed the district court’s summary judgment in favor of the Norton Simon Museum.”[xvii] However, in August 2018 von Saher filed for a rehearing of the case in front of a full panel of judges, so it is possible that the fate of the paintings may still change.[xviii]

Similar to Mosse’s Benin head, however, the provenance of “Adam” and “Eve” is even more complicated than von Saher’s restitution claim demonstrates. Goudstikker had purchased the Cranachs in 1931 when they were auctioned in Berlin by the Soviet government together with art from the Stroganoff Collection. According to some, including the Stroganoff family, the paintings had been stolen from them after the Russian Revolution and therefore not acquired legitimately by Goudstikker – as mentioned, it was a Stroganoff heir who acquired the Cranachs from the Dutch government and sold them to Norton Simon. Others, including von Saher, argue that the paintings were first brought to the Kiev Monastery of the Caves in 1927 and identified as Cranachs in 1928, during the nationalization of private and monastic property by the Soviet government, before being marketed as part of the aristocratic collection. There is no evidence that the paintings did indeed belong to the Stroganoffs, or of how they came to be in Kiev in the years prior to their sale.[xix] Regardless of the exact provenance of the Cranachs, the fact remains that they were somehow confiscated and sold by the Soviet government. Do the potential issues with Goudstikker’s purchase of the Cranachs affect his daughter-in-law’s restitution claim? How should the fact that they were nationalized by the Soviets be taken into consideration alongside the fact that they were looted by the Nazis? Certainly, the different moral and legal contexts for these two different instances and types of confiscation must influence any response, but the convoluted history of this pair of Cranach paintings still raises questions regarding restitution that are important to consider.

Conclusion

Existing laws and legal principles can help address restitution claims for objects whose problematic provenances include not only the Holocaust, but prior acquisitions as well. In terms of colonial-era looted art, there is generally no legal requirement for restitution. Although objects taken during this period are now considered stolen and there may be a retrospective ethical obligation to return them, in most cases their acquisition was perfectly legal based on the laws (and mores) of the time. Regarding cultural property nationalized by the Soviet government after the 1917 revolution and sold to the West, the Act of State doctrine has been used in deciding a plethora of cases against the original owners, as the government was recognized by other states and the confiscations occurred in its own territory and applied to its own citizens.[xx] While there is no judicial consensus about the Act of State doctrine, it appears to be an acceptable basis for US non-adjudication of early Soviet property confiscations.

However, the Act of State doctrine does not apply to Nazi-looted art. The Nazi regime has been repudiated as a government, and much of the art it seized was neither from its own territory nor from its own citizens, given that Jews were stripped of their citizenship in 1935.[xxi] Even where this is not the case, Nazi seizure of art violated the United States’ (and other countries’) obligations under the 1899 and 1907 Hague Conventions and therefore falls under the treaty exception to the Act of State doctrine. According to the 1907 Convention respecting the Laws and Customs of War on Land (which is essentially the same as the 1899 Convention), “private property cannot be confiscated” (Article 46), “pillage is formally forbidden” (Article 47), and “all seizure of, destruction or wilful damage done to institutions [dedicated to religion, charity and education, the arts and sciences], historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings” (Article 56).[xxii] Additionally, agreements such as the 1998 Washington Principles on Nazi-Confiscated Art and the 2009 Terezin Declaration show an international consensus regarding the importance of addressing restitution claims for Nazi-era looted art.

Nevertheless, as the Dutch government recognized in its revision of its post-war restitution policy, using a purely legal approach to solve restitution issues neglects important moral considerations. This is clearly essential for considering Nazi-looted art claims, but it also applies to other situations where the taking of art may have been legal but remains morally dubious (especially in retrospect). Does this mean that all artworks should be returned to anyone who claims they were stolen from them? No, but it does mean that these claims should at least be acknowledged and considered seriously. After all, restitution need not be the only solution to such cases. Nigeria has been active in its calls for repatriation of the Benin bronzes, but Nigerian officials say they may be open to borrowing these artifacts back and working with museums such as those in the Benin Dialogue Group.[xxiii] Compromise of this sort may be more difficult to achieve when pieces are owned by individual

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Footnotes:

[i] Zemanek-Münster, “Revealed: Royal Benin head from Jewish art collection”, 20 Feb. 2018. (https://www.tribal-art-auktion.de/en/news-and-events/news-detail/revealed-royal-benin-head-from-jewish-art-collection/)

[ii] Mosse Art Research Initiative, “The Dispossession of the Lachmann-Mosse Family”. (https://www.mari-portal.de/page/the-dispossession-of-the-lachmann-mosse-family);  Zemanek-Münster, 20 Feb. 2018.

[iii] Zemanek-Münster, 20 Feb. 2018.

[iv] Art Institute of Chicago, “The British Conquest of Benin and the Oba’s Return”, 2013. (http://archive.artic.edu/benin/conquest/); Jonathan Jones, “Spoils of war”, Guardian 11 Sept. 2003. (https://www.theguardian.com/culture/2003/sep/11/2)

[v] Ingo Barlovic, “Narben der Zeit”, Der Tagesspiegel 13 March 2018. (https://www.tagesspiegel.de/kultur/versteigerung-von-benin-bronze-narben-der-zeit/21054746.html) – using Google Translate

[vi] Zemanek-Münster, “Information zu Lot 252, Gedenkkopf einer Königin-Mutter, 19.Jh”, 1 March 2018. (https://www.tribal-art-auktion.de/de/news-detail/information-zu-lot-252-gedenkkopf-einer-koenigin-mutter-19-jh/) – using Google Translate

[vii] Gareth Harris, “Looted Benin bronzes to be lent back to Nigeria”, The Art Newspaper 16 Oct. 2017. (https://www.theartnewspaper.com/news/looted-benin-bronzes-to-be-lent-back-to-nigeria)

[viii] Catherine Hickley, “Hamburg museum says its Benin bronzes could return to Nigeria—but not yet”, The Art Newspaper 11 May 2018. (https://www.theartnewspaper.com/news/hamburg-considers-fate-of-three-benin-bronzes)

[ix] Kwame Opoku, “Loot In Loot -Benin Head Of Oba In Nazi Looted Jewish Art Collection To Be Auctioned”, Modern Ghana 24 Feb. 2018. (https://www.modernghana.com/news/837518/loot-in-loot-benin-head-of-oba-in-nazi-looted-jewish-art-co.html)

[x] National Gallery of Art, “The Marriage of the Virgin”, note 5. (https://www.nga.gov/collection/art-object-page.46138.html)

[xi] Thomas R. Kline, “Will Third Visit to Ninth Circuit Be Deja Vu All Over Again for Norton Simon Museum?”, IFAR Journal, Vol. 17, no. 2&3 (2016), pp. 16-18. (https://www.law.upenn.edu/live/files/6413-kline-thomas-2017-will-third-visit-to-nint)

[xii] Klein, pp. 17-18.

[xiii] Suzanne Muchnic, “Norton Simon to keep pair of paintings”, Los Angeles Times 19 Oct. 2007 (http://articles.latimes.com/2007/oct/19/entertainment/et-simon19); Von Saher v. Norton Simon Museum of Art, 897 F.3d 1141, 1146-7 (9th Cir. 2018).

[xiv] Von Saher v. Norton Simon Museum of Art at 1147; Klein, p. 19.

[xv] Carolina A. Miranda, “Court rules museum can keep Nazi-looted Adam and Eve masterpieces with a hidden past”, Los Angeles Times 22 Aug. 2016. (http://www.latimes.com/entertainment/arts/miranda/la-et-cam-norton-simon-good-title-cranach-20160817-snap-story.html); Nathan Solis, “Years-Long Fight Over Nazi-Looted Art Returns to 9th Circuit”, Courthouse News 14 Feb. 2018. (https://www.courthousenews.com/years-long-fight-over-nazi-looted-returns-to-9th-circuit/)

[xvi] Von Saher v. Norton Simon Museum of Art at 1148-9; Solis; Restitutiecommissie, “The Restitutions Committee’s history in brief”. (http://www.restitutiecommissie.nl/en/the_restitutions_committees_history_in_brief.html)

[xvii] Von Saher v. Norton Simon Museum of Art at 114; Kate Brown, ”Following an 11-Year Legal Battle, Cranach’s Nazi-Looted Adam and Eve Paintings Will Remain at a California Museum”, artnet News 31 July 2018. (https://news.artnet.com/art-world/lucas-cranach-ruling-1326245)

[xviii] Sarah Cascone, “The Battle Over the Norton Simon Museum’s Nazi-Looted Cranach Paintings Isn’t Over as Lawyers File for a Rehearing”, artnet News 14 Aug. 2018. (https://news.artnet.com/art-world/norton-simon-museum-cranach-paintings-1331519)

[xix] Catherine Schofield Sezgin, “Lucas Cranach the Elder’s ‘Adam’ and ‘Eve’ diptych subject of Marei Von Saher vs. The Norton Simon Museum of Art at Pasadena (Part I)”, ARCA Blog 18 Oct. 2010 (http://art-crime.blogspot.com/2010/10/norton-simon-museums-adam-and-eve.html); Norton Simon Art Foundation Statement, 2016. (https://www.nortonsimon.org/assets/Uploads/2016-09-NSAF-Statement.pdf); Alekseii Giliarov, “Moi Kranakh”, Association of European Journalists 1 April 2011.  (http://aej.org.ua/history/851.html); Miranda.

[xx] Natalie Foote, “Stolen Art And The Act Of State Doctrine: An Unsettled Past And An Uncertain Future”, DePaul University College of Law. (https://www.culturalheritagelaw.org/Resources/Documents/Natalie%20Foote%20paper.pdf); Irina Tarsis, “Twentieth-Century Shadows over the Twenty-First-Century Art Field: Title Disputes Arising from the Soviet Nationalisation and Sales of Cultural Property”, Art, Antiquity and Law Vol. 21, Issue 3 (2016). (https://ial.uk.com/product/twentieth-century-shadows-over-the-twenty-first-century-art-field-title-disputes-arising-from-the-soviet-nationalisation-and-sales-of-cultural-property-%EF%BC%88irina-tarsis%EF%BC%89/)

[xxi] United States Holocaust Memorial Museum, “The Nuremberg Race Laws”. (https://encyclopedia.ushmm.org/content/en/article/the-nuremberg-race-laws)

[xxii] Hague Convention respecting the Laws and Customs of War on Land, 1907. (https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/385ec082b509e76c41256739003e636d/1d1726425f6955aec125641e0038bfd6)

[xxiii] Alexis Akwagyiram, “Nigeria could borrow back its plundered Benin Bronzes: governor”, Reuters  20 June 2018. (https://www.reuters.com/article/us-nigeria-history-benin-bronzes/nigeria-could-borrow-back-its-plundered-benin-bronzes-governor-idUSKBN1JG0WR).

Images:

• Benin head – https://www.tribal-art-auktion.de/en/news-and-events/news-detail/revealed-royal-benin-head-from-jewish-art-collection/
• Cranach “Adam” – https://www.nortonsimon.org/art/detail/M.1971.1.P
• Cranach “Eve” – https://www.nortonsimon.org/art/detail/M.1991.1.P

About the Author: Shlomit Heering was a 2018 Summer Intern with the Center for Art Law. She holds an MA from University College London in Cultural Heritage Studies and a BA from the University of Pennsylvania in Ancient History and Anthropology. She is a current JD candidate at NYU Law, Class of 2021.