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From Stolen Heritage to Restitution: The Story Behind Looted Art

May 6, 2024

Photo from Adolf Hitler at the Haus der Kunst München, 1939. Image available at: https://www.theartnewspaper.com/2018/05/09/damning-report-says-france-must-catch-up-fast-in-return-of-nazi-era-loot

By Amanda Buonaiuto

What is Looted Art?

Looted art, also known as stolen art, refers to artifacts that have been unlawfully taken from their rightful owners through various means, such as theft and coercion during times of conflict, colonization, or war. The term encompasses a wide range of cultural objects that hold significant historical value, including artworks, archaeological items and religious relics.

The looting of art and cultural property has profound consequences that extend far beyond the act of theft. Such objects often hold significance for communities, serving as symbols of their heritage. When they are stolen, it is not just the physical items that are lost, but also a part of the cultural community identity. Therefore, removing artifacts from their original context can obscure their ownership history and distort understandings of the past.

Aiming to correct past injustices and provide closure to individuals and communities affected by cultural theft, efforts to identify and return stolen heritage goods to their owners of origin have gained spotlight recently. Those are based on ethical and moral principles that involve extensive provenance research and collaboration between governments, museums and private art collectors. Looted art has served as inspiration and food for thought from many members of the general public, from museum curators^[1] to claimants and collectors.

As the subject of ownership and provenance are paramount to the Center for Art Law’s mission, having dominated court dockets as leading art law disputes, the following is intended as a survey of the most highlighted categories of looted art. Each classification carries its own narrative, shaped by unique circumstances of acquisition, and presents specific challenges in their restitution process.

“The Greatest Art Theft in World History”: Nazi-Looted Art

With the rise of National Socialism in Germany, the largest art theft in world history was initiated even before the outbreak of the Second World War. Between 1933 and 1945, over 650,000 artworks were seized or forcibly sold by the Nazis across Europe.

In 1921, Adolf Hitler (1889-1945) assumed leadership of the Führung der Nationalsozialistischen Deutschen Arbeiterpartei (NSDAP) and began promoting antisemitic ideas. This scenario later led to the implementation of antisemitic laws such as the Nuremberg Laws^{^[2]} (1935) and the Law on the Confiscation of Jewish Property^{^[3]} (1938). Furthermore, Hitler established several principles regarding what should be considered ideal for Aryan individuals, including artistic guidelines. The leader of the Third Reich condemned what he deemed “degenerate art”^{^[4]} and enacted the Law on Confiscation of Products of Degenerate Art^{^[5]} (1938).

Both the law for the confiscation of Jewish property and the law for the confiscation of art objects from museums and private collections were the main methods employed by the Nazis to appropriate the largest amount of stolen artworks in the world to date. The process of restituting these confiscated artworks continues until the present date, nearly 80 years after the end of the war. During this period, multiple restitution efforts have been established.

The success of restitution procedures created during^{^[6]} and immediately^{^[7]} after World War II was short-lived. It wasn’t until the end of the Cold War that they regained momentum, during a time known as the Holocaust Era Restitution Campaign. By the early 1990s, digital registries such as the Art Loss Register (ALR) and commissions like the Commission for Art Recovery were established worldwide, specifically focusing on the identification of stolen artworks. The increasing monitoring of international private and public art collections and the growing number of claims searching for the restitution of artworks made by Holocaust victims and their heirs have led to this issue gaining international attention.

In 1998, forty-four countries and thirteen non-governmental organizations came together in Washington for the first conference to specifically debate the restitution of Nazi-looted art. At the end of the event, eleven principles were established^{^[8]}. These are the most important principles imposed to date, yet they are non-binding, since the signatory nations are not obligated to implement them within their respective legal systems, serving solely as guidelines.

Furthermore, the Vilnius Forum Declaration (2000) and the Terezin Declaration on Holocaust Era Assets and Related Issues (2009 and 2022) are two statements that can be interpreted as reaffirmations of the Washington Principles. They have not altered existing legal norms or introduced new regulations, but rather emphasized the significance of these principles for the restitution of Nazi-looted art.

Until 2016, different jurisdictions in the United States had different rules regarding art confiscated due to Nazi persecution. Some states such as New Jersey applied the discovery rule in cases related to this issue, while others, for example New York, utilized the demand and refusal rule. Inspired by the previous declarations, the Holocaust Expropriated Art Recovery (HEAR) Act was created to standardize the statute of limitations concerning artworks expropriated by the Nazis within the American legal system. The HEAR Act is valid until 2027 and follows an “actual discovery” standard^{^[9]}. According to it, Holocaust victims or their heirs have a six-year period to make a restitution claim, relying on the property right to an artwork as well as its identification and location.

In an effort to create unified legislation at the European level, a resolution for the return of artworks and cultural goods looted in armed conflicts was proposed based on the HEAR Act and adopted by the European Parliament in 2019. This resolution also encompasses the Holocaust period and encourages the establishment of a European database for looted art, including a list of all cultural goods plundered during the Third Reich in Jewish possession. It recognizes and promotes the use of alternative dispute resolution mechanisms to overcome issues in dealing with looted art, with a focus on identifying civil law measures in each member state that could contribute to resolving these restitution processes.

On March 5, 2024, in recognition of the 25th anniversary of the Washington Conference, 15 best practices were released in order to improve the practical implementation of the Washington Principles. In summary, the Best Practices for the Washington Conference Principles on Nazi-Confiscated Art were drafted mainly to clarify terms,^{^[10]} foster transparency,^{^[11]} promote the establishment of Commissions,^{^[12]} and central information points.^{^[13]}

Despite the existence of conferences, legislations, and resolutions related to the restitution of Nazi-looted art, the number of artworks returned to their rightful owners by 2024 can be considered low. This is because the restitution process itself is highly complex, requiring adherence to the following criteria to take place.

Period of looting

Most nations presume that an artwork confiscated by the Nazis can only be returned if it was confiscated between January 30, 1933, and May 8, 1945. However, exceptions to this period must also be considered. The premise is that each case is unique and must be treated as such.

Location of the looting

The analysis of the country where the Nazis confiscated a particular artwork is a recurring topic of discussion, as it can influence the outcome of restitution claims. Judgments may differ depending on whether a work was confiscated in Axis countries such as Germany and Italy, on the soil of one of the Allied countries like France or the United Kingdom, or in a neutral state like Switzerland.

In addition, most of the cultural goods looted during World War II crossed multiple borders. The “cross-border character” of such property poses several legal challenges for restitution processes, with the greatest challenge being that members of the European Union have different legal systems. Thus, there are different interpretations of the same issue in each country and by Commissions created based on the Principle X^{^[14]} of the Washington Conference. Both of these scenarios lead to discrepancies and legal uncertainties.

Conditions of sale and purchase

The particular conditions of the sale or confiscation of an artwork must also be considered in the determination of a claim, as they will directly influence the restitution process. Even before the Law on the Confiscation of Jewish Property (1938) countless individuals sold their possessions to finance their emigration from Germany and escape antisemitism. These sales can be considered coerced, as they would not have been necessary without the Nazi takeover. Additionally, most negotiations had to take place quickly and often in auctions promoted by the Nazis, resulting in property being sold at prices below their actual market value.

The condition in which an artwork was acquired also plays an important role in restitution cases. It is particularly key to consider whether the purchaser acted in good faith, as this element implies the need to evaluate the legitimacy of the transaction. If the buyer acquired the artwork in good faith, without knowledge of its illicit origin or any prior ownership claims, this can significantly influence the decision on restitution. It is important to emphasize that the concept of a good faith purchaser is fluid, varying significantly from one legal system to another.

Post-war compensation

After the end of the Second World War, a restitution movement was launched to compensate the victims of the Holocaust. This was part of an international agreement signed at the Potsdam Conference, which stipulated that Germany should compensate the Allied countries. Although Jewish individuals were not considered a nation, they were heavily affected by anti-Semitism and therefore entitled to special compensation.

It can be observed that post-war reparations were mostly compensatory, meaning they relied on the payment of monetary sums to financially compensate the victims of Nazi persecution. Another important point that may be considered in cases of returning Nazi-looted art is whether the claimant had previously received any form of compensation. In most of these cases, it can be said that compensation has been provided in a general form. For this reason, the possibility of restitution should not be ruled out even in cases of compensation, as the compensation previously received in the vast majority of cases clearly did not suffice to cover the actual value of the property.

Emotional value of the claim and moral obligation to restitution

The artworks confiscated by the Nazis often hold a special intangible significance for victims of the Holocaust and their heirs. Their restitution is meant to be much more than a mere return of property, as it also represents the acknowledgement of a difficult past.

To render decisions in these cases less emotionally charged, the United States strives to adopt a neutral stance, considering only the concrete facts of each case rather than society’s perspectives. In contrast, most European countries apply what is known as a “culture of remembrance” in assessing such cases, directly linked to the emotional values associated with a particular historical context. This European approach creates a moral “obligation” to return the artworks confiscated by the Nazis to their rightful owners, which can be viewed as a form of historical reparation. However, since most current owners of these artifacts are museums, there is sometimes a need to weigh what holds greater significance: the moral “obligation” or the public interest in preserving and accessing such objects of cultural heritage.

As shown above, it is evident that the restitution of Nazi-looted art encounters multiples obstacles. Although this issue has no centralised framework, it has been widely acknowledged at an interstate level, as many countries have enacted Holocaust exceptions by modifying or creating laws to establish a link between cultural restitution and the crime of genocide. Additionally, it can be affirmed that the Jewish community is incredibly united, working collectively in order to honor the memory of the victims of the Nazi persecution and also achieve just and fair solutions concerning the return of Nazi-looted artworks to their rightful owners.

“The Massive Theft of Culture”: Empire and Colonial Looted Art

Photo from British soldiers in Benin City, 1897. Image available at: https://www.swissinfo.ch/eng/culture/looted-colonial-art-there-is-no-limit-to-restitution/48282022

While the classification of looted colonial art includes cultural artifacts removed from their countries of origin^[15] in Africa, Asia, and the Americas during the era of European colonial expansion (circa 1450–1950), the category of empire-looted art encompass plundering of objects that were taken from regions under the control of various imperial powers throughout history.^{^[16]}

In both those sorts of looting, coercive means were employed and served not only for asserting dominance and control over communities,^{^[17]} but also for enhancing the cultural prestige of the colonizers and Empires. Often items were stripped of their original context and incorporated into museums or private collections with an undertone of stigmatization and marginalization. This process not only distorted the comprehension of the object’s historical denotation but also compromised the preservation of cultural traditions, robbing future generations of their heritage.

The actual concept that cultural treasures should not be considered legitimate spoils of conquest stands in contrast to ideals that were accepted for centuries. It was only during the nineteenth-century, after the long-lasting pillage of works of art across Europe made by Emperor Napoleon I,^{^[18]} that initiatives emerged to outlaw the confiscation of cultural property:

“Since the second half of the 19th century, countries began the process of codifying the laws of war, and these legislations existed in customary international law in the form of domestic law. Naturally, customary regulations prohibiting the plunder of cultural property also should be classified into the scope of codification. The regulation against plundering of cultural property was initially stipulated in the Lieber Code of 1863 of the United States, then reflected in the Brussels Declaration of 1874 and the Oxford Handbook of 1880, and it was finally stipulated in the 1899 and 1907 The Hague Conventions. Compared with the Code of Lieber, these subsequent international legal documents did not create new rules against the looting of cultural property but articulated the old rules clearly and specifically again. Since the development of the state of natural law to the universal recognition of various countries, the rules prohibiting the plunder of cultural property have had the binding force on customary international law.”^{^[19]}

Following the strengthening of prohibitions against cultural property theft, the first push for restitution occurred in 1973 with the adoption of the Resolution on Restitution of Works of Art to Countries Victim of Expropriation. In this resolution, the United Nations recalled the Declaration on the Granting of Independence to Colonial Countries and Peoples and established the following:

“Convinced that the restitution of such works would make good the serious damage suffered by countries as a result of such removal, 1. Affirms that the prompt restitution to a country of its objets d’art, monuments, museum pieces, manuscripts and documents by another country, without charge, is calculated to strengthen international cooperation in as much as it constitutes just reparation for damage done; 2. Recognizes the special obligations in this connection of those countries which had access to such valuable objects only as a result of colonial or foreign occupation.”^{^[20]}

In 2008, UNESCO promoted a conference in Athens entitled The Return of Cultural Property to its Countries of Origin. In this event, Dr. George Anastassopoulos commented that despite the undeniable signs of progress with the creation of resolutions, databases and conferences related to the restitution of cultural property to its countries of origin, much still needs to be done. The political landscape should be open to reshape discussions, once there are a growing number of requests from countries in order to achieve the repatriation of objects held outside their borders and reconstruct their cultural memory. Moreover, Dr. Anastassopoulos expressed his conviction that if these objects are not returned to their original context and history, there is a risk of stripping them of their universal essence and beauty, reducing them to mere “familiar” commodities for consumption^{^[21]}.

Inspired by this statement a movement known as “Decolonizing Museums” emerged. The campaign calls for a reevaluation of museum practices^{^[22]} and representation of ex-colonies communities seeking restitution of stolen heritage. According to the Museums Association:

“Decolonisation is not simply the relocation of a statue or an object; it is a long-term process that seeks to recognise the integral role of empire in museums – from their creation to the present day. Decolonisation requires a reappraisal of our institutions and their history and an effort to address colonial structures and approaches to all areas of museum work.”^{^[23]}

In addition to these efforts, other more specific initiatives, such as the UN Declaration on the Rights of Indigenous Peoples (2007) and the Report on the Restitution of African Cultural Heritage (2018), have also been released in order to achieve the repatriation of stolen artifacts to determined groups of people. Nonetheless, the restitution rates of empire and colonial looted art can be considered low, mainly due to two factors.

Conquerors’ perspectives

Restitution efforts are predominantly framed from the perspective of the nations that were imperialists and colonialists in the past. Their control of the narrative acknowledges the atrocities suffered by the conquered communities, but often still tries to overshadow the real historical facts according to their point of view. This scenario is clearly exemplified in the behavior of European museums towards the decolonization movement. While museums appear to be aligning with ethical and moral concepts imposed by society, in reality, they are performing their “obligation” without truly delving into it:

“Decolonisation makes an ethical demand on museums to guide their visitors through the experience of acknowledging the consequences of conquest, commerce, and exploitation. So far, instead of providing a critique, museums have instrumentalised it and implicitly supported the status quo. I have outlined three current strategies: spinning repatriation stories in mass media, using public relations to smooth out conflict, and changing captions on exhibits. Self-reflective displays with cultural sensitivity that guide audiences through an understanding of how museums participate in reproducing the ideological power of white supremacist capitalist patriarchy are still lacking.”^{^[24]}

Lack of unity

Empire and colonial looted art embrace various periods throughout history and also encompasses many vastly different conquered communities. Consequently, this fragmented nature results in a lack of unity among the victims. Instead of joining forces, smaller groups continue to struggle individually to have a voice against powerful nations that were imperialist and colonialist in the past. This absence of union not only hinders collective efforts for restitution, but also perpetuates a sense of isolation and powerlessness among those affected.

In summary, the return of empire and colonial looted art represents a unique journey toward rectifying historical injustices and restoring cultural heritage of conquered communities. Despite its uniqueness, those classifications of stolen heritage can be connected with Nazi-looted art. This scenario will be analyzed further in the conclusion.

Conclusion

Although restitution claims for Nazi-looted art and for empire- and colonial- looted art have long been seen as separate domains, nowadays they are often connected. The main argument that enables this connection is that they are considered as periods of great historical injustice and their returns are perceived as a “moral obligation.”

Additionally, in comparison of those classifications, it can be stated that while the spotlight often shines brightly on the issue of Nazi-looted art, empire- and colonial- looted art don’t receive equal attention within public discourse.

“The farther we get from Western Europe, the less morally compelling we seem to find the claims of those whose art Europeans looted. Crimes committed against Western Europeans, including victims of the Nazis, merit restitution and correction whenever possible. The Greeks have a certain standing through the legacy of classical society, but they are geographically and economically on the periphery of Europe. Their claims garner less consensus. Crimes committed against Africans, Asians and indigenous peoples are clearly different. Outside of small activist circles, their claims find very little support. Why?”^{^[25]}

This question can be answered by the understanding that the theft of artworks which happened during the Holocaust is more recent and was extensively documented compared to the empire and colonial looting of cultural heritage. Therefore, the Nazi-looted art issue receives more awareness.

“What was new about National Socialist looting was not only its scale and magnitude, but especially how countries reacted to it, during the Second World War and since. As Greenfield underlined, ‘the idea… emerged that cultural property is a matter of international concern, part of the “heritage of mankind”’. As a result, over recent years a very rich and diverse literature on post-Second World War restitution was developed. where popular recollections have made way for carefully reconstructed investigations of the wartime and postwar activities of a number of kew players.”^{^[26]}

Fortunately, this scenario is gradually changing. More attention has been given to empire and looted art recently due to developments in the Nazi-looted art field. The post-war studies before mentioned, together with new efforts of restitution^{^[27]} and legal precedents are serving as a role model, which can be adapted for dealing with all classifications of looted art.

References:

Through a curated collection of photos, documents and art pieces, the exhibition provided not only a comprehensive historical context, but also delved into who profited from the looting of artworks and their restitution efforts. One of the artworks exhibited was “Portrait of Jean Van Eversdijk” (1580) by Nicolas Neufchatel. This painting belonged to the art collection of Max Stern, which was sold under Nazi duress. In 2007, through a voluntary restitution, the Jakober Foundation returned it to the Max Stern Art Restitution Project. CBC, 2nd Nazi-looted painting recovered by Montreal foundation (February, 2007), https://www.cbc.ca/news/entertainment/2nd-nazi-looted-painting-recovered-by-montreal-foundation-1.678696. ↑
The Nürnberger Gesetze were a series of laws that served as a legal basis for the discrimination and persecution of the Jewish population. ↑
This legislation states that Jews should sell their property, liquidate their businesses, and deposit their securities with a foreign exchange bank. ↑
The Aryan art ideal aimed to portray conventional subjects such as landscapes in a symmetrical, realistic, and natural manner. Anything that did not fit into this classical form was considered as “degenerate art.” ↑
This law stipulated that all modern artworks in German museums or private collections were to be expropriated without compensation by the Nazi state. ↑
Inter-Allied Declaration Against Acts of Dispossession Committed in Territories Under Enemy Occupation or Control. ↑
Central Collecting Points (CCP). ↑
These principles convey the following ideals: Simplify the identification of Nazi-looted art (Principle I); Encourage rightful owners to seek the return of artworks confiscated by the Nazis and not subsequently returned (Principle VII); Provide free access to records and archives through a “Central Register” for looted art (Principles II, III, V, and VI); Implement “just” and “fair” solutions in cases of Nazi-looted art restitution (Principles IV, VIII, and IX); Establish Commissions to support the restitution process for Nazi-looted art (Principle X); Encourage Nations to develop national procedures to implement these principles (Principle XI). ↑
The victim only needs to have sufficient information about a relevant fact or circumstance to have a claim. In other words, mere awareness is sufficient. ↑
For example, the concept of what art is (Best Practice A) and what is meant by “Nazi-looted” (Best Practice B) were explained. ↑
All information pertaining to restitution cases involving Nazi-looted art must be made publicly accessible. In particular, the Best Practices for the Washington Conference Principles on Nazi-Confiscated Art highlight that public and private collections should be encouraged to publish their inventories (Best Practise G). Provenance research carried out by public or private bodies should be made publicly available on the internet (Best Practise H). Terms of reference and rules of procedure as well as their decisions and recommendations should be made public by the Claims handling bodies (Best Practise J). Countries and institutions should maintain and publish online comprehensive information and statistics on research undertaken, works of art that have been identified and restitutions or other fair and just solutions that have been achieved (Best Practise L). ↑
Best Practise I: “Countries are encouraged to create an independent expert body whose composition may be the states’ responsibility, to which unilateral access is available that can adjudicate cases of art and cultural property and arrive at or recommend a binding or non-binding decision (for example, the use of commissions in Austria, France, Germany, Netherlands, and the United Kingdom). Such bodies should have balanced, expert, and representative membership. Use of alternative resolution mechanisms is encouraged to avoid litigation.” ↑
The aim of the central contact points is to provide information, advice and help on any query regarding art, archives and claims related to Nazi-looted art. ↑
Principle X, Washington Conference: “Commissions or other bodies established to identify art that was confiscated by the Nazis and to assist in addressing ownership issues should have a balanced membership.” ↑
From 1897 to 1960, Benin City became part of the British Empire. It is in the context of this aggressive expansion of colonial power that sculptures, known as “Benin Bronzes” were sent to several British museums and later traded in Europe and the United States. There is currently a significant debate surrounding these pieces and their restitution. The Nigerian National Commission for Museums and Monuments (NCMM) successfully advocated for the return of numerous Benin Bronzes to Nigeria from various museums, such as the Smithsonian’s National Museum of African Art and the Ethnologisches Museum of the Staatliche Museen zu Berlin. ↑
A few examples are the Roman Empire, Ottoman Empire and Napoleonic Empire. ↑
Dominated people were seen as weak and incompetent. In this mindset, they were saving, not stealing, their cultural treasures. ↑
Napoleon stole artworks from various countries including Italy, Austria and Germany. Among the numerous treasures he brought to Paris were the four bronze horses of St. Mark’s Basilica (those were returned to Venice after Napoleon’s defeat in 1815), and “The Wedding at Cana” by Paolo Veronese (this painting was not restituted and remains at the Louvre until today). These artworks were looted in 1796 when Napoleon occupied the city of Verona, which was then part of the Republic of Venice. After an unsuccessful attempt of rebellion, the Italians were defeated and demanded that the town provide France with a hoard of paintings and sculptures, including the aforementioned pieces. Shannon Selin, Napoleon and the Veronese Easter (March, 2016), https://shannonselin.com/2016/03/napoleon-veronese-easter/ ↑
Zhang Yadong, Evolution of the Customary International Law on Cultural Property Plundered in War, The Opole Studies in Administration and Law (2021), http://portal.amelica.org/ameli/journal/463/4632029009/html/ ↑
United Nations, Resolution on Restitution of works of art to countries victim of expropriation, 1973. Available at: https://digitallibrary.un.org/record/190996 ↑
Dr. George Anastassopoulos, The Return of Cultural Property to its Countries of Origin (2008), https://unesdoc.unesco.org/ark:/48223/pf0000158908 ↑
“Museums have employed three interlinked strategies designed to distance themselves from colonial practices: initiating the return process, re-contextualising their display collections, and seeking to control the narrative through public relations and advertising.” Gorda Stan, Unlike All Other Empires – The Instrumentalization of Critique in the Humboldt Forum (November 2022), https://www.humboldtforum.org/en/magazine/article/the-instrumentalisation-of-critique/ ↑
Museums Association, Decolonising Museums (2024), https://www.museumsassociation.org/campaigns/decolonising-museums/ ↑
Gorda Stan, Unlike All Other Empires – The Instrumentalization of Critique in the Humboldt Forum (November 2022), https://www.humboldtforum.org/en/magazine/article/the-instrumentalisation-of-critique/ ↑
Erin Thompson, If we return Nazi-looted art, the same goes for empire-looted, Aeon (July, 2016), https://aeon.co/ideas/if-we-return-nazi-looted-art-the-same-goes-for-empire-looted ↑
Bianca Gaudenzi, et al., Looted Art and Restitution in the Twentieth Century – Towards a Global Perspective, Journal of Contemporary History (July, 2017), https://www.jstor.org/stable/44504060 ↑
For example the Best Practices for the Washington Conference Principles on Nazi-Confiscated Art. ↑

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek a consultation with an attorney.