Steve and Katie talk with their colleague, Tom Kline, about the Nazi’s program of remaking European culture, the enormous theft and displacement of art that occurred as part of that program, and the efforts of the heirs of Jews displaced during World War II to reclaim art and cultural property. The discussion focuses on the Washington Principles, the updated best practices issued upon their 25th anniversary, and how claims for restitution have changed over this time.
Resources
https://schlaw.com/#/about/thomas-r-kline
https://www.state.gov/washington-conference-principles-on-nazi-confiscated-art/
https://www.state.gov/prague-holocaust-era-assets-conference-terezin-declaration/
Episode Transcription
Steve Schindler: Hi, I’m Steve Schindler.
Katie Wilson-Milne: I’m Katie Wilson-Milne.
Steve Schindler: Welcome to the Art Law Podcast, a monthly podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The Art Law Podcast is sponsored by the law firm of Schindler Cohen & Hochman LLP, a premier litigation and art law boutique in New York City. Hi, Steve.
Steve Schindler: Hi, Katie. How are you?
Katie Wilson-Milne: I’m good. I’m looking forward to spring.
Steve Schindler: It seems like it’s here. Hey, we had a great time yesterday talking about AI and art up at the Corcoran Center at Columbia.
Katie Wilson-Milne: Yeah, we did. We talked to some law students, and it’s a topic of great interest and it’s evolving all the time. So the podcast listeners will certainly get some more of that in the near future, too. Right. But today, yeah, we’re going to revisit an older topic, but a perennial one, on the Nazi’s relationship with art and then what happened to a lot of the art in Europe after World War II concluded. So this is both an old and a new topic and we’re going to talk about some of the background again today and also some new clarification on the Washington Principles that came out in honor of the Washington Principles 25th anniversary, which we see as pretty significant.
Steve Schindler: So we’re lucky to be here today with our colleague, Tom Kline. Tom, who has been on the podcast before, needs little introduction except is incredibly well known and renowned in the area of restitution issues, whether they be Nazi or archaeological or colonial, and he’s here with us today to talk about the 25th anniversary of the Washington Principles, how they came into effect and what preceded them. So maybe, Tom, you can start by telling us a little bit about Nazi-looting. We’ve talked about it on the podcast before, but I think it certainly bears repeating.
Tom Kline: Thank you, Steve, and hello, Steve and Katie. Thank you for having me on the podcast today. Greetings to your listeners, who are now considerable in number. This is a perennial topic of Nazi and World War II looting. It’s been one of my principal areas of practice since the mid-90s, and it doesn’t seem to be going away as a societal problem. There are a number of reasons for that, but it starts with the enormous volume of Nazi-looting far beyond what anyone could imagine, merely the same as the killing. It was at a very high level. And part of the reason for that was that the Nazis were trying to change German culture by getting rid of Jewish influences, anti-war influences, modernists, and so on. And so throughout Germany and wherever they went, they sought to wipe out the cultures that they found, whether in museums or private collections. And then there was an overlapping trend that they were also stealing personally and institutionally, so that much of the art that was seized was sold through the art market or kept in private collections. Hermann Göring had an enormous private collection the size of a public museum, and Hitler was trying to build a museum in Austria. So to assess the state of play with regard to Nazi-looting, one has to bear in mind how astronomical the figures were. I don’t believe any of the numbers that we see. I always use the example of Judaica of six million Jews were killed. That’s the equivalent of, let’s say, more than a million families. How much Judaica did a million Jewish families have? Menorahs, candlesticks for the seder, kiddish cups, other sorts of things. So I think on anything, discussing numbers really makes no sense. It’s just huge unending quantities. So even now, 70 years later, we see objects that could have been looted by the Nazis coming on the market pretty much every time. Christie’s and Sotheby’s has a major sale.
Katie Wilson-Milne: You said so many important things there that I think sometimes people have this question about World War II resulted in so much carnage, right? And death and murder and slaughter of people. Why are we focused on art? I mean, it can seem almost like grotesque, right, to be focusing on expensive pieces of art when there was so much physical abuse and murder. But I think what’s so important to understand is what you just said, which was it was all part of the same project, right? It wasn’t like there was some incidental stealing and just the normal looting that happens with war. It was all part of the same plan, you know, and very intelligently designed remaking of society to work people to death, to murder them, and to erase and remake culture. And so it was very much at the heart of the Nazi project in a way that, you know, I think is why it’s so important. And it is not just about the objects themselves, but about the symbolism of doing justice to restoring the world, you know, some dignity to the people and their families and the culture that existed before. So I think that’s really important. The numbers, you know, I’ve seen Tom or something like 600,000 pieces of fine artwork and then millions of pieces of sort of religiously significant objects. But as you said, those might be understated. And you also said it’s not just, you know, a Klimt or a Kandinsky or, you know, these extremely expensive paintings. It’s also cultural objects that had great significance that people lost as well.
Tom Kline: Well, that’s right, Katie, all of what you said is very important. The definition of genocide is not just killing people but wiping out a culture. And so destroying all these cultural objects was part of the same project, part of the same process. When I started in this area back in the 90s, you did hear on occasion people say, how can we be worrying about property when so many lives were lost? And I guess there are two answers. One is it was part of the same process, and restoring property is part of the process of preserving, rejuvenating a culture. But also it’s all we can do. We can’t bring the dead people back to life. We can build more memorials. But with so much property that was displaced, doing something about it is a small good deed that we can do.
Katie Wilson-Milne: Right. And obviously doing that has been very difficult, which is why we end up having the Washington Principles, which we’ll explain in a moment. But this problem was well known even during the war, right, Tom? I mean, the Allies were very aware of this kind of not just looting, but forced sales, this sort of just destruction and seizing of property. And that was a focus of the Allies after the war, which was to address some of the dispossession that had occurred. But it was problematic, right?
I mean, obviously we’re still fighting about this today because whatever happened in the 50s, started in the 50s, didn’t solve the problem. So I wonder if you could just give a brief sort of reminder to our listeners about what happened right after the war.
Tom Kline: Again, you’re right, Katie, the issue was clearly identified in 1943 at the height of the war. In fact, the government’s in exile, and the British government and the United States government put out a statement called the London Declaration. And it coincides in time with the Battle of Stalingrad, which was the military high watermark of the Third Reich. And to me, what it was saying is, we haven’t reversed things on the battlefield just yet. But we know what you’re up to. You’re up to transactions that appear to be normal, but are in fact coercive. And when we come back to the continent, we’re going to do what we can to correct things. We look at that period, 1943, and there was great knowledge. However, at the end of the war, when laws were passed to enact the principles of the Washington Declaration, they typically had very short statutes of limitations. And if you can imagine a one-year statute of limitations when there are 8 million displaced people in Europe trying to figure out where to go, home, Palestine, US, and towns and cities are bombed and destroyed, it’s just unfathomable that you would think a one-year statute of limitations would be adequate to address this problem.
Steve Schindler: Right, and I think what you just alluded to, and we’ve talked about this on the podcast before, is in the years immediately after the war, and obviously we had efforts by the so-called Monuments Men in the US trying to recover known stolen works of art and return them to at least their countries of origin. But we didn’t live in the world that we live in today with the internet and with registries where you can look for your objects. We’re living in a very different time where people who were displaced and may have lost all of their property had nowhere really to look, to try to find out where it went or where it was. And it really took quite a number of years, I guess really into the early 90s before individual claims started to surface in lawsuits.
Tom Kline: Well, that’s really the starting point for the 1998 Washington principles, because by then there had been 50 years in which, let’s say at the start, the immediate post-war period, there was considerable restitution, much of it by the monuments, finites, arts, and archives, men and women, and some of it through other processes. But it was far from complete. People turned their attention to the Cold War and to other issues, and the process was interrupted. And it was replaced really by a valley of amnesia where people just forgot about this or even went to the extreme where something being identified as Nazi loot made it look more glamorous and more valuable, even to the extent where Nazi seals were put on the back of fake paintings to make them look real and valuable. So it wasn’t until sometime in the 90s when numerous unfinished issues were addressed that the art issues came to the forefront.
Katie Wilson-Milne: Yeah, and it can seem odd that it’s only in the 90s where we really get a lot of momentum and steam behind the efforts of heirs to get art that was taken from their families back. But when you think through why that might be, it’s less mystifying, right? The Cold War ends. We have the sort of data-freezing, history-freezing effects of the Cold War thaw, so there’s a lot more information out there. We have the internet starting to develop for the first time and much more transparent, easy access to what’s happening at museums, what’s happening at auctions. And then we have a whole other world and another generation of people who aren’t just trying to forget and move on from everything that happened in Europe, but have the comfort and the safety of some distance from the Holocaust to pay attention to what their families might have lost and to look backwards, which psychologically was not possible for a lot of the people who fled Europe or escaped Europe. So it’s for all variety of reasons. It’s really not until the 90s that there’s a lot of at least ethical and moral consideration of what has not been working for the last 40 to 50 years.
Tom Kline: Well, it was the coming together of a number of factors at that time in the mid 90s. I think the heirs of Fritz Gutmann are a good example because the father of the current generation died off in typical European fashion. He had Bernard Gutmann living in England, survived the war, went looking for art, but he didn’t tell his kids about it. And when they inherited the contents of his desk, they learned about the art losses and the searching he’d been doing. All this, by the way, is chronicled in a terrific book by Simon Gutmann called The Orpheus Clock. So the next generation took over, the wall came down, archives were being opened, researchers were learning how to navigate these files. Files were open. For decades, certain important files were not publicly available. And at the same time, Swiss banks were being held accountable for bank accounts of Holocaust victims that they had concealed. Insurance policies by major insurance companies were never honored. Communal property had never been addressed, was starting to come to the fore. And we do have to consider the event-forcing nature of litigation. There were class actions being brought. And I brought the first case of Holocaust heirs to property, Goodman v. Searle, which is the same family as the Gutmanns. And another case was brought shortly after in New York that’s more prominent, Portrait of Wally, involving a Schiele drawing from Austria. So a lot of things were coming together, and people were realizing that there was time for an accounting and catching up. And we also have to give credit to Stuart Eizenstat and the US State Department for bringing together countries from all over Europe, Canada, countries that have been occupied, countries that had been allies, and neutral countries like Switzerland to try to address these issues. And at that time, art was focused on.
Katie Wilson-Milne: And so what were the Washington Principles, Tom, and also how did they come to be at the end of the 90s?
Tom Kline: Art was raised as looted art, cultural property was raised at the Washington Conference, which took place in December of 1998. And unlike other areas, where some very specific rules could be made about disclosing policies or accounts, it was recognized that art had to be dealt with individually. And there are 12 or so Washington Principles that address the notion of access to files, publicizing information, encouraging claims, conducting research to resolve claims, treating claims with respect, because people knew just from the two cases that have been going on how these lawsuits can get dragged out and technical rules like statutes of limitations can create barriers. And so the thrust of the Washington Principles was to say, let’s get these cases in front of the public, let’s get them resolved, let’s use alternate dispute resolution, mediation or arbitration, for example, negotiation to try to resolve claims. Now, the one point that’s important for your audience and Americans generally to bear in mind is that in our democratic system, everyone’s the master of their own fate. Most of our museums are private. We do have two national museums. We have many state, county, city museums. But even those museums make their own decisions. They have their own board of directors. There’s no one to say, you shall, you must. In Europe, in contrast, most museums are owned by the federal government or the central government. Or even if they’re owned by a state, the state is connected to the federal government. So the State Department said, well, we’ll pressure our museums to follow these principles, and we want European countries to follow them. And as a result, we actually see that the Washington principles were, I think, far more effective, had much more impact in Europe. For example, five countries, Germany, Britain, Austria, France, and the Netherlands all created commissions to address these claims. Other countries didn’t, and we didn’t. Here, things were left to litigation and private processes.
Katie Wilson-Milne: They created commissions to examine their own state collections, right? They actually could do something with these.
Tom Kline: That’s right. To examine their own collections, because at the end of the war, the Monuments Men and other processes had returned artwork to those nations, what was called at the time Country to Country Returns. And they were supposed to restitute it to the original theft victims, but in most cases, they didn’t. They just slotted it into their own museums. So in France, there was a specific collection, called the Recovered Art Collection. And in the Netherlands, they were doled out to various museums. And so the processes were created. These commissions were supposed to look at those collections and restitute objects. But like anything else, it became an uneven process. From my point of view as a lawyer, the main thing missing was a standard. What constitutes a strong claim? What constitutes a claim that should be honored? I ask this question whenever I can. And for example, in Austria, eventually they got to the position that they were not going to focus on delay in claims. That if a claim of theft was strong, they would restitute the object from the national collection. But even there, there was a tension that a very important museum was a national museum, but not a federal museum. So it wasn’t subject to these laws.
Steve Schindler: Right. So these were the Washington Conference Principles on Nazi-Confiscated art, right? That’s what they were called. And I think what you’re saying, Tom, is there was a lack of kind of agreement, if you will, or standard for what is Nazi-confiscated art. We can define art perhaps broadly as art and cultural property, but confiscation is something that has different kind of points of view from the kind of art where the Nazis come into an apartment and take things to force sales, to flight goods. And these are all different levels of confiscation, right? And we don’t have uniformity as to what it means to be confiscated.
Katie Wilson-Milne: And I also asked Tom, what was the Washington Conference? What was the conference itself? And what’s the background of why anyone showed up to that conference?
Tom Kline: The conference itself was to address legacy issues from the Nazi time, 1933 to 1945. A number of issues had come to the fore based on litigation, based on research. People were starting to pay attention to Swiss banks, denied claims for spurious reasons. Italian insurance companies that had denied claims for people killed in the Holocaust.
Katie Wilson-Milne: There’s a conference of nation-states.
Tom Kline: Yeah, it was a conference of nations and also some non-governmental organizations, NGOs, were invited. People like me were excluded because it was thought that we might– claimants representatives, which I was at the time, would drive people away. So it was intended to be discussion of what could be done in these various areas based on the failure of the existing legal systems to deal with them.
Katie Wilson-Milne: Yeah, and as you said, you know, what happened after the war was important, right? But what ended up happening in Europe was a lot of these objects ended up getting returned to their countries of origin, let’s say. But then those countries never did much else, right? So they ended up just being made part of the state collections and put in museums, and the next step was never really taken. And so I think that was acknowledged at the Washington Conference that there had not actually been further movement on returning objects to the heirs of the victims of of the Nazis. And nobody agreed on what the value system was to move forward. And I guess that’s one of the main issues, which, you know, as Steve said, there’s different legal standards around what is theft, what is duress, you know, what’s the statute of limitation. But there was also not a clear moral and ethical agreement about how to deal with these claims. And, you know, the Washington principles are not a treaty. They’re not a legally binding obligation, but there’s sort of an aspirational statement about what countries agree is ethically correct. And you could say that that has no teeth and who cares, but it actually was fairly powerful to have even a moral consensus. I’m wondering what your thoughts on the impact of that.
Tom Kline: It’s important to remember that every country has its own legal system. For example, in the United States, a thief cannot pass title. In France and Switzerland and Monaco, a good faith purchase can yield title to a good faith buyer. In Spain, there’s a doctrine called usucaption or acquisitive prescription in which someone can acquire title by keeping property within that country for a long time. So there are many, many complicating factors and also the inertia that we discussed that people were not addressing these issues. So the only way the Washington Principles were accepted was that it was held to be voluntary and the countries would follow as they could, consistent with their own legal systems, which led to the situation that I mentioned before where the US State Department put some pressure on museums and museum associations to come up with guidelines for looking at art that might have been looted by the Nazis, and five countries established commissions to try to resolve claims and research these issues and understand them and solve them. So if you put that together with what Steve was saying a minute ago about confiscation, we have defined the problem that came to the fore over the past 25 years since the Washington Principles, which is that they’ve had limited impact because of the concept of confiscation being somewhat limited, and because they were not positive law, they were moral guidelines. When I say that, I don’t want to minimize their importance. They were transformational in terms of encouraging settlements, encouraging attention to these issues, and to come back to what you said, Katie, and getting this issue back on the people’s radar screens is a serious issue that needed to be addressed. So with 25 years of experience of looking at claims, it was pretty clear what problems were appearing. And so the best practices that we see signed off on by a number of countries just now is to address those weaknesses and try to create greater efficiencies in dealing with these claims.
Katie Wilson-Milne: Before we get to what just came out, which we should introduce, there were a series of other declarations or agreements, principles, clarifications after the Washington Principles, right? Could you just quickly summarize what happened with those meetings or…
Tom Kline: Well, there was a meeting in Vilnius of various nations and then another one in Prague, and then another one in Prague, and the purpose of these was to continue the energizing process. I don’t think any of them made major changes in the Washington Principles, but I think their intention was to be sure that they were rejuvenated and that people were paying attention to them.
Katie Wilson-Milne: And these were further meetings of nation-states sort of reaffirming their commitment to restituting Nazi confiscated property.
Tom Kline: Right, that’s the important point, exactly.
Steve Schindler: And I guess also one of the things we saw here, particularly with private museums, as most of our museums are, as you said, when it came to spectacular works of art, there’s lots of things obviously that can be restituted, but we’ve seen decades-long litigations with major works of art where plaintiffs are seeking to restitute those works, and the museums have relied consistently on the kinds of technicalities that the Washington Principals tried to downplay– to say that’s not the way that you should look at these claims. But there are these conflicting issues, at least in the United States, with, for example, donors, who’ve donated works of art to museums, and museums have rules, as we’ve discussed on the podcast, about deaccessioning and what it takes to deaccession a work of art. And often there is an exception for works that are stolen, but in anticipation of discussing the best practices that were just announced in March, I think it’s worth just focusing for a minute on the fact that for, you know, a couple of decades, we’ve had litigations here in the United States that have turned on precisely the issues that the Washington Conference Principles tried to put in the background.
Katie Wilson-Milne: Yeah, that’s really an important point. We’ve talked about a few of those cases on the podcast before, but, you know, for well past the 90s and into today, you still see museums and nation-states arguing that they get to keep property on procedural grounds, even though there’s no question that there was a forced sale or there was duress, if not actual looting by the Nazis. So, you know, that continued to go on, this sort of focus on legal procedural matters rather than the moral and ethical answer, which is even if you have a legal right to keep something, you should give it back, because it was taken from this family against their will while they were being persecuted by the Nazis. And it is incredible, Steve, that there was a real lack of consensus about that, even after all these, both the Washington Principles but also AAMD’s guidance came out, you know, after we’re well past sort of an understanding of those issues. And I’d say the other thing we started to see in the cases in the US, and I think we see more now, is that even when there was a movement away from trying to keep an object on a procedural basis because a museum realized that that was not an ethical choice, there were a lot of cases where the idea of what was looted or stolen was unclear, or it was very clear that it wasn’t looted or stolen, but the family still claimed that they should get it back. And, you know, this category of what we call flight goods, so not looted, not stolen, not a forced sale because the Nazis didn’t get it, but it was sold to some third party by a family trying to escape France or Germany or Austria, you know, and they needed money, and they had very valuable objects, like expensive art, and they sold that art so that they could pay, you know, for the flight taxes and the taxes that Brazil required if you were fleeing there, and, you know, how much money you had to put into a bank account. And that was a hard category for the law in the US, the law of duress as we know it, to really take into account. And courts struggle with that when there’s not evidence of theft. And I think we were seeing more cases like that, where that’s what museums, you know, and institutions and even private owners would struggle with was when they really doubted that something was stolen. And they thought there was an arm’s length transaction. And how do you ethically and morally deal with that? So I feel like that was sort of teed up as something that needed clarification and guidance that we got with this 25th anniversary best practices. And so maybe, Tom, what happens? I mean, we’ve been referring to this, but there’s a new document, there’s a new set of principles slash clarifications that just came out. Maybe you could tell us what they are.
Tom Kline: Well, I just want to add one historical note to the points you and Steve were making, which is that when these claims first started to appear, museums were very focused on their fiduciary duties to protect their collections, which is to preserve, protect, exhibit a collection and educate people based on it. So there was even a sense that a museum that had a claim had to lose in court to give something back. And one of the influences of the Washington Principles was to break that notion and to give museums a sense that the boards could make informed decisions to restitute something or to settle a claim. And that was a big advance. And there was a further development in the standards. The United States has two museum associations, and one of them, what’s now called the American Alliance of Museums, put out guidelines that said a museum could wave a defense in an appropriate case. And that was very controversial at the time. But as you folks say, for very important objects, museums have not hurried to wave defenses. Although bit by bit, a consensus is developing that stolen objects should not remain in museum collections, and that museums should not fight hard about technical defenses, jurisdiction, standing, statute limitations, other delayed defenses. So that brings us then to the current best practices that were signed off on by a number of countries. And it starts with confiscation, is not limited to seizure by the Gestapo or something that we would all agree is confiscation. That confiscated art and looted art includes objects that were the subject of a forced sale or sale under duress.
And Katie, you raised a very important point, this flight goods in England and Germany. Flight goods are viewed as a category. If someone had to sell property to escape a country, that’s treated as a sale under duress. In the United States, flight goods are not a separate category. And we see parallel processes with litigation going forward in settlements. And in a settlement negotiation, a museum or a private collector can take whatever position they want, but in court, flight goods might not be viewed as a sale under coercion or duress. And we have one very strong case on that point. Another element is that the Washington Principles were aimed at museums, and the best practices declare that these principles should apply to private collectors as well. And those of us who practice in the area have thought about it that way, because if you represent a collector, you want the collector to follow best practices, and there was no best practice for an individual collector. So they were handling claims as they like, but if they wanted to conform with industry best practices, art market best practices, they would follow the Washington principles and the principles of US museum associations.
Steve Schindler: But just to be clear, Tom, these practices are not respected by any courts. They’re not law. They’re just– they’re kind of guidance, if you will. But if you were to sort of take a position in court that was contrary to these best practices, can they be cited in some way as authority?
Tom Kline: Well, the basic point is that you were right that these are called soft law. They’re moral guidelines. They’re not legal principles that museums or individuals are obliged to follow. But as we all know, the law sets out moral standards, moral standards that we’re obliged to follow. And there are other moral standards that we can follow. There are lots of unpleasant things we can do to each other that are not illegal, but we choose not to do them. So these principles have a great deal of utility in private negotiations, particularly in Europe, where I think they are viewed as more central to the process. If I was representing, particularly if I was representing a claimant, I wouldn’t hesitate to cite them. Or if I was representing a museum or a collector, I’d say, well, we’ve made our documents available as the Washington principles encourage. We’ve engaged in discussion, and we haven’t been convinced that there’s a theft or the other way around, whatever it is. But my problem with the original Washington Principles were that there was a lack of standards. What constitutes a strong case?
Katie Wilson-Milne: And also the full scope of what is considered wrongful, a wrongful taking, right? What is the scope of what happened during World War II that needs to be redressed? Is it just Nazi theft and forced sales? Or I mean, it was less clear about that. So what just happened in honor of the 25th anniversary and what are the best practices that just came out?
Tom Kline: Well, yeah, I think that’s the central question. And there was growing dissatisfaction with the results of the Washington Principles by themselves. And there was a sense that they needed to be clarified, certain questions needed to be fleshed out. Certain processes were not productive, like the German commission only taking 20 cases because of its rules. So the State Department called countries together and developed these more refined principles. And if you go through them from the start, certain myths or errors had developed about most of the Washington principles. For example, art, the first point, art is defined very broadly, not just paintings, which is what we all focus on, but decorative art, sacred scrolls, synagogue and ceremonial objects and so on, libraries, manuscripts. Nazi-confiscated and Nazi-looted are clarified to relate to property that’s despoliated in any way by the Nazis, the fascists, their collaborators, through various means, including but not limited to theft, coercion and confiscation, and on grounds of relinquishment. And if an object is lost by a persecuted person during the Nazi era, it can be considered equivalent to an involuntary transfer. Now, that was the rule immediately after the war. Military Law 59, established by the US in its zone of occupation, copied by the French and the British, was that coercion should be understood, should be presumed if a persecuted person engaged in a transaction. And the possessor of an object had the opportunity to prove that it wasn’t, but they weren’t allowed to prove that there was only a tiny bit of coercion. Their opportunity was to prove that there was a fair price, and a fair price was actually received by the person, which was very unapproved, because most of the people who were given money to escape, the funds went into blocked accounts, or to pay exit taxes or due taxes. So if we go down these new principles, we see that they’re attempting to address serious problems that have developed in the handling of these cases, because there’s been an absence of agreement on standards.
Katie Wilson-Milne: That element you just talked about, this change, that any transaction that occurred between 1933 and 45 is considered an involuntary transfer– I mean, it’s interesting that that was the presumption after the war, but to me that is one of the most, if not the most significant aspect of these best practices, because so many of the cases now revolve around whether these sales were voluntary or involuntary, and there’s discovery on it, and reasonable people can disagree, because some of the prices maybe did look kind of fair, but this presumption that if you are a persecuted person and you sold something, it’s presumed to be involuntary, is I think hugely important, and it clarifies a lot of the moral ambiguity we’re seeing in court cases, and the confusion about how institutions, at least in the US, are trying to figure out whether they should restitute something or not. So I saw that as one of the actually quite significant elements of these new best practices.
Tom Kline: I agree with you, it is very significant. If it’s imported into legal proceedings, it will be extremely influential. For purposes of negotiations, the next point is also important, which is that the direction of the Washington Principles, what some people might call the driving force, is the search for just and fair solutions. After the war, the emphasis was on restitution, because it seemed like an easier process. After 50 years, it was thought, well, if restitution is the goal, we’re going to fall short in too many cases. Let’s have just and fair solutions. And what the best practices clarify is that just and fair means just and fair to the victims of the Holocaust and other victims of Nazi persecution and their heirs. So we’re not playing on a level playing field where all people’s claims and defenses are equal. We’re trying to tilt the playing field in the favor of the victims. So that if there’s restitution, they don’t have to pay for it. here should be more restitution and fewer split decisions.
Steve Schindler: Right. I mean, I think that’s really important. You know, even because there are those situations, we see them even more as time passes, of– you know, even questions about, let’s assume for a moment that this work was stolen, but who then should it go back to? We have situations where there are multiple heirs. We have different factions of different heirs, different kind of communities. And I think, as I read these best practices, as you say, we should tilt in the direction of victims, but there’s also, there’s not one size that fits all in a lot of these cases, because we don’t always have a clear path between, you know, the individual or family whose work was confiscated and the current claimants in some of these cases. And so that’s one of the other issues that always has to be worked out.
Tom Kline: Well, that’s right. These situations have gotten extremely complicated, particularly where the heirs making the claim have fights among themselves, which we see in all too many cases. And I would like to reiterate that one of the aspects of the best practices is to emphasize access to information and documents. There’s a reference to digitization of documents, which we can’t imagine would have been on people’s minds in 1998. So the principles are catching up with improving technology. They encourage the creation of an independent research entity in each country. We’re very far from having that in this country. Museums have a lot of trouble finding the resources to do provenance research. There are more provenance researchers available to help, many, many more in Europe than there are in the United States. So there’s still a lot of developments that we need to see to make this process more efficient and more fact-based.
Katie Wilson-Milne: I think the point about, or the clarification in the best practices about fair and just solutions, meaning for the victim, and they seem kind of obvious, but actually it wasn’t at all. We’ve talked about a lot of these cases on the podcast, but there was an understandable effort to look at, again, as we’ve always said, at least in the US, everyone in these cases is innocent, I mean, for the most part, right? The Nazis aren’t on trial. They’re not part of the case. The original dealers aren’t there. So it’s all good faith purchasers. It’s all innocent people who paid fair market value for the work, the current possessors. So there was this, I think, theme through all those cases that it was unfair. And to be honest, it is unfair. These people are innocent of anything. But what are we trying to achieve here? Are we trying to find a way to be fair to everyone involved, the current possessor and the victim’s family? Or do we acknowledge that that’s literally not possible and we’re making a moral decision to prioritize the victim’s family because that’s the right thing to do? And acknowledging that lots of good faith purchasers are going to be screwed because of that. And that’s just the way it is instead of trying to torture ourselves by making it fair for everybody. So I think you just see in a lot of these cases that people, the courts and litigants, really struggle with that sense of how do we make this fair for everybody? And I think acknowledging that that’s just not the goal is quite helpful.
Steve Schindler: I mean, that tracks our jurisprudence in general when it comes to stolen art, right? We have a rule, as Tom said at the beginning, that a thief can never convey good title, period. And that is often unfair to good faith purchasers who purchase works without any sort of knowledge that they were stolen, but that’s sort of our law. Europe has a different set of laws, which in some senses balances a little bit more in favor of good faith purchasers where they can acquire a prescriptive title after a certain number of years. But for me, it always seems like if you accept the fact that Nazi-confiscated art is stolen art in the first instance, then the rest, at least in our system, kind of follows. But often what we’ve seen in some of the litigation is trying to, in choice of law, trying to use European law in place of US law in terms of how to balance those interests.
Katie Wilson-Milne: Right, or that the definition of stolen is literal theft, which, as we know, does not capture the full injustice. But yeah, that’s a good point. I mean, in the US, it’s much less of a jump. And especially in New York, where not only can a thief not pass good title, but you have, you know, functionally a somewhat open-ended statute of limitations to even make those claims.
Tom Kline: Right, and we do have the situation that the morality of the situation is not a fixed point. People’s thoughts about stolen property, looted property, colonial, going back to colonial thefts, where there are no legitimate claims that can be brought now legally. But people are very concerned about it, especially for thefts that are known to be particularly grisly, like the Benin Bronzes, which were part of a punitive expedition where a whole society was destroyed, the leadership, the palace along with it, and the artwork taken away. I think the ethic is developing in museums that they don’t want to have stolen property. And collectors will be forced to come along behind them because the market doesn’t want to deal in stolen property. And everybody knows standards are getting tougher, so you might buy something now that looks alright in a private sale or something, but you know you’re not going to be able to sell it or your kids aren’t going to be able to sell it. So I would say there’s kind of a creeping increase in morality, and I would see these best practices as pushing that process along. I wouldn’t expect great changes to occur immediately, but I think there’s fodder for people who are trying to see these issues develop and be better understood.
Steve Schindler: Right. So I have a question about the best practices. Originally, we know that the Washington Conference Principles were signed on to by 44 participating states, and the last I have seen, I think we have 23 countries, including the United States, that have signed on– I don’t know whether more have or it looks like there will be more signing on, but that’s just about half. And notably so far, Spain has not signed on to the best practices, and we saw very recently the Cassirer vs. the Thyssen-Bornemisza Collection, where Spain has litigated for over a decade in the United States to keep a work by Camille Pissarro, and now it appears very likely, subject to maybe some en banc proceeding, that they will get to do that. Do you anticipate that there will be, the 44 countries will sign on or more, or do you think some will, some have had enough?
Tom Kline: I don’t have a good answer for that, Steve. It’s– countries like Spain have been holdouts. The countries that have not created any kind of a commission, any kind of a research process, have not adjusted their laws, they’ve just sort of been hanging out. I have generally been a person who believes that the legal systems should be adequate to deal with these issues. That’s a position that I guess I can only take about 75%, because it’s clear that some Holocaust-specific legislation is needed. The volume of claims, the killing of the people, the destruction of records all together created a situation that’s very hard to redress through normal processes. And the passage of time and the reshuffling of property under different laws has created situations that are just incredibly complicated. When I started in this area, I thought, well, property is ours, we want it back. How hard can it be? And it turns out choice of law, what country’s laws are going to apply, and what are those laws, has been an important factor in pretty much every case.
Katie Wilson-Milne: Yeah, I think for a long time, and maybe around the Washington Principles, we saw these sort of ethical and moral statements trail behind what was happening in the legal system. And I think that’s definitely changing, if not totally changed, that we see moral and political outrage and certainty and demands having a really important impact on how actors deal with these issues. And the law can be the same or it can be different, but there’s still a moral and political imperative, and these principles may be better received in that context. All right. Well, thank you so much, Tom.
Steve Schindler: Thank you, Tom. It was a pleasure, as always.
Tom Kline: Thank you, Steve and Katie.
Steve Schindler: And that’s it for today’s podcast. Please subscribe to us wherever you get your podcasts, and send us feedback at podcast@schlaw.com. And if you like what you hear, give us a five-star rating. We are also featuring the original music of Chris Thompson. And finally, we want to thank our fabulous producer, Jackie Santos, for making us sound so good.
Katie Wilson-Milne: Until next time, I’m Katie Wilson-Milne.
Steve Schindler: And I’m Steve Schindler bringing you The Art Law Podcast, a podcast exploring the places where art intersects with and interferes with the law.
Katie Wilson-Milne: The information provided in this podcast is not intended to be a source of legal advice. You should not consider the information provided to be an invitation for an attorney-client relationship, should not rely on the information as legal advice for any purpose, and should always seek the legal advice of competent counsel in the relevant jurisdiction.
Music by Chris Thompson. Produced by Jackie Santos.