New Front in Legal Battle over Nazi-Looted Art: Turning of the Tide or a Mere Ripple of Change?

US-soldiers-carrying-loot-001By Misa Bretschneider

Last week marked another chapter in the long-standing crusade to reclaim Nazi-expropriated artwork. On December 9th, a unanimous three-judge panel for the Ninth Circuit reinstated claims by a prominent Jewish family, the Cassirers, seeking to recover ownership of a $20 million masterpiece confiscated by the Nazis during World War II.

The artwork in dispute, Rue St.-Honore, Apres-Midi, Effet de Pluie, was painted in 1898 by French impressionist master Camille Pissarro. While Julius Cassirer originally purchased the painting in 1899, his children were forced to hand over the painting to the Nazi government in 1939 in order to obtain a visa allowing them to flee Nazi Germany.  In the ensuing years, however, the painting was never successfully recovered by the Cassirer family. Instead, the painting switched hands among various art collectors and ultimately found its way to Spain’s Thyssen-Bornemisza Museum.

Specifically, the Ninth Circuit reinstated a California law permitting art ownership lawsuits to proceed that stem as far back as 100 years.  Furthermore, in reversing a lower court ruling, the Court held that the California law was not preempted by the federal government’s exclusive jurisdiction over foreign affairs.

This ruling is promising, as it grants a longer statute of limitations for cases related to the “specific recovery of a work of fine art brought against a museum, gallery, auctioneer, or dealer,” so long as the claim is not directly related to “foreign affairs on its face.” Concededly, there are a few wrinkles in the case, considering that a member of the Cassirer family had previously received restitution from the German courts in 1962 in return for the Cassirer’s relinquishment of ownership claims.

However, while this ruling is a positive step in the quest for reclaiming Nazi-looted art, the majority of art owners wronged by the Nazis still face a frustrating uphill battle when confronted with complex legal obstacles and Germany’s antiquated laws on art restitution. Indeed, controversy surged last month when thousands of paintings were discovered in a Munich apartment, many of which appeared to be among those the Nazis has seized from German museums. Eager to reclaim artworks stolen from them, owners were amazed to discover that a 1938 German law – allowing the Nazis to seize such art it saw as “degenerate” – was still good law. According to German legal experts, the law’s existence, which will likely remain on the books, makes it highly doubtful that ownership claims to these artworks will be successful. Moreover, the legal path towards reacquiring Nazi-looted artwork quickly becomes further impeded when the current holder of the artwork can prove that he or she legally inherited the artwork or if the statute of limitations is nearing its end or has already run out.

Equally frustrating is German’s opaque policies on art restitution, which has been criticized by many as overly prolonged and opaque. Indeed, after the Munich apartment discoveries last month, U.S. and Israel officials pressed Germany to reform its policies and to honor its international commitments on art restitution.

Although Germany has made great strides to rectify the harms committed by the Nazis, it arguably is coming up short with regards to Nazi-looted artwork. In reaction to Germany’s flawed track record with providing a more efficient and transparent art restitution process, some legal scholars have proposed the institution of an ad-hoc International Art Crime Tribunal to provide a more transparent and unbiased means to decide the ownership of certain contested artworks.  Would a more international court provide better access and justice than the current disjointed state of affairs? While certain countries and states, such as California, are fashioning law more favorable to victims of Nazi-looting, it appears that a more universal and robust system is needed before we see a real turning of the tide.

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