• 

By: Camille Walther

In the first part of 2021, the state of restitution of art works removed from their owners during Nazi Germany’s occupation of Europe remains unresolved, as evidenced by two recent decisions within the United States and throughout the world. In March 2021, France made news by passing a bill to authorize the release of Gustav Klimt’s Rose Bushes Under the Trees to the descendants of its prewar Jewish owner. Meanwhile, in February of this same year, the United States Supreme Court rejected claims of Jewish heirs who sought to sue Germany for taking property from its own citizens.

French Restitution: The Art World Seeks to Make Amends

Rose Bushes Under the Trees had, until recently, represented the only painting by the prolific Austrian artist Gustav Klimt owned by France. Its prewar owner was Nora Stiasny, a member of a well-known Austrian Jewish family who inherited the painting from her uncle, Viktor Zuckerkandl. Stiasny was forced to sell the painting in August of 1938 for much less than its value to survive months after the Nazis annexed Austria; in 1942 she was deported to a concentration camp in Nazi occupied Poland and died that same year. The French state bought the painting in 1980 without knowing its provenance, and it has been displayed in the Musee d’Orsay, one of France’s most prolific art museums. In 2019, the descendants of Stiasny’s sister filed for restitution; significantly, this occurred the same year that France’s Ministry of Culture launched an initiative to identify stolen works in its collections. Restructuring the path of this work until its acquisition by the Musee d’Orsay was described as “particularly arduous due to the destruction of most of the evidence and the erosion of family memory;” however, the case was able to proceed when the French government passed a bill to authorize the painting’s release. Klimt’s Rose Bushes Under the Trees will be the first time a work from France’s national collection is being restituted.

This represents the breadth of scars left by Nazi Germany’s occupation of Europe and the Holocaust on the Jewish community and the impact this has had on the art world as a whole. French Culture Minister Bachelot calls Rose Bushes Under the Trees a “testament to the lives that a criminal will had stubbornly sought to eliminate.” That the painting was sold under duress represented by German occupation rather than stolen outright hold significant to the requirements for restitution. Likewise, that France passed a new bill to release a painting from its national collection may demonstrate the willingness of nations and the art world to make amends for the violence done on the Jewish community during the reign of Nazi Germany. Still, legal barriers to restitution remain, as demonstrated in February’s United States Supreme Court ruling.

The International Shortcomings of Restitution: The United States Draws a Line

In February of 2021, the Supreme Court of the United States rejected the claims of Jewish heirs who sought to sue Germany for taking property from its own citizens. The Court cited the 1976 Foreign Sovereign Immunities Act (FSIA) as the basis for its unanimous ruling. The FSIA allows lawsuits to be brought for property taken in violation of international law but does not cover expropriations of property belonging to a country’s own nationals. In this opinion, the court held that the FSIA does not make exception for property taken under duress as part of a human rights violation like the Nazi genocide. Notably, the court did not consider the alternative argument suggesting that the owners were no longer German nationals in 1935, as many Jewish people lost their rights as citizens during the time of the Holocaust and were not considered citizens in Germany. Concern remains that this decision could hinder similar restitution cases in the future. This holding represents the barriers to restitution presented by international law and the hindrances presented by the laws of sovereign nations, wherein restitution’s feasibility will vary depending on the variant and independent laws from nation to nation and state to state. 

The Future of Restitution

Restitution exists as an incomplete remedy to irreparable harm caused by the kind of global harm that the Holocaust represented. That restitution efforts are creating as variable results as shown here demonstrates the longevity of any attempts to repair harm caused nearly a century past. The situations in which restitution is given cause are likely to give rise to the problems of international law faced here as those situations, like the destruction of the Second World War and the Holocaust will likely lead to changes in nations and law. Restitution, like repatriation, presents an international legal issue; in order to be effective, different legal systems must be able and willing to give faith and credence to repatriation efforts. The French restitution of Rose Bushes Under the Trees demonstrates the possibility for such action following future calamity.