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Giving back the loot Nazi-era claims against UK museums: in 2000 the British government set up a panel to examine claims against UK museums by the heirs of collectors whose works of art had been looted during the Nazi era, Martin Bailey explains the background and examines the eight cases currently in process.

The Rape of Europa, a drawing once attributed to Durer and now given to Hans Baldung, is a telling example of the changing attitudes of UK museums towards Nazi-era loot. In 1997 it formed part of Edmund Schilling's bequest to the British Museum. It was known that the work had until World War u been at the Lubomirski Museum, in what was then the Polish city of Lwow. However, no particular concern was expressed that the Baldung might be subject to a legal claim, since it had been restituted to the Lubomirski family in 1950 and subsequently sold.

Just a year after the Schilling bequest, UK national museums took up the spoliation issue. Had the bequest come in the late 1990s, The Rape of Europa would probably still have been accepted, since the British Museum remains convinced that the earlier restitution was correct. But its provenance would have been very carefully considered by both curators and trustees.

The case of the Lubomirski drawing illustrates the profound change which has taken place since the late 1990s. Until then, UK museums and galleries did not investigate too closely whether works of art might have been looted during World War II or in prewar Nazi Germany. But attitudes have changed enormously, and it is now fully accepted that provenance should be examined and that any claims should be carefully considered and, when appropriate, restitution should be made. (1)

So far no works have actually been returned by UK museums, although compensation has been paid in one case (for a painting in the Tate by Griffier, as will be discussed below) and a decision has been made to return another work (the Benevento Missal in the British Library).

Six other claims are at various stages of consideration. Each one is different, raising complex issues that are inevitably taking considerable time to resolve. Many of the cases have been passed to the government's Spoliation Advisory Panel, which was established in 2000. To mark the fifth anniversary of the panel, APOLLO is presenting the first detailed survey of Nazi-era claims against UK museums.

Wartime legacy

Why is it that claims are being dealt with sixty years after the end of the war? Some historical background is necessary. During World War II, millions of works of art were looted across Europe. After its defeat, Germany gave up its spoils, and in the zones occupied by the United States, Britain and France, works of art were normally returned to their pre-war country of origin. In the main, this process was completed by the late 1940s. The western powers assumed that the task was then finished and the question of spoliation was forgotten for decades.

The Soviet Union, however, saw the retention of looted art as a form of reparations, a view not accepted under international law. Train-loads of works of art were transported from Germany to Russia during the closing months of the war. Although many works belonging to countries in the Soviet bloc were returned in the 1950s, much of the loot was retained in the Soviet Union in secret museum repositories. It was not until the 1980s that information on the full extent of these holdings began to emerge. Subsequent attempts to seek the return of looted art have frequently been blocked by the Russian parliament.

In addition to art seized during the war by the Nazi and Soviet authorities, there was also widespread private looting by individual soldiers and civilians, on all sides of the conflict. Many of these works were later sold on, initially surreptitiously, and have now been dispersed to private and public collections across the world.

In the past decade or so, a number of factors have focussed international attention on the question of looted art. The discovery of secret repositories in the Soviet Union was one. The demise of the Cold War in the late 1980s, the fiftieth anniversary of the end of World War II in 1995 and the increasing strength of the European Union have all led to a growing feeling that wartime problems should be consigned to the history books. There was also a change in outlook, as spoliation was no longer viewed narrowly as wartime looting, but as also covering losses suffered by Jewish collectors in Germany after the Nazis seized power in 1933.

Together with a change in attitudes, much more information is now available about looted art. Further archival material has been made available. Computerised databases and the internet have made it easier to conduct research. Investigators, from both Jewish groups and commercial concerns, now offer professional assistance to track down lost works of art. By the late 1990s, claims for works looted during the 1933-45 period were surfacing in increasing numbers around the world.

Spoliation claims and UK museums

In the UK, the major initiative to tackle the question of spoliation came from the national museums, which are those funded by central government. In June 1998 the National Museum Directors' Conference (NMDC) set up a Spoliation Working Group, chaired by Sir Nicholas Serota. (2) In November 1998 the working group published a Statement of Principles and Proposed Actions. In practical terms, this programme has two main elements.

First, museums undertook to research their collections and compile lists of objects for which the provenance is unknown for any part of the 1933-45 period. This was intended to alert potential claimants to works that could be problematic. It should be stressed that the data does not represent a list of items which were probably looted, but merely works for which the provenance is unclear. The project began with national museums, but was soon extended to non-national museums, particularly the main university and regional museums.

The initial list of works with an unclear provenance was placed on, the NMDC website, in April 2000, with further data added in October 2000, June 2001, March 2003 and July 2004. 6,700 works are currently recorded, mainly European paintings, Old Master drawings, sculptures and decorative art. These objects are from twelve national and nineteen non-national museums. Research is still continuing, but it is now clear the lists have not resulted in any flood of claims, although up to half of the eight current cases may have been sparked off by the NMDC data.

Secondly, the national museums decided that if 'on a balance of probabilities a work of art was wrongly taken during the Holocaust and World War II period [1933-45]', then the museum would seek to resolve the matter 'in an equitable, appropriate and mutually agreeable manner'. Although restitution or compensation is not explicitly mentioned, this is implied by the use of the word 'equitable'.

Following the NMDC initiative, the museums and the government decided that it would be helpful to have an independent body that could examine claims and propose solutions. The Department for Culture, Media and Sport therefore established the Spoliation Advisory Panel on 13 April 2000, chaired by a High Court judge, Sir David Hirst. (3) Although empowered only to make recommendations, it is assumed that they will normally be accepted by both UK museums and the government. Claimants, on the other hand, are not required to accept its recommendations, and can pursue legal action through the courts.

Under its terms of reference, 'the task of the Panel is to consider claims from anyone (or from any one or more of their heirs), who lost possession of a cultural object during the Nazi era (1933-45), where such object is now in the possession of a UK national collection or in the possession of another UK museum or gallery established for the public benefit'. This means that it is clearly open to non-Jewish claimants to seek redress.

The panel is not a court, and gives 'due weight to the moral strength of the claimant's case'. It also 'evaluates, on the balance of probability, the validity of the claimant's original title to the object, recognising the difficulties of proving such title after the destruction of World War u and the Holocaust and the duration of the period which has elapsed since the claimant lost possession of the object'. In other words, a lesser standard of proof is required than in the courts.

Although claims against UK private collectors can also be considered by the panel, at the joint request of claimant and owner, none has been made.

The eight cases

So far, eight cases of alleged Nazi-era spoliation have emerged in the UK. (4) The nature of the cases are each quite different, and 'claims' have ranged from detailed submissions with extensive supporting documentation to relatively informal restitution requests in the form of a letter. Some claims are being very actively pursued, while others are being followed up more perfunctorily by claimants. In all cases, the works were acquired by the museums in good faith.

In terms of objects, four claims have been for Old Master paintings. Three groups of drawings have been claimed: eight from the Courtauld, four from the British Museum and a group of three at different institutions (the Courtauld, the British Museum and the Barber Institute). The final claim is for a twelfth-century Italian missal. Of the claimants, five are descendants of pre-war Jewish owners, while another is an heir of a non-Jewish German. One claim is from the successors of a museum and library institution that since the war has been split and is now based in the Ukraine and Poland. The final case came from an Italian cathedral.

Of of the eight cases, one has been resolved, with an ex gratia payment (the Griffier painting owned by the Tate). A decision to return has been made in another case (the Benevento Missal), although there will have to be a change in the law to allow deaccession. Another case (a painting formerly attributed to Chardin in the Burrell Collection) has been dealt with by the Spoliation Advisory Panel, but it seems that deaccessioning is not possible and that compensation will therefore be offered. A further case is being considered by the panel, with a decision expected shortly (a painting attributed to Mair von Landshut in the Ashmolean). Four other cases are at an earlier stage and have not been submitted to the panel.

One issue that remains to be resolved is deaccessioning, and the extent to which legal restrictions prevent the British Museum, the British Library and Glasgow Museums from returning works. In principle, most museums with restrictions on deaccessioning would like to have a legal right to restitute Nazi-era loot, but do not want to see this extended to cover other claims. The government has also supported moves to enable Nazi-era restitution. (5)

Compared with the tens of millions of dead in the Holocaust and the war, works of art are of minor significance. but art nevertheless has an enduring symbolic importance. Although the claims being considered in the UK may appear tiny in number, they are mirrored by hundreds of other cases that are being pursued across Europe and North America. (6)

(1) The best general book on Nazi-era spoliation remains Lynn Nicholas, The Rape of Europa: The fate of Europe's treasures in the Third Reich and the Second World War, London, 1994. The most useful legal study is Norman Palmer, Museums and the Holocaust: Laws, principles and practice, London, 2000.

(2) The working group's membership also includes key figures from outside the national museums. Members are: Jon Whiteley (Ashmolean), Mark Evans (V&A), Giulia Bartrum (British Museum), Vivien Hamilton (Glasgow Museums), Ernst Vegelin van Claerbergen (Courtauld), Humphrey Wine (National Gallery), Anne Buddle (National Galleries of Scotland), Tessa Sidley (Birmingham Museums), Matthew Gale (Tate), Hillary Bauer (DCMS), Marina Mixon (advisor funded by the Museums, Libraries and Archives Council), Emily Candler (NMDC) and Erica Bolton (public relations). The working group also has an external advisory committee. Chaired by High Court judge Sir David Neuberger, its members are Sir Jack Baer, Peter Brooke MP, Professor David Cesarani, Mark Fisher MP, Lady Vaizey and Anne Webber.

(3) The panel's other members are: Donnell Deeny QC, Professor Richard Evans, Sir Terry Heiser, Professor Peter Jones, Martin Levy, Peter Oppenheimer, Professor Norman Palmer, Anna Southall, Dr Liba Taub and Baroness Warnock.

(4) In addition, a painting owned by a German museum was restituted to the heirs of a former Austrian collector while it was temporarily exhibited in London, at the Royal Academy's exhibition '1900: Art at the crossroads' exhibition. In March 2000 the Three Stages of Life by Leopold von Kalckreuth was returned to the Glanville family by the Bayerische Staats-gemaldesammlungen (Neue Pinakothek). The painting had belonged to Elisabeth von Gotthilf (later Glanville) until its seizure in March 1938, after the family had fled from Vienna to England.

(5) The then Arts Minister Alan Howarth pledged at the establishment of the Spoliation Advisory Panel: 'I want to make it crystal clear that, if the panel recommend restitution--and both claimant and present owner accept the judgment--the government will take the panel's recommendation very seriously indeed. Our commitment to right these historic wrongs should not be doubted', (The Guardian, 13 April 2000).

(6) I would like to thank curators at all the relevant UK museums for their helpful assistance, although they are obviously not responsible for my text.

Martin Bailey is a correspondent of The Art Newspaper. His investigations into the Benevento Missal led the cathedral to pursue a claim, which resulted in the March 2005 decision that the manuscript should be returned.
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Author:Bailey, Martin
Geographic Code:4EUUK
Date:Jun 1, 2005
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