In recent years, the filing of decades-old art restitution claims has led to unprecedented monetary settlements and a small measure of justice for the descendants of Holocaust victims. Such claims touch on a variety of legal topics, including statutes of limitations, choice-of-law, and international law, and have reinvigorated the debate as to the legal standards that should govern these claims. To promote further discussion and analysis of these issues, the Art Law Association (ALA) sponsored “Art Restitution Claims: Where Do We Stand, Where Are We Headed?” a panel discussion including experts from the academic, legal and regulatory fields.
Sarah Gordon ’12, Program Coordinator for the ALA, spearheaded the event. The topic is of special importance to her: her grandparents are Holocaust survivors, and she researched the interwar period of 1919 to 1939 while studying political science and art history at the University of Michigan. “The area of property restitution is largely untouched both in the United States and Europe, and I want to be involved in property restitution as the generation originally wronged from the Holocaust continues to disappear,” she said.
“Art restitution claims raise significant questions of fundamental fairness with regard to those who were wrongfully deprived of artworks and their heirs, as well as good faith purchasers who had no reason to believe that the work had come into their possession as a result of illegal conduct,” added ALA Co-Chair and Sparer Public Interest Law Fellow Paul Cossu ’11.
Professor Beryl Jones-Woodin, Associate Dean of Student Affairs, moderated the panel and gave a brief overview of the problem: the Third Reich systematically stole artwork from Jewish owners, dealers, and artists. Decades later, heirs are still seeking restitution and closure.
“Art restitution is procedurally the most complicated of legal cases that exist,” said Panelist Darlene Fairman, of Counsel at Herrick, Feinstein LLP, who has dealt extensively with art and artifact repatriation and high-profile cases. She described the huge investment of time and determination necessary to see even a single case to its conclusion. Although Fairman has achieved success in many cases, she remains skeptical that “any museum would do the right thing, because history has shown us otherwise.” She encouraged students interested in practicing art law in private practice to work their way up to art restitution cases.
Panelist Anna Rubin, Director of the Holocaust Claims Processing Office (HCPO) at the New York State Banking Department, works directly with holocaust survivors and their heirs. She discussed the process of overseeing claims submissions from over 5,000 individuals from 45 states and 38 countries. Unlike Fairman, Rubin’s role does not involve litigation, but mediation. Her office relies on moral arguments to resolve claims and works with international and inter-governmental agencies to negotiate settlements. Her presentation further supported one of the panel’s larger themes: the Nazis instituted “forced sales” of artwork; after World War II, different countries established commissions to research the provenance of such works; decades later, claimants still do not possess what they believe is rightfully theirs. But Rubin remains optimistic.“As long as heirs have a passion to recover their artwork, there will always be claims,” she explained. “New York State is best positioned to recover some measure of justice for the victims of the Holocaust and their heirs because of its laws, stature, and commitment to this issue.”
The last speaker was Raymond Dowd, a partner at Dunnington, Bartholow, and Miller LLP who has counseled art owners, dealers, and Holocaust survivors’ heirs. Dowd argued that the issue is not art restitution or art law so much as crime. He passionately outlined the nature of the problem.“ From 1933 to 1945, an entire population was exterminated. People were rendered politically and economically powerless before they were murdered and burned. Property declaration laws passed in 1938, to which no one objected, and all Jews were required to declare their property and its monetary value,” he said. Once the Nazis were aware of the wealth within the Jewish community, they began claiming artwork and other belongings. Meanwhile, from 1938 to the present day, the United States created some of its largest and most beautiful museums. “The State Department had issued warnings prohibiting the purchase of [potentially stolen] artwork, but at the same time extensive collections of art began filling our museums – artwork for which the provenance is incomplete.”
Dowd remains dedicated to litigating on behalf of those who suffered Holocaust art theft, but believes prosecutors must view these cases as crimes of systematic theft and murder.