Saturday, February 05, 2011

Art Litigation: Nazi-Era Art Restitution - Westfied Scandal Unleashed By Museum of Fine Arts Boston

Eyeglasses from Jews murdered at Auschwitz courtesy Wikimedia Commons

As I posted yesterday, the Sixth Circuit decided to cloak Nazi actions in sovereign immunity in Westfield v. Federal Republic of Germany, my post of the decision here.   Walter Westfield was a successful Geman art dealer who was expropriated by the Nazis and murdered at Auschwitz.

In my post expressed my surprise that the Sixth Circuit did not recognize that U.S. courts were relieved of any restraints on their jurisdiction to unwind evil Nazi acts since the Second Circuit stripped the Nazis of sovereign immunity as of 1954 in the Bernstein v. N.V. Nederlansche-Americaansche case.

Additionally, the Sixth Circuit's decision in Westfield v Federal Republic of Germany seems to violate the Nuremberg Principles:

(lifted from Wikipedia)

Principle I "Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment."

Principle II  "The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law."
Principle III "The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible government official does not relieve him from responsibility under international law."
Principle IV "The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him".
This principle could be paraphrased as follows: "It is not an acceptable excuse to say 'I was just following my superior's orders'".
Previous to the time of the Nuremberg Trials, this excuse was known in common parlance as "Superior Orders". After the prominent, high profile event of the Nuremberg Trials, that excuse is now referred to by many as "Nuremberg Defense". In recent times, a third term, "Lawful orders" has become common parlance for some people. All three terms are in use today, and they all have slightly different nuances of meaning, depending on the context in which they are used.
Nuremberg Principle IV is legally supported by the jurisprudence found in certain articles in the Universal Declaration of Human Rights which deal indirectly with conscientious objection. It is also supported by the principles found in paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status which was issued by the Office of the United Nations High Commissioner for Refugees (UNHCR). Those principles deal with the conditions under which conscientious objectors can apply for refugee status in another country if they face persecution in their own country for refusing to participate in an illegal war.
See also: Nuremberg Defense, Superior Orders, and Lawful orders
Principle V "Any person charged with a crime under international law has the right to a fair trial on the facts and law."
Principle VI "The crimes hereinafter set out are punishable as crimes under international law:
(a) Crimes against peace:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
(b) War crimes:Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation of slave labor or for any other purpose of the civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the Seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
(c) Crimes against humanity: Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial, or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime."
Principle VII "Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law."

Article explaining that the Westfields escaped Nazi Germany as refugees in 1940 while Walter Westfield, the famous art dealer was murdered at Auschwitz  here

More details from Bloomberg on the Westfield case here

Washington Post on the Westfield case here 

Fred Westfield's lawsuit was supposed to have been touched off by an inquiry from the Museum of Fine Arts Boston.   I can't find any information about the Westfield work on the MFA's website.

According to its website (excerpt below), the MFA Boston can't figure out where approximately 50% of its artworks come from that fit into the class of works that could have been looted by the Nazis.   MFA has compiled a "priority list" and claims it is researching its collection, but it appears to keep the research secret and inaccessable.

To avoid scrutiny into the provenance of one painting, MFA sued heirs of Holocaust victims recently over Kokoschka's Two Nudes - Lovers.  More information on that case here   The First Circuit's decision in Museum of Fine Arts, Boston v. Seger Thomschitz here.   Unfortunately, the MFA won the case on statute of limitations grounds, ensuring that an artwork which appears to have been taken from the Viennese Jew Oskar Reichel under the Nazis and given to a dealer with Nazi connections in February 1939 will remain in the MFA's hands.   To my knowledge, the MFA has not published its provenance research on the Kokoschka, but simply puts propagandistic conclusory language on its website, such as:

 "In February 1939, Reichel transferred ownership of five Kokoschka paintings—including Two Nudes (Lovers) —to Kallir, who exhibited them in his Paris gallery that spring."

More such unverifiable propaganda here    This passive language is what we lawyers call "conclusory".  When people use such language, we usually demand FACTS from which we may draw accurate conclusions.    How did this "ownership transfer" occur?   I would like to know more.

The First Circuit's decision tells us enough to conclude that the Kokoschka was stolen from Reichel:

Pursuant to Nazi regulations, Dr. Reichel was forced to file a declaration in June 1938 listing all of the valuable property he owned. One expert witness described the declaration as a "prelude to the formal Nazi confiscation and seizure of all Jewish-owned property in Austria and Germany." Proceeds from the sale of declared property had to be deposited into a Nazi-controlled account and could be withdrawn only in limited amounts. In his 1938 property declaration, Dr. Reichel stated that he owned the Painting and four other Kokoschka works. He declared the combined value of the Painting and another work to be 250 Reichsmark.

[....] While Kallir was in Paris, Dr. Reichel agreed to transfer his remaining five Kokoschka works, including the Painting, to Kallir. The details of this transaction are sketchy. It is not clear whether Dr. Reichel received any consideration for the works at the time.

How did Oskar Reichel "transfer ownership" when his assets are completely blocked by the Nazis, he did't get paid, and the Nazis have a gun to his head and have already put his assets in their 1939 war budget?

We all know that Adolph Eichmann arrived in Vienna in the summer of 1938 and set up his infamous "conveyor belt" at the Zentralstelle - a Jew arrived and left with a passport completely despoiled of property.  The April 26, 1938 law forbid Jews with more than 5,000 RM in property from making transfers of declared property without Nazi permission.  In November 1938, the Reich's beancounters at the Finance Ministry already had ALL declared Jewish property in their budget.  Even the New York Times is starting to finally report on the Reich Finance Ministry's activities, see this December 2010 article claiming that 30% of the Wehrmacht was financed by confiscated Jewish assets.   In December 1938 following Kristallnacht, Aryan trustees were appointed to act as guardians of the property for Jews and put in charge of liquidating Jewish property for the Reich.

Oskar Reichel could not have "transferred ownership" to a Kokoschka in February 1939 as a matter of law.

So the MFA's website consists of pure fiction and Holocaust denial, as far as I can tell.   But just ask Malcolm Rogers. 

Malcolm Rogers - Waving the Baton for 50% Ignorance of Provenance European Paintings and Sculptures at MFA Boston

Rather than referring to the European artworks potentially looted by Nazis as "potentially stolen from murdered Jews" the MFA Boston refers to these works as "Art with a Past".

What art doesn't have a past?

Unfortunately, in the United States, the field of art history is largely a sham - and the lack of academic attention to provenance is endemic. If a Picasso, a Pisarro or an El Greco was looted from a Jew, U.S. art historians generally don't know and don't care -- and resent any inquiry from families of the murder victims.  How could three generations of art historians permit U.S. museums to collect so much art without knowing where it comes from? These are vast quantities of artworks, not a few accidents. At all relevant times, receiving and concealing stolen property has been a crime. But unfortunately, no U.S.prosecutor has had the gumption, the evidence and the fortitude to confront this stolen art laundering establishment. The criminals in the museum community concealing the stolen art are now claiming a "fiduciary duty" to keep the stolen art in their collections.

The College Art Association was warned by the U.S. State Department not to purchase artworks coming from Europe without checking the provenance in the early 1950's.  The Roberts Commission warned America in 1946 of the same problem.

Although the MFA claims it has engaged in "intensive research" since 2004, to my knowledge, it has published none of this research including its provenance researcher's report on the Kokoscha "Two Nudes - Lovers".

The fact that the MFA can get away with this without any public furor means that there is not one art historian in Boston doing his or her job.

From the MFA website:

Nazi Era Provenance Research

The Museum of Fine Arts’ collection contains approximately 1,600 European paintings and 21,000 works of sculpture and decorative art. Since early 1998, a systematic review of the provenance of the collection has been ongoing, with the goal of identifying objects that may have been seized or improperly sold during the Nazi era. Eliminated from consideration are those works of art acquired by the museum before 1933 and those created after 1945.

About half the European paintings have histories of ownership that preclude their transfer in Europe during the period in question—many, for instance, belonged to families in Boston in the late nineteenth century and came directly to the MFA from those families. But many other paintings have histories of ownership that contain very little detail or have gaps during the years 1933-1945. These objects are the subject of further research by the museum.
Intensive research on the sculpture and decorative arts collection was begun in 2004. The online records are currently undergoing further research. As additional information comes to light, it will be added to the online collections database.
There are many reasons for gaps in provenance, ranging from a past owner’s desire for anonymity to an absence of records of transactions. Resolving provenance gaps for the period in question may be further complicated by the fact that records have been lost or destroyed. Although it is probable that most of the objects with gaps do not have problematic pasts, efforts are underway to obtain more information about them.
List of Works
The objects featured on the list of works have been identified by the MFA as priorities for further research. They changed hands in Europe between 1933 and 1945, and are associated with individuals who may have lost property as the result of Nazi persecution. Each object has undergone careful examination by our curators and still has unresolved questions regarding its history.
The inclusion of a work of art on this list does not in any way demonstrate that it was looted or improperly acquired. The list will be updated as further information becomes available.

I tried to access the "List of Works" link, but was unable to connect with anything.   How many people are working in this "systematic" effort?  What is their budget?  How much is the MFA spending suing the heirs of Holocaust victims instead of researching its collection, returning stolen artworks and apologizing to their victims?

Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

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