WYWH: “Art and Antiquities Part 2: Art and the Holocaust”

Next, Levine addressed the legal doctrines and challenges that emerge from these cases. Often, WWII plunder involves acts of government. Suing a government is difficult – sovereign immunity can bar recovery, for instance. These artworks also travel internationally; what laws do we apply?

Levine posed the question: how do you bring a tort action (specifically, the civil tort of replevin) 80 years later? This question has been at the heart of much litigation surrounding statute of limitations.

She referenced three key cases: Menzel v. List, Republic of Austria v. Altmann, and Republic of Germany v. Philipp, each illustrating the legal complexities and evolving jurisprudence in art restitution cases.

In 1941, the Menzels fled their apartment when the Germans invaded Belgium, leaving behind a Marc Chagall painting. ^{At the end of the war, the Menzels continued to search for the painting, with no luck. The painting’s location between 1941 and 1955 is unknown (as of 1969). In 1955, Klaus Perls and his wife purchased the painting from a Parisian art gallery. In October of 1955, Perls sold the painting to Albert List. In 1962, Mrs. Menzel noticed in an art book a reproduction of the Chagall with a statement that the work belonged to List. She demanded that he surrender the work to her, but he refused.}

List impleaded the Perlses, and the defendants invoked statute of limitations. ^{Levine noted that a key part of this case is its engagement with the New York rule of “demand and refusal.” Pursuant to this rule, the “clock” starts (i.e., the statute of limitations begins to run) when the demand and refusal occurs. In this case, under the rule of demand and refusal, the statute of limitations started when List refused to surrender the painting to Mrs. Menzel. Therefore, Mrs. Menzel was not without recourse over 20 years later. As the trial court specified, “In replevin, as well as in conversion, the cause of action against a person who lawfully comes by a chattel arises, not upon the stealing or the taking, but upon the defendant’s refusal to convey the chattel upon demand.” Under the discovery rule, however, the cause of action accrues when the person knew or reasonably should have known, through the exercise of due diligence, that they had a cause of action. In other words, as Levine clarified, the burden is on the victim to find their art. Unlike most other states, New York uses the rule of demand and refusal, which explains why there is a lot of WWII looted art litigation here.}

Levine noted that the defendants raised another defense: the Act of State Doctrine. Citing Banco Nacional de Cuba v. Sabbatino, the trial court defined the Act of State Doctrine: “The doctrine states… that ‘the Judicial Branch [of the government] will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law.’”

The trial court considered the following four factors of the Act of State Doctrine: “(A) the taking must be by a foreign sovereign government; (B) the taking must be within the territorial limitations of that government; (C) the foreign government must be extant and recognized by this country at the time of suit; (D) the taking must not be violative of a treaty obligation.” ^{The trial court found that none of these factors were met.}

When the Menzels returned, they found that a receipt had been left, indicating that the painting was taken into “safekeeping” by the Einsatzstab der Dienststellen des Reichsleiters Rosenberg (ERR). ^{The trial court found that the seizure of the painting was carried out not by a foreign sovereign government, but by the ERR, “an organ of the Nazi party.”}

Without (A) met, the inquiry of (B) becomes “moot”, the trial court determined. ^{Even if the court assumed the German government had carried out the plunder, the seizure of the painting occurred outside of the territorial limits of the German government; it occurred in Belgium, a separate, recognized nation.}

(C) was not met, since the Third Reich was not extant nor recognized by the United States government at the time of this case. ^{Because the Nazi plunder constituted violations of the Hague Conventions, the trial court found that (D) was not met.}

As mentioned above, Levine noted that many restitution cases often involve acts of government. She provided two examples: Republic of Austria v. Altmann and Federal Republic of Germany v. Philipp.

Maria Altmann filed suit against the Republic of Austria and the Austrian Gallery, seeking recovery of artwork pursuant to a will that her uncle executed after he fled Austria in 1938. ^{She had become aware that her aunt and uncle did not “freely donate” the paintings to the gallery before the war. It was a coerced donation. Altmann asserted jurisdiction under the Foreign Sovereign Immunities Act of 1976 (FSIA), which grants “foreign states immunity from jurisdiction of federal and state courts but expressly exempts certain cases, including ‘cases… in which rights in property taken in violation of international law are at issue.’” The defendants invoked sovereign immunity. The District Court found that the FSIA applied retroactively and that the expropriation exception (the express exemption) covered Altmann’s claims, even though the conduct in question occurred before the statute’s enactment. The Ninth Circuit affirmed, and the Supreme Court affirmed on certiorari.}

In Federal Republic of Germany v. Philipp, the Court held that the FSIA did not apply. At the tail end of the Weimar Republic, Jewish residents of Frankfurt who owned art firms purchased medieval relics and devotional objects (known as the Welfenschatz). ^{The heirs of these Jewish residents of Frankfurt brought suit, invoking the expropriation exception of the FSIA. Germany argued that the heirs’ claims did not fall under the expropriation exception, and the heirs countered by asserting that “violation of international law” should be construed to include violation of the international law of genocide.}

The Court rejected this broader reading of the statute:

We need not decide whether the sale of the consortium’s property [the Jewish owners’ art firm consortium] was an act of genocide, because the expropriation exception is best read as referencing the international law of expropriation rather than of human rights. We do not look to the law of genocide to determine if we have jurisdiction over the heirs’ common law property claims. We look to the law of property.

The Court further explains the undesirable implications of the heirs’ interpretation of the statute:

As a Nation, we would be surprised – and might even initiate reciprocal action – if a court in Germany adjudicated claims by Americans that they were entitled to hundreds of millions of dollars because of human rights violations committed by the United States Government years ago. There is no reason to anticipate that Germany’s reaction would be any different were American courts to exercise the jurisdiction claimed in this case.

After Levine provided a rich survey of some of the common legal doctrines and rules that arise from restitution litigation, Diskant continued the conversation, focusing on the doctrine of laches.

The doctrine of laches is an affirmative defense that is available when a party was aware that they had a cause of action and unreasonably delayed in pursuing that cause of action, which prejudiced the opposing party.

The district court found that the heirs’ ancestors were not diligent in pursuing the recovery of the work in question – Schiele’s “Seated Woman With Bent Left Leg (Torso).” ^{As a result, the court concluded, David Bakalar was prejudiced. This delay “‘resulted in deceased witnesses, faded memories, lost documents, and hearsay testimony of questionable value.’” The district court also held that there was no reason to “disturb” the finding that Bakalar purchased the work in good faith. The court concluded that Bakalar had no duty to research the provenance of the Schiele, since he was an “ordinary non-merchant purchaser of art.” The district court found that laches did apply, which was affirmed on appeal.}

In contrast, the Reif v. Nagy court rejected the defense’s invocation of laches, since Richard Nagy, an independent art dealer, was aware of the plaintiffs’ claims to the Fritz Grünbaum (Jewish art collector who amassed a large body of Schiele’s work) collection prior to purchasing the two Schieles in question. ^{He also acquired insurance in order to insure title against plaintiffs’ claims. Therefore, Nagy was not prejudiced by the delay.}

Diskant mentioned that the Grünbaum collection is subject to criminal proceedings as well.

This entailed a transition into Noah Solowiejczyk’s discussion of the civil forfeiture, which is used in light of the challenges that come with handling these claims through criminal proceedings.

Civil Forfeiture and Statutes

With these claims that deal with potentially looted art and conduct that occurred 80 years ago, we are in the world of civil forfeiture, as Solowiejczyk explained.

A conviction is required for a criminal forfeiture, which is more difficult with these restitution claims that look back 80 or so years, since there are often no defendants to investigate.

Civil forfeiture is a civil proceeding against in rem property with the burden on the government to prove the connection between the property and criminal offense by a preponderance of the evidence standard – it is not necessarily about proving the culpability of the particular property owner.

This is a typical pattern of events: an auction house in Manhattan does its own investigation, it realizes that it may be in the possession of a looted piece, it reaches out to the FBI or Homeland Security, and the government gets involved. The government tries to do its own investigation.

Solowiejczyk mentioned the relevant statutes that the government may rely on:

Solowiejczyk provided an example of the Salomon Konick case. The United States Attorney’s Office sought civil forfeiture of Salomon’s Konick’s A Scholar Sharpening His Quill. Read the press release here.

Law as Background, Not Foreground: The Holocaust Claims Processing Office

Shifting from the strictly legal perspective, Anna Rubin offered a state agency perspective that does not look to the law to resolve these claims. Though she may use “soft law” like the Washington Principles, her office supports victims through negotiation and dialogue, with morals and ethics as guiding principles.

The Holocaust Claims Processing Office is also not subject to the constraints imposed by law, such as statute of limitations. The office has recovered 289 individual objects over 30 different collections. ^{90% of the claims involve possessors in Europe and not in the United States, and U.S. law has no authority on museums in Munich or France.}

The office supports families in putting together their case through archival and genealogical research. The office puts together a package for the current possessor that in part explains how a particular object is woven into the family’s story.

After this package is assembled, the office hopes to engage in a constructive exchange. Because these dialogues are not restricted by statute of limitations, there is no rigid timeline. The lack of legal constraints also offers more creativity with respect to remedies. The office may devise ways to resolve claims such as financial settlements, a combination of financial settlements and donation, or a mix-and-match of different options. Resolution does not necessarily have to be giving the object back.

The office does not charge a fee, and it does not matter what the value of the work is. Even if an object has a low monetary value, it could have a high emotional impact within the family’s story. The office often works with grandchildren, great grandchildren, or even great-great grandchildren. Though these heirs may have somewhat of a more distant relationship, oftentimes, claimants are looking to rectify their predecessor’s pain in some way and bring justice to what they experienced, as Rubin explained.

With respect to alternative avenues for resolution, Levine emphasized that a majority of these cases are resolved without litigation. Since it is no longer possible to find individuals with firsthand knowledge of what occurred during World War II, the onus is now on museums and other institutions to conduct due diligence. The question then becomes, as Levine put it, “When does your failure to do due diligence cross the line to the point where you are kind of complicit?”

This panel generated valuable insights from preeminent attorneys and experts on the unique challenges and recurring themes that emerge from these restitution claims.

Please refer to the following suggested reading list for additional resources:

Emily Ko (Legal Intern, Spring 2025) is currently a first-year student at NYU School of Law. She is a first-year representative for NYU Law’s Art Law Society and the Intellectual Property and Entertainment Law Society’s Fashion Committee. Her research interests include authentication disputes, copyright and fair use issues, as well as art restitution.

Bibliography:

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