In 1943, the Allied forces announced that all losses of assets by those persecuted by the Nazis would be declared void, regardless of whether they “took the form of open plundering and naked robbery, or were legal transactions in apparently legal form, even if they claimed to have been carried out voluntarily”. Unfortunately in 1945 it was determined that a blanket declaration of nullity for all legal transactions of persecuted persons would paralyse economic activity for years and a solution was sought to achieve the annulment of such transfers, at least upon request of a persecuted person. With Military Government Law 52, the seizure, blocking and control of confiscated assets was initiated, and attempts were made to create the basis for restitution.
Around this time, the first cases were brought before civil law courts in Germany, where it became clear that the application of civil law principles to the property rights of those persecuted by the Nazis could not lead to satisfactory results. A commentary on a decision by the Berlin Higher Regional Court in 1947 stated that “the provisions of civil law are no longer sufficient, and that new law must be created either by the judge or by the legislature”.
The necessity of legal change
This led to the realisation, especially among the US armed forces, that a special law was needed. Essential principles of civil law had to be suspended if the actual circumstances were to be taken into account. This was necessary because the background to persecution had to be examined and considered in the assessment. The application of the principles of civil and common law had failed due to the persecution and extermination of an entire ethnic group. While in the case of administrative expropriations and forced sales, attempts were made to introduce retroactive deceitfulness into the legal provisions, in the case of contractual transfers a fundamental problem of inequality was encountered, which made the otherwise required tortious conduct of the purchasing party unnecessary. It did not matter whether the “Aryaniser” threatened to harm the Jew to acquire the business cheaply; the persecution formed the convincing background of the legal transaction. This pressure to sell continued even outside the German borders as the refusal to accept permanent residence permits for Jewish refugees in transit states always posed the danger of a relapse into the Nazi system.
Therefore, after 1945, Germany created its own system of restitution courts subject to special laws and procedures. This worked well for real estate and other immovable property, discoverable in existing registers. At that time, artworks were only exceptionally the subject of the proceedings if they were still at the place of confiscation and the confiscation was documented.
A set of nonbinding principles dealing with issues of Nazi-persecution losses of art and cultural goods was recognised by 44 governments at the 1998 Washington conference. The problem of the Washington Principles is that they were adopted without any legal obligation and, except for Austria, were not incorporated into national law anywhere. This is why independent commissions were created in Europe that can be appealed to by claimants and do not use civil or common law principles as their standards. In the US, the substantive and procedural problems of claims after legal acquisition have been neglected. But these are increasingly a problem in pending proceedings. To ease some of the hurdles, the Congress passed the Holocaust Expropriated Art Recovery Act of 2016. This established a nationwide six-year statute of limitations for claims related to art expropriated under Nazi persecution, but its impact is limited to a small group of claims as long as civil law principles like the defence of laches (as in Zuckerman v. Metropolitan Museum of Art) are applied or procedural principles like the Foreign Sovereign Immunities Act (as in Cassirer v. Thyssen-Bornemisza Collection Foundation) or the “act of state doctrine” (as in Emden v. Museum of Fine Arts Houston) prevent jurisdiction.
This is all the more depressing because there is no jurisdiction for claims of this kind other than the location. If an artwork is located in the US, its fate cannot be decided in any other state, and any wrong decisions cannot be corrected elsewhere. It is shameful when judges state in their justifications for rejecting jurisdiction that they are forced to apply these legal principles as an ordinary court, while the non-binding Washington Principles remain inaccessible to them. This unsatisfactory situation can only be ended by an independent commission, as called for in the Washington Principles and renewed in the Best Practices for the Washington Conference Principles on Nazi-Confiscated Art of 2024. It seems almost unbelievable when the US State Department rightly makes exactly this demand to various European and non-European governments but does not take action in its own country after more than 25 years.
- Olaf S. Ossmann, a lawyer and teacher of law and history, is co-counsel for the claimants in Emden v. Museum of Fine Arts Houston