In March 2020, the U.S. State Department issued the ‘Just Act Report’, a 196-page document with a laudable goal – furthering long-delayed justice for Holocaust victims, survivors and heirs. It is described as an “essential tool” to show the U.S. Congress where restitution efforts are lagging across the globe. The rather disheartening results show a majority of survivors’ claims have gone unfiled or have been met with decades of delays due to, among other factors, political obstruction and “bureaucratic inertia”. In short, much improvement is needed – and quickly.
Building on the momentum created by passage of the Holocaust Expropriated Art Recovery (HEAR) Act of 2016 that was intended to remove time-bars from Holocaust restitution claims brought in the States, the Justice for Uncompensated Survivors Today (JUST) Act of 2017 was signed into law in May 2018. It addresses whether the non-binding principles to promote restitution of Nazi-looted property embodied in the 2009 Terezin Declaration have been implemented by the 46 countries that endorsed the Declaration. To aid in this effort, the State Department was required under the JUST Act to submit a report to Congress that assessed Holocaust policies and restitution efforts of those endorsing countries.
The Report considers various factors set forth in the Terezin Declaration, including welfare of Nazi-persecuted victims, Holocaust education and remembrance, access to archival materials to assist in resolving ownership claims, return of improperly taken immovable property, resolution of heirless property as well as restitution of Nazi-looted property. The survey is meant to inform Congress on “how it can engage on unresolved issues that can directly benefit Holocaust survivors and their families, many of whom live in the United States.”
U.S. restitution legislation
While the United States is not included in the survey, it is described in the Executive Summary of the Report as a “recognized world leader on Holocaust-era restitution”, and is noted for having passed legislation in reaction to U.S. museums’ resistance to restitution of looted art:
After a promising start on provenance research, art restitution, and the creation of a portal to facilitate claims, American museums later began asserting affirmative defenses to block restitution of looted artwork, in contravention of the Washington Principles on Nazi-Confiscated Art and the Terezin principles. This led Congress in 2016 to enact the HEAR Act (Holocaust Expropriated Art Recovery Act).
Since enactment of the HEAR Act, however, mixed results in its application have emerged in U.S. courts. For example, in 2019, a New York appellate court upheld the denial of the affirmative defense of laches raised by an art dealer and awarded the Egon Schiele paintings at issue to the heirs; yet, in that same year, the Second Circuit (that sits in New York) denied a claim brought on behalf of an heir’s estate on the basis of laches and ruled the Picasso painting at the heart of that case would stay with the American museum that held it. The Report is silent as to how precedent like that set by the Second Circuit advances Holocaust-era restitution.
Restitution under Terezin principles
Of the countries reviewed by the State Department regarding restitution of Nazi-looted property, several appear to be out of step with the Terezin principles. Most notable are Central and Eastern European Countries whose governments are resistant to restitution, which is largely blamed on the sweeping Communist rule that overtook those regions during the Cold War. Even since that era ended, however, political resistance appears to have persisted.
Looking to the country with the largest pre-World War II European Jewish community, with over 3 million Jewish residents, Poland is notable as “the only European Union member state with significant Holocaust-era property issues” that has not passed cohesive restitution laws regarding national property or compensation for confiscated property.
One reason for failure to adhere to the Terezin principles is reported to be anti-Semitism, including by political figures, with the Report also calling out “[r]ising anti-Semitism throughout Europe including in Germany, and especially in former East Germany”.
Procedural barriers have also rendered many restitution claims processes a nullity. Under Romania’s claims process, for example, it is “nearly impossible” for U.S. and foreign survivors to qualify. In Slovenia, the legislation rarely addresses wartime takings and, when it does, it requires Jewish property owners or heirs to meet narrow requirements such as a showing of Yugoslav citizenship.
A handful of countries have established panels to resolve art claims, namely Austria, France, Germany, the Netherlands, and the United Kingdom. However, these accomplishments are tempered by several questionable realities. In discussing Austria, it was noted that its restitution programs were “insufficient to address the country’s wartime responsibility”, a “widely acknowledged” fact of concern especially in light of admissions by Chancellor Franz Vranitzky that Austrians bore “co-responsibility” for maltreatment of Jewish communities in Austria during World War II.
Additionally, countries with national collections known to include looted art were described as having problematic restitution practices. The Report references various policies and laws that allow Nazi-looted property to remain in state collections as is the case in France. Hungary also illustrates this as it was listed as having provided no restitution for “its holdings of major looted art”.
Another case in point: despite “extensive restitution efforts”, “significant challenges” remain in the Netherlands, which began applying a “‘balancing test’ that gives its museums the right to retain Nazi-confiscated artworks if their interests outweigh those of representatives of families from whom the Nazis confiscated the art.” Such a ‘balance’ has often tipped in favor of the museums, e.g., rejections of claims by heirs for return of Wassily Kandinsky’s Painting With Houses, based on “public interest” in keeping the artwork at the Stedelijk Museum (a Recommendation from the Restitutions Committee which has recently been upheld by an Amsterdam court) and Kandinksy’s View of Murnau with Church, which is held at the Van Abbemuseum. Following complaints, the Dutch Government announced it would investigate and has recently issued a report on its restitution policy which, amongst other matters, is critical of the ‘balance of interest’ test. It is noteworthy that the Amsterdam court’s decision in favor of the Stedelijk in the Painting With Houses case was issued after publication of the Dutch report; the claimants have expressed their intent to appeal the court’s ruling, which included a finding that the Committee’s reasoning lacked “serious defects”.
As for heirless property, which sadly resulted from the pervasive extermination of entire families, the suggestion had been to use such property to provide for survivors and to fund Holocaust education. As of the writing of the Report, Serbia was the only country to pass legislation related to heirless and unclaimed property however. “[T]he magnitude of property left heirless” and “the potential cost of a compensation settlement” were cited as reasons why other countries have been slow in acting.
The urgency for justice
Seventy-five years have passed since World War II – nearly a lifetime ago. It is only right that the Report should call for a “greater sense of urgency” to act on behalf of Shoah survivors, most of whom have lived with mental, physical and/or financial hardship since liberation. It is also only right that long-overdue justice be meted out through implementation of the Terezin principles – by restitution, by compensation, and certainly by education so that horrors like those perpetuated by the Third Reich are never repeated.
All quotes in italics are from the Report.
Wassily Kandinsky, Painting With Houses – Public domain via Wikimedia Commons
Wassily Kandinsky, View of Murnau with Church – Public domain via Wikimedia Commons
 Reif v. Nagy, 61 Misc. 3d 319, 328 (N.Y. Sup. Ct. 2018), aff’d as modified, 175 A.D.3d 107 (N.Y. App. Div. 1st Dep’t 2019); Zuckerman v. Metropolitan Museum of Art, No. 1:16-cv-07665 (S.D.N.Y. 7 Feb. 2018), aff’d, No. 18-634 (2d Cir. N.Y. 26 June 2019), cert. denied, No. 19-942 (U.S. 2 March 2020) (Second Circuit denied heirs’ restitution claim over Picasso’s The Actor on the basis of laches).
Readers of the blog may have noted from our previous post that we will be holding an online book launch on 27th January at 5.00 pm UK time, for our forthcoming second edition of Norman Palmer’s classic text Museums and the Holocaust. The book will be available in hardback later this month (pre-order through link above). Details of the launch will be made available on the IAL site shortly.