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International Art Crime and Wartime Looting

Wartime looting is as ancient as our earliest documented civilizations, in Egypt, Greece, and Rome[1]. In these early empires and dynasties, and throughout most of civilized human history, wartime looting followed the mantra “to the victor belong the spoils;” thus, it was not regarded as a crime. Vanquishers prominently displayed collections of cultural property and artwork from conquered nations. Former Prime Minister Winston Churchill’s ancestor kept French artwork and cultural property from conquests in the War of Spanish Succession decorating the interior of his lavish country estate, Blenheim Palace. Although the French and the British have been at peace for some time and it is unlikely France will demand the return of its appropriated cultural property from Great Britain, other nations still mourn the loss of their cultural property and actively seek its return[2]. Such notable examples are Greece’s Elgin Marbles and Egypt’s Rosetta Stone (pictured above left), both which rest in the British Museum.

By the United States Civil War, the law recognized the importance of protecting cultural property by a conquering nation in its Lieber Code, which suggested that peace treaty should determine ownership of artifacts belonging to establishments of either an educational or charitable character from an otherwise hostile nation. Furthermore, “in no case shall [cultural properties] be given away… nor shall [they] ever be privately appropriated, wantonly destroyed, or injured[3].” In the early 20th century, international law further provided that cultural property owned by families and municipalities be regarded as private; thus, “all seizure of, destruction, or willful damage done […] made the subject of legal proceedings[4].” The Permanent Court of International Justice, established in 1920 by the League of Nations, was the first forum to address the grievances of wartime looting after World War I. State, national, and international forums now address claims for restitution and other relief brought by war victims. Over the past 150 years civilization gradually recognized the importance of art and cultural property by establishing laws and providing forums to address grievances.

Art crime, including wartime looting, forgery, theft, and trafficking, is the third-largest grossing criminal trade in the world, behind guns and drugs[5]. Earlier in 2015, Spanish police busted two separate rings of art forgers[6], one that specialized in counterfeit Old Masters. Of the pieces listed, the combined price listed over the Internet and with art galleries was more than one million dollars. These illegal transactions occur in legitimate places, such as art dealers, auction houses, galleries, and museums. Earlier this year, a Swiss raid of an alleged smuggling ring showed that criminals sourced antiquities from illegal excavations in southern Italy, sent them for restoration in Switzerland, and sold them around the world with forged documents of provenance[7]. The estimated value of the illegal Swiss treasure trove was over $56 million dollars and involved highly regarded museums, such as the Ashmolean Museum in Oxford, the Louvre in Paris, and the Metropolitan Museum of Art in New York.

Art collectors, dealers, auction houses, museums, and galleries are not the only recipients of improperly acquired cultural property and artwork; international terrorists join the ranks. In February, the Wall Street Journal published an article[8] discussing the link between antiquities looting and terrorist financing in the Middle East, with special focus upon Syria and Iraq. Previously in Gulf War I, Iraqi archeologists looted over 17,000 artifacts for “safekeeping[9].” In Gulf War II, organized criminals liberated the National Museum of Antiquities in Iraq from an estimated 15,000 artifacts. Director-General Koichiro Matsuura of the United Nations Educational, Scientific and Cultural Organization remarked, “Most of it was well-planned looting by professionals…[T]hey stole these cultural goods to make profits[10].” Just last week, the BBC reported[11] the government of Iraq re-opened the National Museum earlier than planned to demonstrate against the Islamic State’s (IS) video showing statues being destroyed in Mosul. Whether terrorists are selling cultural property to fund operations, or destroying them in acts of rage, the heritage of our cradle of civilization is at stake.

The most well documented account of wartime looting occurred from 1933-1945, the years during which the Third Reich was active in Europe. Adolf Hitler, himself a former art student, directed Alfred Rosenberg to lead the Einsatzstab Reichsleiter Rosenberg (ERR), a Nazi Party organization which chief directive was to appropriate cultural property across Europe for annihilation, trade, or inclusion in the Führermuseum. In this museum, Adolf Hitler would display selected works of Dutch, Flemish, Germanic, and Italian Old Masters to propagandize his twisted ideology. Many works of art perished during this effort because they were viewed as “degenerate.” Nazis appropriated “degenerate” art and either held it for trade with coveted works or destroyed it. Indeed, one account tells that Nazis burned over 4,000 pieces of “degenerate” art because the barn in which they sat was designated for grain storage[12].

The Nuremburg trials exposed the extent to which the Nazis impacted the art market. In a legal proceeding entitled, The Destruction and Plunder of Cultural and Scientific Treasures, Cultural Institutions, Monasteries, Churches, and Other Religious Institutions, as well as the Destruction of Cities and Villages, Lieutenant-General Roman A. Rudenko, Soviet Chief Prosecutor, presented evidence detailing the account of the Nazi crimes against culture, “which [crimes] found concrete expression in the wrecking of cultural institutions, the looting and destruction of cultural treasures, and the suffocation of the national cultural life of the peoples in the territories temporarily occupied by the German armies, that is, the territories of the U.S.S.R., Poland, Czechoslovakia, and Yugoslavia[13].” Consider a statement made 70 years ago as it relates to what is happening today in Syria, “It is difficult to determine whether destruction or plunder was the prevalent factor in these plans. But there is no disputing the fact that both plunder and destruction were aimed at one goal only — extermination[14].”

Documentary Rape of Europa follows the many ERR exploits, and in particular those of Nazi officials, namely, Hermann Göring, founder of the Gestapo and commander-in-chief of the Luftwaffe, who committed suicide before his execution in 1946. With Reinhard Heydrich, one of the main architects of the Holocaust, these Nazi officials coordinated their efforts with the ERR to pillage and plunder cultural property and artwork for their own private collections as was documented in the Nuremberg proceedings. The documentary highlights Göring, who was the highest ranking Nazi official at Nuremberg, to have hoarded a couple thousand artworks for his private collection. Hitler’s private art collection, inside a bunker over half of a mile underground, contained three times as many looted artworks[15].

Since World War II, the United States passed laws directed to victims of Nazi persecution[16], which laws were tested by Jewish families seeking the return of family heirlooms believed to have been confiscated or sold under duress during the Third Reich[17]. The Supreme Court of the United States held that one statute be interpreted as retroactive and therefore applicable to conduct occurring during the active Nazi period albeit Congress enacted it 30 years later[18]. Next month, Helen Mirren stars in a film[19] based upon the true story of Maria Altmann, who worked tirelessly to see her uncle’s paintings restored to her family’s rightful ownership. Entitled, Woman in Gold, the film begins in 1938, when events unfolded in Austria[20] as a result of the Anschluss. A wealthy Jewish sugar magnate, Ferdinand Bloch-Bauer, fled his estate in Vienna, Austria. He bequeathed his entire estate, including its artwork, to his niece, Maria Altmann, and another niece and nephew. Of the artwork left, six were “degenerate” paintings in the Symbolism style by painter Gustav Klimt, which paintings a Nazi lawyer claimed, divided, and later sold. The subject of two of these paintings is Adele, the wife of Ferdinand and aunt of Maria Altmann. In 2005, more than 60 years after they were stolen, an arbitration proceeding in Austria awarded the paintings to Ms. Altmann, which paintings she then consigned to Christie’s to be auctioned; they sold for $327 million dollars[21].

Legal avenues to help victims of wartime looting reclaim family heirlooms do not always result in favor of the victims. Sometimes it is simpler to rely upon the power of publicity to draw attention to a cause célèbre and either return the artwork to the original owner, or, at least publicly acknowledge his or her claim[22]. Last month, auction house Christie’s acknowledged a settlement with the heirs of Henry Dauberville (né Joseph Bernheim-Jeune) for a painting by Maurice de Vlaminck[23], a pioneer of Fauvism. Fauvism, with Pointillism, pioneered by Georges Seurat, and Cubism, influenced by Paul Cezanne, were styles of post-impressionistic art that the Nazi Party labeled as “degenerate.” It is shocking that artists such as Henri Matisse, Vincent Van Gogh, Paul Gaugin, and Gustav Klimt, were viewed as “degenerate.”

Perhaps the most gut-wrenching story of Nazi wartime looting arises in Russia, in Pushkin, at Catherine’s Palace. I first read about the Amber Room in a Forbes special publication in 2004[24]. Delivered by horse drawn sleighs as a gift from King Friedrich Wilhelm I of Prussia to Czar Peter the Great of Russia, the Amber Room consisted of 22 ornate wall panels carved in the Baroque style[25]. A collaboration of German, French, Danish, and Italian artisans and architects created the masterpiece, which contained 13,000 pounds of amber that covered 55 square meters. A group of Russian and German craftsmen completed the installation in ten years, which served as the crown jewel in the Golden Enfilade. Nazis dismantled it with six men under supervision of two experts in about 36 hours. Regarded by Hitler as a pinnacle of Germanic artistry, the Amber Room was removed as it crumbled to Königsberg, its last known resting place. A German sting operation recovered one of the four Florentine jewelled mosaics in Bremen in 1997, but no one knows the location of the original masterpiece.

The cultural significance of the Amber Room to Russia cannot be understated. In addition to cementing an alliance between Prussia and Russia, it “served as a private meditation chamber for Czarina Elizabeth, a gathering room for Catherine the Great’s intimate circle, a prize cabinet for amber connoisseur Alexander II. [It was] arguably the most famous room in Europe east of Versailles[26].” Starting in 1979, with a total investment of $11 million dollars, and 70 craftsmen, who spent countless hours spanning 25 years learning many lost arts, Russia finally reconstructed its cherished Amber Room and proudly presented it to the world.

Not all looting of cultural property or artwork happens during times of war by sophisticated burglars; mob looting by citizens is also a problem. In Eastern Europe’s post Soviet-era, unenforced national borders, lack of governance, and a general desperation among citizens, who are without the necessary and proper infrastructure for meeting their basic needs, have resulted in rampant looting of museums and churches[15]. In the last three months, the State Agency for National Security (SANS) in Bulgaria announced its part in a 14-country wide effort led by Europol in an operation to prevent theft and trafficking of European cultural property. Bulgaria seized more than 2,000 ancient and medieval artifacts from an international crime group involving Bulgarian and foreign citizens that illegally exported cultural property.

The art market is the largest, unregulated business in the world[28], which facilitates commission of art crime. International leaders just last month called for regulation of the art market, citing insider trading, price manipulation, and tax evasion as chief concerns[29]. Opponents to its regulation argue that laws already exist to combat the potential for money-laundering, personal injury, or breach of contract between buyers and sellers[30]. For those seeking to recover lost art and cultural property in the United States, legislation, statutes, and civil actions for claims of replevin, specific recovery, restitution, and conversion are available to parties, who have standing and can establish jurisdiction. Remedies also exist to stop trafficking in art and cultural property at its source, including import and export restrictions, bilateral treaties proceeded by legislation, and multilateral treaties, which create awareness of the international problem and begin a dialogue towards its resolution[31].

If any regulation arises, experts suggest it will fall under securities law[32]. Art will be regarded as a financial asset and its securitization will therefore be within the purview of securities regulators. For now, it appears the dark underbelly of an unregulated art market allows for art dealers to “look the other way,” to flip art for a large commission or profit. While such indiscretion may complete a sale, such sale may become the subject of a lawsuit.

It is thus imperative to invest resources to clear an art purchase prior to acquiring it in the international market. According to Chris Marinello, C.E.O. of Art Recovery International, to buy art, one must “perform due diligence, pay an appraiser, an art authentication expert, a provenance researcher, lawyers and even a scientist[33].” At the very least, it is advisable to pay for a formal search, known as provenance research, which provides a prospective buyer with the authenticity, value, and clear chain of title to the item for sale. Since 1969, non-profit organization International Foundation for Art Research (IFAR) mission has been to educate the public about the art market and to research the attribution and authenticity of artworks.

IFAR publishes a handy online guide to provenance research here. To the uninitiated, the guide can appear overwhelming; thus, the price to pay a professional to conduct provenance research more than pays for itself in terms of granting the purchaser peace of mind, and more importantly, avoidance of, or insurance against, a lawsuit. Moreover, art transactions typically fall within the thousands to hundreds of thousands of dollars range; therefore, the price is reasonable when compared to the overall investment in the acquisition. If the purchaser does not perform provenance research, consequences can be severe. One of the most famous cautionary tales of an art transaction gone wrong is that of Indiana art dealer, Peg Goldberg, who in 1990, lost $1.2 million dollars after being found in wrongful possession of four Kankaria mosaic pieces that belonged to the Republic of Cyprus and its Greek-Orthodox church[34].

Provenance research begins with an artist’s catalogue raisonné, and includes searches in archival documents, sale catalogues, and works in public collections, and art libraries, which provide access to dealers’ records, auction catalogues, exhibition catalogues, and photo archives. Art libraries also provide access to subscription databases of sales and art auction records. These research materials when taken as a whole help reconstruct the ownership history, or chain of title, which authenticates and brings value to a particular artwork.

In addition to provenance research, a documented authenticity check, and clear chain of title, a prospective buyer should perform a background check of the seller, acquire insurance protection, and a contingency sales contract[35]. Catlin Group, a Lloyds syndicate formed in 1986, provides commercial fine art insurance policies. They explain how the benefits of having a specialist fine art insurance policy is distinguished from other policies and list the most common causes for an art loss claim in their online booklet entitled, Precious Things.

Other databases help researchers locate lost, stolen, or missing art, or identify whether a particular artwork is a forgery. There are databases dedicated to certain periods, such as the World War II era, while other databases are broader in scope. Of the latter, there are the Art Loss Register (ALR) and ArtClaim, both based in London. ALR is the elder of the two, formed in 1991, and corporate extension of non-profit IFAR. Art Recovery International (ARI), owns and operates ArtClaim, launched on January 19, 2015. According to the New York Times, former general counsel of ALR, Chris Marinello, formed ARI in September 2013[36]. In the past 20 years, Mr. Marinello is reported to have recovered a total estimated value of $350 million dollars in lost art[37]. The cost to perform a single search using Art Loss Register is USD $95, while it was free until February 19, 2015, to conduct a search in ArtClaim[38].

I hope that this article has been entertaining and informative. The art world is ever changing and evolving with the economic, social, and political climes of our age, much as the bodies of law that apply to it. Its breadth spans the circumference of our globe, its depth thousands of years of civilization. It is my opinion that we must do everything in our power to protect and cherish it, and remember what it teaches us. In the words of Aristotle, “The aim of art is to represent not the outward appearance, but their inward significance.” In a world where man strives to answer the meaning of life, meaning can be found in a contemporary painting inasmuch as a series of classical marble sculptures from the ancient Greeks.

[1] Duboff, Leonard, et al., Art Law, p. 533. Aspen Publishers. New York, New York. 2010.

[2] Damien McElroy, British Museum Under Pressure to Give Up Leading Treasures, The Telegraph, April 7, 2010.

[3] Lieber Code, Instructions for the Government Armies of the United States in the Field by Order of the Secretary of War, April 24, 1863, quoted in Friedman, The Law of War 158 (1972).

[3] Art. 46, Hague IV, Laws of War: Laws and Customs of War on Land, October 18, 1907.

[4] Id. Art. 56.

[5] Kris Hollington, After Drugs and Guns, Art Theft Is the Biggest Criminal Enterprise in the World, Newsweek, July 22, 2014.

[6] Alexander Forbes, Massive Old Masters Forgery Ring Busted In Spain, Artnet News, January 30, 2015.

[7] Gianfranco Becchina, et al. £38 Million Trove of Stolen Antiquities Uncovered in Swiss Raid, Artlyst Art News, January 23, 2015.

[8] Joe Parkinson, et al., Syrian ‘Monuments Men’ Race to Protect Antiquities as Looting Bankrolls Terror, Wall Street Journal, February 10, 2015.

[9] Duboff, Leonard, et al., Art Law, p. 579. Aspen Publishers. New York, New York. 2010.

[10] Id. at 583.

[11] Staff, Looted Iraqi Museum in Baghdad Reopens 12 Year On, BBC News Middle East, February 28, 2015.

[12] Duboff, Leonard, et al., Art Law, p. 552-53. Aspen Publishers. New York, New York. 2010.

[13] The Destruction and Plunder of Cultural and Scientific Treasures, Cultural Institutions, Monasteries, Churches, and Other Religious Institutions, as well as the Destruction of Cities and Villages, Nuremberg Trial Proceedings, Vol. 8, February 21, 1946.

[14] Id.

[15] Rape of Europa (Actual Films, Agon Arts and Entertainment, Oregon Public Broadcasting 2006).

[16] Holocaust Victims Redress Act, Pub. L. No. 105-158, 112 Stat. 15 (1998); Nazi War Crimes Disclosure Act, Pub. L. No. 105-167, 114 Stat. 2865 (1998); and, United States Holocaust Assets Commission Act, Pub. L. No. 105-186, 112 Stat. 611 (1998).

[17] Orkin v. Taylor, 487 F.3d 734 (9th Cir. 2007), cert. denied, 28 S. Ct. 491 (2007).

[18] Republic of Austria v. Altmann, 541 U.S. 677 (2004).

[19] Woman in Gold (Origin Pictures, BBC Films 2015).

[20] Republic of Austria v. Altmann, 541 U.S. 677 (2004).

[21] Michaud, Christopher. Christie’s Stages Record Art Sale. Reuter’s. November 9, 2006.

[22] Sarah Cascone, Chris Marinello is the Sherlock Holmes of Art Crime, Artnet News, November 16, 2014.

[23] Eileen Kinsella, Nazi Looted Vlaminck Sold at Christie’s Ending Decades of Controversy, Artnet News, February 5, 2015.

[24] Richard Nalley, Mysteries of the Amber Room, Forbes, March 29, 2004.

[25] Duboff, Leonard, et al., Art Law, p. 570-71. Aspen Publishers. New York, New York. 2010.

[26] Richard Nalley, Mysteries of the Amber Room, Forbes, March 29, 2004.

[27] Duboff, Leonard, et al., Art Law, p. 577. Aspen Publishers. New York, New York. 2010.

[28] Kris Hollington, After Drugs and Guns, Art Theft Is the Biggest Criminal Enterprise in the World, Newsweek, July 22, 2014.

[29] Mostafa Heddaya, Does the Art Market Need Regulation?, BlouinArtinfo, February 3, 2015.

[30] Id.

[31] Duboff, Leonard, et al., Art Law, p. 592-602. Aspen Publishers. New York, New York. 2010.

[32] Mostafa Heddaya, Does the Art Market Need Regulation?, BlouinArtinfo, February 3, 2015.

[33] Id.

[34] Autocephalous Greek-Orthodox Church of Cyprus v. Goldberg, 917 F.2d 278 (7th Cir. 1990).

[35] Duboff, Leonard, et al., Art Law, p. 544. Aspen Publishers. New York, New York. 2010.

[36] Kate Taylor, et al., Tracking Stolen Art, for Profit, and Blurring a Few Lines, The New York Times, September 30, 2013.

[37] Sarah Cascone, Chris Marinello is the Sherlock Holmes of Art Crime, Artnet News, November 16, 2014.

[38] Eileen Kinsella, Your Prized Picasso Is Missing?! Now What?, Artnet News, January 17, 2015.

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