History of U.S. Executive Policy Since WWII

My first post focused on the most recent Nazi-looted art appeal in the United States, which was filed in the United States Court of Appeals for the Second Circuit.  To put this appeal into context, an analysis of federal court cases adjudicating Nazi-looted art claims since 2004 demonstrates a de facto presumption against the legitimacy of these claims.  I will lay out a summary of the other cases in question in my next (third) post. 

This post will focus on the history of U.S. executive policy.  Dismissing such claims without reference to the complex historical factors delaying assertion of owners’ claims violates foreign policy goals pursued by the United States and the Allies during and immediately after World War II, and in recent diplomatic breakthroughs in 1998, 2000, and 2009.  This executive policy is the subject of this post.  Historical context dating back to 1933 will be provided in my fourth post. 

In the normal course of judicial administration touching on foreign policy, federal judges typically defer to determinations of policy matters by the executive branch.  For example, in 1949 this Court ruled inadmissible the statements of a Jewish victim of Nazi persecution describing his brutal imprisonment by the Nazis that led him to “transfer” major assets under duress, on the ground that to do so would denigrate a foreign country.  Bernstein v. N. V. Nederlansche-Amerikaansche Stoomvaart-Maatschappij, 173 F.2d 71 (2d Cir. 1949).  In 1952, however, as will be familiar to any international law professor, Jack B. Tate, Acting Legal Advisor in the Department of State, clarified:

 

[The U.S.] Government’s opposition to forcible acts of dispossession of a discriminatory and confiscatory nature practiced by the Germans on the countries or peoples subject to their controls . . . [and] the policy of the Executive, with respect to claims asserted in the United States for restitution of such property, is to relieve American courts from any restraint upon the exercise of their jurisdiction to pass upon the validity of the acts of Nazi officials.  

26 Dept. St. Bull. 984-85 (1952) (the “Tate letter”).  Once the Second Court was fully informed of the government’s views of coerced “transactions” during the Nazi era in Germany, it promptly reversed its previous ruling in the same case.   Bernstein v. N.V. Nederlansche-Amerikaansche Stoomvaart-Maatschappij, 210 F.2d 375, 376 (2d Cir. 1954).

 

U.S. diplomats led efforts to warn other countries against looting in the landmark London Declaration of January 5, 1943, 8 Dept. St. Bull. 21 (1952), which “declare[d] invalid any [coerced] transfers of, or dealings with, property . . . whether such transfers or dealings have taken the form of open looting or plunder, or of transactions apparently legal in form, even when they purport to be voluntarily effected.”  Immediately after the war, the Nuremberg Tribunal evaluated detailed evidence of coerced sales, and the plunder of art was declared a war crime and is so recognized today.  At Nuremberg, it was perfectly clear to the fact finders who had done what and to whom.  For example, Alfred Rosenberg, head of infamous Einsatzstab Reichsleiter Rosenberg (“ERR”) art looting unit, was convicted and sentenced to death by hanging. 

Shortly thereafter in Bonn and Vienna it was equally clear that, in order to rejoin the human family, Germany and Austria had to repudiate all spurious “transactions” of the entire Nazi era, including art “deals” that were really seizures.  E.g., Restitution of Identifiable Property; Law No. 59, 12 Fed. Reg. 7983 (Nov. 29, 1947) (Military Government Law 59).  Thus, the model chosen was a restitution model for individual claims, and these claims were not subsumed in reparations paid after the war, which were limited as we made room for the Marshall Plan.

Current foreign policy requires deference like this Court gave to the Tate letter.  Diplomats from the State Department, particularly Ambassador Stuart Eizenstat, played a leading role in securing public commitment by the forty-four nations that adopted the Washington Conference Principles on Nazi-Confiscated Art and the Terezín Declaration, which emerged from the international conference hosted by the Czech Republic in June 2009.  These declarations call for effective, fact-based resolution of Nazi-looted art claims.  Principle eleven of the Washington Principles encourages nations “to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.”  The Terezín Declaration states in its principles under the heading “Nazi-Confiscated and Looted Art”:

3. . . . [W]e urge all stakeholders to ensure that their legal systems or alternative processes . . . facilitate just and fair solutions with regard to Nazi-confiscated and looted art, and to make certain that claims to recover such art are resolved expeditiously and based on the facts and merits of the claims and all the relevant documents submitted by all parties. Governments should consider all relevant issues when applying various legal provisions that may impede the restitution of art and cultural property, in order to achieve just and fair solutions, as well as alternative dispute resolution, where appropriate under law.  (Emphasis added)

 

To give credit when due, this development in foreign policy was sparked in no small measure by Guidelines issued by the Association of American Museum Directors (“AAMD”) in June 1998.  Thus, it is quite shocking that U.S. museums are asserting statute of limitations and laches defenses, often as plaintiffs, and distorting the historical record and law in the process.  

  My next post will lay out the progression of cases since the 2004 Altmann victory in the United States Supreme Court and subsequent restitution of the Gustav Klimt Adele Bloch-Buaer II, a portrait of a relative of the claimant formerly known as Austria’s Mona Lisa.  This progression shows that federal courts do not seem to be giving Nazi-looted art cases the fair assessment they deserve.