Unfortunately, when reports of the collection surfaced, German officials cloaked the case in secrecy, treating it as a “tax matter.” That’s chilling, given that the Nazis used property-registration laws and “flight taxes” to identify and strip valuables from Jews seeking to escape Germany. Under pressure from the United States and groups representing Holocaust victims, Germany set up a task force to investigate the provenance of the hoarded art. The government has also announced that it will publish a full list of the works that they determine to be Nazi-confiscated.
Earlier this year, the German newsmagazine Der Spiegel reported on how little German authorities have done since 1945 to investigate and return 20,000 looted items known to be still in the hands of German agencies and museums. The new find, called the Gurlitt Collection after Cornelius Gurlitt, the reclusive 80-year-old man who had the art in his apartment, now provides Germany with the chance to show the world that it has changed.
There is evidence that Mr. Gurlitt and his family may have attempted to hide the collection’s existence, including the fact that Hildebrand Gurlitt, Cornelius’s father, had previously claimed that the art was his and that his records were ruined in the Dresden firebombing.
Contrary to what Cornelius Gurlitt has claimed about how his father acquired the works, this paper has reported on an unpublished essay Hildebrand Gurlitt wrote in 1955, stating that the works came “from emigrating customers and friends, from people who had the foresight to offload their pictures”—suggesting that Gurlitt was actively dealing in art with those fleeing the Nazi regime. Such evidence—on top of the fact that after two years of investigation, hundreds of works are already viewed as looted—provides grounds for the state to step in to safeguard the collection.
The Washington Conference Principles, signed in 1998 by more than 40 nations, mandate that Holocaust-looted works be identified through public exhibitions and broadly available archival information so that claimants may assess their rights. The goal is to reduce the burden on claimants to prove ownership, given that the Holocaust and subsequent efforts to hide looted art complicate efforts to prove claims. Most important, the Washington Principles direct states to create processes for “just and fair solutions” that are based on the merits of claims, not on technical legal defenses that may penalize claimants for failing to locate assets until too much time has passed.
With this in mind, here are five concrete steps that Germany can take to foster restitution for the looted works in the Gurlitt Collection:
First, retain a major auction house to assist researchers from the Free University of Berlin in investigating the paintings. Auction houses such as Christie’s, whose advisory board includes former U.S. Holocaust Envoy Stuart Eizenstat, have done remarkable work researching Holocaust-related issues and resolving Holocaust-related claims without litigation.
Second, establish an online library of all the art to provide up-to-date information on the Gurlitt Collection, so that potential claimants may research the works of art. The entire collection should be open to scrutiny, because understanding how it was assembled will likely help explain the provenance of individual works and could lead to other looted works that passed through Hildebrand Gurlitt’s hands.
Third, organize a public exhibition of the Gurlitt Collection (with an online portal) to broaden public disclosure about the collection.
Fourth, authorize the Limbach Commission, which oversees the return of Holocaust-looted art owned by the German state, to oversee claims relating to the collection. The commission should be mandated to apply the German law that was put in place after World War II, which presumed that property owned by individuals persecuted by the Nazis and transferred after Hitler took power either was looted or turned over under duress.
This presumption made it much easier for former owners to recover their property. Given that the Gurlitt family appears to have worked to hide the art, it would be appropriate for the German government to ensure the use of the law, which eliminates technical and time-based defenses.
Fifth, Germany should work with the U.S. and other nations to facilitate favorable tax and export treatment for restituted works from the Gurlitt Collection, so that claimants may keep more of the value of any restituted property. Germany also should require that auction houses handling the sale of works deemed looted assure that some portion of any commissions be set aside for Holocaust survivors or Holocaust-asset research. A precedent for this was set by Christie’s in the 1996 Mauerbach sale of 8,000 objects looted from Austrian Jews, which raised $14.6 million for Holocaust victims and their families.
The Gurlitt Collection vividly illustrates that the vast economic crimes perpetrated by the Nazis still have not been fully addressed. The Washington Principles provide a road map to bring some measure of justice to survivors and their families. Will Germany use it?
Mr. Bindenagel is a former special envoy for Holocaust issues at the State Department. Mr. Pell is a partner at White & Case LLP and has advised on Holocaust-looted art issues.