A month after the German government created a task force to investigate art
apparently looted by the Nazis, documents and interviews reveal a paradox that
has frustrated art restitution advocates: While the task force has assumed the
power to make consequential determinations about artwork, it plans to do so in
The establishment of the task force was announced in early
November. Its goal is to determine the origins of hundreds of pieces of art
seized from an apartment inhabited by Cornelius Gurlitt, the son of a Nazi art
dealer. While advocates and attorneys disagree about the severity of the
situation, several agree that the task force’s power is constrained because it
is not independent.
The task force acknowledged as much, saying in a
statement released late on Wednesday that it reports “exclusively” to the
prosecutor’s office in the Bavarian city of Augsburg.
“The task force
does not make decisions over the property status and thus cannot replace the
decisions of the prosecutor’s office, negotiations with Mr. Gurlitt or
even proceedings in front of civil courts,” wrote Dr. Matthias Henkel,
spokesman for the task force.
But claimants who sent provenance
information to the task force, as recently as Tuesday, received a generic email
response in English that explained that the “task force cannot decide legal
claims, but conducts a fact-finding mission in order to provide the factual
basis for such decisions.”
Anne Webber, the co-founder of the Commission
for Looted Art in Europe, said this assertion represented an expansion of the
task force’s publicly announced responsibilities.
authorities, to date, have said that the role of the task force is to conduct
provenance research on the works of art in the Gurlitt collection. It has
not said at any time that the task force will be deciding the ‘factual basis’
for deciding ‘legal claims,’” she said.
Webber added that she was
concerned that the task force’s determinations could have implications for
claims that families made in court in the future.
For families who
believe they have solid proof of the origin of a painting, the uncertainty is
all the more frustrating.
“We anticipate that if the documentation is
good, and they make a determination [of] ‘yes’ on the facts this is a looted
work of art, they’re just going to kick it back to Augsburg [the prosecutor’s
office], and we still have to wait for the determination of the legal claim,”
said Chris Marinello, the director of Art Recovery International who is
representing a claimant.
The issue of transparency has drawn the ire of
While the task force continues to claim that it will
“establish the highest transparency,” basic information, such as the makeup of
the 10-person task force, is hidden.
The cornerstone of the United
States’ advice to the German government has been to increase the transparency of
the restitution process, such as publishing the full list of works online and
employing a “proper claims mechanism,” said Stuart Eizenstat, US Secretary of
State John Kerry’s special adviser on Holocaust issues.
“I think that the
Germans are moving in good faith to try to deal with a very complicated
situation,” Eizenstat said on Thursday. “We’re not there yet, but we’re moving
in a positive direction, I think, toward more transparency and eliminating
barriers to eventual claims.”
The Israeli government reiterated on
Thursday its position that it is Germany’s “moral duty to give the collection to
the Jewish people,” said Ami Mehl, director of the Foreign Ministry’s Jewish
The issue comes down to whether Berlin ought to
treat the Gurlitt case as a legal or a moral one, said Dr. Wesley Fisher,
director of research for the Conference on Jewish Material Claims Against
Germany, which will have two representatives on the task force.
seem reasonable that the question of theft in time of genocide… trumps, if you
will, the question of the legal rights of an individual who has been keeping a
hidden collection,” Fisher said on Thursday.
But, he added, “that does
not mean that Mr. Gurlitt should not have any rights. Of course he
Lothar Fremy, a Berlin-based art attorney, cautioned that
Germany must continue to act within the law to resolve the claims.
just can’t shove the legal system away and say, ‘We have to do something for our
reputation so let’s do something illegal here.’ This is a big problem [that]
Germany has,” Fremy said. “It’s such a disaster now.”