By Marilyn Henry
The 71st anniversary of Kristallnacht last Monday, was imbued with added significance as representatives of three US federal agencies shared a podium at the Museum of Jewish Heritage in New York to repatriate a 1516 Bible to the Jewish community of Vienna. The Bible had been donated to the Israelitische Kultusgemeinde Wien (IKG) in 1908 and was confiscated by the Nazis in the 1938 pogrom.
The two-volume Bible was due to be sold at auction earlier this year by a New York art and Judaica dealer, Kestenbaum and Company, when it was seized as stolen property by US federal agents.
This was not the first such ceremony this year. Last April, on Holocaust Remembrance Day, federal authorities came to the museum for a ceremony to publicly return a 1632 painting to the estate of Max Stern. It was one of hundreds of artworks that Stern, a Dusseldorf art dealer, was forced to sell by the Nazis before he fled Germany. His estate was bequeathed to Hebrew, Concordia and McGill universities, which are pursuing the claims.
The significance of both events is not the powerful symbolism of the days on which the ceremonies were held. It is that these events marked the renewed vigor and commitment of the federal government to aid Nazi victims and their heirs in recovering cultural properties that were looted or displaced in Europe.
For more than a decade, the State Department's Office of Holocaust Issues has pursued the recovery of looted works. It works diplomatically, quietly, preferring the carrot to the stick. But honorable intentions or attempts at moral suasion rarely succeed in resolving such issues.
In the past year, the federal sticks have come out. It is law enforcement - specifically the US Justice Department and the Department of Homeland Security's Immigration and Customs Enforcement (ICE) - that compels the possessors of Nazi-era looted properties to take heed. No one is going to ignore a federal agent or prosecutor.
REPRESENTATIVES OF three federal departments - State, Justice and Homeland Security - were at the ceremony last week.
James T. Hayes, Jr., the special agent-in-charge of the New York ICE office, said his agency was committed to finding and repatriating stolen artworks from the Holocaust.
"Seventy-one years ago today, on Kristallnacht, the Nazis carried out a violent and coordinated attack on Jewish people, ransacking the places they lived, worked and gathered," said Preet Bharara, the new US attorney for the southern district of New York. "The passage of time does not diminish our remembrance, or the duty to return all surviving works of art and precious symbols stolen by the Nazis."
This was the federal prosecutor's first public statement regarding the recovery of Nazi-looted works. Last April, at the Stern estate ceremony, Lev Dassin, then acting US attorney in Manhattan, said: "Each work of art returned brings us one step closer to the goal of repatriating all the surviving works stolen by the Nazis."
These strong statements are welcomed. Yet, obviously, law enforcement intervenes only when American law has been violated. Customs agents could seize an object, for instance, on grounds that it is against American law to import stolen property into the US. But first, they have to be made aware of the object's existence and its history.
The Stern painting and the IKG Bible became known because they came to market. Many objects tainted by Nazi-era transactions will never be offered for sale. Instead, they will come into the US on loan for museum exhibitions with a federal promise of "safe passage." This is immunity from seizure, a legal guarantee - which Israel recently adopted - that artworks on loan from abroad will be returned at the end of the exhibition, not seized by a government agency because of a claim.
The State Department grants immunity to imported objects that are of cultural significance and whose temporary exhibition in the US is in the "national interest." The American immunity provisions were first crafted more than 40 years ago to assure foreign lenders that cultural objects could not be seized to satisfy commercial debts or court judgments. These days, however, an artwork may be claimed in its own right, not as collateral for a debt.
The ownership history of the artworks is supposed to be checked by borrowers. The borrowers must assure the State Department that they do not know of potential claims for the art, or they must identify such claims before immunity is granted. The State Department does not check the veracity of the immunity applicants' statements regarding claims, saying it does not have the funds to do so. Despite this obvious deficiency, there is no mechanism to appeal a grant of immunity once it is given.
By protecting objects from seizure, safe passage ties the hands of potential claimants and of law enforcement officials who may have credible reason to detain an artwork that is in the US.
The State Department has long argued that cultural exchange is essential to US foreign policy. No doubt it fears that lending to American museums would decline if it too closely examined immunity requests regarding artworks related to the Nazi era.
Yet it is also American policy that the US will not provide safe haven for Nazi-era looted art. Apparently this applies only to commerce, not to culture. There is a double standard in which the art market in general is subject to scrutiny, while protection is granted to museums and private collectors who lend artworks to American institutions.
It would be an ironic loss if the State Department squanders the opportunity in New York, where aggressive federal agents and prosecutors could be paralyzed by the department's grants of immunity. It is time for the department, which casts itself as an advocate for the recovery of Nazi-looted assets, to review its immunity program. The program should be viewed not only for the ways in which it promotes cultural exchange, but for the ways in which it does so at the expense of Nazi victims and their heirs.