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Art Pot x Law Review: Legal Debates Surrounding Repatriating WWII Art

In the vibrant and prosperous Vienna of the pre-First-World-War years, a young artist called Egon Schiele, a protégé of the renowned Gustav Klimt, was briefly imprisoned for “the distribution of indecent drawings”. Schiele had indeed pushed the boundaries of what was then considered “decent” art: his expressionist sketches were infused with bright colours and often included nude subjects with outsized eyes and strange poses. Though today considered by many to be a “major figurative painter of the 20th century”, this would hardly have seemed apparent as he languished in an Austrian gaol. One of his few consolations was the company of a young woman who visited the prison to drop off painting supplies and food. This woman later became the subject of Portrait of Wally Neuzil (1912).

Schiele died six years later, in 1918, during an outbreak of the Spanish flu. After his death, the Portrait of Wally fell into the hands of Lea Bondi Jaray, a Jewish art dealer. In the 1930s, the Nazi Party took power and deemed various artists and artistic styles “degenerate”. Jaray sold the Portrait of Wally to an interested Nazi and fled to London shortly afterwards.

After the war, the Allies took custody of the painting and returned it to the post-war Austrian government. There it remained until 1953 when Jaray asked a Shiele expert called Dr Rudolf Leopold to locate the painting. Leopold found it at the Galerie Belvedere and traded it for some of his own paintings. He kept the Portrait of Wally until he loaned it to the Museum of Modern Art in New York in 1997. What ensued was a legal battle that lasted well over a decade, initiated not by Jaray or her family, but rather by United States government lawyers. Leopold died, and his foundation settled with Jaray’s heirs the sum of US$19 million (approximately GBP 14.9 million).

The case of the Portrait of Wally is far from unique. During the Second World War, huge numbers of paintings, sculptures, and other artistic works were looted by the various warring powers, stolen from their rightful owners and shipped all across the globe. The American government estimates that over 20 percent of Europe’s artistic treasure was looted by the Nazis alone.

But until recently, getting those pieces back into the hands of their pre-war owners has been a cumbersome task, made more difficult by various statutes of limitation which make it difficult to prosecute people for crimes allegedly committed decades earlier. And, axiomatically, ownership is nine-tenths of the law. Nevertheless, there have been some promising developments in recent years which might make that task a little easier.

For example, in 1998, a year after the Portrait of Wally landed in New York and ignited a furious legal battle over its ownership: over forty nations signed the Washington Conference Principles on Nazi-Confiscated Art. In theory, this provided a comprehensive programme and a broad set of legal procedures for the return of art stolen by the Nazis to their pre-war owners. However, the Washington Principles are non-binding and the language is rather vague. In practice, therefore, they proved difficult to enforce.

More recently, in 2016, the Obama Administration signed the Holocaust Expropriated Art Recovery Act. The bill standardised the statutes of limitation for art looting, allowing claimants to sue current owners of any art looted between the years 1933-1945 within six years of discovery. This eliminated one major hurdle for many Holocaust survivors who were often able to locate the current owners of art which had been stolen from them but who, infuriatingly, could not sue as the statute of limitation had elapsed.

Unfortunately, the Holocaust Expropriated Art Recovery Act only holds authority in the United States. Globally, claimants are still at the whims of their local or national governments. However, there are increasing signs of international cooperation between states on the matter. In 2011, for example, US Immigrations and Customs Officials verified that two Polish paintings which had been looted by an SS colonel in 1944 had ended up in New York. The District Attorney for the Southern District of New York, then Preet Bharara, assisted in filing a complaint to have the pieces returned to Warsaw. With innumerable pieces lost, destroyed, or stolen during the war, getting them all back to their rightful owners or into the appropriate museums promises to be a herculean task. But with time, international cooperation, and effective legal mechanisms, it is getting a little easier.

This article is part of a collaborative series with publication Art Pot which aims to show how law and art have, and continue to be, interconnected. Read Art Pot's exploration of the issues surrounding repatriation here.


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