NAZI-LOOTED ART: WHAT ISRAEL CAN AND SHOULD LEARN FROM GERMANY.
| Author | Goldberg, Niv |
INTRODUCTION
When the German Expressionist painting Siblings by Erich Heckel was restituted in early 2021 to the heirs of Max Fischer, it was done on the recommendation of Germany's independent Advisory Commission in Relation to the Return of Cultural Property Confiscated as a Result of Nazi Persecution, Especially Jewish Property (the so- called Limbach Commission). Those interested in a similar case in Israel duly took notice. Where formal rules of evidence and other technical rules may interfere with the restitution of Holocaust-looted artefacts to their rightful owners, it may be necessary to establish an independent commission authorised to do justice without the same constraints. An Israeli family, descendants of Ludwig Marum, are now among those leading calls for Israel to form its own independent advisory commission similar to the one in Germany. The cultural property in question in this case is the famous Birds' Head Haggadah, the oldest surviving illuminated Ashkenazi Passover Haggadah, currently on display in the Israel Museum.
The objects in the two cases are radically different: one is a twentieth-century avant-garde painting while the other is a fourteenth-century illuminated manuscript. And yet there are a number of similarities between the circumstances in which the objects changed hands that make the case of Heckel's Siblings an important precedent for the case of the Birds' Head Haggadah.
THE GERMAN CASE: HECKEL'S SIBLINGS
Max Fischer had inherited Siblings, by Erich Heckel, when his widowed mother died in 1926. (1) Fischer was a journalist and foreign correspondent in Berlin who, after the Nazi Party took control in 1933, lost his job and was expelled from the Berlin Press Association because of his Jewish identity. (2) There is evidence that Fischer tried but failed to sell the painting through a Berlin gallery in the early 1930s, and it was returned to him at that point. (3) He left for America in November 1935, able to take only very little luggage with him, and leaving his artworks and other property in the care of a friend in Berlin. (4) It is at this point that the story of the painting becomes contentious: at some point between Fischer's departure and 1944, the painting appeared back in the possession of Erich Heckel, the artist. (5) Heckel exhibited the work various times until 1967 when it was acquired, along with other works by Heckel, by the Kunsthalle Karlsruhe. (6)
The central question in the dispute between Fischer's heirs and the Gennan state of Baden-Wurttemberg that owns the Kunsthalle Karlsruhe was this: was there a legal transfer of ownership between Fischer and Heckel at some point between 1934 and 1944? No relevant documents survived on either side; both Fischer and Heckel are long deceased, and furthermore, no letters or other records remain to suggest that either party ever mentioned the painting and the circumstances surrounding the transfer of its possession.
The Kunsthalle Karlsruhe argued that the most likely scenario is that Fischer sold the painting in a legally-valid transaction to Heckel, and that an appropriate purchase price was paid. They also argued that the fact that the painting was exhibited publicly, including internationally, in the years from 1944 to 1967 and was consistently listed as the property of Erich Heckel, and that the Fischer family made no claims to it during this period, was a tacit admission by the latter that the painting had been legally acquired by Heckel.
Germany's independent Advisory Commission, in its decision published in February 2021, strongly rejected these arguments and recommended that the painting be restituted to Fischer's heirs. They acknowledged that there was no evidence to establish how Heckel came into possession of the painting between 1934 and 1944 but held that that lack of evidence was a burden that should not be borne by the heirs. The Commission did not accept that a legal transfer of ownership was the most likely scenario. Rather, it determined that the burden of proof lay with the museum to positively demonstrate a legal sale rather than on the heirs to refute such a contended sale, and it was a burden that the museum failed to shift. In June 2021, following the Commission's recommendation, the Kunsthalle Karlsruhe restituted the work to Max Fischer's heirs.
THE ISRAELI CASE: THE BIRDS' HEAD HAGGADAH
The Birds' Head Haggadah belonged to Ludwig Marum, a prominent lawyer and Jewish parliamentarian in the German Reichstag. (7) It had been a gift from his wife's family on the occasion of their wedding, (8) and was reportedly kept by Marum in his law office. (9) We know this because a lawyer colleague of Marum's, Shimon Jeselsohn, later described having seen it there. (10) Marum was arrested in March 1933, an early victim of Nazi persecution, and was murdered by the SS in Kislau concentration camp in March 1934. (11) His family left their home after his arrest and fled Germany shortly after his death. (12) As with the Heckel painting, the location of the Haggadah is unknown between the time of Marum's murder in 1934 and its reappearance in Jerusalem in 1946 in the possession of a German Jewish refugee, Herman Kahn. Kahn sold it to the Bezalel National Museum, the predecessor of the Israel Museum, for $600, (13) a sum which, even at that time, as the director of the Museum admitted, was far from reflecting its true value. (14) Later on, it was spotted and recognised by Marum's former colleague, Jeselsohn, who had survived the Holocaust and lived in Jerusalem. Jeselsohn reported his discovery to Marum's family who confirmed that they had no knowledge of Kahn or the whereabouts of the manuscript. Kahn himself was confronted by Jeselshon and gave an explanation of how he got the Haggadah, which was later proved to be untrue. (15) It is clear, however, that the museum did not clarify with Kahn the true origin of the Haggadah.
The museum, although never explicitly rejecting the Marum family's claim, has maintained that it is up to Marum's heirs to prove what happened with the Haggadah during the years of Nazi persecution, and to show how it ended up with the seller, Kahn. Unsurprisingly, the family was unable to present evidence that the museum considered satisfactory. Unfortunately, in Israel there is currently no viable alternative to the court system in which to raise a claim such as this one in the expectation that a just and fair solution as per the Washington Principles and the Terezin Declaration might be provided.
ISRAELI LAW UNEQUIPPED TO DEAL WITH RESTITUTION CLAIMS
The case of the Haggadah is of course complex and emotive, involving one of the most important pieces of Judaica extant today. Nevertheless, there is a public interest in ensuring that the victims of Nazi persecution and their heirs do not continue to bear an insurmountable legal burden. This particular case--and its comparison to that of Heckel's Siblings in Germany--serves paradigmatically to lay bare the problems in Israeli jurisprudence as it relates to restitution of looted art. Israel's existing legal structures have failed, and new methods must be adopted in order to ensure the provision of justice for survivors and heirs, especially in the Jewish State.
In fact, with one exception that no longer exists in practice, Israel has not adopted any new or special legal mechanisms to deal with the question of Nazi-looted art. In 2006, the Knesset (the Israeli parliament), passed a law creating a government corporation, the Hashava Company, (16) to deal with restitution issues pertaining to property now in Israel that was displaced from its owners during the Nazi era ('hashava' is Hebrew for 'restitution'). (17) However, this corporation was dismantled by law in 2017, after only ten years of operation, and before it managed to achieve all of its objectives. (18) During this decade, in which the Hashava Company dealt primarily with real estate and financial instruments, its mandate to deal with Nazi-looted art remained an unanswered question--for...
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