By E. Randol Schoenberg. Esq.Last week, Austria once again refused to return the famous painting by Jan Vermeer, The Artist in His Studio, that Hitler managed to wrangle from its prior owner Jaromir Czernin-Morzin. The history of the dispute was described in the March 16, 2011 posting Will Austria Part With Hitler’s Vermeer. On March 18, 2011, a committee of political appointees issued a unanimous 33-page recommendation to the Minister of Culture and Education Claudia Schmied, asking her not to return the painting under Austria’s 1998 art restitution law. The decision, issued with a press release just minutes after the seven-member committee met in closed session to discuss the case -- supposedly for the very first time -- leaves no doubt that there is little will left in Austria for confronting its Nazi past.
Austria’s 1998 art restitution law allows the government to return artworks from federal museums that should have been returned under Austria’s prior restitution laws. But no claims can be filed, and victims or their heirs are not permitted to take part in the process or appear before the advisory committee. The entire operation is conducted behind closed doors and in secret, until a decision is announced with no opportunity for comment or recourse. Although hundreds of Nazi-looted artworks have been returned under the 1998 law, occasionally this opaque process has led to egregious errors. In the case of the famous and valuable Klimt paintings taken from the Bloch-Bauer family, a mistaken recommendation by the advisory committee was overturned only after eight years of litigation and a US Supreme Court decision that resulted in an independent arbitration award ordering Austria to return the paintings. The advisory committee seems to save its biggest blunders for the most valuable artworks.
The case of Hitler’s Vermeer, valued at over $200 million, is complex, but the errors of the advisory committee are easy to see. The decision hinges on a determination that Jaromir’s wife Alix-May was never persecuted by the Nazis. Under Austria’s restitution laws, a sale entered into by a spouse of a persecuted individual is voidable, unless the purchaser can prove that the transaction would have occurred independent of the Nazi takeover -- a tough chore in a case where Hitler himself put a hold on the painting and later purchased it at a reduced price. Despite devoting 25 pages to the history of the painting, most of the facts related to the key issue of Alix-May’s persecution were glossed over or omitted.
Alix-May was one quarter Jewish, but her grandfather Eduard Oppenheim was a famous Jewish-born banker in Cologne and his family was an early target of the Nazis. In 1933 Alix-May was married to the aristocrat Roland Faber-Castell. For this she was viciously attacked in Der Stürmer, the infamous Nazi periodical published by Germany’s number one Jew-baiter Julius Streicher. (Streicher’s incessant anti-Semitic attacks on Jews in Der Stürmer led to his conviction and execution at the Nuremberg Trials for inciting crimes against humanity.)
Austria’s 1998 art restitution law allows the government to return artworks from federal museums that should have been returned under Austria’s prior restitution laws. But no claims can be filed, and victims or their heirs are not permitted to take part in the process or appear before the advisory committee. The entire operation is conducted behind closed doors and in secret, until a decision is announced with no opportunity for comment or recourse. Although hundreds of Nazi-looted artworks have been returned under the 1998 law, occasionally this opaque process has led to egregious errors. In the case of the famous and valuable Klimt paintings taken from the Bloch-Bauer family, a mistaken recommendation by the advisory committee was overturned only after eight years of litigation and a US Supreme Court decision that resulted in an independent arbitration award ordering Austria to return the paintings. The advisory committee seems to save its biggest blunders for the most valuable artworks.
The case of Hitler’s Vermeer, valued at over $200 million, is complex, but the errors of the advisory committee are easy to see. The decision hinges on a determination that Jaromir’s wife Alix-May was never persecuted by the Nazis. Under Austria’s restitution laws, a sale entered into by a spouse of a persecuted individual is voidable, unless the purchaser can prove that the transaction would have occurred independent of the Nazi takeover -- a tough chore in a case where Hitler himself put a hold on the painting and later purchased it at a reduced price. Despite devoting 25 pages to the history of the painting, most of the facts related to the key issue of Alix-May’s persecution were glossed over or omitted.
Alix-May was one quarter Jewish, but her grandfather Eduard Oppenheim was a famous Jewish-born banker in Cologne and his family was an early target of the Nazis. In 1933 Alix-May was married to the aristocrat Roland Faber-Castell. For this she was viciously attacked in Der Stürmer, the infamous Nazi periodical published by Germany’s number one Jew-baiter Julius Streicher. (Streicher’s incessant anti-Semitic attacks on Jews in Der Stürmer led to his conviction and execution at the Nuremberg Trials for inciting crimes against humanity.)
About Alix-May, Streicher wrote:
"The matron of the house in the town of Stein has a Jew for a mother. Jewish blood can never be concealed. It finds somewhere its expression. . . . She did not appear at the hearing. Probably her Jewish blood forbids her to appear in court before “Goyim” [Yiddish: non-Jews]. Her blood is closer to the Jews. When recently she had to stay in Switzerland with her sick child, she called for her Jewish doctor, Dr. Neuland from Nuremberg, who treats her children. . . .The fact that the matron of the house in Stein belongs to the Jewish race makes many things understandable that until now were a riddle."
Faber-Castell was subsequently removed from the board of directors of his own business because of his wife's Jewish background. The Nazis even tried to have him committed. His fortunes improved only after he divorced Alix-May in 1935. A post-war court found in 1946 that he had been politically persecuted because of his relationship to her.
Thanks to Streicher, Alix-May’s Jewish background was well-known to the entire community. At one point in the 1930s, Alix-May’s home was graffitied with the slogan “Oppenheim, the Jewish swine, must get out of Stein." The epithet was repeated, when, in 1940, after Alix-May had married Jaromir, the Gestapo [Nazi secret police] intervened in Alix-May's custody battle with Faber-Castell.
Thanks to Streicher, Alix-May’s Jewish background was well-known to the entire community. At one point in the 1930s, Alix-May’s home was graffitied with the slogan “Oppenheim, the Jewish swine, must get out of Stein." The epithet was repeated, when, in 1940, after Alix-May had married Jaromir, the Gestapo [Nazi secret police] intervened in Alix-May's custody battle with Faber-Castell.
“From state police principles,” the Gestapo reported to the court, “she appears to be unfit to raise children. In any case, because of her overall orientation, which may also be a result of her Jewish background and upbringing, she is on National Socialist principles politically unacceptable.”
As a result, Alix-May lost custody of her children. Finally, in September 1940, just weeks before Hitler’s emissaries came to her home to negotiate with her husband Jaromir to purchase the painting (for 65% the price that he wanted before the Nazis took over), the Gestapo and the Racial-Political Office determined that Alix-May should be treated as a “Jew and an enemy of the State” and her passport was ordered to be taken away.
The advisory committee made no mention of the article in Der Stürmer, and obliquely referred to the graffiti as “anti-Semitic words.” The problems faced by Alix-May’s prior husband Faber-Castel went unmentioned, as was the official finding that he had been “politically persecuted” as a result of his wife’s Jewish background. Her problems with the Gestapo are treated as minor incidents of no real consequence. Rather, the committee blithely concluded: “Alix Czernin was indeed subject to anti-Semitic hostilities by the Nazis, but not political persecution.”
As grounds for this improbable conclusion, the committee relied on the fact that ordinarily, people with only one Jewish grandparent were not persecuted by the Nazis. Alix-May was permitted to marry Jaromir in 1938, which would not have been possible if she had really been treated as a Jew. When she briefly was divorced from Jaromir in 1943, her Jewish background was not an issue and she was allowed to keep custody of their child. She was permitted to remarry Jaromir in 1944. Because she managed to avoid persecution in these proceedings, the committee declared that Alix-May was not a member of the class of systematic or individually persecuted persons.
The author Hilde Spiel used to say that Austrians live in a world “between dream and reality.” When it comes to Austria’s Nazi past, many still have a blind spot. Underlying the committee’s verdict is the continuing Nazi practice of euphemistic public lies covering up private truths. For example, in Nazi parlance Jews were not deported and murdered; they were “resettled” for “special treatment.” Similarly, Alix-May was not persecuted when she was attacked in Der Stürmer, the Gestapo interfered in her custody hearing or declared her an enemy of the State; she merely suffered the indignity of some “hostilities” – as if all she endured were some rude remarks at a dinner party. The reality of her situation, the actual torment and persecution she suffered over a course of years, the completely natural fear she testified to when in 1940 the Nazis arrived at her home to make a deal with her husband to purchase his painting for Hitler, all those facts were not recognized by the advisory board seeking to justify its decision to hold on to the Vermeer painting.
The restitution laws that Austria enacted under pressure from the Allies are quite clear. Property taken from persecuted individuals or their spouses must be returned. Once it was established that a person was a member of a persecuted class, or had been persecuted, all transactions were considered void. As one restitution tribunal explained shortly after the war:
The advisory committee made no mention of the article in Der Stürmer, and obliquely referred to the graffiti as “anti-Semitic words.” The problems faced by Alix-May’s prior husband Faber-Castel went unmentioned, as was the official finding that he had been “politically persecuted” as a result of his wife’s Jewish background. Her problems with the Gestapo are treated as minor incidents of no real consequence. Rather, the committee blithely concluded: “Alix Czernin was indeed subject to anti-Semitic hostilities by the Nazis, but not political persecution.”
As grounds for this improbable conclusion, the committee relied on the fact that ordinarily, people with only one Jewish grandparent were not persecuted by the Nazis. Alix-May was permitted to marry Jaromir in 1938, which would not have been possible if she had really been treated as a Jew. When she briefly was divorced from Jaromir in 1943, her Jewish background was not an issue and she was allowed to keep custody of their child. She was permitted to remarry Jaromir in 1944. Because she managed to avoid persecution in these proceedings, the committee declared that Alix-May was not a member of the class of systematic or individually persecuted persons.
The author Hilde Spiel used to say that Austrians live in a world “between dream and reality.” When it comes to Austria’s Nazi past, many still have a blind spot. Underlying the committee’s verdict is the continuing Nazi practice of euphemistic public lies covering up private truths. For example, in Nazi parlance Jews were not deported and murdered; they were “resettled” for “special treatment.” Similarly, Alix-May was not persecuted when she was attacked in Der Stürmer, the Gestapo interfered in her custody hearing or declared her an enemy of the State; she merely suffered the indignity of some “hostilities” – as if all she endured were some rude remarks at a dinner party. The reality of her situation, the actual torment and persecution she suffered over a course of years, the completely natural fear she testified to when in 1940 the Nazis arrived at her home to make a deal with her husband to purchase his painting for Hitler, all those facts were not recognized by the advisory board seeking to justify its decision to hold on to the Vermeer painting.
The restitution laws that Austria enacted under pressure from the Allies are quite clear. Property taken from persecuted individuals or their spouses must be returned. Once it was established that a person was a member of a persecuted class, or had been persecuted, all transactions were considered void. As one restitution tribunal explained shortly after the war:
“It must suffice that proof of political persecution is set forth, for in the uncertain legal conditions that prevailed under the German regime, a onetime subject of political persecution ran the danger that the persecution would start up again without any special reason. Whoever once was politically persecuted, lived always under pressure in the Third Reich; he could also not operate so freely in economic matters, as those persons who were never persecuted.”
The advisory committee could only justify holding on to Hitler’s Vermeer by finding that Jaromir’s wife was never politically persecuted. But the truth has a way of seeping out, and public lies work only for so long. At some point, reality must prevail over fantasy.
E. Randol Schoenberg is an attorney in Los Angeles, California. He represents Helga Conrad, the step-daughter of Jaromir Czernin-Morzin. During the past decade, he has litigated several prominent Nazi-looted art cases, including Republic of Austria v. Altmann, which resulted in the return of five paintings by Gustav Klimt valued at over $300 million.
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