Written by: Nikhil Khanade, CMC ’16
“Doing what is right is different than doing what is legal.” This statement, made by James Cuno, the president and CEO of the J. Paul Getty Trust, highlights the dilemma that both individuals and the legal systems of nations grappling with the legacy of wartime art theft face. The aforementioned key players often have conflicting incentives and motivations, which fuel the debate over the restitution of art looted by the Nazis during World War II.
Maria Altmann, a holocaust survivor from Austria who became an American citizen, lost the Gustav Klimt portrait of her aunt Adele Bloch-Bauer I during the war to the Austrian government. The painting now hangs in the Neue Gallery in New York. Altmann’s effort to reclaim this painting, as well as four other portraits, illustrates some of the legal intricacies surrounding the restitution of Nazi-looted art. The portrait of Adele Bloch-Bauer, or Adele Bloch-Bauer I, was one of several Klimt portraits of upper class Jewish women that the Nazis derided as degenerate art. This painting, which had previously received so much criticism by the Nazi regime for its relationship to Jewish society, ultimately became a symbol of “Austria’s postwar refusal to make amends for its eager collaboration with Adolf Hitler.”
Controversy initially arose over the painting because Altmann’s aunt, Adele Bloch-Bauer, left a will in the 1920s stating that she wanted her paintings to be donated to the Austrian National Gallery after her death. However, proponents for Altmann’s case argued that there was no way Bloch-Bauer could have foreseen the nature in which Austria would become willing collaborators with the Nazi movement and the resulting horrific treatment her family would receive at their hands. Therefore, Bloch-Bauer’s late husband, Ferdinand, also created a will stating that all the art should be left to the family’s heirs. However, the existence of Adele’s will served as a potent legal justification for the Austrian government to retain possession of the painting after the war.
For Maria Altmann and her lawyer, Randall Schoenberg, there was a “score to settle with history” because Austria was not willing to acknowledge its complicity with the Nazi movement and thus continued to impose trauma on Holocaust survivors. The pain Altmann had to endure because the “Austrians had shamelessly stolen her family’s life and offered no contrition” is clear. This betrayal created a sense of forgotten identity that Altmann felt compelled to recapture. Klimt’s work links Altmann to the many family members that she lost during the Holocaust, making it incredibly valuable in her mind; when Altmann revisited Austria in 1999 and saw the paintings in the Austrian National Gallery, she was “overwhelmed with nostalgia”. She sought the restitution of Adele Bloch-Bauer I, as well as the other Klimt paintings, in order to attain some closure on that emotional and painful chapter of her life. The Austrian government, which had amassed an excellent Klimt condition during the war, did not feel that it should be “made liable for damages to Jews,” a curious argument considering how central their involvement was in the Nazi war machine. This attitude epitomized post-World War II Austria; while the 1946 Annulment Act declared Nazi-era legal transactions “null and void,” in reality, it was very difficult for victimized individuals to recover property that was lost during the war.
Altmann’s pursuit of the portraits was made possible, in part, through the actions of Hubertus Czernin, a young Viennan aristocrat turned “crusading journalist” who delved into Austria’s collaboration with the Nazi regime and stumbled upon “one of the world’s most recognizable paintings, the gold portrait of Adele Bloch-Bauer [that] did not appear to have been donated at all.” From here, Czernin learned that in the post-war era heirs to Nazi-looted art were often swindled out of key masterpieces that were still in Austria in return for the export permits of lesser-known pieces. These export permits were required from the 1950s on for family heirlooms and art works to legally leave the country. After Czernin’s revelations became public, many Holocaust survivors attempted to reclaim their paintings. This caused the Austrian Parliament to pass a new art restitution law in 1998 that stated, “art that [had] been obtained under duress or in exchange for export permits…was to be returned.” It appeared that Altmann now had a glimmer of hope of recovering the paintings; however, the Austrian National Gallery was not going to return them easily.
It was passage of this new restitution law that resulted in the partnership between Maria Altmann and her lawyer Randall Schoenberg. The pair was to find out, however, that there were still a number of hoops for them to jump through before they could recover the paintings. The duo eventually attracted the attention of Ron Lauder, the son of the eponymous cosmetic company founder Estee Lauder, who spoke in front of the U.S. House of Representatives, as well as the Commission for Art Recovery of the World Jewish Congress in February 2000. In his testimony, Lauder revealed how the Austrian government had “invited Maria Altmann to sue for the return of the Bloch-Bauer Klimts in Vienna courts, but required a bond of half a million dollars just to get started.” This requirement illuminated a clear disconnect between the Austrian government’s legal and ethical obligations, and implied that the Austrian restitution law was being manipulated to protect the Austrian government from liability. The Austrian government’s request for a half a million-dollar bond led Altmann to file a suit in the U.S. Federal Court in Los Angeles in August 2000. Judge Florence-Marie Cooper subsequently ruled that Altmann’s case could go forward in U.S. courts because “Maria had made a substantial and non frivolous claim that these works were taken in violation of international law. Austria was an inadequate forum for the claim because of its unduly burdensome court filing fees.”
After this ruling, the case started to register on international radars, causing the Austrian ambassador to the USA, Peter Moser, to fly to Los Angeles in order to defend the claims made against his country. Along with Moser came “the Austrian Appeal, which was the size of a phone book,” registering the extent that the Austrians were willing to try and win the case on various technicalities rather than on the moral merits of the case. In Schoenberg’s eyes, this was an inadvertent admission of guilt.
After Altmann won in the Ninth Circuit Court of Appeals in May 2001, the Austrians appealed again, this time to the U.S. Supreme Court. The Supreme Court’s decision was based on the Foreign Sovereign Immunities Act, enacted by Congress in 1976. Part of the United States Code, this law establishes the circumstances in which a foreign sovereign nation (or its political subdivisions, agencies, or instrumentalities) may be sued in U.S. courts—federal or state. The Austrian government argued that the FSIA couldn’t be applied retroactively and that before 1976, the United States accepted a more expansive type of immunity that would have barred the suit. However, in a 6-3 opinion written by Justice John Paul Stevens, the Court held that this was not a justifiable claim because despite the fact that the FSIA was not explicitly written to apply retroactively, it was written with language strongly implying that Congress intended the law to apply retroactively. Stevens pointed to the fact that under the FSIA, [immunity] “claims are ‘henceforth’ to be decided by the courts. … [T]his language suggests Congress intended courts to resolve all such claims ‘in conformity with the principles set forth’ in the Act, regardless of when the underlying conduct occurred.” Stevens also took note of the element of coercion involved in this case, writing:
“In 1946, Austria enacted a law declaring all transactions motivated by Nazi ideology null and void. This did not result in the immediate return of looted artwork to exiled Austrians, however, because a different provision of Austrian law proscribed export of artworks…deemed to be important to the country’s cultural heritage and required anyone wishing to export art to obtain the permission of the Austrian Federal Monument Agency. Seeking to profit from this requirement, the Gallery and the Federal Monument agency allegedly adopted a practice of forcing Jews to donate or trade valuable artworks to the [Gallery] in exchange for export permits for other works.”
The Court’s ruling established that Altmann had earned the right to sue for custody of the paintings, but the ruling did not actually return the paintings to her custody. In light of the Court’s decision, the Austrian government recognized that their best chance to hold onto the painting was through binding arbitration, a winner-takes-all situation. The arbitration took place under a panel of three members, one of which was chosen by Schoenberg, one chosen by the Austrian government, and the last a mutually agreed upon panelist. After presenting the various merits of the case to the panel, the three arbitrators investigated “whether Austria had extorted the paintings quid pro quo in exchange for exit permits for other property, a keystone of the 1998 restitution law.” Finally, on January 15, 2006, the three arbitrators reached a decision: Altmann and Schoenberg had won.
After the arbitrators’ ruling, Altmann sold Adele Bloch-Bauer I to Ronald Lauder for $135 million dollars, the fifth most expensive price ever paid for a single painting at that time. Its story forces society to consider whether legalized theft of cultural patrimony is an arm of genocide. In addition, the controversy over the painting sparked a new era of art restitution in which Holocaust survivors fought to regain art believed to have been lost during World War II.
 James Cuno. Who Owns Antiquities. Princeton: Princeton University Press, 2011. Print.
 Anne-Marie O’ Connor. Lady in Gold. New York: Knopf, 2013. Print.
 Austria v. Altmann, NO. 28 U.S.C. 1605, 2000
 Austria v. Altmann, NO. 28 U.S.C. 1605, 2000
 O’ Connor, Anne-Marie. Lady in Gold. New York: Knopf, 2013. Print
 Austria v. Altmann, NO. 28 U.S.C. 1605, 2000.