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US federal appeals court: Spanish museum may keep art it knows Nazis stole

The Thyssen-Bornemisza National Museum in Madrid claims that it did not know at the time that it was buying a stolen painting.

The Thyssen-Bornemisza National Museum in Madrid. Photo by Menachem Wecker.
The Thyssen-Bornemisza National Museum in Madrid. Photo by Menachem Wecker.

In 1897, Jewish Impressionist painter Jacob Abraham Camille Pissarro wrote that he was delighted to paint Parisian streets, which he allowed were considered ugly, because they are “silvery, luminous, animated” and “totally different from the boulevards—it is absolute modernity.”

Much beauty and ugliness surrounds Pissarro’s canvas Rue Saint-Honoré in the Afternoon: Effect of Rain in the collection of the Thyssen-Bornemisza National Museum in Madrid, Spain, which connects the picture and the Pissarro quote in its English language collections guide.

In the catalog, the renowned museum with one of the world’s great art collections does not discuss the provenance, or ownership history, of the work. But the Thyssen explains on its website that Lilly Cassirer sold it “for below its market value” in 1939 to the art dealer Jakob Scheidwimmer, who was part of the Nazi Party, “in order to obtain a visa to escape from Germany and avoid a concentration camp.”

Pissarro painting
Jacob Abraham Camille Pissarro’s 1897 painting “Rue Saint-Honoré in the Afternoon. Effect of Rain,” which was seized by the Nazis in a forced sale from its then-Jewish owner. Credit: Thyssen-Bornemisza National Museum in Madrid, Spain.

Per the museum, Cassirer received compensation from Germany after the war for the painting’s market value, well before it was purchased in 1976 by Hans Heinrich Thyssen-Bornemisza, a baron whose family long refuted charges that it abetted the Nazis.

Heirs of the painting’s former owner dispute the claim that Germany fully reimbursed Cassirer and have since sued to recover the work, which Spain has fought.

In 2022, the U.S. Supreme Court returned a case to the U.S. 9th Circuit Court of Appeals, which ruled on Jan. 9 that the Madrid museum may keep the painting due essentially the opposite of the judicial principle ignorantia juris non excusat—that ignorance is no excuse of the law.

Though the Thyssen now knows that the Nazis stole the Pissarro picture, Spanish law allows for it to retain ownership because it didn’t know the work was stolen when it purchased it.

‘I wish that it were otherwise’

“Sometimes our oaths of office and an appreciation of our proper roles as appellate judges require that we concur in a result at odds with our moral compass. For me, this is such a situation,” wrote the circuit judge Consuelo Callahan, in her concurrence.

“Spain, having reaffirmed its commitment to the Washington Principles on Nazi-Confiscate Art when it signed the Terezin Declaration on Holocaust Era Assets and Related Issues, should have voluntarily relinquished the painting,” the judge added.

“However, as we previously held, ‘We cannot order compliance with the Washington Principles or the Terezin Declaration,'” she wrote. “Our opinion is compelled by the district court’s findings of fact and the applicable law, but I wish that it were otherwise.”

Cassirer Pissarro
Jacob Abraham Camille Pissarro’s 1897 painting “Rue Saint-Honoré in the Afternoon. Effect of Rain,” in Lilly Cassirer’s parlor before the work’s forced sale to the Nazis. Credit: Courtesy of the Cassirer family.

The Los Angeles Times editorial board wrote that the legal issues of the case—the culmination of the Cassirer family’s efforts for two decades to reclaim the painting—might be complex, “but the moral issue is clear and simple.”

“The painting belongs to the Cassirer heirs. It’s outrageous that it still hangs on the wall of the Museo Nacional Thyssen-Bornemisza, a museum in Madrid,” the Times board wrote. “The museum knows it was looted by the Nazis. The whole world knows. And yet there it hangs for all the world to see—a stolen masterpiece.”

“The baron, a sophisticated art collector, should have known that the painting had been looted,” it added. “And the museum should have done a better job of researching the painting’s provenance—its journey through various hands.”

The Times board noted that the case pits California law, under which a thief never gains the title to stolen property, against Spanish law, under which “the latest holder has a right to it after a certain amount of time passes and no one has come forward to claim it as theirs.” Under California law, the prior owner has six years to file suit, and the Cassirer family did so five years after learning that the Spanish museum possessed its property, per the paper’s editorial board.

“This fight should have been resolved years ago. It is shameful that the museum and the Spanish government refuse to do what is just and moral, which is to return the painting that Lilly Cassirer hung on the wall of her apartment in Berlin,” it concluded.

Green light to looters

Sam Dubbin, an attorney for Cassirer’s great-grandson David Cassirer, 69, told JNS that California laws “strongly support the rights of its residents to recover stolen works of art in the hands of museums.”

“We believe the decision is incorrect in its application of California’s choice of law framework, and Mr. Cassirer will definitely seek en banc review,” he said. (The latter refers to a comprehensive panel of judges hearing a case, in this case, it would be 11 judges, including one who heard the prior case.)

“Among the important issues, the court’s decision fails to explain how Spain has any interest in applying its laws to launder ownership of the spoils of war, a practice outlawed in The Hague Convention of 1907, and a series of other international agreements joined by Spain for over a century,” Dubbin told JNS.

“Nor does it explain how a national museum owned by the Spanish government justifies holding onto a painting that it knows was looted by the Nazis from a Jewish family in the Holocaust,” he added.

The Cassirer family bought the painting directly from an agent of Pissarro’s in 1900, and it was looted from Lilly Cassirer in 1939, Dubbin told JNS.

“David Cassirer and his late father, Claude, fought honestly and vigorously since learning that Spain held the Cassirers’ Pissarro painting, for the principle that artworks looted by the Nazis, or in any similar atrocities, must be returned to their rightful owners,” he said.

“The Cassirers believe that, especially in light of the explosion of antisemitism in this country and around the world today, they must challenge Spain’s continuing insistence on harboring Nazi-looted art,” Dubbin said. “This decision also gives a green light to looters around the world.”

Of the Madrid museum’s claim that the family has already been adequately compensated by Germany, Dubbin told JNS that it’s “analytically dishonest” to conflate Germany’s payment after the war and one’s ability to do what one wants with one’s property.

“That is a grotesque distortion of the morality of the situation, and that is what the German supreme court has said,” he said. “It’s apples to oranges.”

If need be down the road, Dubbin said the case could go back to the U.S. Supreme Court. “Disappointment would be an understatement,” he said of the outcome of the recent case.

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