The Whiff of Crematoria in a D.C. Courtroom

The famous Guelph Treasure case, in which heirs of Holocaust survivors are pressing Germany for the return of a historic collection of jeweled artwork, continued to play out last week in a dramatic hearing in Washington, D.C.

Germany has contested the rights of the heirs to the gem-studded collection, saying the Jewish owners, a consortium of four art dealers, sold the ancient relics to the German government in 1935.

Berlin has also challenged a U.S. District Court’s decision in 2017 that the lawsuit could proceed. Citing Congress’s Foreign Sovereignty Immunity Act (FSIA) which shields foreign governments from lawsuits in American courts, Berlin insists the U.S. has no jurisdiction over the Guelph case.

The jurisdiction issue was the subject of oral arguments last week in this closely watched saga. If the 3-judge panel affirms the lower court’s ruling, this would be the first time Germany will be required to defend itself in a Holocaust case brought on American soil.

Known also as the Welfenschatz, the dazzling collection at the heart of the long-running dispute was regarded as a prized German heirloom for many centuries. It passed between various barons and noblemen until 1929, when it was sold by the cash-strapped House of Brunswick to the German Jewish art dealers, one of whom was Zecharia Hachenbach.

His descendants are the plaintiffs in the case. They say the sale was a forced transaction; that the dealers were coerced into accepting a fraction of the collection’s value, from a regime intent on exterminating the Jewish people after stripping them of their livelihoods and possessions.

 

“Enemies of the State” Were Marked Men

In an exclusive interview with Yated, attorney Mel Urbach who represents the plaintiffs with co-counsel Markus Stotzal and Nicholas O’Donnell, noted that in 1935, the time of the “sale” to Gestapo chief Hermann Goring, the Nazis were still erecting smokescreens of legality for their confiscations of high-profile Jewish property.

As that façade of civility disintegrated, the art dealers were painted as “enemies of the state” because of their intentions to sell a German heirloom outside the country. These derogatory terms are found in Nazi legal documents related to the sale, signifying the precarious situation of the art dealers as they were drawn into negotiations.

As the transaction was finalized, the money for the Guelph Treasure was paid into “blocked” accounts from which the art dealers were unable to access more than a small portion of the funds. Fearing for their lives once the transaction was concluded, they fled Germany. Although Zecharia Hachenbach’s family made it to England, he himself was dragged to his death by German thugs before he could escape the country.

In their quest for justice, the descendants of Zecharia Hachenbach petitioned a German advisory commission to return the art. When that effort failed, they filed suit three years ago in Washington, D.C.

 

New Laws Aimed At Helping Survivors

The HEAR Act, passed by Congress in a unanimous vote last year, extended the statute of limitations on efforts to recover Nazi- looted property to six years from the time litigation was first initiated. Another Holocaust-related law, the JUST Act, passed in early May, requires the State Department to urge European governments to step up restitution efforts.

These two measures have revived a number of cases that had failed to achieve justice in European courts. They have also opened the door for Holocaust-era cases to be tried in American courts.

Until now, foreign governments were protected from Holocaust lawsuits in the United States under the Foreign Sovereign Immunity Act (FSIA). Congress made an exception to this law, however; when property was seized “in violation of international law [leading to the destruction of life],” FSIA does not apply.

Does the German government’s acquisition of the Guelph Treasure qualify as “taking property in violation of internationalCould Zecharia Hachenbach’s descendants prove that the sale was forced? Even if they could, was a government-forced sale in 1935 on the same track as genocide?

These were the questions at the heart of the oral arguments last week.

 

Public Memory of Holocaust Fading

Four years earlier, a German advisory panel, the Limbach Commission, had ruled there was “insufficient evidence of duress” in the art dealers’ 1935 sale to Goering. The Guelph Treasure was therefore to remain where it was, in a museum in Bavaria.

As public memory of the Holocaust fades, Germany’s claim that German Jews were relatively well off until 1938 goes unchallenged in many quarters. The plaintiffs felt the Commission had turned a blind eye to historical truth, despite the massive evidence produced at the hearing. As the opinion of the Commission was non-binding and there was no further legal recourse in Germany, plaintiffs turned to the United States in a final bid for justice.

Ironically, an essay authored in 2014 by the German director of a Berlin museum for the benefit of the Limbach Commission, sets the historical record straight with unflinching honesty. The museum, hauntingly named Topography of Terror, documents the various earliest stages of Nazi terror after Hitler’s appointment as chancellor in 1933.

“1933 was a turning point year in every respect for the Jewish population of Germany,” the report, authored by Prof. Andras Nachama attests. “Jews were first systematically deprived of their livelihoods; in subsequent years there were downgraded to ‘non-persons’ and ‘non- humans.’ Drastic reprisals and psychological terror destroyed the psychological and spiritual foundations of the Jewish population.”

Immediately after Hitler came to power in 1933, the expulsion of the Jews began in all parts of the economic and social sectors, the report testified. By the end of March 1933, the SA [forerunners of the SS and Gestapo] in the Berlin district were carrying out arbitrary raids in which Jewish citizens were robbed, arrested and locked up in violently run concentration camps.

The terror measures of the early Nazi dictatorship continued to mount in successive months as anti-Semitic propaganda flooded German society, attests the director of the museum. Outbreaks of Jewish book-burnings became common as national boycotts of Jewish businesses, department stores, attorneys’ and doctors’ offices escalated. Nazi thugs would position themselves in front of Jewish businesses, coercing the owners into a “voluntary” closure of the stores.

State-legalized plunder of Jews began in the middle of July 1933, with the passing of the law revoking German citizenship for Jews who had been naturalized. Jews of German birth were stripped of their citizenship and civic rights two years later by the infamous Nuremberg Laws. The once rich Jewish population of Frankfort and other German cities was reduced to poverty, starvation and terror by Nazi oppression.

Thousands of Jewish art collectors, dealers and museum directors were boycotted, the report goes on to testify. “Defamed as sub-people, they suddenly faced ruin and shocking terror. Fearing for their lives and those of their family, they were forced to liquidate their businesses for sums far below their value, desperate to raise funds mandated by the Nazi regime for exit out of the country.”

This is the environment of terror in which the Guelph treasure was “sold” to Herman Goering by Jewish art dealers.

 

Germany Struggles to Quash The Case

As expected, Germany and its government agency, The Prussian Cultural Heritage Foundation, did their best to quash the case at the appellate hearing last week.

Their attorney, Jonathan Freiman, told a three-judge panel that even if the dealers were coerced into making the sale and suffered a loss as a result, that is not the same as genocide.

Far from the slaughter the Nazis would perpetrate when the death camps began to operate, the 1935 sale was relatively benign. It involved extensive negotiations and ended with the art dealers receiving millions [of Reischmarks] in exchange for the treasure, Freiman argued.

But the judges appeared skeptical.

“You have a tough argument to make to separate this act from the other horrors that were taking place in Nazi Germany,” Judge Thomas Griffith interposed. “You want to make this look like a normal business deal…That seems to me to be turning a blind eye to what was going on in Nazi Germany at the time.”

Attorney Nicholas O’Donnell, who argued on behalf of the plaintiffs, dismissed the notion of drawing a line between various stages of the Final Solution.

“It was all part of a vast scheme….The Nazi regime cannot be parsed and divided into genocidal and non-genocidal components,” O’Donnell said.

 

Evoking Memory of Crematoria, Smoke Seeps into Courtroom

One of the judges broke in suddenly to say that smoke was coming into the room. Alarmed, all present evacuated immediately. Maintenance workers were brought in to investigate the source of the smoke.

Speaking to Yated by phone, attorney Urbach, co-counsel with O’Donnell, described the surreal sensation of smelling smoke as the judges weighed whether Nazi persecutions in 1935 should be set apart from the slaughter of millions of Jews in the death camps.

“The irony of smoke wafting through the vents as Nazi crimes were being whitewashed… You didn’t have to be superstitious to think ‘crematoria’…”

A ruling on the jurisdiction issue in the Guelph Treasure case is expected within a few weeks, attorneys say. Despite reams of talk and many promises, Germany has yet to initiate a restitution law that removes the 30-year statute of limitations on Holocaust claims. A ruling favoring the plaintiffs might motivate a rethinking on this issue in Germany.

As aging Holocaust survivors slowly leave the scene of history, the demonic horrors of the Nazi regime grow ever more distant and remote. Holocaust deniers and revisionists are quick to fill the breach. Congress apparently recognizes this dangerous trend. The restitution process encouraged by its recent legislation is perhaps the last vehicle for preserving the lessons of humanity’s darkest hour.