Art and lawUS government asks federal court to reverse Californian Nazi-loot judgmentFuture relations with "important foreign allies" cited as reason

01/03/2003

Future relations with "important foreign allies" cited as reason
los angeles. The US is asking a federal appeals court to reverse its recent decision allowing Austria to be sued in California for recovery of six paintings by Gustav Klimt at the Austrian National Gallery (ANG) allegedly looted by the Nazis.

Calling the case "of significant interest" to the US, the government says that the December 2002 court decision, if followed in other cases, could have "a significant adverse impact on the Executive Branch's conduct of foreign relations" with important US allies. The argument echoes the government's position in two other federal appeals cases, now pending in New York and Washington, DC, that Austria and Japan are immune from World War II compensation claims in US courts. The "friend-of-the-court" brief was filed in the Klimts case by lawyers at the Department of Justice, Washington, DC.

The plaintiff in the California lawsuit is Maria V. Altmann, 86, a US citizen who is an heir of Ferdinand Bloch-Bauer, a Viennese Jew who died penniless in Switzerland in 1945, his vast collection of paintings and porcelain allegedly looted by Nazis, aided, Ms Altmann says, by representatives of what later became the ANG.

Generally, foreign nations are immune from lawsuits in US courts, and Austria has claimed such immunity in this case. But two California federal courts have permitted the suit, under the "expropriation" exception to the US Foreign Sovereign Immunities Act (FSIA), which lifts immunity in cases of "property taken in violation of international law". Ms Altmann alleges two such takings, first by the Nazis, and, second, when Austria itself required that the paintings be "donated" to national collections in 1948 in exchange for export permits allowing other works of art owned by the Bloch-Bauer family to leave the country.

A pivotal question in the lawsuit was whether the "expropriation" exception applies to 1940s events. The appeals court said yes (The Art Newspaper, No.132, January 2003, p.3); the US now says no.

The government's first argument is that the court misunderstood the immunity law that existed when the claim for the Klimts arose. "While undeniably horrific," the US says, "Nazi-era expropriations would have been immune from suit in the US when they occurred." Sovereign expropriations remained immune until the FSIA created the exception in 1977. The statute cannot retroactively be applied to Austria now, the US argues.

Second, says the US, the court was "mistaken" in ruling that a foreign nation could be sued over foreign acts if the US "did not have friendly relations" with it when the acts occurred. Austria was not even at war with the US and was instead occupied by Germany, the government says, adding that only "the political branches," not the courts, can decide which nations are "friendly." The court's "unfriendly nation" theory incorrectly relied on cases allowing lawsuits targeting foreign warships in US harbours, not lawsuits against foreign nations themselves, the US says.

The government points to postwar history as showing that "foreign governments, including Austria, were recognised to be absolutely immune from private litigation in US courts on claims arising out of the Holocaust," the US says. Indeed, the US "committed considerable energy" to getting confiscated property returned and some measure of compensation for Holocaust victims. "In none of these agreements is there any statement that private parties could sue the governments of Germany or Austria in [US] courts" as an alternative solution, the government says. In fact, it argues, before 1992 no plaintiff "even attempted to sue Germany or Austria in American courts for Nazi-era atrocities." The immunity in US courts persists, the government says.

The appeals court decision had cited the Nuremberg trials as signalling that the US would not support an immunity shrouding Holocaust atrocities. But the government says that individual Nazi prosecutions at Nuremberg are irrelevant, because "individual officials are frequently subject to suit in circumstances where the sovereign retains its immunity." The US has never established a "war crimes exception to State immunity," it says.

Austria is urging additional reasons for the court to change its mind. The notion that it can be sued in Los Angeles in a case applying Austrian law "to events that took place over 50 years ago-in Austria" is "extravagant in the extreme," it says.

But Ms Altmann says the court decision was "well reasoned" and is asking it to deny the rehearing. She says the arguments by the two governments are "not based on historical fact."

Further, she says, her claim includes a grounds for lawsuit that arose only in 1999, when she discovered that her aunt, Adele Bloch-Bauer, had not in fact given the Klimts when she died in 1925 to the ANG as Austria said, but instead only "kindly" requested in her will that her husband Ferdinand make such a gift when he died, which he did not do.

A private letter dated 1948 by Dr Karl Garzarolli of the ANG to his Nazi-era predecessors revealed that nothing in the files of the ANG would document a gift by Adele of the Klimts, and this letter was kept hidden from her, Ms Altmann alleges.

Martha Lufkin