25 June 2011

Revisiting the Washington Conference Principles on Nazi-confiscated Art—13 years later.

At the Washington Conference on Holocaust-Era Assets which took place in Washington, DC, in early December 1998, a set of principles emerged to cope with the problem of looted cultural property that had not yet been returned to rightful owners and, in most cases, remained unidentified in State and private collections around the world.

Let’s take a look at each one of them and see how much progress has been made since 1998, to the best of our knowledge and belief:

I. Art that had been confiscated by the Nazis and not subsequently restituted should be identified.

In order for Principle I to be respected, each of the nations that participated at the Washington Conference should have identified by now-13 years later—all art confiscated by the Nazis which has not yet been restituted. Is that the case?

As of this writing, there have been numerous commissions appointed in a number of nations to cope with the thorny issue of cultural property looted during the Second World War and the 13-year reign of the Nazis. However, the process of identification, in and of itself, is known as a Catch-22—it contains its own paradox. In order to identify looted art, one must understand the concept of looting. Looting, per se, can be as simple as forced removal of property at gun point and/or with the assistance of local law enforcement and judicial authorities working in tandem with the occupation authority. It can also be the result of so-called forced sales or duress sales. There, too, we run into problems because not every country that attended the Washington Conference even acknowledges that such sales occurred on its territory during those fateful dark years. Hence, after 13 years, there are no firm standards by which to move forward on identification of art “confiscated by the Nazis.” Moreover, this Principle does not make it explicit that such efforts should be exhaustive and definitive. Hence, each country can produce an ‘ad minima’ effort and feel that it has abided by Principle I. How diplomatic!

II. Relevant records and archives should be open and accessible to researchers, in accordance with the guidelines of the International Council on Archives.

Here, there has been some notable progress, albeit not extensive, but one must admit that the ability to conduct extensive research on plunder and on the looting ways of the Nazis and their Fascist allies has grown exponentially. The main hitch that impedes exhaustive research into Nazi/Fascist looting is the difficulty experienced by all researchers in gaining access to private archives and especially those developed by art dealers, art collectors, private and State-owned museums, and other cultural institutions. As noted in recent court cases in the United States, American museums have been loath to release all records that would shed a full historical light on transactions involving works being claimed for restitution. There, Principle II continues to be completely ineffectual.

III. Resources and personnel should be made available to facilitate the identification of all art that had been confiscated by the Nazis and not subsequently restituted.

Interestingly, Principle III embraces the notion that “all art” confiscated by the Nazis should be identified, as opposed to Principle I which just discusses “art.” Did the diplomats of the Washington Conference intend to maintain this inconsistency for any particular reason?

That notwithstanding, all endorsers to the Washington Principle have cried and lamented that they do not have the resources and personnel needed to identify “all art confiscated by the Nazis.” Who does? Santa Claus? Bill Gates? Until courage is demonstrated in this department to provide resources for this task to be completed, there will be no understanding of the magnitude of the problem of looted art in State-owned and private collections.

Do we know which collections are affected by the problem of looted art? Has anyone done a census of those institutions that might harbor stolen cultural property?

Principle III is a massive failure.

IV. In establishing that a work of art had been confiscated by the Nazis and not subsequently restituted, consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era.

Principle IV is the kiss of death for claimants. No one follows this Principle because provenance is everything. If there is a gap in the provenance, it is because the information is not available. If the information is not available, it is because access is being denied to the relevant information. This principle is most applicable and still useless for classes of objects where provenance—ownership history—is nigh-impossible to garner, and for objects removed from Jewish homes in small towns and cities where the Jewish community was matter-of-factly annihilated. Also, where records were burned, there is a very small likelihood of providing sufficient evidence to demonstrate the paternity or maternity of an object. Do courts accept the inevitability of provenance gaps? No. Do governments accept provenance gaps when assessing a restitution case? No. Do claimants even attempt to file claims for objects with no ownership history except their word of honor? Yes, and they always lose.

Hence, Principle IV is wishful thinking at best and utter diplomatic cynicism at worst.

V. Every effort should be made to publicize art that is found to have been confiscated by the Nazis and not subsequently restituted in order to locate its pre-War owners or their heirs.

Except for lists released by various governments—Netherlands, Germany, France, Austria, Poland—and made available on official websites, there is total opacity in this area which means that Principle V has a lot to be desired in the way of execution. Transparency is the name of the game here and governments and institutions harboring these types of objects, do not practice transparency as a general rule of thumb because it implies that they become accountable. And accountability leads to all sorts of outcomes, including, but not limited to, restitution. God forbid!

In this regard, museums in Europe and North America will respond indignantly that they have complied with the Washington Principles and especially the aforementioned Principle V by launching their very own provenance research projects, the results of which are displayed on-line. A critical assessment of these efforts is worth several tomes and cannot be indulged in here. Suffice it to say that they are very uneven, and, once again, they are as good as the knowledge of curators and directors as to what constitutes art looting, plunder, forced sales, duress, and misappropriation during the Nazi years and/or at the hands of a government bent on confiscating property for political, racial, or other motives, in violation of customary property laws of private ownernship.  On a very positive note, smaller museums across the United States have produced impressive provenance checks of works that they have selected to fall under the general purview of "provenance research," however strange that might sound since all objects being accessioned in a collection should be the subject of "provenance research," looting or no looting.

A cynical assessment of the application of Principle V would dictate that museums have used it as a public relations ploy to show that they are “doing the right thing.” Indeed, no one has ever asked museums if they, in fact, have conducted an exhaustive search of their warehouses, basements, and other off-site storage areas and included items stored there into their provenance research projects. Most of the time, they confine their research to objects on display or selectively not on display. But, as a general rule, museums only exhibit 2 to 5 per cent of their holdings. Does provenance research extend to the 95 to 98 per cent that the average viewer does not see or know to exist? One wonders. We do not believe that this is the case. Hence, Principle V is a doubled-edged sword and the dull edge of the sword is on full display. However, persist and keep up the good work!  Every piece of information that is published on a work or object matters.

VI. Efforts should be made to establish a central registry of such information.

That registry does not exist and, as things stand currently, it will never exist. Specialists in art recovery and restitution dating back to the good old days of the immediate postwar Allied investigations of wartime looting, clamored repeatedly for such a registry to be compiled, made available, and continually updated. It simply never happened. Again, until someone with vision, idiosyncrasy and an unhealthy belief in ethics and historical truth steps up and meets this challenge, there will never be such a tool and we will continue to remain all the poorer and uninformed for it.

Principle VI is hereby decreed to be an unadulterated sham.

VII. Pre-War owners and their heirs should be encouraged to come forward and make known their claims to art that was confiscated by the Nazis and not subsequently restituted.

The heirs who can afford to come forward and make their claims known find themselves caught up in a complex jumble of legal restrictions and contradictions that, more often than not, lead them either to accept financial settlements rather than restitution, or to see their cases thrown out of court by assertive lawyers working for deep-pocketed museums, dealers, and collectors.

There is nothing good to be said about Principle VII except for the fact that there are no solid mechanisms put into place to allow all owners to come forward and make their claims known regardless of socio-economic background.  It is one thing to make their claims known, but the purpose of publicizing a claim is to obtain justice.

Principle VII is uninformed and useless until effective national and international public policies are enacted to systematize the processes inherent to this principle and protective of the rights of claimants to seek redress without penalties.

VIII. If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case.

The language of Principle VIII is perverse.  What is a "just and fair solution"?  More often than not, museums and collectors, viz., current possessors of claimed objects invoke that phraseology.  There is nothing fair and just about the current legal state of affairs either in North America or in Europe when it comes to resolving cultural restitution claims.  Hence, its application follows the illogic of Principle VII by allowing for financial settlements, viz., non-restitution to be considered as an option for resolving outstanding claims from the Second World War and the Nazi/Fascist years. For instance, the Leopold Museum in Vienna, Austria, has abided fully with Principle VIII by seeking financial settlements to resolve outstanding claims against it as a result of the dubious and scandalous acquisition habits that characterized the creation of this collection in postwar Vienna.

Principle VIII should be overhauled.

IX. If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, can not be identified, steps should be taken expeditiously to achieve a just and fair solution.

Principle IX is diplomatic hogwash at its best. Let’s use the phraseology that best suits the Principle: heirless property. These two words put together offer a lethal mixture to Jewish organizations and postwar governments alike. No one knows what to do with heirless property. They don’t. How long has it been since the end of World War II? How long has it been since the Washington Principles were enacted? We are still at level one of the discussion.

Principle IX should simply be re-written completely and the words “heirless property” injected into a new paragraph that rethinks the fate of heirless property.

X. Commissions or other bodies established to identify art that was confiscated by the Nazis and to assist in addressing ownership issues should have a balanced membership.

Here, the word “balanced” brings a smile to a reasonable face. What is a “balanced” membership when it comes to investigating the postwar fate of Nazi-confiscated art, or art looted by the collaborators of Nazis in countries formerly occupied by or under influence of the Nazi government?

Many commissions were formed in the last decade to deal with the problem of looted art. Does that mean that its members clearly understood the intricacies of art looting, plunder, and the complexities inherent to the dispossession of individuals on the basis of their race, creed, belief, or status in society? Did the members have proven track in historical research, analysis, and interpretation of events directly relevant to acts of cultural plunder, forced sales, misappropriations, confiscations, and recycling of looted art in wartime and postwar markets? Until such a study is produced, one should reserve judgment on Principle X and wonder what a “balanced” membership is all about.

XI. Nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues

Here, ironically, Principle XI embodies all that is elastic and malleable about the Washington Principles. One must argue that, all in all, Principle XI has been respected insofar as nations have favored alternative means of resolving complex wartime ownership disputes that go counter to the notion of restitution. So, bravo to all who signed off on this Principle because it effectively cancels out many of the aforementioned and permits the present state of affairs to continue against the rights of claimants to recover and allows countries and their cultural institutions to obfuscate their moral and ethical obligations in the eyes of civil society and the right of all peoples, especially the citizens that they dispossessed so conveniently and systematically, to the word “culture.”