The Gurlitt indictment: Washington Principles vs. the German government and its partners

by Marc Masurovsky

Leave it to the diplomats, the pundits, the negotiators, the strategists, the civil servants, and those with a vested interest in doing business with our German colleagues to temper their speech, downplay the problem and minimize the fallout and significance of the Gurlitt Affair.

Reminder: In late 2012, the late Cornelius Gurlitt, a resident of Munich, was placed under tight surveillance by Bavarian law enforcement and German customs over alleged improprieties, fiscal and otherwise. The surveillance led to a search of Gurlitt’s apartment which revealed the existence of at least 1400 works and objects of art.

The rest has become history.

February 2015: Cornelius Gurlitt has been dead for almost a year. His last desire was to bequeath the totality of his art collection to a museum in Bern, Switzerland, the Kunstmuseum Bern. No explanations given. As from the beginning of the publicizing of the Gurlitt Affair in November 2013, everyone “out there” has been left guessing and speculating in the face of stultified, stony posturing from local, regional, and Federal German officials.

Let’s put the Gurlitt Affair to the test of the Washington Principles, a non-binding document drafted and accepted in December 1998 in principle as non-binding a set of recommendations, shall we say—for the art market and governments alike to follow in order to facilitate the location, identification of looted works and objects of art, and resolve as equitably as possible the ensuing mess produced by a claim for those identified looted objects.

Principle 1: Art that had been confiscated by the Nazis and not subsequently restituted should be identified

Have all Gurlitt items been identified and properly labeled as looted? As far as the public is concerned, the answer is NO.

Principle 2: Relevant records and archives should be open and accessible to researchers, in accordance with the guidelines of the International Council on Archives.
Have the relevant records been made available to researchers in order to facilitate the tagging of Gurlitt-owned items as either looted or ‘clean’?

Since the research has been tightly controlled under a pall of secrecy and quasi-national security by the German government, the answer is readily NO. The few documents that have been published on lostart.de have been redacted.

Principle 3: 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.

Those resources that are alluded to should have come in the form of money and personnel. Many suggestions—collegial ones at that—had been made by various parties inside and outside Germany to allow for the most open and collaborative research and information-sharing process. That did not happen. Few monies have been allocated—we presume—to the overall research effort, tightly controlled by the so-called Gurlitt Task Force. Therefore, the answer is NO.

Principle 4: 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.

Gaps and ambiguities permeate the status of objects in the Gurlitt collection, precisely because Principles 2 and 3 supra have been molested and neglected. Those independent maverick researchers who have given time and resources to complete their own understanding of the history of the objects in the Gurlitt collection have been stymied in their searches. Hence, the gaps and ambiguities remain vast and deep for the greatest majority of the item in the Gurlitt collection. How much consideration will be given to those gaps and ambiguities in establishing whether or not the objects are “tainted” or “clean” shall be left to the authorities and to the Kunstmuseum Bern, a terrifying prospect.

Principle 5: 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.

Publicity and openness characterized the clamor unleashed on the German authorities for their failure to even make public the list of objects found in the Gurlitt apartment and later on in a house in Salzburg, Austria. The answer is therefore NO.

Principle 6: Efforts should be made to establish a central registry of such information

The same clamor that characterized Principle 5 supra applies to Principle 6. A central registry was supposed to be established on the website of the Koordinierungsstelle Magdeburg, www.lostart.de. But the process was painful, mind-numbing and grossly inadequate, mired in bureaucratic obstruction and political games that defied comprehension. After all, we were only dealing with art objects. The answer is NO for the German government. However, as a result of the Gurlitt will, the Kunstmuseum Bern became the de factor body through which the lists of Gurlitt-owned items would be released, a massive cop-out on the part of the German government if you ask anyone about this. So, the answer is a tepid YES for the Kunstmuseum Bern.

Principle 7: 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

As a result of a violation of most of the preceding Washington Principles, pre-war owners and heirs could not readily come forward owing to the near-absence of information on the items in the Gurlitt collection and the method by which they had been acquired, and from whom. Several families did come forward, though, and asserted their claims early in 2014. As of this writing, it does not appear as if any claimed items have been restituted to the heirs of the pre-war owners. Hence, the answer is NO.

Principle 8: 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

In light of the negative response to Principle 7, the answer to Principle 8 is obviously NO.

Principle 9: If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, cannot be identified, steps should be taken expeditiously to achieve a just and fair solution.

A number of international Jewish organizations and other interested parties have come forward and made numerous suggestions about how to dispose of the ‘heirless’ component of the Gurlitt commission. This initial determination of “heirless” is contingent on the research and the ability to fill gaps and ambiguities in the history of the objects in the Gurlitt collection. According to the agreement signed by the German government with the estate of the late Cornelius Gurlitt and the Kunstmuseum Bern, 2020 is the deadline at which a final determination will be made about the status of the objects being researched under the aegis of the Gurlitt Task Force and by the Kunstmuseum Bern. Some have suggested that the “heirless” items be sent to Israel. Others have asked that they be sold and the proceeds distributed among needy Holocaust survivors and their families. The German government has tentatively endorsed the idea that the “heirless” items should be housed and displayed in a German museum “for a while” once the last ‘clean’ items are transferred to the Kunstmuseum Bern and the “identifiable” items have been returned to their rightful owners. A fair and just solution? So far it’s been unfair and unjust. Therefore, we must cast an interim NO until further notice.

Principle 10: 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

The Gurlitt Task Force was mostly stacked with German civil servants. Only three individuals with noted ties to restitution advocacy and to research on looted art were accepted on the Task Force. The new Center for Provenance Research announced by German Culture Minister Monika Gruetters is supposed to include something akin to an advisory board that might have as many as 13 members. Who will they be? Who will recruit them? On what basis? Nothing specific, as usual. Therefore our answer is NO.

Principle 11: Nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.

The verdict on Principle 11 is mixed. The Gurlitt Affair demonstrated that the German government’s process to handle questions of looted art in German private and public collections in a fair and equitable manner is broken and ineffectual. NO to Germany.

The fact that most of the items purchased by Cornelius Gurlitt’s father came from German-occupied France would have subsumed that the French government play a leading role in the resolution of the Gurlitt Affair. It did not. Therefore, the answer is NO for France.

The United States on whose territory and on whose initiative the Washington Principles were developed has always been looked upon as the moral standard bearer when it comes to questions of restitution and reparations stemming from the Holocaust and WWII. Its government was unusually quiet during the unfolding of the Gurlitt Affair. Its representatives took forever to even express their concerns about “justice”. Hence, the US gets a failing grade and a big NO.

So, what’s the verdict? Did the Washington Principle fare well in the unfolding and ensuing liquefaction of the Gurlitt Affair? It appears not, since 9 out of 11 principles were either violated or ignored.

What does that mean for the future? Nothing good unless the pressure points to effect meaningful change  come from other venues like the European Union to put some order in the house and mandate that governments in Europe behave properly when it comes to the treatment of plundered cultural objects in their midst.