04 November 2018

Washington Principle #10: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference in Berlin, Germany, on November 26-28, 2018 and entitled "20 years Washington Principles: Roadmap for the Future," it would be worthwhile to revisit these Principles and to put them through a linguistic, methodological and substantive meat grinder, and see what comes out of this critique. There will be eleven articles, each one devoted to one of the Principles enacted in a non-binding fashion in Washington, DC, on December 3, 1998.]

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.

This principle is one of the few in the set of 11 where there has been some implementation effort. However, it is written in such a way that it almost consists of two distinct parts: one dealing with commissions “or other bodies” and the other, somewhat puzzling, recommending “balanced membership” in these here commissions “or other bodies.”

1/ commissions or other bodies:

Since the Washington Conference of 1998, five European nations managed to establish some form of commission or “other body” designated to address cultural claims and in some countries like France, claims for other types of looted assets including cultural claims. They were established in five countries—France, United Kingdom, the Netherlands, Austria, and Germany—between 1998 and 2003. Interestingly, the Austrian government was the first to establish such a commission, largely motivated by the seizure of two paintings by Egon Schiele at the Museum of Modern Art in New York in early January 1998. The seizure put o the fast track plans for a restitution law, Austria being the only country in the world with such a law which set in motion a mechanism by which Federal Austrian museums do not need a claim against them to conduct research into their collections. The opposite is the reality.

1998: Commission for provenance research, Vienna, Austria,

1999: Commission pour l’indemnisation des victimes de spoliations [CIVS],

2000: Spoliation Advisory Panel, London, UK,

2002: Dutch Restitution Committee, The Hague, Netherlands,

2003: Limbach Commission.

Whether these commissions have been effective since the date of their creation is another discussion entirely. Suffice it to say that, if we were to rank their overall impact and effectiveness at resolving claims, we could provide the following tentative ranking from worst-1- to (relatively better)-4- by nation:

1: Germany
2-3: Netherlands
3: France
3-4: The United Kingdom and Austria

Relative because these commissions are far from being perfect, their concept of justice has often clashed with the realities of history, enforcing a delicate balance with their desire to protect their State museums and their commitment to be “just and fair” with the claimants based on the evidence provided to them. Some have chosen decided biases against certain categories of claims, namely those for items sold under duress, while others have been mired in the bureaucratic cultures of their national governments. But, all in all, there are five standing commissions as opposed to non which have been active for now twenty years, in part as the result of the Washington Principles.

The failure to implement Principle #10 in the United States reflected the deep polarization between government officials, museum directors and their trade associations, lawyers for both possessors and claimants, restitution groups and politicians. Despite a succession of “town meetings” and symposia held in the wake of the Washington conference (1998) and Vilnius (2000) to define the contours of an American restitution commission, no consensus could be reached, no one knew where to place such a commission in the tangled mess known as the US government. Even restitution lawyers ended up opposing the creation of such a commission and preferred to maintain the status quo rather than impose a toothless entity in the art restitution discussions within US borders.

2/ balanced membership
Aware that the Washington Principles were conceived to protect the interests of the current possessors while taking into account ways of being fair and just to claimants, the issue of a balanced membership for those commissions adjudicating or hearing claims for restitution of looted art, must give us pause.

What’s the worry? What does the word “balanced” infer? That discussions would be too biased and should reflect a balance of what kinds of opinions exactly? Does it mean equitable representation for all stakeholders in the restitution discussions and an assurance that they will have a seat on these commissions and be able to proffer their views fairly?

Opinions on this question differ wildly. If you represent the interests of current possessors, you want to make sure that the claimant voice on the commission is minimal, at best, but present enough not to be accused of partiality. If you represent the interests of the government of the nation where sits the commission in question, your interests invariably collude with those of the possessor because the government is most oftentimes the possessor acting as defendant against a claimant. If you are a claimant, you want to ensure that claimants’ representatives, independent historians, maybe even ethicists have a seat on the commission. The latter never happened.

Hence, the preoccupation over balanced membership betrayed, then and now, a general fear on the part of the possessors—therefore, governments and museum associations-that claimants’ voices would become too loud and mar the “just and fair” discussion and tilt it towards the rights of the claimants. It is largely palpable in the recent reform of the Limbach commission which ushered into the commission’s board two members of the Jewish community, a notion that even the German minister of culture opposed initially, for their presence might inject bias into the commission’s proceedings.https://www.artforum.com/news/germany-appoints-first-jewish-members-to-its-limbach-commission-for-nazi-looted-art-64667

In sum, keep the commissions and strengthen their mandates. Do not regress like the Dutch Restitution Committee in accepting the views of the Dutch museum community that the cohesiveness of their collections was far more important than a claim for restitution.

Principle#10 could be rewritten as follows:

Commissions or other bodies shall be established to assist in addressing ownership issues for unrestituted artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945; these commissions or other bodies shall have a balanced membership consisting of, but not limited to, members of the art trade, civil servants, current possessors, claimants and their representatives, historians and specialists.