04 November 2018

Washington Principle #9: 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 #9
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.

There are several elements in this principle which require our full attention.

1/ unidentifiable pre-war owners of looted cultural assets:

No cultural, artistic or ritual object is produced out of thin air. It requires one or more creators and one or more owners. In other words, every object is owned by someone. The question is to find out who owns what. Ownership records are, most oftentimes, generic, fragmentary or they do not exist, because the people owning objects possessing a recognized esthetic quality and value which can be passed off as “art” do not necessarily feel compelled to record the fact that they own the object in question. When falling victim to acts of State-sponsored and sanctioned persecution and terror accompanied by thievery and plunder, the strands of ownership, however weak they might have been at the outset, are gone forever. Out of the millions of objects which changed hands illegally during the Nazi years across Europe, one can argue that a high percentage of those objects ended up in 1945 as having “unidentifiable” owners, not because they were all murdered, but because ownership traceability proved to be a daunting task which Allied planners and Jewish relief organizations alike were in no measure to pursue. Instead of looking for owners, procedures and policies were put in place across post-1945 “liberated territories” to consider those objects as “heirless”, not likely to be claimed and, therefore, they should be sold to benefit postwar governments and Jewish survivors. The speed at which the decision to sell off those assets was made is simply vertiginous.

Today, the discussion over the fate of “heirless” assets, those for whom no pre-war owners can be found, continues to divide and produce acrimony on both sides of the Atlantic Ocean and as far as Israel.

2/ just and fair solution

How can one achieve a “just and fair solution” when there are no owners around who can speak for themselves and, in their absence, those deciding on the fate of such "heirless" assets do not take seriously the arguments of specialists in matters pertaining to cultural plunder and restitution? 

This principle was conceived to establish a framework within which Jewish organizations could negotiate, as successor organizations to the victims of the Holocaust, with auction houses and museums a mechanism by which objects in their collections or consigned to them could be singled out and transferred to Jewish organizations. No thought was given to finding alternative, non-monetary, solutions to the question of “heirless” assets. In the case of a museum, whether private or public, the objects designated as “heirless” in their collection could be highlighted as such and their histories, or at least, how they ended up in the museum’s collection, could be revealed and presented to the public as a pedagogical, teachable opportunity, to discuss the fate of such objects during periods of mass conflict and persecution. It would also outline for the public the ways in which these objects evolved over time and space during and after WWII, in order to help museum patrons understand how art travels and survives war, plunder, genocide.

In sum, the fate of Principle #9 rests with how Jewish groups, governments, museums, auction houses, lawyers, lawmakers diplomats and historians wrestle with what constitutes "heirless property" and how best to treat heirless cultural objects. The work has barely begun.

Principle #9 could be rewritten as follows:If the pre-1933 owners of 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 that are found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, cannot be identified, processes shall be put into place with all stakeholders so as to find an equitable solution as to how to treat these objects with due consideration to their artistic relevance and to their individual history.