A Nude by Moise Kisling

by Marc Masurovsky

"Nude," by Moise Kisling, 1918

On November 11, 2010, a “Nude” by Moïse Kisling from 1918, was offered for sale at Christie’s South Kensington in London, UK. The painting sold for less than the low estimate of 18,000 pounds, at 15000 pounds.  The provenance offered for the piece was brief but meaningful: “Mr. Laffaille, Frank Perls, Los Angeles, No. 2834.”

Then, it was sold in Warsaw on December 12, 2017, for nearly three times the amount realized in 2010 at Polswissart Auction house in Warsaw, Poland.

On April 6, 2019, the same painting is being offered with no provenance whatsoever for three times the selling price in 2010 at Sopocki Auction House, in Sopot, Poland.

A brief check into the history of the object merits pause. Thanks to the minimal Christie’s provenance (much better than the wall of silence surrounding the Polish auction houses), we can begin our little inquiry.

As is always the case with provenance information, one is faced with the inevitable “story weaving” that comes with didactic, fragmentary evidence being supplied to illustrate the history of an object. A bit like reconstructing the life or lives of an antiquity dug up from the earth and sold on the Western markets.


Mr. Laffaille

Mr. Laffaille may just be Gilbert Laffaille who was a small gallery owner in Nice, France. He must have been acquainted with numerous Jewish art dealers and collectors from Paris because he ended up providing safe harbor to some of their works during WWII. Amongst them were Hedwige Zak, René Gimpel and Max Kaganovitch, to name a few.

· A quick check of Mr. Laffaille’s restitution claim filed in 1945 with the Commission de Récupération Artistique (CRA) did not include any works by Kisling. Why should one bother checking restitution claims? The answer is obvious: it is to dispel any possibility that the item was in Laffaille’s hands and was removed from his possession by the Gestapo when it raided the vault where he kept the works entrusted to him by various Jewish art dealers.

The cover of Laffaille's restitution file

· A spot check of the “Répertoire des biens spoliés” confirmed that it was not a claimed object in the immediate postwar.



Frank Perls

Frank Perls was one of the more successful gallerists of Los Angeles stemming from the German Jewish emigration, Frank and his brother Klaus grew up in Paris, France, with their estranged parents, Hugo and Kathe. They lived on a street—rue de l’Abbaye—where Hedwig Zak also lived and maintained a gallery, Galerie Zak. Hence, a small world of Jewish art dealers and collectors nestled in a quiet corner of Saint-Germain-des-Prés on the left bank of Paris. The Perls men left for the United States in the late 1930s. Once in New York, Frank and Klaus agreed to part ways professionally and Frank opened his own gallery in Los Angeles while Klaus remained in New York in charge of his gallery, the Perls Gallery.

Back to the Kisling work.

If Frank Perls acquired the painting from Laffaille, the transaction might have taken place in Paris before Perls’ exit to the US. If so, he took it with him or had it shipped; the transaction would then establish a direct connection between Laffaille and the Perls family. If Laffaille sold the Kisling to someone other than Perls who then sold it to Perls, that question is not likely to be answered unless someone consults the Frank Perls Gallery stock book. Fortunately, there is an inventory number included in the provenance which can serve as a reference point should one gain access to that ledger.

Hence, Kisling’s Nude from 1918 traveled long distances, crossed an ocean and a continent, not once but twice, before being sold off in London in 2010 to someone, most likely, of Polish extraction who then took the painting to Poland.  Its fate between Perls and the mysterious 21st century consignors is unknown, but so is the fate of countless other works of art. No one’s fault except the market’s obsession with omerta and its fundamental distate for sharing the history of objects with its audience and customers. According to the holy mantra of the art world, the less we know the better it is for the collectors, the dealers and the traders. Knowledge and information beget knowledge, information and, especially, questions. Who needs that?



Sources: RA 27 [Laffaille restitution file at the Archives of the Ministry of Foreign Affairs in La Courneuve, France.]

mutual art.com

Another opinionated exercise

by Marc Masurovsky

An opinionated exercise in text analysis (a segue to a similar undertaking)

Disclaimer: this deconstructive undertaking is not meant to judge a person’s good will, intentions, or motives, nor a person’s qualifications, merits, and contributions. Its purpose is to show how words can be interpreted, read, and critiqued. The text itself was picked because it is emblematic of the existing literature relative to the prickly questions of cultural property, cultural heritage, preservation of cultural assets against looting and their illegal trade on the global art and antiquities market.

I will confine this exercise to a paragraph which appeared at the beginning of an article entitled “Buying and selling antiquities in today’s market”, which was published in Spencer’s Art Law Journal in Spring 2012 (Vol. 3, No. 1, to be precise). 

William Pearlstein, its author, is a well-known and highly respected international art lawyer, formerly of the American Council for Cultural Policy (ACCP), a lobbying group for museums, dealers, and collectors founded by none other than Ashton Hawkins of Metropolitan Museum of Art fame. [http://www.culturalpolicycouncil.org/statement_purpose.htm ]. The last statement on the ACCP dates back to 2005. He is listed as the treasurer of the Committee for Cultural Policy.

Let’s start:

“Buying and selling ancient art requires the prudent purchaser to research the provenience (country of origin) and provenance (history of ownership) of an object and to evaluate the available information in the context of the legal framework discussed below. In my experience, objects that have a plausible history of ownership and origin, even if not fully documented, can, generally, be safely purchased. A partially-documented history does not necessarily indicate fresh looting or illegal export. Even objects that entirely lack history are also not necessarily smuggled or looted. The demand for documented provenance is a relatively recent phenomenon and many owners simply failed to keep records of their objects, which they treated like other household possessions. Nevertheless, potential penalties for the unwitting purchaser of smuggled or stolen objects include civil forfeiture (for which even bona fide purchasers are rarely compensated), and, for those who knew, or in retrospect should have known, jail. The good news is that prudence and diligent investigation will be rewarded. Even well-provenanced antiquities at the top of the antiquities market can be undervalued compared to other segments of today’s art market and will afford satisfaction for decades and validate the owner’s good taste and erudition.”

Let’s parse.

“Buying and selling ancient art requires the prudent purchaser to research the provenience (country of origin) and provenance (history of ownership) of an object and to evaluate the available information in the context of the legal framework discussed below.”

The word “provenience” is more accurately defined as the physical location and cultural context from which the object originated.

Research is the sine qua non for documenting the history and characteristics of a cultural object. Every object has a history of ownership, the starting point of which should be its maker or creator. When dealing with antiquities, that might not be possible, however, due to the immense passage of time, the circumstances under which the object was found, its physical condition, and the context of its location.

Regardless, from the get-go, the question of provenance enters a legal framework as concerns the history of its ownership.

“The purchaser is a prudent person”. What does prudence actually mean? How is prudence exercised? Is prudence a code word for “due diligence”? If so, why not just insert that expression into the sentence?

We find out later on that if the prudent purchaser has undertaken a “diligent investigation,” he will be ultimately rewarded for his efforts. Sure, but what constitutes a diligent investigation? After all, the effort displayed by the purchaser prior to acquisition is critical in assessing the level of risk associated with the purchase of an object for which there might be little or no documentation. What we do not know here is how to “… evaluate the available information…”: What if there is no information to evaluate due to an elliptical, minimalist or near-invisible provenance?

Let’s read on:

“In my experience, objects that have a plausible history of ownership and origin, even if not fully documented, can, generally, be safely purchased.”

“a plausible history of ownership and origin”

According to many art appraisers, too often times, their clients show up asking them to authenticate cultural objects before they are valuated. They submit provenances that are not only embellished but are utter forgeries. The appraiser grows accustomed to fiction masquerarding as provenance information when the expected provenance should reflect the stark reality of an object’s history for the purpose of obtaining the appraiser’s stamp of approval. In that regard, the appraiser becomes the first line of defense against deceptive practices in the art market.

The recent Knoedler forgery trial constitutes a cautionary tale. As we have been reading in the past several years, the sale of a painting by Mark Rothko which was not a Rothko by the now-defunct Knoedler art gallery contributed to the fatal demise of this eminent art establishment. Multiple warning flags had been raised by appraisers, art historians, fellow dealers which went unheeded and were dismissed for reasons that are still not too clear, greed being too easy an explanation. Knoedler and its president invested in a “plausible history of ownership and origin” of the pseudo-Rothko painting. As they say, if it looks like a duck, acts like a duck, and quacks a duck, it might just be a duck or we can pass it off as a duck. Similarly if a painting looks like a Rothko, “radiates” like a Rothko, and is described as a Rothko, then it might just be a Rothko and we can sell it as a Rothko. Sure… the word “plausible” sends shivers down my spine and reminds me of the Nixon years when “plausible deniability” became the preferred line of defense of those who engineered the Watergate scandal.

If the history of ownership of an object is “plausible,” should you buy the object even if all you have in the provenance is “John Smith, 1969” and the object itself is older than Methuselah? The narrative underlying the object—its provenance—MUST BE believable, for better or for worst. Usually, the reputation of a person involved in the transaction helps to enhance the plausibility factor. That alone might compensate for any lacunae in the provenance. After all, how could you question an established international art historical authority, a senior curator in a distinguished museum, a person with a wall covered with PhDs, awards and other marks of distinction, a highly-regarded collector/dealer? People do make mistakes, though. Errare humanum est. it is the misguided, but very human, belief in pedigree which warps instincts, common sense, logical reasoning and critical thinking. In the case of Knoedler, the unfortunate buyer-the De Soles family-- found the Knoedler story “plausible” about the Rothko’s bizarre history and went home with a fake painting.

If a provenance is plausible, does it have to be real? Believability… plausibility… fictions are plausible, too. We all love a good story. After all, a fictional account is partly anchored in real life, even if it is twisted and embellished. Similarly with provenances, how simple can it be to embellish, twist or otherwise construct a provenance? Why worry about history as long as I fall in love with an object that I truly desire? And if the story about it is appealing, so much the better.

What if the provenance reads: acquired on the Paris art market, 1977? What is the art market? That is not a person with a phone number and an address. It is impossible to verify. But it is plausible because we know that the object transited through the City of Lights. Hence, we have an unverifiable geographical marker that places the object in a fuzzy spatio-temporal relationship with a known location called Paris, France, in 1977.

“not fully documented”:

Should you be distressed by the fact that there are no documents or very few to justify the past travails of the object as it passed through multiple sets of hands, crossing deserts, seas, and oceans, only to land in a safe harbor within the Western Hemisphere?

“A partially-documented history does not necessarily indicate fresh looting or illegal export. Even objects that entirely lack history are also not necessarily smuggled or looted.”

Agreed, but who said anything about looting and illegal exports? A customs officer should know the difference between a forged certificate of ownership and one that is authentic. That’s a big “should.” What if a nice gentleman working in the foreign affairs ministry of a source country is only too obliging and produces the necessary forms that allow illegally extracted objects to leave his country in exchange for unspecified favors or to please an even more corrupt senior official? How many officials are trained to tease out the anomalies of documentation produced by exporters of antiquities and works or objects of art, especially when those objects circulate through one, two, maybe three intermediaries in as many countries before landing in a Western market eager to absorb the objects? Should I be suspicious just because there are only two names in a provenance for an object that is three thousand years old which came from a continent far away from where I am, produced by members of a culture that no longer exists? Methinks the answer is yes. Multi-source due diligence would attenuate and greatly reduce the risk of being snookered, taken in, by dubious documentation.

“The demand for documented provenance is a relatively recent phenomenon and many owners simply failed to keep records of their objects, which they treated like other household possessions.”

I agree with Mr. Pearlstein.

In the ideal world, anyone buying art or antiquities or both should request full documentation for their purchases to justify title and licit ownership, just in case that, in the future, anyone accuses this purchaser of being party to a theft. The past three decades have signaled a major cultural shift in the way that art objects and antiquities are traded, displayed, and exchanged, especially in the so-called “market countries” [read, those in Western Europe, and increasingly, in the wealthy pockets of Asia] to borrow the phraseology of Mr. Pearlstein and the CPRI. The fact that requests for documentation constitute a “recent phenomenon” should tell us something about how art and antiquities are purchased even to this day. It has taken two world wars, the deaths of tens of millions of civilians and combatants, the plunder of dozens of nations on three continents to awaken collectors, dealers, and museums to the notion that perhaps the legal and ethical fallout of their indifference to blood-soaked provenances might not be viewed as kindly nowadays as they had been when “might made right” and “to the victors went the spoils” were the ruling mantras of the global art market and its defenders.

So, yes, it is only recently that documentation and more fleshed-out provenances have become ‘de rigueur’ in the international art and antiquities trade.

“Nevertheless, potential penalties for the unwitting purchaser of smuggled or stolen objects include civil forfeiture (for which even bona fide purchasers are rarely compensated), and, for those who knew, or in retrospect should have known, jail.”

I stumbled on “The unwitting purchaser”.

One of the great myths perpetrated by the art and museum worlds has been the martyrdom of the Innocents, who acquired objects innocently, unwittingly, thinking that they had clean title to those objects, from people who lied and misrepresented their origins and histories.

Unwitting! Here again, one must pause and wonder: the “prudent purchaser”, once she believes a provenance to be “plausible” should go ahead and purchase the object of her dreams. God forbid that, like a damsel in distress with no knight in armor around to save her, she should be the unwitting party to a sleazy plot aimed at unloading looted, smuggled, plundered objects on the art market! Even worse, she is acquiring them from reputable art houses!!

What can she do? How could she have known? Well, for one, her education and upbringing should have led her to ask questions first and plunk down her money later. The unwitting victims, the innocents, wallow in their own naïve silliness. How simple! Well, if they are innocent, who’s the guilty party?

And now for an abrupt conclusion to this deconstructive exercise.

The good news is that prudence, characterized by multi-source due diligence, an inquisitive eye, a critical mindset and an acquired immunity to pedigree, titles, and diplomas, will produce its fair share of just rewards. Just don’t drink the koolade and do not believe everything that you are told.

Trust your gut. If the provenance is non-existent, get a second and third opinion, the way we would if you disliked the initial diagnosis for a medical condition. No harm in it. After all, you are the consumer and you are the one who is about to spend a fair amount of money on an object that might not be what it purports to be and comes from where you are told it does.

If none of that matters to you, I cannot help you and God be with you.

Washington Principle #11: 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 #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.

This principle, to put it mildly, translated into a big zero plus one. It escaped absolute zero because of Austria’s decision to pass an actual Art Restitution Act. However imperfect it may be, it’s a law, it’s been effectual, and it still exists.

The same cannot be said for the four other nations hosting a restitution committee of sorts focused on cultural claims—France, the United Kingdom, the Netherlands and Germany never followed in the footsteps of the Austrians. Apparently, the stakes were sufficiently high for the Austrians to pass their law, prompted by the physical seizure of works of art by an iconic “national treasure” named Egon Schiele, while on display at the Museum of Modern Art in New York. Seizure, sequestration, were the tools that provoked mayhem among Austrian lawmakers, politicians, and museum administrators to “act”. Does the same scenario have to unfold for other countries to pass a restitution law? The answer may unfortunately be yes.

The failure of Principle #11 underscores the overall failure of the legacy of the Washington Conference on Holocaust-era assets of December 1998. Not one of the signatories to the Washington Principles saw fit, once he/she returned to their respective homeland, to set in motion a national debate on the notion of restitution of art objects looted during the Nazi era, which would lead to comprehensive legislation and/or decrees establishing some form of mechanism with which to address those claims. Not one.

To make matters worse and, perversely, ironic, those nations which are so anxious to recover their State cultural losses—Italy, Belgium, Poland, are standouts—refuse outright to return to the rightful owners art objects in their public collections which clearly have been proven to be looted, no questions asked, historical evidence on hand to support those claims. The double standard is brazen but real and continues to function unabated, despite international calls for these nations to honor restitution claims. To paraphrase government officials from those nations, they are happy to restitute the objects as long as the claimants don’t mind coming to their country to “visit” with the object while it is still on display in a museum collection.

The most important hurdle that these nations face when confronted with a restitution claim is how to de-accession these objects from State-run collections. Few of those nations have on their books a comprehensive de-accession law that extends to the return of objects claimed by individuals, as opposed to nations.

Principle #11 could be rewritten as follows:

Nations shall enact directives, laws and decrees as appropriate to implement these principles, particularly as they relate to the resolution of ownership issues. These directives or laws should include comprehensive de-accession procedures that apply to art objects looted or displaced during the Nazi era which are the subject of a restitution claim.

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.

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.

Washington Principle #8: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference to be held 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 #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.

On October 5, 2000, a declaration came out of an international forum in Vilnius, Lithuania, which placed heavy emphasis on the search for fair and just solutions “to the return” of looted art and cultural property. It went a bit further than the Washington Principles but did not specify what constituted a just and fair solution to a claim for restitution. Forum participants did ask that “every reasonable effort be undertaken" to “achieve the restitution” of looted cultural assets. What constitutes reasonable effort?

On June 30, 2009, at an International Conference on Holocaust-Era Assets in Prague held under the auspices of the Czech Republic, its participants issued a declaration, called the Terezin Declaration . Among other things, the declaration reiterated the implicit value of the Washington Principles, whereby looted art and cultural property should be “returned to victims or their heirs” but added that such returns be framed “in a manner consistent with national laws and regulations to achieve a just and fair solution.” The ambiguity remains since it is not clear whether restitution is a “just and fair solution” or if “restitution” is a stretchable concept that includes the non-physical return of the claimed object in exchange of a financial settlement with the claimant.

If the return of cultural assets looted during the Nazi years should be consistent with national laws and regulations, most of the signatory countries in Washington, DC in 1998 and in Prague in 2009 have not yet passed any laws or decrees framing the process of restitution of Holocaust-era looted cultural assets.  In fact, their courts and legislatures have repeatedly upheld the rights of current possessors against such claims.  Moreover, those nations’ cultural policies share one thing in common: the de-accession of objects from State collections is not feasible. If it must be considered as a "just and fair solution", that decision must be brought up before the legislature and/or the competent ministries. In that context, a fair and just solution does not work in favor of a claimant but rather it upholds the sanctity of State-owned or controlled cultural property over the individual rights of claimants. Put simply, the claimants have no control over what is fair and just.

Another way of looking at the logic behind the Washington Principles is that its framers could never have reached a consensus over their issuance without gutting them from the outset, thus protecting the art market, private and public museums alike at the expense of the claimant class, perhaps viewed even in 1998, as a nuisance which already riled governments with legal assaults against the Swiss banking sector over the misuse of private Jewish assets on deposit in Swiss financial institutions.

In retrospect and in anticipation of future discussions, a Holocaust claimant seeking the physical return—restitution—of his/her lost property from the possessing institution, be it public or private, would never have agreed to the notion of ‘a just and fair solution’, if it were to be anything but restitution. On the eve of the November 26-28, 2018 Berlin Conference on the Washington Principles, it is fair to ask whether current possessors, for whom the Principles were framed, have been fair and just to Holocaust claimants? Current possessors are public and private entities

Principle #8 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 and not subsequently restituted, or their heirs, are identified, steps will be taken expeditiously to initiate restitution proceedings or any other solution deemed just and fair by all parties concerned, according to the facts and circumstances surrounding a specific case. In each and every case, the interests of the claimants will be placed on an equal footing with those of the current possessors.

Washington Principle #7: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference in Berlin, Germany, 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 #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.

In June 2011, we noted the following:

“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.”

Seven years later, there has not been substantial progress in establishing mechanisms for “pre-war owners and their heirs to come forward.” Those who are directly related to the victims of plunder are now the grandchildren and great-grandchildren. In other words, they are three to four times removed from the crime and the loss suffered during the Third Reich. What little memory of the events stayed with the victims proper has all but vanished and few of those evidentiary strands have been transmitted to the next generation so that it can sue for redress.

The more likely path is from the outside—researchers, genealogists, aggressive lawyers, historians and the like—are those more likely to stumble on the evidence of the crime and the losses suffered by individuals. These external players are more likely than not to contact the heirs of the pre-war owners with the evidence of their losses. For a fee, unfortunately. In this regard, governments have created little monsters on both sides of the Atlantic Ocean, by not rising above the fray and taking on the mantle of justice for the victims of plunder. Leaving the field wide open for entrepreneurs and private sector players to set the rules for how research is conducted and, more importantly, how claims are to be handled and prosecuted.

Seven years after our initial assessment of the effectiveness of Principle #7, it is time to call it for what it is—a total failure and an open invitation for profiteering at the expense of the claimants, of history and of justice.

Principle #7 could be rewritten and expanded as follows:

The parties signatory to the Washington Principles of December 3, 1998, must ensure that all efforts will be made to disseminate information to as wide public as possible regarding the mechanisms by which pre-war owners and their heirs can make their claims known. Also, pre-1933 owners and their heirs must be encouraged to submit their claims for 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 and not subsequently restituted.

Washington Principle #6: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference in Berlin, Germany, 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 #6
VI. Efforts should be made to establish a central registry of such information.

“a central registry”:

The best way to kill an idea is to promote it and then abandon it. Ever since the “art restitution” movement kicked up some dust, there was talk of creating a central database of all art losses suffered by Jewish owners between 1933 and 1945. As the saying goes, talk is cheap while money talks. In the heady days of the late 1990s, much like the frightening realities which have set in worldwide as of 2016, it was easy to discuss the creation of a central database—a digital registry—of all cultural losses because no one had done it and, to accomplish this minor feat, one needed access to documents and lots of them (Principle #2), as well as a heap of resources and personnel (Principle #3). Since neither were forthcoming, then and now, twenty years later, the proposal put forth by the framers of the Principles is somewhat disingenuous.

After all, do they understand what effort it takes to undertake a central registry of all art
“confiscated” and displaced by the Nazis and their allies? It is a massive undertaking, which requires international cooperation, international partners, staff at multiple sites, a rugged online database, even more rugged servers, and teams of data extractors and data entry specialists. In 2018 dollars, a multi-million dollar affair. In 1998 dollars, it would have been much cheaper to accomplish.

The arguments around a central registry are legendary and date back to the aftermath of WWII when some of the Allied cultural advisers working in Munich, Germany, were bemoaning the fact that there was no central card index of art losses available for them to use as a reference source.

That discussion of a central registry died miserably especially when it became obvious that large postwar NGOs like the recently-established UNESCO did not succeed in taking over from the Allied powers the mantle of documenting and researching art losses suffered by victims of Nazism and Fascism.

In the 1990s, the idea has been repeatedly pooh-poohed as too expensive, impossible to undertake, and so forth. Meanwhile, as the arguments linger on from year to year, nothing gets done, which seems to be the point, no? So, proposing a central registry of art losses is tantamount to crying: The King is dead! Long live the King!—Substitute queen for king if that is your preference. In other words, it will not get done by the signatories of the Washington Principles because they have no interest in such a project. Why did they agree to it? Why sign off? Because it was easier to sign off than to challenge the idea, a hint that the intention to transform the principles into “hard law” never existed.

In June 2011, we noted that, based on the evidence, “Principle #6 is hereby decreed to be an unadulterated sham.” We still believe it today.

Principle #6 could be rewritten and broadened as follows:

Efforts shall be made to establish a central, fully searchable and interactive digital repository 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 their Fascist allies across Europe between 1933 and 1945.

Washington Principle #5: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference in Berlin, Germany, 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 #5:
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.
“Every effort should be made to publicize”:

Whose job is it in the first place to do so?

It’s a nice idea but effort takes …. effort on the part of those who are expected to make such an effort.

Historically, governments, their ministries and agencies, have taken on the mantle of outreach in order to inform targeted populations and communities about the possibility for them to claim looted objects which may belong to their relatives, close or distant, so that they could consider a claim for restitution.

Decades after the crime of plunder has stripped millions of people of their belongings, it’s not so clear who or what is responsible for displaying such an effort.

Individual museums built web pages that contained images and descriptions of objects which they had selected as falling within the broad category of having “unavoidable gaps” for the period 1933-1945. Then the American Alliance (ex-Association) of Museums (AAM) built a website called the Nazi-era Provenance Internet Portal (NEPIP) whose aim is to bring together all of the objects identified by American museums as displaying a provenance gap for the relevant period (1933-1945)

Auction houses have no reporting responsibility. Galleries have no reporting responsibilities and, therefore, are not required to make an effort in identifying these kinds of objects which they buy and sell.

Are Jewish organizations responsible for this publicity effort? The Christian world always expects Jews to take care of their own issues as displayed fervently after the end of WWII when the US Army wanted to extricate itself of the business of caring for objects looted from Jewish victims and in 1946 when the international community designated two organizations—which happened to be Jewish—to oversee the looted asset question as it applied to Jewish victims, of course.

With such lack of specificity, it is difficult to understand what the framers of the Principles had in mind when they called for “every effort”.

Even if the co-authors of the Washington Principles thought that Jewish organizations would handle the publicity effort around objects that could be claimed, they still had to be coaxed into it, considering that no single Jewish organization was even remotely interested in assisting Jews with their restitution claims for looted art.

With all of this in mind, is Principle V a diplomatic expression of wishful thinking on the part of its framers? Did they give this issue much thought before they sat down and vaguely announced that “every effort should be made”? It’s good to remember that, without Principle I—identification--, Principle II—access to archives—Principle III-resources and personnel--, Principle V has no reason to exist.

By all accounts, Principle V does not rise to the standard of a self-governing principle. It requires crutches and other aids so that the average reader can understand it.

In June 2011, we noted that “Principle V is a double-edged sword and the dull edge of the sword is on full display.”

Principle #5 could be rewritten and broadened as follows:

In order to facilitate the location of pre-1933 owners and/or their heirs, every effort shall be made to draw up and disseminate to as wide a public as possible all information regarding 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 and not subsequently restituted.

Washington Principle #4: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference in Berlin, Germany, 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 #4
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.

In view of the number of legally-trained individuals who are involved in international diplomatic negotiations and the drafting of complex documents for submission to representatives of many foreign nations, one would think that better care would be paid to vocabulary.

“work of art”:

The definitions vary for this word grouping. For some, “work of art” is interchangeable with “art piece” or “artwork” or “objet d’art”. For others, it has a narrower and more elitist meaning: “an object made with great skill, especially a painting, a drawing, or a statue.”  One way or another, high quality is synonymous with those words. And those words exclude all other “objets d’art” which, ironically, serve as synonym for “works of art.”

“consideration”:

Another way of saying “Careful thought” or “deliberation.”

“unavoidable gaps” in provenance:

As there are no uniform standards that define what an “unavoidable gap” is in the history of ownership (provenance) of a cultural, artistic or ritual object, let’s give this our “consideration.”

It is a well-established fact that we will never know everything about the history of an object. The older it is, the less likely it is that we can reconstruct a detailed path of ownership for the object in question. However, the obverse is equally true. The more we search for information about the history of an object, the more likely we are to develop a clearer history of that object, notwithstanding the “unavoidable” gaps. But one important function of research is to narrow these “unavoidable gaps.” If Principle III is properly put into effect, chances are that researchers can fill these gaps. But to what extent can they? It all depends on access to materials (Principle II) in public and private archives that can shed light on their owners and the objects they owned.

If we follow the dicta of global museums such as the British Museum, the provenance will contain only “relevant” and “important” information. Another layer of complexity, another filter of information added to the task of “filling the unavoidable gap.”

Quite clearly, this principle was written with a Museum association in mind which rails constantly against those who demand that their provenances be impeccable and gap-free. No one has and will ever make such a request from a museum or gallery or auction house.

Gap-filling (not like at the dentist’s) pertains mostly to the 1933-1945 period. It would be good practice on the part of museums, and the rest of the art world, to exercise enough diligence so as to include as much “relevant” information as possible in the provenance of an object under their care and ownership.

Gaps are unavoidable because no one has paid enough attention to them and considered them to be “normal.” If the art world changes its behavior towards the writing of a provenance, the gap issue might wither away naturally. But, being the optimist that I am, it will take at least twenty years for such behavior to change on a systematic, industry-wide scale across continents.

“Ambiguities”:

That word can only be addressed through careful research. The structure of the provenance itself allows its author or anyone else for that matter to use footnotes in order to address the “ambiguities” inherent in the provenance. That strategy has been in force for quite some time and appears to work very well.

“passage of time”:

Time is elusive and so are record-keeping and people’s memories. Passage of time is a non-issue and should not even be included. In fact, when one reads that expression, one can only see a veiled threat by a museum invoking “latches” and flinging it at the claimant for not having “done enough” to research the fate of his/her object.

“circumstances of the Holocaust era”:

A lovely historical misnomer which reduces the relevant domain of inquiry to the period 1940-1945. In other words, it is a misreading of history and is inconsistent with the phrasing “Nazi era” which lasted from 1933 to 1945.

In June 2011, we noted that “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.” Hence, Principle IV is wishful thinking at best and utter diplomatic cynicism at worst. It can only be salvaged if action is taken to enforce Principles II and III.

Principle #4 could be rewritten and expanded as follows:

In establishing that a cultural, artistic and/or ritual object has been confiscated, misappropriated, been subject to a forced sale and/or other acts of illicit dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945 and not subsequently restituted, every diligent effort shall be made to produce as complete a provenance as possible by filling gaps and resolving ambiguities produced within and/or facilitated by a context of racial persecution, warfare, and genocide during the entire period of the Third Reich, the Holocaust, and the Second World War, across Axis-controlled Europe between 1933 and 1945.

Washington Principle #3: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference in Berlin, Germany, 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 #3

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.

“Resources and personnel”:

The only way to ensure that a principle is enacted properly is to allocate resources and personnel which are dedicated to ensuring its viability. In the case of “identification of all art”, the “art” in question is located in a myriad places, both public and private, accessible and inaccessible. Even if archives are open, someone has to do the research and be paid for it. If museums grant access to their records, someone has to be able to consult them and be paid for that task. If we ask art institutions to cover those costs, little will be done, that’s for certain. Hence, external sources of funding have to be made available in the form of grants, fellowships, project funds, to allow institutions to recruit the personnel needed to conduct relevant searches into relevant records so as to “identify all art”. The only country that has done so, and to a limited extent truth be told, is Germany. After Germany, we have Austria. And that’s about the extent of it, with scattered efforts to work on discrete projects with no immediate consequence on the ability to “identify all art that had been confiscated” and displaced by other means. The United States, case in point, has turned out to be a miserable failure in this department, its government providing neither resources nor personnel to make good on its own dicta stemming from the Washington Conference on Holocaust Assets of December 1998.

But in order to “identify all art”, one must know what one is searching for. The widespread lack of understanding of the crime of plunder is staggering and impedes any large-scale at identifying the relevant objects that may fall under the category of “confiscated,” “dispossessed”, “sold under duress,” “looted”, “plundered,” etc.

In June 2011, we noted an inconsistency in language between Principles I and III: “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? Principle III is a massive failure.”

On a more positive note, we note that the Gurlitt exercise (since 2013) has forced the German government to reassess its provenance research funding priorities with a view to increasing funds allocated to German museums. A side effect of the Gurlitt exercise has been to compel the Swiss government to acknowledge that there has never been any systematic effort in Swiss museums to conduct research into their holdings. The Gurlitt collection’s presence at the Kunstmuseum of Bern is changing this dynamic as basic funds are being allocated for a limited study of Swiss institutions to survey their collections for any item falling under the rubric of “confiscated” or “displaced” during the 1933-1945 period. Of course, these objects would have been misappropriated in another country and then brought into Switzerland.

Likewise, an international conference recently convened in Jerusalem on October 4 renewed a call from Jewish groups worldwide to focus on provenance research as a way of identifying so-called “heirless” property.

And the regional provenance research project, TransCultAA, recently funded by the European Union, has shown the way to create historical research projects addressing the “translocation” of Jewish-owned cultural assets at the regional level, in this case the area flanked by Austria, Italy, and the Western Balkans.

For research to take place, it requires capital and people. It won’t happen without them. We’ve been twenty years for Principle #3 to be implemented on a systematic scale and it has not happened to date. The failure lies with the signatory governments to the Washington Conference of December 1998 who essentially made a deceitful commitment to provide such resources and personnel. Hence, Principle #3 is a failure.

Principle #3 should be rewritten and expanded as follows:

Resources and personnel “grants, fellowships, project funds and other financial allocation mechanism, shall be made available to facilitate the identification of all 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 and not subsequently restituted.

Washington Principle #2: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference in Berlin, Germany, 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 #2

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

“Relevant”:

Archival collections abound worldwide. Most of them consist of documents, reports, correspondence, photographs, transcripts, memoranda, lists, etc., compiled by municipal, regional and national agencies, both civilian and military. “Relevance” addresses the extent to which these archives shed light on the fate of cultural objects owned by Jewish individuals, their families, friends, businesses, and the like. Hence, these documents can be found in financial, cultural, economic, administrative, police, political, and other archival collections. They name objects, names of people, and locations where objects were located, extracted, transferred, bought and sold, traded, exchanged, ferried, crated, and deposited.

Access to archival records produced since the 1930s has grown exponentially from North America to Western and Central Europe. However, there has also been a reaction to such open access under various disguises: privacy concerns, national security concerns, legal concerns.

Where access to “relevant” documents is granted, the right to publish the documents is suppressed, especially in their digital form. The right to publish and reproduce documents extracted from public and private records will remain a source of friction for some time until privacy concerns are eased for documents that are now more than 80 years old.

In June 2011, we noted the following:

“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.”

Since 1998, there has been very little progress registered in gaining access to private gallery and museum records. Art trade practitioners continue to hide behind shields of trade secrecy, confidentiality, protection of clients’ and consigners’ identities, amid general suspicion that the desire for access to their records rests on dark motives. All that one wants to know is how objects travel from one point to the next. Art market professionals should feel bold enough to share such information without sacrificing confidential and sensitive client information. But to gain this level of trust requires a lot of handholding and one-on-one communication that could take a lifetime to achieve with meager results. Hence, new strategies should be explored in order to gain access to such records. Otherwise the full truth shall never be known as to the fate of thousands of objects from the time of their forced removal from Jewish ownership to their present whereabouts.

Principle #2 could be rewritten and expanded as follows:

All records and archives must be declassified, open and accessible to researchers, in accordance with the guidelines of the International Council on Archives, EU directives and other relevant legal and diplomatic instrumentalities. In consultation with art trade representatives, mechanisms shall be developed and implemented to ensure that proper access to relevant documents is ensured for all those who request it under conditions that are mutually agreed to between the parties.

Washington Principle #1: A critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference in Berlin, Germany, 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.]


Washington Principle #1

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

In conventional terms, we think of “art” as paintings, works on paper, and sculpture, especially of the highest quality, museum-worthy pieces. This definition would be consistent with the overall approach applied by the United States, the United Kingdom, France, and other countries in the immediate postwar years as their agencies searched for looted “art.” But in reality, “art” covers many disciplines and media, many forms of expression and purposes whose quality varies greatly in content, style and esthetics. Most of the “art” that had been “confiscated” by the Nazis did not consist solely of paintings, works on paper, and sculpture. It included furniture, accessories, other kinds of decorative objects, any object that, although functional, and even ritualistic presents esthetic values which would earn it the label of “art.” The ERR database, for instance, is clear proof of this broad expanse known as “art.”

“confiscated by the Nazis”: 

the word connotes an order from on high to seize someone’s property. Hence, we are to understand that the Nazi government or authorities order the “confiscation” of “art” from their designated victims. This narrow definition of how “art” changed hands illicitly begs for clarification as it is historically reductionist and therefore conveys a skewed vision of the historical reality. The word “confiscated” excludes other forms of dispossession brought about as a consequence of the Nazi seizure of power in January 1933 and does not reflect the myriad ways in which property owned by Jews could be forced out of their hands.

“not subsequently restituted”: 

what does “restituted” really mean in this context? Physically returned to the aggrieved individual or entity whose “art” was “confiscated”? Does it mean “returned” to the country of origin? The lack of clarity fills this word with ambiguity.

“should be identified”: 

it’s not an obligation, mind you. But just in case the thought crossed your mind, would you be so kind and identify “art” confiscated” by the Nazis which sits in your midst? And to whom is this Principle addressed? To museums—public and private? To art galleries and auction houses? To individual private owners? To institutional owners? To religious entities? It’s hard to know. And how does “identified” work? Is it simply a question of spotting the item in a collection, taking notes of its presence, and leaving for lunch? The mission inherent in Principle #1 is narrow in scope. What do you do once the object is identified? And how is it identified? Using what methods, exactly?

In June 2011, we wrote that “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 the point of a gun 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.” And so it goes. After 20 years or so, “there are no firm standards by which to move forward on identification…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!” 

Principle #1 could be rewritten and expanded as follows:

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, and not subsequently restituted to their rightful owners shall be identified using the highest standards of scientific and empirical research and analysis.

An "heirless" journey

by Marc Masurovsky

How has the discussion on "heirless" cultural assets evolved between 2011 and 2018, as reflected in various entries in the "plundered art" blog?

Overall, the debate goes nowhere, primarily because the "heirless" status of a looted object is, by nature, political and administrative. From a research standpoint, it represents one final assessment whereby no concrete links could be drawn between that object and one or more individuals acting as its owner at a particular point in time. It is--and should be--the outcome of a lengthy and methodical research effort undertaken in various archives.

The future lies in breaking the stalemate over the "heirless" object: does it really boil down to selling these objects off or can there be a genuine commitment on the part of the holders of these objects to do their best to find an "owner", thereby establish a clear, even if incomplete, provenance of the object sufficient to allow us to tell its story, or a story about its trajectory.

April 9, 2011

How best to handle so-called heirless or unidentifiable property? In today’s mercenary, hyper-materialistic and insensitive world, one approach is to share the proceeds of sales of heirless property along carefully delineated lines. It’s just an idea, but the issue of looted cultural property from the Second World War will never, and I mean never, go away without some form of global political and financial settlement of those stolen works that have been left in netherland.

Perhaps, it’s time to think about creating an international entity responsible for disposing of so-called heirless objects in a manner that is of ultimate benefit to the families of victims, and which underwrites and promotes further research into the fate of such objects.

June 25, 2011

Washington Principle IX spells out the following: “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.

July 3, 2011

Ever since the end of the Second World War, politicians, diplomats, officials and bureaucrats in leading international Jewish organizations, non-governmental organizations, scholars, and historians alike have butted heads on what to do with so-called “heirless” property, or property for which no rightful owner can be found because, for the most part, the family line was extinguished by genocide and war.

There still is no resolution as to how to treat this problem that spreads discomfort and awkwardness across continents, especially among cultural institutions that are the custodians or owners of objects that can be described as “heirless.” What to do? Do we leave them where they are in display cases or on shelves in museum or gallery warehouses as mute witnesses to the horrors of a recent genocidal past? What if they can be connected to a specific geographic location? Do we then return them to the place from which they might have been collected before their owners were wiped off the face of the earth?

August 21, 2011

Nazi authorities did not bother to associate the works with their victims which renders these cultural assets, a direct result of “internal” looting or plunder, as “heirless” or “unidentifiable”, until someone recognizes them and claims them on behalf of their family.

February 14, 2015

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.

January 13, 2017

What does one do with objects deemed heirless? Remember that heirless property is simply unclaimed property for which no owners have been found ---yet. Since there are no well-funded research organizations or institutions in the business of searching for these objects’ rightful owners, they remain to a large extent heirless, deprived of their history, their context and their identity.

For instance, Jewish museums are stocked with heirless objects, coming from communities that have been systematically erased from the face of the earth. But not all displaced objects in Jewish museums are heirless. The mission of Jewish museums is to safeguard these objects, not necessarily restitute them. Hence, when faced with a restitution claim, a Jewish museum is more likely to behave like most art museums by opposing the act of restitution which would require de-accessioning the claimed object from its collection.

In an ideal world, the most logical way to address the question of researching and documenting the complete history of cultural plunder between 1933 and 1945 is to orchestrate a massive inflow of research monies and establish an international research and documentation infrastructure. Only in this way can one address systematically the full scope of looted cultural heritage (outside of Judaica which has attracted significant attention over the past decades) of the Jewish people, identify the location of plundered objects, figure out which ones have still not been restituted, match them with their rightful owners. If there are none, then the question of heirless property comes into the picture.

A vast international, even transcontinental, network or infrastructure of research institutions facilitated and nurtured by a mix of government agencies, independent organizations, and academic centers across the Americas and Europe should coordinate this effort. This is not a one-or three-person job. In order to get a handle on what was stolen, where, when, by whom, sold and resold to whom and where and when, one needs a small army of intelligent, motivated, educated, trained, PAID, worker bees.

There is a strong likelihood that “heirless” objects having once belonged to Jewish owners before the Holocaust era ended up in the permanent collections of museums, be they State-controlled or privately owned.

How does one persuade these cultural institutions to de-accession heirless objects which they argue were acquired in good faith and have no owner?

October 8, 2018

No object is heirless unless it is labeled as such. Every object begins with an owner who happens to be its maker or creator. Once the object leaves its original, primal owner and the place where it sat or hung, the path of the object will either be licit or illicit depending on the circumstances of its removal, transfers, and the transactions that it was subjected to and the larger historical context in which these movements or translocations took place. Those are the objective facts surrounding the life of an object and its peregrination through time and space. That is what constitutes the provenance of an object. To put it simply, every object is connected at any given point, to a person, to a location and to a date.

In my view, the paradox is as follows: An object becomes heirless because it has been labeled as such for reasons having nothing to do with the object itself. On the other hand, an object always has an owner, whether identified or not.

Cleopatra, by Artemisia Gentileschi

by Marc Masurovsky

A painting recently attributed to Artemisia Gentileschi was placed on prominent display at Frieze Masters, courtesy of Paris-based Galerie G. Sarti.

The provenance of the work indicates that it is from a private collection in France somewhere.

When prodded, a representative of the gallery pointed out that the work had been placed "en dépôt" at a museum in Toulon, France.

How long had been "en dépôt" there?


At least half a century.

Wow, that's long,

Who placed it there?

A collector.

From where?

He is a German collector.

Now the story gets better.

2018-50=1968 (at the latest).

Why would a German collector come down to Toulon just to "deposit" a  large painting with a museum in southern France?

He didn't.  He lives nearby.  Monte Carlo. He comes from a powerful "royal family."

Ooooh!

So, after about 15 minutes of diplomatic back and forth with the gallery representative, the provenance at least got clarified to a point.  

Who is this German collector? We probably will not know.

Where did he get the painting from? We probably will not know until further prodding which could exceed the bounds of civility.

The rumor has it that this version of "Cleopatra" by Gentileschi may have floated through the collection of King Charles I. But that's not definitive yet.