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.

The economics of restitution battles

by Marc Masurovsky

In an ideal world, the cost of seeking restitution of a Nazi-looted art object should not be a hindrance to achieving justice. The government, writ large, a State agency, a non-profit organization, domestic or international, would take on the burden of recovery of a looted cultural object, from the first notification to the current possessor that she holds title to property stolen during the Nazi era, to the final act of recovery, the physical transfer of the object to the rightful owner’s heirs complete with a transfer of title.

In the real world, the aforementioned scenario simply does not exist, and, if it does, it is as rare as the Hope Diamond.

There are no public or charitable organizations which have the resources to manage the restitution of a looted object from a to z, soup to nuts, from identification to recovery or settlement. However, there are many consultants both in the Americas and in Europe who are available to assist you in the recovery process, for a fee and not an insignificant one at that.

The Washington Conference on Holocaust-Era Assets of December 1998 failed to put in motion the procedures by which to assist claimants in their bid to recover their looted cultural assets at little or no cost. There was no political will amongst the participants at the conference to go beyond speeches and do the heavy lifting, as we call it, to convince their kinsmen back home to pass laws that would establish the appropriate mechanisms for expeditious and systematic restitution of looted assets. It never really happened. Austria might be an exception since it did pass a restitution law in 1999, partly as a reaction to the physical seizure of two paintings by Egon Schiele on display at the Museum of Modern Art of New York. Their possessor at the time was the Leopold Foundation, based in Vienna.

With no structure, no organization to fall back on, claimants have had few places to turn to. The Holocaust Claims Processing Office in New York is the only viable State-level agency (not Federal, a big difference!) which facilitates the claims process for Holocaust victims and their families.

The restitution process is a tedious and laborious affair fraught with emotions and riddled with obstacles. Hence the tendency among lawyers to recommend financial settlements that, in their view, at least address the moral dimension of the claim while leaving the object and title to the claimed object in the hands of the current possessor whose sole defense rests on arguing that she acted in good faith when purchasing the claimed object. In today’s parlance, this approach to the resolution of a cultural claim for Holocaust-era thefts and all of its variants is referred to as a “just and fair” solution, something that presumably should work for everyone but really does not.

In a world where most attorneys command high fees, there is little chance that, at those rates, a claimant can receive a modicum of legal advice unless the value of the object(s) that she wants returned exceed the hundreds of thousands or even reach millions of dollars or euros. And if she does recover, she needs to sell the object in order to settle her debts for legal representation predicated on a contingency fee arrangement, which usually runs at about one third of the market value of the claimed object.

The failure of the public sector to create effective, credible, and humane legal and administrative mechanisms to provide a forum for some form of justice for victims of cultural plunder, has relegated the resolution of these claims to the market place.

Technically, there is nothing wrong with that concept, except that the price tag is steep and out of reach for most people seeking restitution. The most popular works earning legal representation in restitution proceedings through private firms are works by Egon Schiele and Gustav Klimt which were at the bottom of the art world’s food chain until the 1970s and those produced by German Expressionists (Kirschner, Grosz), Impressionists and their progeny (from Monet and Pissarro to Cézanne and van Gogh), and, yes, Cubists (Pablo Picasso and Braque, most notably) and its variants (Fernand Léger). There is some room, of course, for top-flight Old Masters. When it comes to value, why discriminate?

The absence of political solutions to restitution claims—in the form of laws passed by national legislatures aimed at simplifying and/or fast-tracking claims for looted cultural objects, eliminating technical defenses (latches, statutes of limitations) used by possessors not to return claimed objects, thus driving legal expenses through the roof—has helped drive up the cost of justice, hence, the price of restitution of an object stolen during the commission of an act of genocide.

If the value of the claimed object falls below several hundred thousand dollars or euros, it complicates a lawyer’s commitment to achieve restitution (yes, this is an unfair statement but it is close to the reality that many claimants encounter) since mounting legal fees will quickly surpass the value of the object and thus drive into the negative the cost-benefit of restitution. Thus, if your family lost works and other objects now scattered across the globe, whose individual value may not rise past 50,000 to 100,000 dollars or euros, you might not be able to find a top-ranked lawyer to represent you. If your family lost a substantial collection of more than 50 or so “secondary” works produced in 17th century Europe, a lawyer might consider representing you to obtain restitution for those objects—they would be viewed as a “lot”-- that have been identified in present-day collections. Hence, we fall into the same logic—cost and benefit. Rightfully, a lawyer must ask: what’s in this for me besides the ephemeral headlines tied to “doing the right thing”? She runs a business, not a charity, so the saying goes. Mouths to feed, people to pay, rent, insurance and other costs add up. Time is also a factor: these cases tend to take an average of three to ten years to resolve, some stretching out over several decades, others ending miraculously quickly, as in two years or less.

Since the vast majority of objects stolen during the Nazi years were not “treasures” worth hundreds of thousands or millions in today’s currencies, the vast majority of the victims have not obtained restitution of their objects. As the years and decades go by, their stolen object are sold at auctions, displayed in galleries or museums, or, worst of all, hanging in a stranger’s living room.

The postwar restitution machinery was never designed to help the average victim. It was designed to recover treasures and high-end cultural objects thus restoring a country’s “greatness” from which those “treasures” were forcibly removed while offering substantial returns to their possessors and handlers. Is it mere coincidence why so much emphasis has been placed on the recovery of paintings by Egon Schiele, Gustav Klimt, Camille Pissarro, Pablo Picasso, Fernand Léger, Georges Braque, Henri Matisse, Antonio Canale, Caspar Netscher, Romanino, Amedeo Modigliani, Max Liebermann, Georg Grosz, Ernst Wilhelm Kirchner, etc., etc.?

The press, incidentally, is partly to blame for this state of affairs because it is so quick to respond to restitution claims involving big name artists fetching hefty price tags on the global art market. If you peruse the few public looted art databases that are currently available for consultation, such as lostart.de and www.errproject.org, you will note that there are thousands of artists whose works have been stolen and yet the world only focuses on a handful.

The chances of recovering 90 per cent of the world’s stolen art are close to zero because the world in which we live rewards only the “great ones,” those who produce “masterpieces” which become a nation’s “cultural treasures” coveted by those who can afford them. The rest?

Our collective loss, someone’s private gain.

Provenance research—now and later (Second Installment)

Since the seizure of “Portrait of Wally” in early January 1998, provenance research has lost its innocence. Battle lines have been drawn between defendants upholding their rights to keep art objects under fire for being “looted”, on one side, and plaintiffs demanding the return of those art objects arguing that they were the rightful owners. These claimants argued that their families had been despoiled for racial, ethnic, religious and other reasons at some point between 1933 and 1945 during the twelve year reign of the Nazi Party and as a result of the expansionist war decreed by Adolf Hitler and his minions against Europe’s “undesirables”-Jews, Slavs, Jehovah’s Witnesses, homosexuals, emotionally and physically challenged individuals, and anyone else who was caught in the cross hairs of the Axis powers in a continental-wide fit of man-made madness, verging on an apocalyptic nightmare worthy of any painting signed by Hieronymous Bosch.

There had been a glimmer of hope at the time of the so-called Washington Conference on Holocaust-Era Assets on November 30-December 3, 1998. Art was not supposed to be on the calendar of the conference. But the seizure of the Schiele paintings (actually, two paintings had been seized at MoMA in early January 1998) changed the configuration of the planning for the Washington Conference. American policymakers were not pleased about the seizure because they argued that it had besmirched the bilateral relations of the United States and Austria. In so stating, the US government had sided against the claimants and had upheld Austria’s argument at the time that the entire flap over “Wally” was a private matter to be resolved between the claimants—heirs of Ruth Bondi-Jarai and Fritz Grunbaum—and the Leopold Foundation, then owner of the seized paintings. Still, Morgenthau’s muscled intervention at MoMA triggered an existential debate inside Austrian political and cultural circles which forced Austria to reexamine its entire relationship with its past as it pertained to the illegal seizures of Jewish cultural property and how postwar Austrian authorities had mishandled claims for return of such looted assets. The end result: the only restitution law in the world which mandates “provenance research” in all Federal public cultural institutions of the Republic of Austria.

Begrudgingly, the US government and its many allies at the planning table for the Washington Conference inserted art as one of the many different types of looted assets whose status needed to be discussed by the representatives of nations and Non-Governmental Organizations (NGO) attending the international event. The Washington Conference produced the so-called non-binding “Washington Principles”—11 recommendations that have become de facto “policy” for lack of a better word in many nations that want to remove that cultural monkey off their backs.

For some, the Washington Conference was a success. For others, it was a dismal failure. For those who deemed it a success, the Conference had provided a unique forum to get a sense of where the world stood as far as justice to Holocaust survivors was concerned and to promote greater assistance to their dwindling numbers. The principles notwithstanding, everyone went home thinking they had done God’s work for three days. Those who saw in the Conference a dismal failure balked at the so-called Principles as yet another diplomatic way out of taking full responsibility for not having done anything concrete to render justice to the victims of plunder while throwing a sop at museums,  and other members of the art market by reassuring them that, although provenance research was highly recommended to fill “unavoidable gaps” in the history of ownership of art objects under their care and stewardship, “fair and just solutions” ought to be sought in order to ensure a measure of justice for all. In the end, for the naysayers, the Washington Conference led to a massive failure of international public policy, thus creating a vacuum of power and decision-making over the fate of countless art objects whose newfound status in legal limbo—plundered or not? Restitutable or not?—had to be resolved not with legislation but through, oftentimes, vicious legal battles pitting museums’ hired guns against plaintiffs’ hired guns.

The search for justice over a massive crime of plunder tied to genocide has turned into an international legal slugfest.  Instead of chasing airplane crash victims, it became more profitable to seek out victims of plunder.

1998: Year Zero of Art Restitution?

Highlights from that fateful year include, but are not limited to:

-the seizure of two paintings by Egon Schiele at the Museum of Modern Art in New York, which prompted some soul searching in Austrian government and museum circles, the outcome of which was the world’s only Art Restitution Law;

Logo, Source: PCHA

-Congressional hearings in Washington, DC, on the role of the US government in facilitating or hampering the restitution of assets looted from Jews and other victims of the Third Reich;

–the establishment of a Presidential Commission to examine the role played by the US government in the recovery and return of property stolen from Jews between 1933 and 1945,

–the recently established Holocaust Claims Processing Office (HCPO), a component of the New York State Banking Department broadened its mandate to include looted art claims,

–the organization of a landmark international conference aimed at creating a new consensus regarding the dispensation of justice in matters of plunder against Jews and other victims of Nazi and Fascist persecution,

–passage of the Holocaust Victims Redress Act and the aborted introduction of legislation to tighten due diligence practices in American museums (an attempt that was scuttled by then Congressman Schumer’s ambition to become Senator or his close relationships with New York museums, hard to say…).

What a year!