Provenance research on display--Part Two

by Marc Masurovsky

How is “provenance research” defined?

Some institutions stress the linguistic roots of the word “provenance.”

The Getty Museum teaches us that the word provenance comes from a French word provenir, which means "to come from." Provenance, thus, is the history of ownership of a valued object, such as a work of art.

The International Foundation for Art Research (IFAR) also indicates that provenance "derives from the French provenir meaning “to originate”. Although the term is sometimes used synonymously with “provenience,” the latter is an archaeological term referring to an artifact’s excavation site or findspot." IFAR is part of a small group of institutions that differentiates between art objects and artifacts.

One museum—The Ackland Museum at the University of North Carolina Chapel Hill—actually used the Grove Art Dictionary to define provenance as “the record of ownership of movable works of art.”

The Lauren Rogers Museum of Art inLaurel, MS, defines the provenance of an art object as ownership history—“ the wheres, whos, and whens of its past.” Like many small museums, the likelihood of an art object in its collection with a dubious past requiring special treatment is remote. This museum has found eleven objects which require additional research including a painting by Eugene Boudin. Although marginally concerned with questions of Nazi looted art, the Lauren Rogers shows us how a cultural institution can take extraordinary, one might say even disproportionate steps, to ensure that the full ownership history of these eleven objects gets properly documented.

Provenance as a legal problem

Some museums do not beat around the bush: provenance is about legal title to the object in their collections. At the Bass Museum in Miami Beach, FL, “the goal of provenance research is to verify that museums have legal title to and legitimate possession of works in their collections.” The few objects on its website display no provenance information. Hence, the message is clear. Provenance is associated with legal issues and there is no reason why the information should be made public.

At the Lowe Art Museum of Miami University, concern is expressed for the potential presence of looted objects in a museum collection, however, the language is so flat and vague that we are left wondering whether provenance is even a consideration. The same issue arises at the Vizcaya Museum and Gardens in southern Florida. There too, one is left with the impression that provenance was not really a concern prior to the 1990s but that might be due to the unique nature of the Vizcaya's collection, which derives from a handful of wealthy donors. 

The University of Arizona goes so far as to say that provenance research “can also help verify a piece as legitimate or ensure that it has been acquired by honest means.”  However, it is difficult to take the university seriously when the objects on display have no provenance information.

The same problem appears on the website of Cornell University’s Johnson Museum. Although there is an explicit acknowledgment that “resolving issues surrounding gaps in provenance has become a key focus for cultural institutions", the museum’s online display of art objects provides no provenance information whatsoever which would allow us to understand whether Cornell is engaged in “resolving issues surrounding gaps in provenance.”

Full provenance

The Getty Museum discusses a “full provenance” as being “a documented history that can help prove ownership, assign the work to a known artist, and establish the work of art's authenticity.” .

The International Foundation for Art Research (IFAR) describes the provenance as “a historical record of its ownership, although a work’s provenance comprehends far more than its pedigree. The provenance is also an account of changing artistic tastes and collecting priorities, a record of social and political alliances, and an indicator of economic and market conditions influencing the sale or transfer of the work of art."

At the Philadelphia Museum of Art, we find out that “the provenance of an individual work of art sheds light on its historical, social, and economic context, as well as its critical fortunes through time. Knowledge about individual collectors and their collections can provide insights into the history of taste and the habits of collectors, dealers, and the relationships between them,” perhaps one of the rare museums to contextualize and texture the deeper meaning of the provenance and equating it to a piece of living social, cultural, political, and economic history.

For the Walters Art Museum in Baltimore, MD, provenance research can shed light on the collecting habits of individuals.

Ideal provenance

At Oberlin College, an ideal provenance would provide the ownership history of a work “– be it a painting, sculpture, drawing, or work in another media –from the time the work was created until the moment when the museum acquired it.” But that is not going to happen for the following reason:

“The most likely cause for this is incomplete record-keeping by prior owners, and the concomitant loss of knowledge of a work’s prior history when it changed hands. Just as many people today may not know when or from where their parents or grandparents acquired a piece of family furniture or a painting or print, so too over the centuries did such information become lost to past collectors.”

If all museum websites followed Oberlin’s lead, we would all be well-advised that a complete provenance, especially for objects created before the 20th century, is nigh impossible to produce.

For IFAR, “an ideal provenance history would provide a documentary record of owners’ names; dates of ownership, and means of transference, ie. inheritance, or sale through a dealer or auction; and locations where the work was kept, from the time of its creation by the artist until the present day.”

The Yale University Library tells us how “an ideal provenance history would provide a documentary record of owners’ names; dates of ownership, and means of transference, or sale through a dealer or auction; and locations where the work was kept, from the time of its creation until the present day.”

The Duke University Library defines "provenance" as “the history of where an art object has been since its creation. Provenance research is important to A) establish a work's authenticity, B) to establish the legitimate owner of a work of art, and C) understand the history of the object for purposes of display, conservation and cultural importance.”

At the Hood Museum of Dartmouth University, we learn that provenance “literally means origin.” The research associated with establishing the provenance of an object involves “tracing the history of ownership from its present location back to its creation by the artist.” Like at Duke University, the research helps “establish authenticity, historical importance, and legitimacy of ownership.” However we are cautioned that provenance information “is rarely complete (especially in the case of objects of significant age), and it is often impossible to establish an unbroken history for an object, in spite of a researcher’s dedication to the task.”

Complete provenance

The Metropolitan Museum of Art tells us that the “complete provenance of a given work of art is often difficult if not impossible to establish.” It raises the issue of challenges that many museums belabor, rather than define what a provenance is, a somewhat defensive posture, at least that’s how I see it.

“Records of sale, particularly for paintings or objects that have not changed hands for several generations, frequently do not survive. Moreover, many private collectors buy and sell works anonymously through third parties, such as dealers or auction houses, which may or may not disclose the owner's identity. Many nineteenth- and twentieth-century dealers and auction houses are no longer in business. In those cases, records are at best incompletely preserved, if not lost or destroyed. All these factors contribute to the gaps that commonly occur in a work of art's provenance. Such gaps do not signal that the work was looted or stolen, only that the complete ownership history cannot be reconstructed today.”

Provenance and its imperfections

The Hood Museum at Dartmouth University gets brownie points for its open admission that inaccuracies can flaw provenance research and result in erroneous or distorted views of an art object’s history.  Similarly, the Worcester Art Museum is quick to point out that an incomplete provenance is not an indication of foul play. 

Some institutions pass on defining what a provenance is and what research into a provenance entails. They simply indicate that provenance is part of the museum’s daily activities and they move on to address the question of “challenges” which will be addressed in another section. 

At the Yale University Art Gallery, there is no overt mention of provenance research. One has to go digging into its collection policy to get an idea of how the Gallery “handles” art objects with a dubious past. 

At Princeton University, “research on provenance, or the history of ownership of a work of art, is a traditional part of museum practice” and “is a regular part of the research on any object that enters the collection.” The National Gallery of Art in Washington, DC, displays similar brevity and places provenance research in the context of WWII. “From its inception, the National Gallery of Art has conducted extensive research into the provenance, or history of ownership, of objects in its collection, with particular attention over the past several years to the World War II era.” 

The Smithsonian in Washington, DC, states that “researching the provenance of collections is a fundamental aspect of curatorial work, but this research is labor intensive.”  The Philadelphia Museum of Art follows the same dictum, which is to discuss provenance research as a routine in the museum’s daily life but it emphasizes its “particular effort to investigate the World War II-era provenance of the European paintings, sculptures and decorative arts in the collection.” As a side note, does provenance research extend to works on paper?

The Art Institute of Chicago stresses the fact that “since 1997, and in keeping with guidelines issued beginning in 1998 by the American Association of Museums (AAM) and the Association of Art Museum Directors (AAMD), the Art Institute has intensified its efforts to determine the provenance for the period 1933-1945 for paintings and sculpture in its collection.” One of a small cohort of cultural institutions which provides a historical context to the emergence of extensive provenance research as a concern in American cultural institutions with emphasis on the 1933-1945 period.

The Walker Art Center in Minneapolis, MN, raised a similar historical point by marking the beginning of intensive provenance research in American museums as of spring 2000:

“In April 2000, museum directors from across the country joined together to present testimony before the Presidential Commission on Holocaust Assets to discuss their desire to make information on provenance (history of ownership) research on their collections more widely accessible. As a result, the Walker Art Center has now made this research available to the general public through this website in accordance with the American Association of Museums (AAM)’s April 2001 “Guidelines Concerning the Unlawful Appropriation of Objects During the Nazi Era.”

This “desire to make information on provenance… more widely accessible” arose in the wake of the Swiss banking scandal of the mid-1990s, the seizure of Schiele paintings at the Museum of Modern Art in New York in early 1998, the framing of principles at the Washington Conference of December 1998 to guide museums on how to “handle Nazi looted art.” The Washington Conference of December 1998 fired the first official shot across the bow of the international museum community as a soft warning meant to correct longstanding practices of relativizing the history of objects in their collections, without due consideration given to events like world wars and genocide as key disruptors of the chain of custody of their objects. The Washington Conference prompted the AAM and AAMD to gear up and they issued their own guidelines on provenance for their members. “The desire to make” provenance information more “accessible” sounds more like an ex post facto rationalization and a revisionist approach to the historical reality which is that, without the Washington Conference, there never would have been such an emphasis on provenance research.

The Wadsworth Art Museum in Hartford, Connecticut, sets 2002 and 2003 as the inception of its provenance research efforts affecting 257 objects. No information is actually published on the Wadsworth's website regarding those objects which presumably carry with them issues of ownership. Perhaps the mission of this museum is to keep private the results of its research, which would be in clear violation of the intent underlying the Washington Principles of December 1998. This lack of transparency continues to affect many institutions both in the US and abroad.

Let’s be positive. 

This brief overview of how provenance research is defined in a random sampling of American cultural institutions leads me to conclude that provenance research is viewed differently, practiced differently, and as with the Walker Art Center, one wonders whether, had there been no Swiss banking scandal, no seizures of paintings in an American museum, no Washington Conference, there would have been no Washington Principles and therefore, no websites to indicate how seriously these institutions treat provenance research. All of this is water under the bridge and today's reality is strikingly different from that of the 1990s regarding individual and institutional awareness of the ethical, moral, cultural, legal consequences of provenance research.

Let's be clear. Provenance research is being taken seriously in an ever-growing number of cultural institutions, public and private, much more so than two decades ago. Their websites embody the public expression of those concerns, although there is an obvious awkwardness about how to explain why there is such a "sudden" emphasis on what was supposed to be part of a museum's daily practice. These presentations of provenance research efforts will hopefully lay the groundwork for a more comprehensive framework to a highly specialized discipline practiced in a vast, inter-disciplinary context that has grown beyond the exclusive provinces of art history and museum science.  Much still needs to be done to overcome the barriers between practitioners coming from very different specialty areas. Work in progress.

The next articles will focus on cultural institutions outside the United States, for-profit companies that tout provenance research as part of their portfolio, the “challenges” that cultural institutions profess are inherent to provenance work and how cultural institutions address the methodology underlying research into the provenance of different categories of objects including antiquities and indigenous artifacts.

What does it take? Speech in preparation for delivery at the Jewish Museum of Florida in Miami Beach on Sunday 20 February 2011

by Marc Masurovsky

Last December, Miami Beach hosted a massive art bash called Art Basel Miami Beach. Everyone and anyone who was anyone showed up for the pre-, during, and post-festivities. Fun was had by all who could afford it, those who were invited to the chic, ultra-chic, and out of this world fiestas, and who had deep enough pockets to even consider acquiring what was referred to here as ‘art.’

In a New York Times article that appeared on December 12, aptly titled, “on the billionaires’ flyway’, the author wondered whether this ‘art’ fair was just another ‘pre-Christmas break for global millionaires.” A real estate mogul, Mr. Rosen, let out a massive cliché, “art has tremendous asset potential. Art is the one thing that has the potential to appreciate.” More relevant was Mrs. Fendi’s erudite commentary: “contemporary art collecting is ‘the new shopping’ [read, for billionaires and those who can afford it]. Even more to the point, the startlingly honest assessment given by one of many globe-trotting, fair-hopping ladies: “everybody wants to be a follower, to have the same collection, and to follow the trends.” Joke aside, the sub-text of the event is unsettling.

Peel the layers and this is what you could find at Art Basel Miami Beach 2010: of the several hundred galleries that exhibited their wares at premium prices, serving bubbly all day and night to keep their potential clients ‘happy,’ more than half hailed from the US which makes perfect sense, while 36 came from Germany, 19 from the UK, 14 from France, 12 from Italy, 9 from Spain, 8 from Switzerland, and a smattering of others from Latin America, and Asia. Should it exist and be available, a looted art sniffer dog would have focused its finely-tuned truffle at Art Basel Miami Beach on 10 galleries, 90 per cent of which were homegrown, and more particularly, from New York. The few others came from Canada, Switzerland, and Germany. But, there was no such sniffer dog at Miami Beach, nor is there one in any other art fair in the world except perhaps at the annual Maastricht Art Fair which, once a year, harbors the highest concentration in the world of pre-1945 works and where one expects to pick up at least several looted items.

Earlier this week, I went on a quick virtual tour of the art market in Florida and this is what I found:

In the Miami area, four museums house works and objects which require greater scrutiny as to their origin. Of those four museums, three indicate on their websites that they have put in place a provenance research program consistent with the recommendations of the American Association of Museum Directors, something that they should be lauded for. By chance, those three institutions are affiliated with public and/or academic institutions, like Florida International University, the University of Miami and Miami-Dade County. The lone recalcitrant in the group is the Bass Museum of Art, which received significant donations of works of art that once belonged to John and Johanna Bass. These works cover all periods from Antiquity to the 20th century. Unfortunately, no provenances of any kind are offered to the public and visitors are left to wonder if these centuries-old objects on display might have a history prior to the time that the Bass family made their donation. Please do not feel put upon here because, in the Nation’s capital, my current place of residence, the same absence of information dominates the Hirschhorn Museum where all provenances begin with Mr. Joseph Hirschhorn himself. There, an object might be hundreds of years old, but there will be no information whatsoever prior to the mid-1960s.

Be that as it may, we find throughout the private art trade in Florida the same level of opacity that surrounds the works at the Bass Museum. The few galleries in and around Miami which house works by artists who were active on the European continent before 1945 are few, like Evelyn Aimis Fine Arts, Arcature and Wally Findlay. Neither of them provides any information about the source of the works that they stock other than to inform us whether or not they were sold.

The good news is that the art trade in Miami, and, by extension, in Florida, behaves no differently than in any other city or state in this country, and, for that matter, in the rest of the world. And there lies the problem: sustained opacity in the way objects of art are traded, staunch and inbred refusal to provide historical information about works being presented and/or sold to the public. With some notable exceptions, like Monica Dugot at Christie’s in New York, not much has changed in the international art trade since the brouhaha over looted art laid a claim for headline space in the US and Europe starting in the mid-1990s.

Take for example, the San Telmo neighborhood in Buenos Aires, which offers more antique stores per square block than in Paris. There, no questions are asked, no answers are provided, pieces are offered for sale, where galleries don’t record the owners’ names. Less or close to nothing is really best. And, yet, the greats of this world including famous American and European actors and politicians routinely shop in San Telmo for Aubusson wallhangings, Dutch old masters, genuine and fake, and French or Italian objets d’art, those very types of objects targeted for plunder by Nazi and Fascist dignitaries in the 1930s and 40s. More often than not, the best pieces are sent to Miami, Los Angeles, and New York for sale there at premium prices. If at all indicated, the provenance listing in a sales catalogue for these objects will begin with the name of the antique or art dealer in San Telmo.

Why does this state of affairs persist year after year, decade after decade? One explanation might be that the art-loving public does not see fit to ask questions about objects that it covets for its personal enjoyment or for investment reasons. Neither do the sellers feel compelled to tell you anything about what they sell save for what ensures the sale. In some respects, the art market continues to behave like one big bazaar, a refined version of San Telmo on a global scale.

The art trade thrives on complacency, apathy, and a general disregard for transparency. Those who nurture it are addicted to their own delusional sense of belonging to an elite which lives by its own set of rules, a fantasy that comes to a temporary halt whenever a US Customs agent handcuffs you or your dealer for partaking in trading of looted cultural property. These corrective measures are few and far between, but, when they occur, they do make an impression, not enough though to stanch the flow of stolen cultural property across borders.

How does one even begin to address this perennial problem?

Almost 90 years have elapsed since Benito Mussolini seized power in Italy. 78 years have passed since Adolf Hitler took control of Germany.

After 12 years of murderous rule and racially-motivated expansionism across Europe, at least 55 million people had died, millions of households destroyed, millions of objects of art belonging to persecuted civilians had been reshuffled like a mad deck of cards across the face of the European continent, and that’s not even factoring in the exactions and widespread thefts committed by the Japanese Imperial Army in Southeast Asia. In other words, a global mess!

Nearly a century has gone by, scarred by Fascism, National Socialism, Rexism, all other forms of racial, ethnocidal, genocidal authoritarian regimes that could be hatched by civilized men and women. US policy towards those right-wing and far right isms had always been skeptical but never to the point of requiring the severing of commercial and financial ties. After all, business has traditionally dominated the instrumentalities of American foreign policy almost since the founding of the Republic. A JP Morgan banker once said in 1941 to an American lawmaker: the interests of the house come before those of the State. This is the same bank that tripled its profits in wartime, German-occupied France by trading in stolen Jewish property and which was never held accountable for its war crimes owing to the bank’s intimate connections to the Washington establishment and especially to the US military. So, there you go. Our businessmen were busy trading with the Axis Powers way into the Second World War when it wasn’t so patriotic to do so. Once the conflagration ended in May 1945, the question of what comes after became suddenly urgent. Added to that the crushing reality of systematic, wholesale, plunder in 20 European countries was far more than any self-serving politician or civil servant could grasp. An overriding sense of outrage nevertheless prevailed long and deep enough in Washington and London to produce the contours of a righteous postwar policy that would recommend as one of its cardinal principles, the restitution of looted property to its rightful owners. It didn’t take more than a year, though, for the victorious powers to become so embroiled in the day-to-day scramble to manage liberated territories, stabilize the frontlines, feed starving millions, figure out what to do with millions more refugees displaced by so many fronts, that, by the end of 1946, the liberators were incapable of staying focused on upholding justice for the victims of the Holocaust and world war. They prosecuted in a symbolic and highly effective forum a handful of perpetrators at Nuremberg. In a fitting irony, the four powers in charge of the International Military Tribunal and of Allied restitution policy writ large engaged in a reckless and mercenary race to recruit thousands of former war criminals and anti-Semitic civil servants and businessmen to help them fight the next big one, but more importantly, to assert a competitive edge in the New Postwar Order.

Restitution, the physical return of the stolen object to the aggrieved party, soon gave way to reparations, the check is in the mail substitution for the actual object. By 1948, the United States government and its European allies had lost interest in the cumbersome process of locating, identifying, and restituting stolen cultural property to rightful owners. What’s more, customary international law precluded governments from doing door to door delivery of restituted property. The identified object had to be sent back to the place whence it came, and let the government of that country handle its physical return to the rightful owner.

We can argue all day and night about numbers—how many objects were actually looted across the Reich and Axis-occupied Europe, how many did the Allies find, how many did the Soviets bring back home as trophies, how many did the Allied Powers actually repatriate or send back correctly or incorrectly to the presumed countries of origin, how many were restituted to their rightful or not so rightful owners. And finally, how many objects and works still remain unidentified in private and public collections around the world as cultural property looted against a backdrop of wholesale persecution and extermination.

Moi? I, for one, certainly won’t play that game, not now, not ever. Nor would I ever attempt to provide you or anyone else for that matter a guesstimate—what an ugly accounting word!—of the value of those stolen objects.

Suffice it to say that an overwhelming number of cultural objects changed hands by the use of force and duress over the course of 12 years of Nazi rule in the Reich and occupied Europe and more than 20 years of Fascist rule in Italy, against the will and consent of the rightful owners. A very small subset of those misappropriated objects fell into the hands of the victorious Allied powers, and an even smaller subset of those discovered objects was repatriated, and a subset of that subset was restituted to the few families and owners who filed claims at the end of the war. If my subset algebraic algorithm is correct, a very small percentage of stolen cultural objects has ever made it back to their rightful owners.

What of the rest? Postwar officials, art historians, museum directors, and other like-minded folks nurtured the fiction that most had been destroyed in raging fires produced by Allied air raids, or during pitch battles between opposing forces along the various front lines, or more romantically, that the Nazis and fascists and other chauvinistic ignoramini of all sorts had slashed, maimed, and otherwise destroyed umpteen works of art because of their so-called degenerate or objectionable nature. The truth can be found in another constellation outside of the Milky Way. I will grant you this much, close to 10,000 works of art were in fact destroyed by the Nazi regime, because of their Judeo-bolchevik, prurient, dark, depressing, oversexed and pacifistic themes. We get closer to the historical truth when we examine the international art market and realize that most works and objects were sold or exchanged either person to person, or through intermediaries, in galleries, auction houses, or museums. across Axis-occupied Europe and the countries not at war with either side. In short, the vast majority of stolen works of art, and furniture and accessories and antiquities and tribal art and religious objects were recycled through the private art market. The system was extremely sophisticated, refined at a time when most of Europe was under military occupation and the subject of genocidal policies. The Nazi administration and its local collaborators provided the needed infrastructure to supervise and oversee the activities of thousands of agents, middlemen, museum officials, art historians, appraisers and experts, gallery owners and collectors, opportunists of all sorts who sought and curried favors to the occupiers. They all found extraordinary opportunities to build art collections that would have been unthinkable had the Nazis and the Fascists not come to power and ripped those collections from the bosoms of the victims whom they persecuted, confined, deported, and exterminated for what they were not for whom they were.

After the war ended, US and European officials acted in concert to restore the free and open trade of goods, including works and objects of art regardless of their origin. They removed all wartime barriers that would have allowed Customs officials to identify looted cultural property. In that regard, many of the same individuals responsible for helping to locate those works on the liberated European continent like the famous Monuments Men, turned around and became senior figures of the postwar art market, with insider knowledge of where stolen property could be found. Even some claimants unfortunately deprived of any moral compass thought it would be great to bring to the United States all looted works that had not been restituted so that they could be sold on the New York market.

As you probably have surmised by now, the international art trade has been engaged in a continual recycling of stolen cultural property since the advent of Fascism and Nazism in Europe. Especially telling is the fact that many of those objects were stolen from individuals who had either been burned to death or gassed nach dem Osten or whose lives had been so dislocated by the events of the war that they were in no position mentally or physically to lay claims on their cultural property for years and oftentimes decades.

These recycled objects have ended up in private hands or in public collections, When owners discover the present whereabouts of their missing property, they are faced with cynical bureaucratic obstructions and a near absence of any basic mechanism to redress this historical wrong.

You might be interested to know that there are some similarities with Japanese Americans who had been interned by the American government from 1941 to 1945. After their release, they returned to what they thought was home and found out that their cultural property had been looted and resold by local and State authorities while they languished in remote desert camps across the American West. In 1948, the Federal Government signed an agreement with Japanese American groups pledging to restitute this property. Nothing came of it and it took another 35 years for the Supreme Court to rule in their favor and give them a sense of redress, however symbolic it may be.

It is fascinating to me to see how our government, busily extricating itself from a restitution policy that it had produced, articulated and endorsed for victims of genocide in Europe, was making false promises to US citizens of Japanese extraction that it had oppressed and confined and looted while waging war against the Axis.

How could such a government ever do justice to hundreds of thousands of impoverished Holocaust survivors who had reached our shores and become citizens? The American government, the government of my parents, which is now my government and that of my children, has repeatedly failed in its duty to safeguard the rights of these individuals dispossessed by the enemies of our nation in their attempt to recover their looted property, which our troops were busy locating and recovering, and especially when such property might have landed on US territory. The same can be said with equal fervor of all governments of postwar Europe who have seen fit for over 60 years to deny most victims of the war years the return of their property which sits in government warehouses and storage areas. An unknown percentage of this property was sold on private markets through State-sponsored auctions.

There is ample evidence of these institutional, systemic lapses way into the 1960s. In the United States, Ardelia Hall, a one-woman army at the US department of State, did her very thankless best for 16 long years to repair the historic wrongs wrought by the Nazis and Fascists and effect the return of thousands of objects to their rightful owners who had relocated to the US. She encountered numerous and frequent roadblocks placed before her by her own colleagues at State, and domestic agencies which were outside her jurisdiction and who would not cooperate with her inquiries. US museums stymied her every attempt to recover items that she had located in their collections, except for a notable few like the Detroit Museum of Fine Arts. More often than not, faced with museums’ refusal to cede title, she had no choice but to persuade the victim to accept a measly financial settlement as in the case of the Krakow-based Czartoryski family against the Wildenstein Gallery in New York and the Boston Museum of Fine Arts. One of her signature accomplishments was the so-called Tripartite Agreement which brought together 12 nations in an agreement to compile lists of stolen objects and distribute them to hundreds of cultural and educational institutions in the United States and Europe, including museums, colleges, universities, and galleries, to facilitate the identification and return of looted objects. Copies of these lists have gathered multi-generational dust, abandoned on bookshelves, unattended, never consulted. Ardelia Hall retired from the US government in 1961 and died alone in 1974 in her home town of Amherst, Massachusetts.

For the past thirty years, the US State Department has received numerous inquiries from law firms representing American museums or individuals holding looted property or from museum directors themselves. All sought advice about what to do with these items in their collections. In the case of the late Eli Maurer who had worked at the Legal Advisor’s office at State, he would repeat over and over again the US government’s 1945 stance on restitution: “THEFT DOES NOT CONVEY TITLE.” Looted items in your collections must be returned to their rightful owners, Period, no discussion. Thank you very much. To no avail.

The Cold War did not help matters much. Governments on both sides of the Atlantic used it as an excuse not to pursue even symbolic efforts at restitution. Needless to say, there was no desire on anyone’s part to continue a policy that could only lead to embarrassment about past misdeeds and paint the cheeks of guilty officials tomato red. The art market had taken off in exponential numbers, museums were reshaping their raison d’etre, the Kennedy years came and went, a whole new generation was in the streets and in boardrooms, while a senseless war was being fought in Southeast Asia, civil rights and reform-minded leaders were being harassed and occasionally gunned down in American cities. The genocidal past of recent memory was on the verge of being forgotten.

Back to the Kennedy years. They were glamorous. They gave Washington a je ne sais quoi of importance, thanks to John and Jackie and Bobby. While John made history, Jackie remade the White House as is so often the case with a new administration. New politics, new furniture. Jackie loved 18th century French furniture and decorative items. She placed innumerable orders for such frivolous items in New York, with firms that, as fate should want it, had been fingered by Ardelia Hall as suspected of recycling loot from Nazi-occupied France. Since no central registries of looted property existed then and do not today, to aid in looted art investigations, it would not be easy to pinpoint whether Federal acquisitions of 18th century French items from New York interior decorating and antique businesses included Nazi loot.

By the time the looted art returned to the fore in the late 1990s, the Federal government had forsaken its past role as herald of restitution for the victims of Nazism and Fascism and had retreated into the wings, we should say disappeared, to let the market and the courts decide who should recover and who should not. There was and there is not a Federal policy on matters of restitution of looted cultural property. There are no Congressional mandates to safeguard the rights of Holocaust survivors and to mandate stricter due diligence on the part of actors in the art market. There are no fiscal consequences for dabbling in looted cultural property. No one will lose their tax exempt status if caught doing so.

And that’s the way it’s been.

Feeble attempts have been made to re-center the debate and show how forceful governments in the Americas and Europe can be when a cure must be found for injustice. International conferences are organized, much handwringing and backdoor squabbling at all hours permeates these assemblies of wise men, few women, from here and there, who come together to find a solution to the problem of restitution. The only good news about these conclaves is that they are the few opportunities available for officials and researchers and activists from across the globe to hobnob for several long days and nights and ‘keep the conversation going’ on matters of restitution. At a landmark conference in Washington, DC, in the early days of December 1998 these same officials, led by the US government, came up with a great proposal: a set of principles—the Washington Principles--that were non-binding but merely expressed the will of those who had gathered from here and far to do the right thing and see to it that justice should somehow prevail when next a looted item should appear at the doorstep of a museum or a gallery or some other entity. Do the right thing, we urge you. Do what is ethically and morally responsible but you won’t suffer if you don’t.

That was in December 1998. No sooner had the delegations of those 50-odd countries gone home, that everyone apparently forgot about what had actually been agreed to in Washington. Since then, there have been a plethora of conferences, symposia, colloquia, roundtables, square tables, meetings, conclaves, workshops, and, more importantly, court cases, one after the other, involving a wronged good faith purchaser against an aggrieved Holocaust survivor or her heir claiming property back after so many decades. Little by little, case law has developed in support or not of restitution while a small army of committed researchers has emerged in the Americas and in Europe to tackle in very modest and limited ways the massive amounts of historical research needed to untangle the web of complicities and dubious ownerships of looted works so as to ascertain who has the right to own them. They are underfunded, understaffed, overworked, in a very, very labor-intensive field where records and evidence are scattered about, even with all that is available on the Internet, including the database that I recently assembled of 20000 objects stolen in German-occupied France and Belgium.

Restitution or justice for the victim has been left to lawyers and judges. History has taken a back seat to the rule of law, a bit like taking a square peg and shoving it into a round hole. Not practical, not efficient, but there we are. Genocidal crimes distilled to fit into the strictures of a legal system unaffected by such traumatic events.

We’ve been operating like this for close to 20 years, in the name of justice. To be fair, justice has been done in a number of instances--at last count, not more than 50--where survivors or their heirs have prevailed in the courts, after years of battle against hardened, cynical, and self-righteous defendants, whether they be wealthy individuals, museums or galleries. Sam Dubbin and Tom Kline are perfect examples of lawyers using the courts to effect such justice.

Permit me to indulge in a now familiar and tiresome lament. Holocaust survivors are dying in growing numbers every day, their children and grandchildren have very little connection to their issues, sometimes they know, most times they don’t. The only ones who seem to be riding out the storm well and even better are the dealers, the collectors, the museums, the individual owners, the institutions that buy, sell, trade, display, and harbor these works and objects, which are visual and three-dimensional reminders of past genocidal and ethnocidal plunder. In at least 90 per cent of the cases, the crime of plunder has paid off and very well at that with handsome returns on the investment.

Where is our government today in all of this? I can actually tell you where it is. It’s standing behind the curtain. Hamlet, where are you when I need you most?

It prefers to hide its cowardly head in the sand of amnesia and indifference. It invokes non-binding, high-falutin’ principles, first uttered in Washington, then reiterated in Vilnius, and other European cities, to feel better about not doing much of anything for a dying generation of victims of genocide. The Prague Conference of June 2009 spelled disaster, not relief, for the remaining Holocaust survivors and their chance at getting any additional redress for their decades-old losses, especially when it comes to lost art and Judaica. To be perfectly cruel, I could sense in the hallways of the Prague Conference that there would be an immense sense of relief amongst the participants when the day would come that their business would turn exclusively to memorializing and remembering, not to recovering and returning.

It takes an act of courage, an act of will, an act of honest to goodness desire to do the ethically and morally right thing to make a small difference in this god forsaken world. There are no rewards for such behavior, the streets will not be paved with gold, but, if I have one wish today, it is for all of you to attempt a mitzvah in favor of restitution. It can take many forms, small, medium, large, depending on your capacity to endure and to do something thankless and altruistic.

That’s all we have today. What are our weapons of choice against government officials, well-to-do owners, many of them in our own community, museum directors and curators, college and university presidents, library directors, foundation chairs, retired military officers, so that they might do the right thing without putting up a senseless and unneeded fight?

Public embarrassment in the press, on blogs, on facebook, tweat them into the ground, or any other way of sending messages round the planet in a flash. Continual disclosure and exposure of looted objects in collections wherever they may be, held by whomever. The historical truth is what counts with no sugar coating. The object is either stolen or it is not. There is no in-between.

The truth, the historical truth, has to be told about the fundamental inequities of this system under which we operate, in the United States, in Europe, at the United Nations, at UNESCO, in al great fora of international justice and human rights. A system that forsakes ethics and morality and reinforces the immense capacity of elected and appointed officials here and everywhere to remain indifferent in the face of historic crimes that have never been properly redressed, that highlights their callous surrender to the foreign relations of their respective nations, which relegates the interests of an aggrieved class of traumatized, scarred individuals, the last living witnesses to a half century of genocide, to the peanut gallery of foreign policy establishments.

In my country, your country, our country, I would go as far as saying that, if I were to place some type of blame in front of anyone’s door, I would lay it squarely at the door of the leadership of our community, our Congress, our State Department, and the White House. Republicans, Democrats, no difference at all.

There is a point at which we have to wonder: what does it take to gain closure on this question, this problem of looted art? What does it take to feel good the next day and say: we’ve done it. We’ve gone as far as we could possibly go and we can live with ourselves, with the full knowledge that those who died for nothing except for what they were and not for who they were, can sleep at last. What will it take?