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.

Thorough research drives restitution of looted art and yet….

by Marc Masurovsky

It is absolutely fair and just to ask why, in the past two decades, there have been no systematic efforts deployed to make funds available to advance research on missing art collections and other aspects of the cultural plunder that was visited upon civilians, Jewish and other, between 1933 and 1945. Some of those funds could have come from the sales of multi-million dollar works that had been restituted in past years. A conservative estimate puts at nearly 600 million dollars the total value of paintings restituted to claimants, mostly in North America, a large part of those works having come from losses suffered by members of the Austrian Jewish community, including works signed by Egon Schiele and Gustav Klimt, darlings of the over-hyped global art market.

It is true that there have been no publicized indications that historical research played a critical role in documenting the fate of the looted cultural objects that were restituted to claimants since the 1990s. And yet, good research produces good outcomes, an admission made even by the legal counsel to the Association of Art Museum Directors (AAMD). Perhaps lawyers are to be faulted for that state of affairs. Hard to tell. It is not so much their clever swordsmanship that has enabled the return of claimed works but the meticulous documentary trail that proved beyond a shadow of a doubt that looted art works did belong to their clients at the time of their confiscation and ensuing misappropriation and that they had been illegally removed from their hands for reasons having nothing to do with their legal ownership of the works, but because of their belonging to a culture reviled by their persecutors.

Nevertheless, people are what they are and we should be thankful that the claimed objects have been returned to the rightful owners who are free to do what they bloody want with them.

As for the chronic absence of funding for research that could shed more light on the murky and dark corners of economic collaboration during the Nazi years, the unsavory role played by art dealers, collectors, museum officials, their friends in government, industry and finance, and many others, it will take brave, courageous, and selfless souls to open their checkbooks and fund such research efforts.

Ideas about establishing foundations, consortia, research-driven higher education programs, and public-private partnerships could fill volumes of idle chatter. Idle because they have led nowhere. Truth be told, where there’s a will, there usually is a way. And, in the case of historical research on cultural plunder during the Nazi era, the will does not rise beyond the threshold of cocktail discussions and “bons mots” exchanged during international conferences on Nazi looted art.

At present, institutional self-serving indifference and opportunism prevail among governments on both sides of the Atlantic Ocean and cloud any reasonable discussion on how to fund historical research into cultural plunder during the Nazi years and the impact of the destruction of Jewish cultural assets on the postwar world. Those who bear the brunt of this state of affairs are the diplomats and politicians who have mastered the rhetoric of restitution only to suppress any effort to fund research.

The exceptions: groups like the Conference on Jewish Material Claims against Germany and the Commission for Art Recovery are members of a rarefied club that have supported such research. The Claims Conference has supported for 10 years now the building and maintenance of the Jeu de Paume database of art objects looted in German-occupied France and the Commission for Art Recovery has fueled research efforts in part to assist in its international art recovery litigations. In a minor way, proprietary databases like the Art Loss Register and both leading auction houses, Christie's and Sotheby's, provided small but symbolic sums of money to jump-start such research in the late 1990s.

On a more hopeful note:

Recent progress in the understanding of cultural plunder in the past two decades must be acknowledged, although the work of many historians, researchers and scholars has not been translated into languages which could help reach a wider audience. Hence their findings are reaching a limited audience, namely in the German-speaking world and other linguistic micro-communities:

the Zentral Institut für Kunstgeschichte (ZIKG) in Munich, whose researchers are making a clear imprint on our understanding of the mechanisms of plunder in Nazi Germany and beyond,

the French Ministry of Culture on the works stuck in the purgatory of the Musées Nationaux Récupération (MNR), the CIVS and the Institut National de l'Histoire de l'Art (INHA) in Paris*,

the Dutch Restitution Committee which has amassed significant historical research to drive its decisions, regardless of how one agrees or disagrees with them*,

a research cell in Brussels focusing on M-Aktion staffed by an interdisciplinary trio of young scholars,

the Commission for Provenance Research in Vienna*

efforts conducted by British museums a decade ago which remain one of the best examples of how museums should publicize the results of their findings on individual objects,

a growing group of individual scholars and researchers who have made important contributions to the emerging field of cultural plunder. These scholars can be found in the United Kingdom, France, Belgium, the Netherlands, Denmark, Italy, Switzerland, Austria, Portugal, Poland, the Czech Republic, Hungary, Croatia, Serbia, the Ukraine, the Russian Federation, Greece, Finland, Israel, the United States and Canada.

This disparate international cacophony of research must be coordinated and given a cohesiveness to become truly useful for the generations to come. International symposia are not a panacea nor are a solution. International research centers must be established to coordinate such research, archives focused on plunder and its aftermath must be created to centralize key documents from a plethora of archival repositories found in dozens of countries, and graduate programs should be designed and offered to focus in an interdisciplinary framework on the complex question of plunder and its implications for civil society during and after the Nazi era.

* Last but not least, the five standing commissions on restitution--United Kingdom, France, the Netherlands, Germany and Austria--should adopt more "transparent" practices relative to the historical research that they use to reach their decisions--for or against the claimants--and make such research publicly accessible to benefit international scholarship.

Work in progress….

'Human Rights and Cultural Heritage: from the Holocaust to the Haitian Earthquake'

Brookdale Center, Cardozo Law School
Source: Wikipedia

This one-day symposium took place on March 31, 2011, at Cardozo Law School in downtown Manhattan.

It featured, among other things, a panel on "Nazi-Era Looted Art: Research and Restitution."  The speakers included one person from the art trade, Lucian Simmons, a vice president at Sotheby's; Larry Kaye, of the law firm of Herrick Feinstein who co-chairs its art law group; Inge van der Vlies, who is a senior official of the Dutch Restitution Committee in Amsterdam; Lucille Roussin, co-organizer of the conference and head of the Holocaust Restitution Claims Practicum at Cardozo Law School.... and myself, as co-founder of the Holocaust Art Restitution Project and the only non-lawyer and historian in the assembly.

Lucian Simmons
Source: Sotheby's

Larry Kaye spoke about the events surrounding the seizure of the 'Portrait of Walli' by Egon Schiele and the involvement of his firm in the settlement of the case with the Leopold Foundation in Vienna, Austria.  He also addressed some sensitive issues governing the plunder of the Goudstikker collection in Amsterdam and the postwar role of the Dutch government in not facilitating the restitution of many items in that collection.

Howard Speigler, left, and Lawrence Kaye
Source: The New York Times via Fred R. Conrad

Lucian Simmons described how Sotheby's is leading the charge on art restitutions, careful, though, not to intrude on the rights of the consignors and the good faith purchasers, and reminding all of us that there are two victims in this game--the historical victim who lost the work or object and the good faith purchaser who--god forbid!--was caught with it, thinking it was perfectly fine. He did address an early incident involving a painting by Jakob van Ruysdael which had been withdrawn from a sale at Sotheby's London, in October 1997 on account of its shady provenance--which indicated that it had been acquired for Hitler's Linz Museum project.

Inge van der Vlies
Source: Raad Voor Cultuur

Inge van der Vlies gave us a painstaking description of the processes involved in assessing art claims in Holland through her restitution committee, reminding us all that, had the Dutch government adhered strictly to the rule of law, no returns would have been possible to claimants because of statutory and other considerations governing ownership of works of art.  Hence, its munificence in 'doing the right thing' governs the debate on restitution.  Larry Kaye took exception to the Dutch government's interpretation of what constitutes legally binding decisions in art restitution cases.  Nothing further needs to be said here about this.

Being the historian of the group, my task was to give context to the issue of restitution. I opened up the subject writ large, going back to the Hague conventions of the late 19th and early 20th centuries which sought to define protections for civilians and their property while armies duked it out near their fields.  My point, which is not popular, is that plunder of works and objects of art motivated by ideological, political, racial, and ethnic considerations are characteristic of the first half of the 20th century, starting with Armenia, going through the muddle of the First World War, Fascist Italy, Nazi Germany, the Anschluss, the establishment of a Nazi protectorate in then-Czecholovakia, the disappearance of Poland, the Nazi invasion of Western and Northern Europe, and the subsequent onslaught against the Soviet Union and southeastern Europe.  Not much time left to discuss the fundaments of restitution except to indicate that market considerations reigned supreme in the immediate postwar which compelled the US government in 1946 to liberalize the art trade by quickly eliminating wartime restrictions on the imports of cultural objects into the US, without knowing what objects might be of illicit origin.  The US and its allies shut down art claims in and around 1948 in their respective zones of occupation in Germany and Austria, thereby shifting the claims process to national governments in Europe and the Americas.

Howard Spiegler, Larry Kaye's alter ego at the Art Law Group of Herrick Feinstein, delivered a genuinely entertaining lecture over lunch where he took on the critics of art restitution litigation, especially aimed at high-revenue firms such as his and Larry's.  Point well taken.  Someone has to do the work.  The problem since 1945? There is still no national and/or international mechanism by which claimants who cannot afford to pay legal fees can be guaranteed a satisfactory procedure through which to articulate their losses and seek redress.  It's now been 66 years since the end of the Second World War and chances are that nothing will ever happen.

The main disappointment in an otherwise productive conference was the inability of the conveners to make a link between Holocaust-era losses and cultural property disputes in the postwar era, and also to address the confusion and complications arising out of the distinction between cultural property and other types of art objects and works of art.  Currently countries such as Italy are deliberately placing Holocaust- and World War II-era losses under the roof of cultural property and cultural patrimony, thus treating a painting by Claude Monet on the same basis as an antique urn.  The end result? the likelihood that the object, even if restituted, cannot leave Italian territory without special permits.  Something akin to what takes place in Austria with works by Gustav Klimt and Egon Schiele, and in France, with any masterpiece produced on French territory.

Hopefully, at some future forum, someone will take the brave step and challenge these artificial barriers that separate antiquities from the rest of artistic production.