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.

Recap of the Gurlitt case

by Marc Masurovsky

Two and a half years have elapsed since the Gurlitt case burst onto the international scene. Here is a recap as seen through the tinted glasses of plunderedart.

November 8, 2013

HARP petitioned the German government to release the complete inventory of all of the works of art found in the Munich apartment of Cornelius Gurlitt.

January 19, 2014

The Gurlitt Task Force members are highlighted and the questions raised about its efficacy in the face of opacity from the German government to request for information about the contents of the Gurlitt collection. Emphasis is placed on the dealings of his father, Hildebrand Gurlitt, as a privileged dealer and buyer for the Nazi government in the Reich and in occupied territories.

January 20, 2015

With Cornelius Gurlitt dead, progress on understanding the contents of the Cornelius Gurlitt collection eludes everyone. To add more spice to the already entangled saga of Cornelius Gurlitt, the world finds out that shortly before his death, he bequeathed his collection to the Kunstmuseum in Bern.

January 29, 2015

Monika Gruetters, Germany’s new Minister of Culture, has sought to appease domestic and international critics about the apparent inability of the Gurlitt Task Force to make any significant progress in identifying looted art amongst the more than 1400 objects seized in Munich and Salzburg. She has pledged more funding for provenance research, announced a reorganization of agencies in Germany responsible for provenance research and documenting Nazi thefts of art objectsinto a new Center for Lost Art.

April 23, 2015

The apparent consistent stonewalling by the German government to seek a speedy resolution to the Gurlitt mess made us wonderwhether there was any genuine desire to invest the necessary resources to make of the Gurlitt case an example of how to address ethically and scientifically the complex nature of ideologically motivated thefts of property owned by the victims of Nazism.

August 23, 2015

Ori Soltes, president of the Holocaust Art Restitution Project, reviewed one of the first English-language narratives to appear on the puzzle surrounding the unraveling of the Gurlitt case. This narrative, Hitler’s Art Thief, was penned by Susan Ronald.

January 25, 2016

With the merciful end brought to the less than satisfactory work of the Gurlitt task Force, a quick overview of the Task Force’s findings added even more confusion and perplexity to an already-opaque two year long research effort that resembled more an exercise conducted in the basement of the National Security Agency than a historical research effort aimed at shedding light on the activities of a very prolific Nazi-sponsored agent trained as an art historian and museum official, Hildebrand Gurlitt.

March 11, 2016

With the announced doubling of the research budget for the newly-formed Center for Lost Art, German Culture Minister Monika Gruetters sought to appease, once again, her critics, domestic and foreign, regarding the botched outcome of the now-defunct Gurlitt Task Force. She made a critical misstep by intimating that placing Jews on a German task force called theLimbach Commission would inject bias in its proceedings.

From the publicized discovery of the Cornelius Gurlitt art collection to the shuttering of the Gurlitt Task Force,  the German government has displayed a complicated dual face to its commitment to "deal with the past", its Nazi past, and to effect some measure of justice so that German society can move forward and address the complex crimes associated with thefts and misappropriations of property, especially cultural property. On the one hand, Germany has done a marvelous job addressing the horrors that its citizens perpetrated against Jews and other groups who were full-fledged members of German civil society until they were excluded from it.  German youth are some of the most advanced in the world, outpacing American and Israeli Jewish students, in their mastery and understanding of the events that shook their country and the conscience of the world between 1933 and 1945.  On the other hand, the German government has been unable and/or unwilling to put in place an efficient mechanism by which to identify, investigate, and process humanely, ethically, and legally, instances where looted cultural assets are found in German collections, private and/or public.  The Gurlitt Task Force is the perfect example of this systemic dysfunction and reminds us that it's easier to 'deal with the Holocaust' than with its details, exemplified by looted artistic objects once owned by Jews and which are currently displayed and traded on German territory amongst German citizens, businesses and institutions.

Much work still needs to be done.

The Gurlitt Task Force "fact sheet"

by Marc Masurovsky

The Gurlitt Task Force made a three-page fact sheet available to the general public dated 12 January 2016.

Since the discovery of Cornelius Gurlitt’s private collection in November 2012, too much ink has been spilled over the origins, content and disposition of this collection, which, due to its association with Hildebrand Gurlitt, father of Cornelius Gurlitt, has borne the mark of Cain for his association with the Nazi regime and for having profited therefrom. Hildebrand Gurlitt died in an auto accident in 1956. What he left to his heirs, one of whom was Cornelius Gurlitt, we do not know. We are unaware, at least we in the general public, of the total number of art objects that were in Hildebrand Gurlitt’s possession at time of death. We do not know how many objects his son, Cornelius Gurlitt, sold on the international art market, how many he loaned for exhibitions, how many he donated, how many he gave away, how many he swapped for other objects.

All we know is what we have been told by the German authorities: that there were 1256 works of art which comprised the Cornelius Gurlitt collection. 

The Task Force set about to ascertain how many of these objects had an explicit provenance which could connect it to an act of spoliation, to a theft or misappropriation directed or inspired by the Nazi regime against its owner.

After two years of work and the employment of over 20 contractual researchers on renewable short-term contracts, the Task Force has identified only 11 works as being explicitly the product of Nazi confiscations and thefts, some of which have been returned to their rightful owners, after laborious and unnecessarily complicated negotiations.

Eleven?

499 Gurlitt-owned works are listed on the lostart.de database, proof apparently that there is still a question about their ownership histories.

Let’s look at the other figures:

507 works were not considered to be tainted as Nazi loot, of which 231 works were de-accessioned from German public museums in the 1930s. Did the Task Force even bother to research their provenances once their link to German public institutions was clearly established? What if they were on loan to those institutions prior to being purged for being “degenerate”? Will we ever know?

Isn’t it a fact that the American government upheld during its occupation of a defeated Germany the Nazi de-accessioning law as a legitimate act by the Nazi Government to protect the “values” of German society? Sounds like the forerunner of our modern-day “family values” movement. The questions surrounding that politically motivated act by the American government in the immediate postwar years should be discussed in the open. One wonders if the decision to uphold this Nazi attack against culture was not motivated more by a fear of provoking a wholesale purge of American collections which had been stocked in part by donations from private collectors and dealers who had bought large quantities of “degenerate” works on the international market at fire sale prices and justified their purchases as “rescues”. One should not be shy to express these thoughts because one’s “rescue” is another’s act of complicity with acts of plunder associated with genocidal undertakings. Indeed, had the American government declared the de-acccesion law illegal, the question of repatriating to the reborn Germany all works sold to non-German collectors--private and institutional-would have had to be dealt with in one fashion or another. It never was.

We need to return to Square One here. 

We don’t really know how the Gurlitt Task Force has defined “Nazi loot.” Does it include works that were subject to “internal plunder” during the 1930s which were acquired by Hildebrand Gurlitt at auctions at which objects were sold as a direct result of racial and political persecutions against the owners of those works, forced to sell in order to garner some income to be used to flee Germany? Did the Gurlitt Task Force consider as plundered objects confiscated by Nazi collaborators operating in German-occupied territories?

We don’t know.

We don’t even know how many of the works in Cornelius Gurlitt’s collection were acquired by him on the international art market without due regard for provenance.

We don’t know anything about the methodology used by the Task Force, the archives that were consulted, how far and deep the research was conducted.  Were private archives consulted? How many art historians were consulted as experts on specific artists? How did one determine that an object was subject to Nazi theft besides the obvious description of a Gurlitt object on inventories drawn up by agents of the Nazi government as confiscated?

We might hope that some or all of these questions have been answered in the full report of the Task Force, which was released in German, several hours before the German government made a public announcement of its release, thus giving no time even for Task Force members to review the report.

None of this sounds good. If this is the best that the German government can do under the klieg lights of international opinion, its every moves analyzed and scrutinized for the past two years, we should not hope for German authorities and their agents in museums and cultural circles to practice what we consider to be “transparency”, an absence of “opacity.”

Murkiness has characterized the Gurlitt process since the investigation into Cornelius Gurlitt was initially announced in late 2012. It appears to be as thick as odorous sludge.

Enclosed is the first page of the Gurlitt Task Force “fact sheet.”

Fact sheet

Results on Munich Stock of Artworks

1258 artworks: Total number of works Composed of:

          1224 artworks: Number of seized artworks 


          34 artworks: Finds from Cornelius Gurlitt’s estate which were entrusted to the Taskforce for 
provenance research after Cornelius Gurlitt’s passing in August/September 2013 


Thereof: 


507 artworks: Number of works that were found not to be Nazi-looted

Results:


o 231: Works which were dislocated from German museums by the “Degenerate Art” operation, but which had been acquired by each respective museum already before the Nazi regime came into power in 1933 and which were not on loan from private individuals

o 276: Works which could be attributed to the Gurlitt family stock because they either were created after 1945, or were made by members of the Gurlitt family, or could be attributed on the basis of personal dedications

499 artworks: Posted on the Lost Art online database since suspicions had not yet been ruled out that they may be Nazi-looted art

Results:


o 11 artworks: work identity assured; provenance established (4 works: Nazi-looting confirmed; 2 works: strong suspicion of Nazi-looting after establishing their provenance; 5 works: initial suspicion of Nazi-looting ruled out)


o 117 artworks: work identity assured; provenance indications on possible Nazi-looting; very specific indications in case of 25 artworks


o 27 artworks: work identity assured; due to provenance indications Nazi-looting seems unlikely


o 152 artworks: work identity assured; low provenance indications

o 143 artworks: work identity assured; no provenance indications


o 49 artworks:work identity not assured; noprovenance indications

252 artworks: Artworks (mainly from the “Degenerate Art” operation) for which further research is necessary before they can be categorized

A quick meditation on the meaning of restitution

by Marc Masurovsky
An aged claimant recovered earlier this week what, for the most part, is a painting by an artist whose ratings in today’s hyper-inflated market has reached astronomical proportions. That cannot be blamed on the claimant. The painting is by Max Liebermann, “Two Riders on a Beach”. The claimant is the Toren family. If you are not familiar with Max Liebermann, he is known as the Master of German Impressionism. Many of his works were stolen, misappropriated or confiscated by Hitler's government. Hildebrand Gurlitt, one of the most notorious art dealers and collectors of the Nazi era, loved Liebermann's works and came into possession of the Toren family's "Two Riders on a Beach." His son, Cornelius Gurlitt, kept the painting until his death and its discovery by the German government. On a historical footnote, it took the German government two years to return the painting to the Torens since its discovery was made public in late 2013.

David Toren, the claimant, is now 90 years old and is blind. Several days ago, Mr. Toren explained why he decided to sell the painting whose proceeds would be enjoyed by others. He is at an advanced age and cannot appreciate the painting that he recovered because he is blind, except through scent and touch and hearing others describe it for him. What good does that do, you might ask?

To those of you who are upset because he chose to sell the painting and who think that, once again, restitution of Holocaust-era cultural assets is all about making a quick million, think again. The point of restitution--the physical act of returning a stolen object to its rightful owner--is to mend the broken chain of ownership, a chain that was ruptured and torn asunder by anti-Jewish policies promulgated and enforced by the National Socialist government of Adolf Hitler between 1933 and 1945. The Nazi expansionist and extermination-driven agenda devastated continental Europe in more ways than one. Above all, property was forcibly and illegally removed from Jews because Nazis did not think that it was right for Jews to own property, a lame excuse to misappropriate their assets, especially financial, corporate, intangible (apartments, houses and buildings), and cultural (paintings, works on paper, decorative objects, musical instruments, and the list goes on….).

Mending the chain of ownership, recovering legal title of ownership to the claimed object, is as close to justice as a claimant will ever get to place a salve on a historic wound that stretches back seventy-five years. That’s a long time to carry an open wound that cannot heal completely. Hence, welding back together the links of that chain of ownership torn asunder by hatred, resentment, and unabashed cruelty and debasement, institutionalized across Europe, carries within it the kind of symbolism that you and I cannot even begin to appreciate and comprehend. Loss of family and loved ones is impossible to mend. How do you fill the emptiness within you created by your neighbor’s hatred towards you because of what you are?

Back to the restitution.

Once the claimant recovers the restituted item, it is none of our business what he or she does with it. It has become a private matter. We have no say in other people’s private lives, an assertion contradicted by the ever present intrusion of smartphones, social media, recording and eavesdropping devices, search engines, and what nots of the digital, electronic age which permeate our daily lives and give us the wrong idea that we are entitled to pry into other people's lives and to judge what a claimant should do with his/her recovered assets. Once more, it’s none of our business what Mr. Toren does with his painting.

Yes, in a perfect world in which none of us live except in a collective hallucination fueled by max distribution of controlled substances (Aldous Huxley's soma), we would be able to suggest to all the families of Nazi victims and their lawyers how to dispense of their restituted goods. But that’s not how the system works, not now anyway.

The Gurlitt indictment: Washington Principles vs. the German government and its partners

by Marc Masurovsky

Leave it to the diplomats, the pundits, the negotiators, the strategists, the civil servants, and those with a vested interest in doing business with our German colleagues to temper their speech, downplay the problem and minimize the fallout and significance of the Gurlitt Affair.

Reminder: In late 2012, the late Cornelius Gurlitt, a resident of Munich, was placed under tight surveillance by Bavarian law enforcement and German customs over alleged improprieties, fiscal and otherwise. The surveillance led to a search of Gurlitt’s apartment which revealed the existence of at least 1400 works and objects of art.

The rest has become history.

February 2015: Cornelius Gurlitt has been dead for almost a year. His last desire was to bequeath the totality of his art collection to a museum in Bern, Switzerland, the Kunstmuseum Bern. No explanations given. As from the beginning of the publicizing of the Gurlitt Affair in November 2013, everyone “out there” has been left guessing and speculating in the face of stultified, stony posturing from local, regional, and Federal German officials.

Let’s put the Gurlitt Affair to the test of the Washington Principles, a non-binding document drafted and accepted in December 1998 in principle as non-binding a set of recommendations, shall we say—for the art market and governments alike to follow in order to facilitate the location, identification of looted works and objects of art, and resolve as equitably as possible the ensuing mess produced by a claim for those identified looted objects.

Principle 1: Art that had been confiscated by the Nazis and not subsequently restituted should be identified

Have all Gurlitt items been identified and properly labeled as looted? As far as the public is concerned, the answer is NO.

Principle 2: Relevant records and archives should be open and accessible to researchers, in accordance with the guidelines of the International Council on Archives.
Have the relevant records been made available to researchers in order to facilitate the tagging of Gurlitt-owned items as either looted or ‘clean’?

Since the research has been tightly controlled under a pall of secrecy and quasi-national security by the German government, the answer is readily NO. The few documents that have been published on lostart.de have been redacted.

Principle 3: 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.

Those resources that are alluded to should have come in the form of money and personnel. Many suggestions—collegial ones at that—had been made by various parties inside and outside Germany to allow for the most open and collaborative research and information-sharing process. That did not happen. Few monies have been allocated—we presume—to the overall research effort, tightly controlled by the so-called Gurlitt Task Force. Therefore, the answer is NO.

Principle 4: 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.

Gaps and ambiguities permeate the status of objects in the Gurlitt collection, precisely because Principles 2 and 3 supra have been molested and neglected. Those independent maverick researchers who have given time and resources to complete their own understanding of the history of the objects in the Gurlitt collection have been stymied in their searches. Hence, the gaps and ambiguities remain vast and deep for the greatest majority of the item in the Gurlitt collection. How much consideration will be given to those gaps and ambiguities in establishing whether or not the objects are “tainted” or “clean” shall be left to the authorities and to the Kunstmuseum Bern, a terrifying prospect.

Principle 5: 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.

Publicity and openness characterized the clamor unleashed on the German authorities for their failure to even make public the list of objects found in the Gurlitt apartment and later on in a house in Salzburg, Austria. The answer is therefore NO.

Principle 6: Efforts should be made to establish a central registry of such information

The same clamor that characterized Principle 5 supra applies to Principle 6. A central registry was supposed to be established on the website of the Koordinierungsstelle Magdeburg, www.lostart.de. But the process was painful, mind-numbing and grossly inadequate, mired in bureaucratic obstruction and political games that defied comprehension. After all, we were only dealing with art objects. The answer is NO for the German government. However, as a result of the Gurlitt will, the Kunstmuseum Bern became the de factor body through which the lists of Gurlitt-owned items would be released, a massive cop-out on the part of the German government if you ask anyone about this. So, the answer is a tepid YES for the Kunstmuseum Bern.

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

As a result of a violation of most of the preceding Washington Principles, pre-war owners and heirs could not readily come forward owing to the near-absence of information on the items in the Gurlitt collection and the method by which they had been acquired, and from whom. Several families did come forward, though, and asserted their claims early in 2014. As of this writing, it does not appear as if any claimed items have been restituted to the heirs of the pre-war owners. Hence, the answer is NO.

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

In light of the negative response to Principle 7, the answer to Principle 8 is obviously NO.

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.

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

The Gurlitt Task Force was mostly stacked with German civil servants. Only three individuals with noted ties to restitution advocacy and to research on looted art were accepted on the Task Force. The new Center for Provenance Research announced by German Culture Minister Monika Gruetters is supposed to include something akin to an advisory board that might have as many as 13 members. Who will they be? Who will recruit them? On what basis? Nothing specific, as usual. Therefore our answer is NO.

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.

The verdict on Principle 11 is mixed. The Gurlitt Affair demonstrated that the German government’s process to handle questions of looted art in German private and public collections in a fair and equitable manner is broken and ineffectual. NO to Germany.

The fact that most of the items purchased by Cornelius Gurlitt’s father came from German-occupied France would have subsumed that the French government play a leading role in the resolution of the Gurlitt Affair. It did not. Therefore, the answer is NO for France.

The United States on whose territory and on whose initiative the Washington Principles were developed has always been looked upon as the moral standard bearer when it comes to questions of restitution and reparations stemming from the Holocaust and WWII. Its government was unusually quiet during the unfolding of the Gurlitt Affair. Its representatives took forever to even express their concerns about “justice”. Hence, the US gets a failing grade and a big NO.

So, what’s the verdict? Did the Washington Principle fare well in the unfolding and ensuing liquefaction of the Gurlitt Affair? It appears not, since 9 out of 11 principles were either violated or ignored.

What does that mean for the future? Nothing good unless the pressure points to effect meaningful change  come from other venues like the European Union to put some order in the house and mandate that governments in Europe behave properly when it comes to the treatment of plundered cultural objects in their midst.