Washington Principle #5: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference in Berlin, Germany, entitled "20 years Washington Principles: Roadmap for the Future," it would be worthwhile to revisit these Principles and to put them through a linguistic, methodological and substantive meat grinder, and see what comes out of this critique. There will be eleven articles, each one devoted to one of the Principles enacted in a non-binding fashion in Washington, DC, on December 3, 1998.]

Principle #5:
V. Every effort should be made to publicize art that is found to have been confiscated by the Nazis and not subsequently restituted in order to locate its pre-War owners or their heirs.
“Every effort should be made to publicize”:

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

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

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

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

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

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

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

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

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

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

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

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

Principle #5 could be rewritten and broadened as follows:

In order to facilitate the location of pre-1933 owners and/or their heirs, every effort shall be made to draw up and disseminate to as wide a public as possible all information regarding artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945 and not subsequently restituted.

Analysis of an address by Ambassador Stuart E. Eizenstat at Prague in June 2009

On June 27, 2009, US Ambassador Stuart E. Eizenstat spoke the following words to the assembled participants at the Prague Holocaust Era Assets Conference:

“Like the Holocaust itself, the efficiency, brutality, and scale of Nazi art theft was unprecedented in history. Experts have estimated that as many as 600,000 paintings were stolen, of which more than 100,000 are still missing. When furniture, china, rare books, coins, and items of the decorative arts are included, the numbers swell into the millions.

At the Washington Conference, we obtained a consensus from 44 countries on a voluntary set of Principles on Nazi-Confiscated Art, which profoundly changed the world of art. The guidelines have important moral authority. They called on museums, galleries, and auction houses to cooperate in tracing looted art through stringent research into the provenance of their collections. Leeway was to be given in accepting claims. An international effort was to be made to publish information about provenance research. A system of alternative dispute resolution was to be considered to prevent art claims from turning into protracted legal battles.

Since none of these principles was legally binding, one may legitimately ask whether anything has really changed. The answer is unequivocally yes.

Major auction houses conduct thorough research on artworks that they bring to market, museums examine the provenance of any prospective purchases carefully; and private collectors consider the prior history of paintings they have under consideration. Some 164 contributing U.S. art museums have developed a creative web “search engine,” with over 27,000 works posted, which allows potential owners of Nazi-looted art to input their claim into one place, and have it considered by all the museums linked to the search engine. And hundreds of artworks have been returned to their rightful owners.”

Interestingly enough, the estimated number of looted paintings still to be recovered has now increased significantly since the December 1998 Washington Conference on Holocaust-Era Looted Assets, from 125,000 to 600,000, and, if one adds all sorts of other things into the mix, we might reach a figure into the millions. Progress has indeed been made.

Ambassador Eizenstat truly believes that something has changed since late 1998 as a result of the enactment of the Washington Principles. He is correct to point out that major auction houses conduct provenance research on works that they offer for sale. At this point, the expression “major” refers to only two houses: Christie’s and Sotheby’s. No one has yet asked DePury, Bonham’s, Butterfield’s, Artcurial, Lempertz, and hundreds of other auction houses if they are applying themselves as dutifully as the two leading global auction houses in order to ensure that stolen art does not come to market through their good offices. In other words, the global private art market is like a gigantic sieve with thousands of holes in the mesh. Christie’s and Sotheby’s are able to plug their particular part of the sieve while looted works are passing through all of the others. Where is the policy that plugs those other holes in the sieve?

Ambassador Eizenstat then refers to the “creative web ‘search engine’” developed by the museum associations in the United States which lists more than 27,000 objects with uncertain or incomplete provenances. Granted, the site has existed now for some time under the odd acronym of NEPIP. However, since the Museum associations do not release any statistics on how many ‘hits’ have resulted from consulting NEPIP whereby potential claimants found their missing cultural possessions there, it is difficult to imagine how there have been “hundreds of artworks returned to their rightful owners.” The United States has, by far, one of the worst track records in the world when it comes to restitution of looted cultural property. Perhaps, Ambassador Eizenstat was alluding to the repatriation of looted antiquities by American museums which, in some cases, have consisted of wheelbarrows full of illegally-excavated objects. Truthfully, it is difficult to count to 30 when it comes to the number of artworks actually physically restituted by US museums to their rightful owners. There is also the likelihood that, unbeknownst to us all, hundreds of objects have been the subject of “settlements” reached by US museums whereby claimants have been obliged to accept some form of financial compensation in return for allowing title to their stolen object to remain with the current possessor. Clarity is needed here.

In sum, after more than a decade since the Washington Conference of December 1998, the only notable accomplishment that Ambassador Eizenstat should report is that the two leading global auction houses which are both based in New York—Christie’s and Sotheby’s—are enforcing well-hewn internal mechanisms to identify and prevent looted art from reaching the open market and they are working diligently to withdraw suspicious items from their sales.

To date, there are no central looted art databases to be consulted, there are no international mechanisms put into place by which art ownership disputes can be resolved to everyone’s satisfaction, and that includes both claimants and current possessors. There have not been significant changes in the laws of nations where stolen objects are currently located, which would permit swift justice to be meted for an unspeakable theft tied to an unspeakable crime of genocide. There are no institutional efforts put into motion which promote historical research and documentation into the losses of countless objets d’art and their recycling during and after the war through private and public hands where such research would be of immense benefit to the public, as well as to specialists in the art trade, art history, museum science, international law, and related fields. To date, there is an absence of coherent public policy pertaining to the location, handling, and return of looted cultural property in all countries where such property is located, despite the 1954 Hague Convention and other international pronunciamentos that provide ethical and legal guidance to effect such returns. In fact, the tide has even turned against claimants as museums, private owners and even national governments respond more assertively to requests for restitution by using a complex array of offensive tools made available to them by the legal system of their respective countries which is by definition designed to protect the current possessor and to eliminate long-standing claims for stolen objects, regardless of the circumstances under which the objects were stolen.

Progress is elusive. However, in order to avoid the label of “Debbie Downer” (a true Americanism depicting a chronically sour individual who can't see any light in any situation), one should also applaud advancements in the critical understanding of Nazi plunder and the increased access—everything is relative of course!—to archival materials. Much has been done in this growing field since 1998, which isn’t saying much, but there is progress. The recent announcement of an “international research portal” which brings together resources from a dozen or so State archives in North America and Europe is a major step forward, albeit a limited one since the portal consists mostly of a web-based guide to building a coherent research plan. Last but not least, we are keeping our fingers crossed that the European Shoah Legacy Institute (ESLI), established as a result of the June 2009 Prague Holocaust Era Assets Conference will provide us all with some badly-needed leadership in an area that has been so sorely neglected for so long—the documentation, identification, location, and restitution of cultural assets looted during the Third Reich.