The “heirless” game update.

by Marc Masurovsky

One would have thought that this matter of who owns what object stolen during the Nazi era would have been settled by now. After all, either one can identify the owner or not.

Simple? Not quite.

The identification process of the rightful owner of an art object which was looted between January 30, 1933 and May 9, 1945, requires research. That effort is tedious and laborious in personnel days stretching into months and in other ancillary costs—travel, lodging, and other related indirect expenses associated with the collection of information located in remote sites far away from the site of discovery of the looted object.

When there are umpteen thousand objects whose owners are not readily identifiable, the problem becomes compounded and requires a political solution at the international level.

During the worst humanitarian tragedy of the 20th century, namely the Holocaust and the genocidal campaign against the Jews of Europe, every Jewish household on the European continent which lay in the path of the Nazis and their local henchmen was subjected to plunder, seizure, and, oftentimes, destruction. Where did the contents of these Jewish households go? Everywhere.

When the Second World War ended, Jewish-owned property was strewn all across Europe. The more appealing items, those with acknowledged value, could be found in commercial outlets everywhere. Those with appreciable value because of their authorship and aesthetic quality entered private and public collections, crossed international borders, and became fully incorporated into the cultural heritage of numerous nations (read State-owned museums) and a host of private and public collections.

On 3 December 1998, at the Washington Conference on Holocaust-era assets, a set of 11 non-binding principles were put forth, largely inspired by the American museum community, to guide nations and their cultural sector in the treatment of objects shown to having been displaced during the Nazi era.

Principle #9 addressed the unidentifiable ownership issue:

“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.” I referred to this as “diplomatic hogwash.”

We are now nearing the end of 2019 and, still, there is no comprehensive approach to the disposition of art objects deemed “heirless.”

First, let’s go back to the wording. An object is “heirless” if there is no one around today to claim it as his/her rightful property by descent. To determine that the object is “heirless”, one has to conduct extensive research into its pre-Holocaust ownership. No research, no “heirless” verdict. The object remains in limbo land. After all, you have to prove, beyond a reasonable doubt, that a person of Jewish faith owned the object. How can you tell if an object was owned by someone Jewish? Does it exude some mysterious aura which is reminiscent of something “Jewish”? That is preposterous. We saw this egregious behavior with the Gurlitt scandal. And yet, intelligent people walk into German museums and proclaim that all objects in their collections with uncertain ownership which were accessioned after 1933 are, most likely, the property of Jewish owners. To that, I say categorically: “No!”.

What to do?

Back in June 26-30, 2009, I attended the official follow-up conference to the Washington Conference on Holocaust-era Assets. There, I spoke and suggested that the international community should establish “an international entity responsible for the return of such objects to their rightful owners and to dispose of so-called heirless objects in a manner that is of ultimate benefit to the families of victims, and which underwrites and promotes further research into the fate of such objects.”

Much ink has been spilled since June 2009. Looking back, it is clear that a proper resolution of the “heirless” problem is to conduct systematic provenance research in public and private collections worldwide. The likelihood of art objects with uncertain provenance which might have been the property of a Jewish owner is high in European, Israeli, and American collections. That’s where the research focus should be placed. To conduct such research, funds are required. A timeline should be established to research these objects and determine, once and for all, whether or not they are heirless. Once that decision is made, all concerned groups and governments should hammer out an acceptable solution to the final disposition of these objects.

I am clearly opposed to the following:

1/ wholesale liquidation through auction sales;
2/ wholesale transfer of these objects to Israeli institutions.

Point 2 is not feasible simply because it places an unacceptable burden on Israeli cultural institutions to welcome a potential tens of thousands of objects affected by this process. No institution can absorb them. And what good does it do to place these objects in warehouses? And, in any event, they do not belong to Israel. To apply the language of international pronunciamentos on cultural rights, they belong to “humankind.”

The solution that I favor is to ask museums which host these objects, most likely to tell their story as accurately as possible in order to educate the public. Their mission is in part to educate and share knowledge with their visitors, rather than cherry pick which objects should be discussed, at the expense of those objects with tortured histories. This reasoning also applies to looted antiquities, indigenous objects, ritual and sacred artifacts plundered from communities worldwide.

There are many other ways by which to honor “heirless” objects and their unknown owners. But the first step is to stop the political posturing and to come up with a scientific, rational approach to clear up the ownership issue. For that to happen, it requires a substantial investment, but it is an investment that all concerned nations need to share.

Washington Principle #8: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference to be held 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 #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."

On October 5, 2000, a declaration came out of an international forum in Vilnius, Lithuania, which placed heavy emphasis on the search for fair and just solutions “to the return” of looted art and cultural property. It went a bit further than the Washington Principles but did not specify what constituted a just and fair solution to a claim for restitution. Forum participants did ask that “every reasonable effort be undertaken" to “achieve the restitution” of looted cultural assets. What constitutes reasonable effort?

On June 30, 2009, at an International Conference on Holocaust-Era Assets in Prague held under the auspices of the Czech Republic, its participants issued a declaration, called the Terezin Declaration . Among other things, the declaration reiterated the implicit value of the Washington Principles, whereby looted art and cultural property should be “returned to victims or their heirs” but added that such returns be framed “in a manner consistent with national laws and regulations to achieve a just and fair solution.” The ambiguity remains since it is not clear whether restitution is a “just and fair solution” or if “restitution” is a stretchable concept that includes the non-physical return of the claimed object in exchange of a financial settlement with the claimant.

If the return of cultural assets looted during the Nazi years should be consistent with national laws and regulations, most of the signatory countries in Washington, DC in 1998 and in Prague in 2009 have not yet passed any laws or decrees framing the process of restitution of Holocaust-era looted cultural assets. In fact, their courts and legislatures have repeatedly upheld the rights of current possessors against such claims. Moreover, those nations’ cultural policies share one thing in common: the de-accession of objects from State collections is not feasible. If it must be considered as a "just and fair solution", that decision must be brought up before the legislature and/or the competent ministries. In that context, a fair and just solution does not work in favor of a claimant but rather it upholds the sanctity of State-owned or controlled cultural property over the individual rights of claimants. Put simply, the claimants have no control over what is fair and just.

Another way of looking at the logic behind the Washington Principles is that its framers could never have reached a consensus over their issuance without gutting them from the outset, thus protecting the art market, private and public museums alike at the expense of the claimant class, perhaps viewed even in 1998, as a nuisance which already riled governments with legal assaults against the Swiss banking sector over the misuse of private Jewish assets on deposit in Swiss financial institutions.

In retrospect and in anticipation of future discussions, a Holocaust claimant seeking the physical return—restitution—of his/her lost property from the possessing institution, be it public or private, would never have agreed to the notion of ‘a just and fair solution’, if it were to be anything but restitution. On the eve of the November 26-28, 2018 Berlin Conference on the Washington Principles, it is fair to ask whether current possessors, for whom the Principles were framed, have been fair and just to Holocaust claimants? Current possessors are public and private entities

Principle #8 could be rewritten as follows:

If the pre-1933 owners of 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, or their heirs, are identified, steps will be taken expeditiously to initiate restitution proceedings or any other solution deemed just and fair by all parties concerned, according to the facts and circumstances surrounding a specific case. In each and every case, the interests of the claimants will be placed on an equal footing with those of the current possessors.


Update dated 5 July 2025:


Aside from the preposterous assumption that there is a system in place in each country that allows information about the location of Nazi looted art to circulate freely to its intended audience (as of now undefined), the past 27 years have demonstrated convincingly that most governments which sent delegations to the Washington Conference on Holocaust-era assets of 30 November 1998, did nothing to facilitate communication of vital information on the location of Nazi looted art to potential claimants and their families, wherever they may be. Local organizations, agencies and interested groups as well as religious centers (synagogues and yeshivas), continue to be largely ignorant of the real scope of Nazi anti-Jewish plunder from 1933 to 1945 and its postwar consequences and are generally misinformed about restitution processes and the way that potential claimants submit claims and the expectations laid on them by governments and current possessors alike

Washington Principle #8 should be rethought. The so-called Best Practices released to great fanfare in March 2024 under the aegis of the US Department of State, the US Holocaust Memorial Museum in Washington, DC, and the World Jewish Restitution Organization to name a few, should also be revised to reflect the complex nature of any outreach and information dissemination campaign designed to sensitize Jewish claimants and their families about the existence and whereabouts of looted art objects which might have belonged to to them. The only agency capable of advising claimants is the Holocaust Claims Processing Office (HCPO) in New York City. Theory aside, who is going to pay for such an outreach and information dissemination campaign?

Justice for most families of Nazi victims of plunder and persecution remains elusive.