In praise of future collaborative endeavors through provenance research training workshops

Preparations are currently under way to organize a third provenance research training workshop (the first two were in Magdeburg, Germany, and in Zagreb, Croatia) under the aegis of the Prague-based European Shoah Legacy Institute (ESLI) and the New York-based Claims Conference. It is scheduled to take place in the first week of December 2013.

Lostart.de of the Koordinierungsstelle Magdeburg, Source: Aachener Zeitung

Until then, it is worth reviewing some of the more unusual by-products of bringing together for one intensive week thirty or so men and women of all ages who hail from more than a dozen countries… to discuss provenance research, art looting, restitution problems, collections management, forensic methods, Kultur, and any other topic that stimulates one’s interest in such a fulcrum of debate and exchange…:

Hrvatski drzavni arhiv, Source: HDA

Dialogue

This international workshop allows participants, instructors, and specialists to exchange, discuss, argue, disagree, lament, applaud, question, and otherwise engage in dialogue for approximately 50 hours spread out over six days.

Greater awareness

Participants report how the provenance research workshop has influenced the way in which they approach the history of art objects. Others have indicated the need to modify the questions that they ask when faced with problematic provenances. Still more have recognized the importance of historical context when trying to answer that nagging question: who really owns the object?

New paths of research and inquiry

This category applies mostly, but not exclusively, to the undergraduate and graduate students from universities and colleges on both sides of the Atlantic Ocean who attended the Magdeburg (June 2012) and Zagreb (March 2013) workshops. Some indicated how the workshop encouraged them to re-think basic assumptions that they had held about their various lines of inquiry pertaining to the displacement of art objects during the Nazi years. Others chose to examine new topics when they returned to their respective institutions of higher learning. In short, the stimulus produced by a week’s worth of intellectual discourse and exchange hit the mark.

Muzejski dokumentacijski centar, Source: MDC

Networking

The international provenance workshops do provide a unique moment to “network” in close quarters under controlled conditions. What is the end result? New chemistry, different bonds, yielding fruitful outcomes, new friendships, new sources of information, new knowledge… novelty and renewed commitments to make things better… as in proposing amendments to existing laws, facilitating recoveries of art objects, keeping current on on-going investigations into art crimes, assessing future possibilities to cooperate, realizing that research interests overlap, working together, sharing information...across cultures and disciplines, whether from North America, Western Europe, Central Europe, Southern Europe, Eastern Europe, other parts of Europe and the Middle East.

Funeral for the idea of a US Commission on Looted Art at the Peace Palace in The Hague, Netherlands, on November 27, 2012

Absurdity funeral, Francisco Goya
Source: Wikipaintings

No one likes to be the bearer of bad news. US Special Envoy for Holocaust Issues, Douglas Davidson, is no exception.

Davidson’s highly anticipated delivery at the “Fair and Just Solutions” International Symposium held in The Hague, Netherlands, on November 27, 2012, was cryptically dubbed “New Developments.” Fitting irony: the symposium was held at the Peace Palace in The Hague.

What new developments might have arisen in American government circles which had eluded most specialists and “insiders” in the contentious field of restitution of art stolen during the Holocaust and the Nazi years? It could certainly not be the creation of a US Commission on Looted Art, since the person who gave rise to this idea was former Ambassador Stuart E. Eizenstat, envoy extraordinaire on all matters pertaining to the Holocaust since the Clinton years.

The idea for a US Commission on Looted Art was first announced at the end of the Holocaust-Era Assets Conference held in Prague in late June 2009. This conference, which produced its own declaration—The Terezin Declaration—was the “follow-up” conference to the Washington Conference on Holocaust-Era Assets held in Washington, DC, in early December 1998, which brought us the now-ubiquitous and oft-cited Washington Principles on Nazi-Confiscated Art.

Since the Fall of 2009, the US Department of State, in concert with Ambassador Eizenstat and then Special Envoy on Holocaust Issues, Christian Kennedy, organized a series of “town meetings” whose purpose was to foster dialogue amongst all parties interested in the creation of a commission which would provide resolution mechanisms for claims filed by individuals whose families had suffered cultural losses at the hands of the Nazis and their Fascist allies more than sixty-five years ago and who wished to recover their lost property from American museums.

The sense one gleaned from these town meetings was that Ambassador Eizenstat was intent upon keeping his word—the creation of a US Commission on Looted Art—no matter what this Commission looked like and what it actually accomplished, as long as he could not be blamed for having made an empty promise.

The body language during those town meetings was unmistakable: any US Commission on Looted Art would require the approval of American museums, their directors and legal advisors in order to pass muster. That alone signified that this Commission might end up being a dead letter owing to museums’ steadfast refusal to acknowledge the validity of Holocaust-era claims for looted objects in their collections.

As for Ambassador Eizenstat, his constant references to the Presidential Advisory Commission on Holocaust-Era Assets (PCHA) from 1998-2000, the London Conference on Looted Gold of the late 1990s, created the impression in those town meetings that his ideas about Holocaust justice had not evolved since 1998.  During those meetings, Eizenstat would make continual reference to the so-called International Committee of Eminent Persons, a group of … well, eminent persons who sat around and pontificated about matters which involved complex historical evidence, complex forensic evidence, and far more complexity than anyone might be ready and willing to absorb in order to decide the fate of a family’s claims for property lost during the Holocaust.

The model proposed by Ambassador Eizenstat—occasional meetings of such a grouping of eminent persons who would be asked to review “meritorious” cases brought before them with respect to looted art in American museums—required that the reviewers of such cases be impartial and not at all connected with the issue of looted art and its postwar restitution.  That suggestion alone even raised the hackles of American museum lawyers who rightfully argued in tandem with art restitution lawyers, specialists, researchers, and claimants, that the adjudication process for looted art claims would be badly served if the fate of those cases rested on a poor understanding of historical research.

Good research alone was—is, and will always be—the “ad minima” guarantee for any "reasonable" approach to a looted art case. For that to happen, any US commission on looted art worth its pound of salt would have to rely heavily on professional, methodical, and empirical historical research into the circumstances of Holocaust-era thefts and misappropriations of art objects from Jewish homes and businesses.

In this time and age, research budgets do not fall within the purview of the US government, especially when the day-to-day business of members of Congress and Federal officials is to slice and dice budgets. Holocaust research? Forget about it…

Hence, the financing model for a hypothetical US Commission on Looted Art would require some form of partnership with the private sector or a system—as yet undefined—of grant-making that would allow for case-based research to occur as a precondition to reach any decision on a looted art case brought before such a Commission.

At the time of its death, the US Commission on Looted Art, as described by Ambassador Davidson at The Hague, was supposed to consist of two branches—research and adjudication—both separate and distinct so as to preserve their integrity and impartiality. That’s as far as anyone went. At least, that’s as much as we will know for a long time to come.

On Tuesday, November 27, 2012, shortly before noon, Ambassador Davidson became the inevitable bearer of bad news, announcing to a surprised and somewhat puzzled international audience that the US government was hoisting the white flag of surrender on the mast of its errant flagship, the "USS Restitution", thereby abandoning all efforts to promote a government-supported mechanism to resolve looted art cases.

Quoting Cicero frequently, Ambassador Davidson waxed eloquently at the Commission’s funeral for an idea that, like the late Generalissimo Francisco Franco of Spain, took a very long time to die.

Needless to say, many delegates from the five standing committees (British, French, Dutch, Austrian, German) dealing with art restitution matters in Western and Central Europe expressed their dismay over the American refusal to share in this unprecedented international effort—however limited—to heal the wounds of genocide by providing mechanisms to allow claimants to be heard and to receive justice-either through compensation or restitution.

What does the future hold?

For families seeking redress in the United States for a historical crime committed within the framework of a genocide, the verdict is: lengthy, tedious and bankrupting legal proceedings in the complex and often unfriendly American legal system which worships private property.

Two questions to consider:

1/ does this decision to abandon the creation of a US Commission on Looted Art mean that the US government is likewise forgoing any public efforts to address historical crimes of cultural plunder? Does this mean that cultural plunder is, once more, relegated to the category of an unfortunate plague of history during which one must “roll with the punches” thus returning the civilized world to its colonial past--somewhere us somewhere in the 19th century?

If so, this bodes badly for the fate of S.2212, which is currently pending in the US Senate, a bill that, if passed, will allow looted art to enter the United States, unfettered by legal claims for the return of those stolen objects, while on US territory.  Since the US presents a more favorable climate under which such claims can be filed, the passage of S.2212 will be the last nail in the coffin of restitution efforts as we know them in the United States.

2/ what role did American Jewish organizations play in the decision to abandon the idea of a US Commission on Looted Art? Now that the post-mortem of the Commission’s demise is upon us, someone will have to examine the critical role played by the organized American Jewish community in ignoring and oftentimes opposing restitution of art looted during the Holocaust years. In fact, one could rightfully argue that, notable exceptions like the Claims Conference aside, the systemic refusal of the leadership of the American Jewish community to defend the rights of Jewish families to recover art stolen from them during the Nazi years and the Holocaust has made it possible for American politicians to cast the principle of cultural restitution as marginal and irrelevant. Hence, if there is blame to assign—this is not an enjoyable assignment—it must be spread equally between Ambassador Stuart Eizenstat and the leadership of the organized American Jewish community.

What now?

Annex:

Links to the five standing committees in Europe which address art restitution matters:

Austria: Beirat of the Commission for Provenance Research
France: Commission pour l'indemnisation des victimes de spoliations

Germany: Advisory Commission on the return of cultural propertyseized as a result of Nazi persecution, especially Jewish property

Netherlands: Dutch Restitutions Committee
United Kingdom: Spoliation Advisory Panel

Confessions of an art looting “expert” (II)

Here’s a question: How did I get here?

Well, I will do my best to answer this impudent query of mine.

Main Gate at Birkenau
Source: Wikipedia

My story begins in the summer of 1967 when I visited Auschwitz-Birkenau with my parents while trekking through Poland in a red 2 CV Citroen, which was a real hit amongst our esteemed Polish friends. While I was astounded and fascinated by the massive concentration camp, my parents wanted to leave as quickly as possible. Needless to say, I was marked for life. I should take a short break here and tell you that both my parents are/were American expatriate artists who sought the Bohemian life in 1950s Paris after escaping from New York City and their respective families. They settled down in and around Montparnasse on the left bank and spent their lives painting, drawing, socializing, and plying their craft until death did them part.

Fast forward to the 1970s: I spent my adolescent years cutting my teeth on the hardscrabble political turmoil of the Parisian student movement. Not much needs to be said about three long years dodging nasty neo-Fascist gangs. That was enough for my political awakening and a constant reminder that some people take their Fascist politics very seriously even three decades after the death of Adolf Hitler and the onset of the Cold War.

In 1980, several years after graduating from Antioch College, in Yellow Springs, Ohio, I became a consultant for the Office of Special Investigations at the US Department of Justice in Washington, DC. Although my main duties were to help with lawyers’ investigations into the past activities of war criminals living in the United States—mostly Belorussians—I also focused on the postwar recruitment of Nazi war criminals by Allied intelligence, and especially American agencies. I found myself more often than not sifting through documents in the dusty stacks of the National Archives at 7th street and Pennsylvania Avenue, NW, in downtown Washington. There, every day, I would peruse documents drafted by agents and analysts of the Office of Strategic Services describing how war criminals were escaping detection in the mid-to late 1940s and finding freedom and refuge in safe havens across Europe, the Middle East and the Americas. This was my first introduction to looted art—the trading of plundered art by Nazi criminals and collaborators to obtain exit papers, visas, forged identities, passports, so that they could enjoy the fruits of their plundering ways in faraway places. I was hooked, I was fascinated, I could not stay away.

Alphonse d'Amato
Source: Wikipedia

Fast forward to 1995: The Swiss banks are being pummeled by Edgar Bronfman, the scion of the Seagram’s fortune and a leader of the American Jewish community. He has recruited Senator Alphonse d’Amato to lead the charge against these banks for their systematic misappropriation of funds and assets deposited by individuals of Jewish descent during the 1930s and early 1940s in the vaults of hundreds of financial institutions across Swiss territory. Many of the account holders died during the Holocaust or never reclaimed their accounts and the bankers made away with their money and valuables. The Swiss bank litigations re-opened the wounds of the failed restitutions of the postwar era. And they paved the way for art restitution claims. A key element of the negotiations with the Swiss banks was the exclusion of cultural assets deposited in those banks from any settlement reached between the plaintiffs’ lawyers and the banks’ representatives. I joined a committee of experts at the law firm of Cohen, Milstein, Hausfeld and Toll, to come up with a realistic estimate of the Swiss banks’ liability towards Holocaust victims. I was in good company: Willi Korte, the doyen of looted art investigations in the US; Sydney Zabludoff, a former CIA analyst specializing in black markets and money laundering; Fritz Oppenheimer, a Swiss banking specialist who taught us how to bill law firms; and Cees Wiebes, a Dutch expert on corporate cloaking during the Second World War. Three months of hard work yielded the following result: Swiss banks would have to pay 10 billion dollars in compensation to Jewish victims. The ultimate settlement reached several years after our finding: $1.25 billion. In other words, a toothbrush settlement.

In the spring of 1997, Willi Korte and I thought it would be a great idea to house a looted art database project at the US Holocaust Memorial Museum in Washington, DC. The answer that we received was a resounding “NO” qualified as: “This project does not fit within the mandate of the US Holocaust Memorial Museum.” Dejected but not defeated, we turned to Ori Z. Soltes, then director of the Klutznick National Jewish Museum at B’nai B’rith. We met with his board members and they greeted us with open arms. What a relief! The Holocaust Art Restitution Project (HARP) was born.

Robert Morgenthau
Source: Wikipedia

No sooner had we announced publicly in early September 1997 HARP’s creation than Ronald Lauder made a similar announcement and established the Commission for Art Recovery (CAR) under the auspices of the World Jewish Congress, of which he was the Secretary-Treasurer. Four months later, Lauder, in his capacity as chairman of the board of the Museum of Modern Art, faced the wrath of two Jewish families whose paintings were on loan from the Leopold Collection in Vienna, for an exhibit of Egon Schiele’s works at MOMA in late 1997. In early January 1998, spurred by HARP’s research into the provenance of those works and the odd way in which the show had been mounted, the New York Police department was ordered by then District Attorney of Manhattan, Robert Morgenthau, son of the late Henry Morgenthau, Roosevelt’s Treasury Secretary, to seize the two incriminated paintings by Egon Schiele—Night City III and Portrait of Walli—and prevent them from leaving the United States so as to give the aggrieved families a fair hearing and a reasoned shot at pleading their case for restitution.

The Walli case dragged on for another 13 years while Night City III returned to Austria. However, the seizure of the two paintings struck the Austrian government broadside and provoked an unprecedented debate about cultural plunder and restitution in the homeland of Ruth Jarai, rightful owner of “Walli” and of Marie Altmann, rightful owner of “Portrait of Adele Bloch-Bauer” by Gustav Klimt. The seizure led to the enactment of a series of restitution laws aimed at righting some of the wrongs of Austria’s post-Anschluss Nazi past.

"Of course I'm back: I just nipped out for a bit of wall decoration"
Art Theft, Stanley Arthur Franklin, 1967
Source: The Book Palace

Direct action—Drastic circumstances require drastic remedies even if it means forcing the hands of foreign governments, shaking up the international art market but not enough to rattle it into compliance. After several years, the status quo returned quickly, all was well, the fear of subsequent seizures waning as lawyers and diplomats ran roughshod over the renewed debate on restitution of looted cultural assets.

Although the Washington Conference of December 1998 had convened representatives and delegates from more than 47 countries to discuss how to resolve these decades-old problems of property returns to Jewish victims, the pundits went home, satisfied that they had done their duty to pledge to ‘do something.’ National commissions emerged in many European countries to investigate the wrongs of that war with limited impact on the quest for historical truth and the imposition of equitable remedies for spoliated families and their heirs. In the absence of meaningful public policies aimed at righting those historical wrongs, national governments across Europe and the American government, left it to the ‘market’ to adjudicate the merits of Holocaust-era cultural claims, thus handing over to the legal community an inherently political debate requiring political solutions. In the United States, the Clinton Administration was beholden to its donors and was reluctant to investigate the ill-doings of American museums during the life of the Presidential Advisory Commission on Holocaust-Era Assets (PCHA) which had been voted into existence by an act of Congress in June 1998. The Commission proved quickly to be ineffectual in carrying out its Congressional mandate and, in essence, violated the terms of the legislation that had empowered it, content to rehash the usual mantras of wartime plunder and avoid the thorny questions of looted cultural assets entering the United States. Those stolen, unrecovered assets entered countless museums, which receive substantial Federal fiscal advantages in the form of tax-exemptions. A largess unmatched in the rest of the world where cultural institutions are mostly run by national governments. Surprisingly, the PCHA ruled that there was no looted art problem in the United States and that further research would be needed to ascertain the opposite. How convenient! The Commission went out of business in the spring of 2000, as quietly as it had come into existence.

Fast forward to the Holocaust-era Assets Conference of June 2009 in Prague: this follow-up to the 1998 Conference in Washington, DC, was born to fail, especially as pertains to the question of looted art. Pre-conference planning was secretive, heavily politicized, did not involve claimants and their representatives, nor did it tap into the pool of international experts in art restitution matters, relying instead on government representatives overseeing questions pertaining to looted art or trophy art in their respective countries. Hence, despite some token input from groups like the European Commission on Looted Art (ECLA), the fate of claimants’ cultural assets rested almost exclusively in the hands of museums’ representatives and government civil servants with international Jewish organizations unwilling to commit themselves to a meaningful strategy aimed at restituting looted cultural assets. Not a pretty picture. The end result is well-known: a diluted declaration of intent known as the Terezin Declaration which serves as a basis for future discussions. It is left up to each conference stakeholder (governments and NGOs) to interpret and apply the Declaration as they see fit, which is not saying much at all.

Hopeless? Maybe. Really hopeless? Not quite. But much time and energy has been lost in endless, sterile debates which do not address the core issues centered on the identification and restitution of looted cultural assets.

The offspring of the June 2009 Prague Conference is the European Shoah Legacy Institute (ESLI), based in Prague and overseen by the Czech Ministry of Foreign Affairs. After muddling along for two years, ESLI has finally gotten a sense of itself as an organization with a mission that has 46 foreign stakeholders and NGOs to bring about proposals for lasting solutions to reach some form of closure regarding the compensation of Holocaust victims, the restitution of looted art and Judaica, the provision of care to needy survivors, and the settlement of immovable property questions especially in Eastern Europe.

Source: WRJO

Its advisory council is comprised of five working groups that address those areas, including one for looted cultural assets and one for Judaica. The mission of ESLI is open-ended and it will be as effective as its participants are willing to make it despite the fact that there is great skepticism as to its capacity to survive and make any meaningful contribution to the general state of things.

At this point, ESLI is the only organization of its kind in the world which can address issues pertaining to Holocaust-era looted property within the framework of an international forum. Its reach can be wide and extensive only if its members allow it to be. We will see.

Meanwhile, restitution efforts continue to be focused on expensive works of art, a small unrepresentative percentage of the vast numbers of works and objects of art still to be identified and located around the world.

True, it is true that for the past ten years or so dozens of very expensive works of art have been returned to their rightful owners. More often than not, though, settlements have been reached with the current owners who retained title to those stolen cultural items with cash allotments to the victims’ families as compensation. Hence, the new justice, cloaked under the pretense of restitution, has become a vehicle for accommodating current owners at the expense of the claimants’ rights to recover their property. That’s what happens when governments fail in their fiduciary and humanitarian duties to come to the aid of those who need it the most.

Here we are in late 2011 wondering if mechanisms can be put into place to ensure that victims of Nazi thefts of cultural assets can and will have their day in court to recover what is rightfully theirs.

The complication lies mostly in the identification of those looted cultural items. Indeed, with the passage of time and the disappearance of those who witnessed or suffered directly from the thefts, the subsequent generations have lost the knowledge that their families had owned works of art, objects of art, furniture, accessories that had been forcibly removed from former residences in troubled Europe. Thus, the tables have turned. It is not so much up to claimants to speak up about their losses, but instead, the onus falls on those whose task it is to research those cultural crimes and uncover the identity of the stolen objects. In other words, the knowledge of these crimes has waned from the memories of the victims and the responsibility to ensure that those crimes are documented and brought to justice falls on those whose specialty it is to uncover the evidence and study the circumstances under which those crimes were committed, the paths taken by those objects from owner to owner and the possible whereabouts of those stolen objects. The research is overwhelming and cannot be accomplished by lone individuals. It must be grounded in an institutionalized, international undertaking whereby archival materials are systematically searched, analyzed, and relevant data are extracted from them and placed in digital repositories which allow for sophisticated searches of objects, owners, collectors, perpetrators, locations of thefts, dates, and descriptions, to name a few of those categories.

In other words, the future of art restitution efforts lies in systematic historical research and analysis. The research produces the information on unrestituted objects of art which triggers investigations and the search for victims’ heirs. Until such research efforts are put into place, the most effective tools of restitution at the disposal of claimants, at least in the United States, is for Federal authorities to intervene on their behalf, seize objects from current owners and return them to the rightful owners, assuming, of course, that the research underlying the cases is flawless.

An uncompromising position, you might say? What is the alternative then? More of the same? Upholding the sacred rights of current possessors when everyone knows that theft does not convey good title to the next owner? As Steven Bibas wrote in his thoughtful 1994 essay on statutes of limitations, traditional legal defenses as invoked by current owners only abet art thefts at the expense of the rights of claimants. Justice trumps all other considerations when it comes to righting the wrongs wrought by acts of genocide more than seven decades ago. There is no statute of limitations on genocide or any other forms of mass slaughter and crimes against humanity. That’s the plain truth.

Krakow (May 2009), Prague (June 2009), and beyond (2009-2011): Anything new?

In mid-May 2009, a dozen individuals from the United States and Europe, mostly lawyers, one historian, and several representatives of the art market, met in a classroom in the former home of General Governor Hans Frank on the outskirts of Krakow, Poland. The purpose of the meeting was to come up with a statement that might offer an alternative to the impending, inevitable Holocaust Era Assets Conference of Prague, scheduled for June 26-30, 2009.

After a day and a half, compromise was in the air, rebellious spirits subsided, and in the interest of pragmatism, a declaration was hashed out to be presented in some form or another at the Prague Conference.

Six weeks later, delegates from more than 45 countries and representatives of international non-governmental organizations, cobbled together a lengthy declaration branded with the name of one of Nazi Germany’s most perverse concentration camp experiments, Terezin. The Terezin Declaration gave top priority to the salvage of the neediest of the neediest amongst the dwindling population of Jewish Holocaust survivors around the globe. Coming almost at the end was a statement about looted art which echoed in an even more diluted manner the Krakow Declaration of May 2009.

The international community pledged to meet its obligations towards survivors and put into place national and international mechanisms to settle property questions, including cultural assets. The Czech Ministry of Foreign Affairs established an European Shoah Legacy Institute (ESLI), of which the initial mission was and continues to be to monitor the implementation of the Terezin Declaration and make recommendations on how best to accomplish that mission, providing annual reports on developments in signatory nations with respect to restitution, reparations, compensation, and aid to needy survivors. The implementation of the Terezin Declaration involves five major areas of activity, including looted cultural assets and Judaica.

Let’s take a look at where we are with respect to our favorite issue—looted art. One way to assess the situation is by looking at the relevant statements of the Krakow Declaration and the Terezin Declaration and measure them against concrete accomplishments recorded since July 1, 2009.

Aid to research:

Krakow: Exclusive government control of research into provenance and title issues and the failure to permit, encourage and enable independent research is not acceptable. We therefore urge nations to provide adequate funds to facilitate independent research and to make such research available to the general public.

The Terezin Declaration is mum on this point. As of now, the only countries which are funding provenance research at any scale are Germany and Austria.

Claims resolution:

Krakow: Taking into consideration the Washington Principles on Nazi-Confiscated Art, we urge all parties to ensure that claims to recover looted art are resolved expeditiously and based on the facts and merits of the claims, having taken into account legal, moral and other considerations, in order to achieve just and fair solutions.

Here, the Terezin Declaration is explicitly silent, but implicitly whispers something to the effect that mechanisms must be put into place for claimants. Nevertheless, despite the rare rulings coming from national restitution commissions (Holland, Germany, Austria), claimants are still forced to seek redress before the courts of their respective nations in expensive litigations. To date, no measures have been taken to alleviate the legal burden that befalls those who seek the return of their cultural property.

Cultural property and exports:

Krakow: Export control, cultural heritage and citizenship laws should not be applied to prevent the return of property to Holocaust victims. It is unjust for a country that took or came into possession of Holocaust looted property to keep it.

The Terezin Declaration ignores this point. All nations have invoked their cultural patrimony laws to prevent restituted property from leaving their territory under the pretext that those items belong to the cultural heritage of their nations. A tactic that has been used for decades now, during and after the Second World War. It is a perverse attack on the rights of individuals to be reunited with their cultural possessions and a clear abuse of power by nations seeking to prevent cultural items from being returned to their rightful owners.

Restitution laws:

Krakow: We urge nations to enact or modify laws and regulations to authorize the restitution of looted Holocaust cultural property to the rightful owners in appropriate cases.

Terezin: Where it has not already been done, we also recommend the establishment of mechanisms to assist claimants and others in their efforts,

As can be seen, the Terezin Declaration is a meek version of the Krakow declaration. However, let us not fool ourselves. Short of someone wielding a supranational equivalent of a nuclear detonator to convince nations to amend their laws so as to facilitate restitution procedures, there will be no amendments or new laws passed until the international community acts with one voice. It may very well be that an absence of political will at the national level might compel political solutions at supranational levels.

Legal impediments to restitution:

Krakow: Where statutes of limitations or prescription laws prevent the restitution of looted Holocaust property, they should be waived or exceptions for Holocaust looted property should be made in appropriate cases.

Terezin passed over this very delicate topic which constitutes the biggest legal impediment for anyone seeking a measure of justice in any asset category that was plundered during the Second World War. In some nations, stolen items can be converted after the passage of time into legitimately owned objects.

Inventories:

Krakow: We urge nations to conduct systematic surveys of works of art and other cultural objects in their collections, produce inventories of this property and make them available to the general public.

As expected, no one at the Prague Conference sought to press for the creation of inventories, a demand that has been largely unmet since the first calls for such inventories in the months that followed the collapse of the Third Reich. To date, inventories are fragmentary, incomplete, difficult to use and not updated.

Provenance research:

Krakow: We urge nations to conduct systematic provenance research and make the results available to the public.

Terezin: In particular, recognizing that restitution cannot be accomplished without knowledge of potentially looted art and cultural property, we stress the importance for all stakeholders to continue and support intensified systematic provenance research, with due regard to legislation, in both public and private archives, and where relevant to make the results of this research, including ongoing updates, available via the internet, with due regard to privacy rules and regulations.

Provenance research is one area where one can say that there has been progress, albeit limited. Efforts in most nations are not inspired by their governments, but rather by museum professionals, as in the United States, for instance. Fragmentary as they may be, those limited efforts when combined are proving the point—that concerted, coordinated international action must be carried out to facilitate complex research on individual objects, their owners, the dealers and institutions that carried them over time.

Conflict resolution in claims disputes:

Krakow: We urge nations to provide alternative dispute resolution mechanisms using qualified and independent experts.

Terezin: Keeping in mind the Washington Conference Principles on Nazi-Confiscated Art, and considering the experience acquired since the Washington Conference, we urge all stakeholders to ensure that their legal systems or alternative processes, while taking into account the different legal traditions, facilitate just and fair solutions with regard to Naziconfiscated and looted art, and to make certain that claims to recover such art are resolved expeditiously and based on the facts and merits of the claims and all the relevant documents submitted by all parties. Governments should consider all relevant issues when applying various legal provisions that may impede the restitution of art and cultural property, in order to achieve just and fair solutions, as well as alternative dispute resolution, where appropriate under law.

Although there is an apparent overlap between the two declarations, lawyers and policymakers alike have warped the concept of a ‘just and fair solution”. Just and fair for whom? More likely than not, for the current possessor who is still viewed as an innocent party in the restitution process. Therefore, one needs to proceed with caution when promoting alternative dispute resolutions because fairness is in the eye of the beholder. By the way, there is nothing expeditious about the settlement of a cultural claim.

Access to archival records:

Krakow: Acknowledging that provenance research has priority over individual privacy protection, we urge nations to open all public records and archives pertaining to the looting of cultural property through various means including theft, coercion, abandonment, forced sales, and sales under duress; to make them accessible to researchers and the public, and to provide incentives for the accessibility of privately-owned archives.

The Terezin declaration might have implicitly supported access to archival records, both public and private. But, in order to achieve fair and just solutions, all relevant records must be made available and released so that all parties can equally benefit from the wisdom contained in those documents, be they letters, receipts, lists, telegrams, reports. Access to public records is going much faster than the facilitation of conflict resolution or provenance research. But private records remain locked behind closed doors, which is a detriment both to the art trade and to the general understanding of the history of ownership of cultural objects over time and space. Here too, political action and creative solutions might be needed to widen access to privately-held archives.

Monitoring:

Krakow: All nations should monitor restitution activity and make public annual reports on the making and resolution of claims and supply to the public accurate information about looted Holocaust property.

Although the Terezin Declaration omits this idea completely, it is contained in the generic recommendation for a post-Prague 2009 initiative—encapsulated by the creation of the European Shoah Legacy Institute (ESLI). However, there has yet to be any distinctive output from ESLI on this and related matters since its founding two years ago.

Documentation:

Krakow: We urge all nations to create facilities where information is available on restitution procedures in other countries.

ESLI is supposed to be one of the key facilities through which information can be found on the practice of restitution in countries that participated in Washington in 1998 and in Prague in 2009. Still, no word from ESLI. Everyone is anxiously waiting for product.

Where do we go from here?

That is an excellent question. So far, there are no good answers that translate into effective strategies.

It might very well be that, in order to move forward on all fronts, drastic measures and severe medication are needed to protect the rights of claimants, to ensure fair and equitable processes for deciding on the fate of claimed objects, and to raise the general level of awareness amongst specialists and laypersons alike as to the mechanisms of cultural plunder and its long-term impact on civil society.

Heirless Jewish property and treasure hunting in the Czech Republic

Ever since the end of the Second World War, politicians, diplomats, officials and bureaucrats in leading international Jewish organizations, non-governmental organizations, scholars, and historians alike have butted heads on what to do with so-called “heirless” property, or property for which no rightful owner can be found because, for the most part, the family line was extinguished by genocide and war.

There still is no resolution as to how to treat this problem that spreads discomfort and awkwardness across continents, especially among cultural institutions that are the custodians or owners of objects that can be described as “heirless.” What to do? Do we leave them where they are in display cases or on shelves in museum or gallery warehouses as mute witnesses to the horrors of a recent genocidal past? What if they can be connected to a specific geographic location? Do we then return them to the place from which they might have been collected before their owners were wiped off the face of the earth?

Or do we sell them and use the proceeds of the sales to help needy survivors and their families? A solution that has long been advocated by many Jewish groups and Israeli officials.

Meanwhile, back at the ranch—so to speak—treasure hunters are busy searching for the fruits of plunder abandoned or left behind in secret hideaways by fleeing and highly-resourceful Nazi officers and officials in the waning hours of the Second World War. One set of enterprising Nazis presumably buried over 500 crates filled with treasure and documents inside shafts and underground galleries near Štěchovice, about 30 miles from Prague (Praha). A Florida-based treasure-hunting firm, Assets Restitution International (ARI), has struck a deal with the Czech government to acquire “20% of the value of assets recovered...” This agreement includes a right of first refusal “on all heirless assets.”

While the Czech government makes it nearly impossible for the heirs of Jewish victims to recover property that was stolen by the Nazis and their sympathizers between March 1939 and May 1945, it sees fit to allow treasure hunters to garner their pockets with recovered Jewish property, whether identifiable or not. According to ARI, the potential value of recoverable property might exceed one billion dollars.

Perhaps, the Czech government should steer clear of these fun projects and abide by its international commitments to aid the remaining group of Holocaust survivors recover their property instead of harassing them by erecting countless legal and political roadblocks to prevent them from recovering anything under the sham pretext that the State has superior rights to all of those assets.

To be continued...

Training the current and next generations of provenance art research specialists

by Marc Masurovsky

The most important aspect of any inquiry into looted works and objects of art lies in the quality of the research required to demonstrate the facts underlying the theft or misappropriation of the object and especially if it was returned to its rightful owner before entering into the hands of a current possessor. The work is laborious and necessitates, more often than not, creative use of documentation and resources found in a multiplicity of archives and collections in order to cobble together the often complex story of an object together before ascertaining what exactly happened to it.  An inevitable consequence of lack of expertise in these complex historical and forensic matters has been shoddy research in the context of art ownership disputes that have gone to trial over the past decade, especially as pertains to the resolution of disputes stemming from duress sales (or forced sales) in the period between 1933 and 1939.

Sadly, there is a near-absence of formal training programs in colleges, universities, art institutes, museums and other facilities which have a direct stake in the debate over looted and plundered art objects. Curiously, although many academic centers are associated with a museum which have undertaken provenance research into their collections, that activity has not produced any academic interest to teach the subject matter or to provide training to the student body.

Once the exclusive province of art historians, the dysfunctions inherent to past and present debates over provenance research stem largely from a lack of desire to do anything concretely measurable in the area of training, which is to say:

• initiate programs at the undergraduate and graduate levels in degree-granting academic institutions;
• expand the availability of internships both quantitatively and qualitatively to afford new talent a chance to do serious hands-on research and investigative work into museum collections. Incidentally, there has been notable progress made in museums where provenance research efforts have been under way. Although opportunities for provenance work through internship have increased, the corollary access to training has not necessarily followed suit, except perhaps in the most established museums. A background in art history is simply not enough for undertaking solid provenance research.
• just as importantly, provide specialized training to museum and art market professionals aimed at sharpening their forensic toolkit when researching complex ownership histories.

Issues of provenance and questionable ownership of art objects have taken on greater significance in the past five years to the point where they require serious attention from policymakers, grant-making institutions, not just in North America but in Europe as well.

It is fittingly ironic, however, that the first undergraduate program to focus on issues of cultural plunder did not see the light of day in the United States, but rather, in Germany, at the Free University of Berlin.

Pleas for training have come from all quarters, including Switzerland, Germany, Austria, the United Kingdom, Canada, and, to a lesser extent, the United States. In Canada, following a gathering of specialists in Ottawa in November 2001, the assembled participants recommended, among other things, to the Canadian authorities that there was a “need for significant support of staff training” which could only be financed by public monies. Since then, the same recommendations have been made in a report dated February 2008.

In 2004, a survey of American museums conducted by Edward Luby and Meagan Miller revealed the need for training amongst museum professionals to whom they sent questions. Especially affected were the mid-sized museums with very little resources to commit to staff training on provenance-related matters. Some proposed using advanced educational technology to provide training workshops when physical attendance is fiscally impossible to justify. Moreover, they lamented the fact that the Museum associations organized too few events focused specifically on provenance matters.

A recent Swiss governmental working group formed by the Federal Department of Home Affairs and the Federal Department of Foreign Affairs completed a survey of 531 domestic cultural institutions and recommended, among other things, “training courses” in provenance research.

Recent pronouncements at the Holocaust Assets Conference in Prague in June 2009 brought the issue of training for improved provenance research back to the fore, albeit temporarily. Those recommendations were again echoed at the May 6-7, 2011, Washington, DC, World War II Provenance Research Seminar. As usual, proof is in the pudding. Who will be the first one to undertake such a program? Or, how much longer do students, researchers, investigators, specialists, museum professionals, cultural workers, need to wait before such programs come into being?

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.

The Krakow Declaration, May 14, 2009, Krakow, Poland

The Krakow Declaration was written by a group of independent historians, attorneys, and members of the art trade, from the United States and Europe, concerned over the general lack of initiative and action on matters pertaining to art restitution.

The Declaration evolved over two days of animated discussions, its ultimate purpose to provide an alternative text to the one that would be issued at the forthcoming Prague Conference of June 26, 2009, on Holocaust-era Assets.

Here it is:

Recognizing that it is not in the national interest to build art collections with looted property or to keep collections taken from victims of religious, racial or other forms of persecution between 1933 and 1945, 

Recognizing that between 1933 and 1945, the art and cultural property of Holocaust victims was dispossessed through various means including theft, coercion, abandonment, forced sales, and sales under duress, 

Recalling the Washington Conference Principles on Nazi-Confiscated Art adopted at the Washington Conference of 1998 which enumerated a set of commitments for governments, 

We reaffirm our support of the ‘Washington Principles on Nazi-Confiscated Art’ and encourage all parties including public and private museums, galleries and auction houses to abide by them as well. 

We acknowledge that the plunder of cultural property was an integral part of the genocide perpetrated against the Jewish people and of the persecution of others and that it was a war crime and a crime against humanity. 

Exclusive government control of research into provenance and title issues and the failure to permit, encourage and enable independent research is not acceptable. We therefore urge nations to provide adequate funds to facilitate independent research and to make such research available to the general public. 

Taking into consideration the Washington Principles on Nazi-Confiscated Art, we urge all parties to ensure that claims to recover looted art are resolved expeditiously and based on the facts and merits of the claims, having taken into account legal, moral and other considerations, in order to achieve just and fair solution. 

Export control, cultural heritage and citizenship laws should not be applied to prevent the return of property to Holocaust victims. It is unjust for a country that took or came into possession of Holocaust looted property to keep it.


We urge nations to enact or modify laws and regulations to authorize the restitution of looted Holocaust cultural property to their rightful owners.


Where statutes of limitations or prescription laws prevent the restitution of looted Holocaust property, they should be waived or exceptions for Holocaust looted property should be made. 

We urge nations to conduct systematic surveys of works of art and other cultural objects in their collections, produce inventories of this property and make them available to the general public. 

We urge nations to conduct systematic provenance research and make the results available to the public. 

We urge nations to provide alternative dispute resolution mechanisms using qualified and independent experts. 

Acknowledging that provenance research has priority over individual privacy protection, we urge nations to open all public records and archives pertaining to the looting of cultural property through various means including theft, coercion, abandonment, forced sales, and sales under duress; to make them accessible to researchers and the public, and to provide incentives for the accessibility of privately-owned archives. 

All nations should monitor restitution activity and make public annual reports on the making and resolution of claims and supply to the public accurate information about looted Holocaust property.


We urge all nations to create facilities where information is available on restitution procedures in other countries. 

Krakow, Poland

14 May 2009