by Marc Masurovsky
Ambassador Stuart Eizenstat, special envoy on Holocaust affairs for the US Department of State, was one of the most prominent speakers at the 20th anniversary colloquium of the CIVS in Paris on November 15, 2019.
The main point person since the Clinton era on matters pertaining to Holocaust-era claims, Mr. Eizenstat delivered an unusual speech regarding looted art, restitution, France’s treatment of looted art in State collections, and his own legacy.
From year to year, the Eizenstat narrative on looted art and restitution has morphed and been rewritten, not for stylistic reasons but perhaps because Mr. Eizenstat has had a decades-long love/hate relationship with the whole idea of restituting art objects to plundered victims of the Nazis. And he simply does not know how to address it. After all, you cannot package art the way you bundle insurance policies, gold bars and coins, bank accounts and so forth, something that he excels at, which has yielded billions of dollars worth of settlements for Jewish victims and their families. For that reason alone, Mr. Eizenstat's legacy as a reliable and devoted advocate and champion of Holocaust victims' rights is uncontested and admirable.
Here are some of his many statements which were oftentimes punctuated by occasional spurts of ire:
-“France is going from being a laggard to being a leader” on questions of art restitution. That elicited some giggles including from Mr. Eizenstat who appeared pleased by his joke which was not really a joke.
-The CIVS conference symbolized “our last opportunity”. Let’s recall that the Prague Conference on Holocaust-era Assets in June 2009 was also “our last opportunity.”
He reminded us of his infinite capacity to repeat “fake news” about cultural losses during WWII. Unverified, the numbers put forth by Eizenstat are the same ones he has repeated since 1998.
According to him, 600000 paintings were looted during WWII, of which 100000 are still missing. In 1997, Philip Saunders of Trace database had made this unfounded assertion. (Mr. Eizenstat went on record with those numbers in 2006). The Polish government alone claims that half a million cultural objects were removed from its territory during WWII. Which irresponsible historian or advocacy group came up with these fictitious numbers? Not even the Monuments Men could be bothered to audit the cultural losses of each nation victim of Nazi aggression. The more accurate estimates situate cultural losses in the millions.
Speaking of the Monuments Men, Mr. Eizenstat delivered a paean in their honor, citing their bravery and courage (smoking pipes and sporting tweeds) in Munich and Wiesbaden, while recovering 5 million works of art! No kidding! He forgot to mention that this figure mostly accounts for books, decorative objects and State-owned art. Not much room left for Jews, is there? Moreover, 5 million might be just a tad exaggerated. But who’s counting? You get the idea. Lots of looted stuff was repatriated to countries of origin.
Mr. Eizenstat was on a roll. He posited that it was impossible to identify owners at the end of the war. If so, how did so many objects get returned? The heirless asset problem must be staggering.
Let us now enter fantasy land. In December 1997, Mr. Eizenstat came up with the brilliant idea for a conference on looted art or so he says. That’s really strange because he was firmly opposed to the inclusion of looted art in any international convening dealing with assets during the Holocaust. It was the seizure of the two Schiele paintings at the Museum of Modern Art in January 1998 that provoked the inclusion of looted art in what became the Washington Conference on Holocaust-era Assets.
Speaking of the 1998 conference, Mr. Eizenstat, since November 2018, has changed his tone regarding the 11 Washington Principles that he penned which were supposed to frame an international strategy to identify looted art in public collections (not private) and suggest ways for victims to settle their grievances with current possessors.
Well, as it turns out, these non-binding Principles were mostly based on a set of guidelines developed by American museums earlier in 1998 when faced with mounting criticism over their indifference to the presence of stolen objects in their collections. A funny way of helping claimants by seeking inspiration from the very institutions that are firmly opposed to any form of restitution.
Mr. Eizenstat went on to honor the Association of Art Museum Directors (AAMD) for setting up a task force to address the question of looted art in their collections. To that end, the AAMD issued a set of guidelines in June 1998 which served as the benchmark for the Washington Principles, of which Mr. Eizenstat is the uncontested author.
Mr. Eizenstat proffered adoring words for Philippe de Montebello. The flamboyant former director of the Metropolitan Museum of Art was a fierce opponent of restitution but a very savvy museum official who understood the value of pre-emptive strikes on issues of looted art and artifacts. To wit, he promoted the drawing up of guidelines for American museums to follow when confronted with objects in their collections that might be of dubious provenance and negotiated creative settlements with the Italian government over the presence of looted antiquities in the Met’s collections.
Mr. Eizenstat was particularly combative in upholding his legacy and defending his record against critics who have blasted him for “doing nothing” and uttering mere “words.”
Seizing the opportunity in a fiery tone, he shared a long list of recommendations and critiques in Uzi-like fashion. It was hard to keep up. Some of the more notable ones follow:
1/ he denounced the impossibility of de-accessioning restitutable objects from French museums as “a French problem.”
2/ He went on to skewer Dutch museums for having reneged on their commitment to the Washington Principles by equating the cohesiveness of their collections with the interests of Holocaust claimants—the notorious “balance of interest” doctrine approved by Dutch museums in 2016? Verify.
3/ he denounced the German Limbach commission and its 15 cases in 15 years.
4/ Once again, he congratulated the Metropolitan Museum and the Boston Museum of Fine Arts for showing the way on how to handle looted objects in their collections.
5/ Quoting the AAMD and the AAM, he observed that the NEPIP portal was worthless and “outmoded”, in other words, unusable.
6/ He criticized US museums for being so aggressive towards claimants by resorting to technical legal defenses in order to dismiss their claims.
7/ He applauded the HEAR Act as the antidote to summary judgments petitioned by museum lawyers against claimants, whether meritorious or not.
8/ He thinks highly of the JUST Act which requires countries to publish annual reports on the state of restitution in their midst.
9/ he took partial credit for launching “provenance research as a new profession.” As if it was not performed prior to 1998.
10/ He congratulated France for acting as a coordinator between the five standing restitution committees.
Then, Mr. Eizenstat pulled out his foggy crystal ball and peered inside it, noting:
1/ Forced sales and flight sales (fluchtgut) are to be included as part of the Washington Principles (the former are mentioned explicitly in the Terezin Declaration and the latter are suggested implicitly therein);
2/ provenance research is expensive and requires resources.
3/ Public museums should publish on the Internet a detailed provenance for all of their objects.
4/ research should be conducted in all museums—private and public.
5/ De-accession laws need to be changed in order to accommodate restitution of looted objects.
6/ The Washington Principles apply to private collections
7/ Every country should designate a point of reference for claimants
8/ there should be no time limits on claims.
9/ he denounced the European Union as being “behind the curve.”
10/ with regards to so-called heirless assets, Eizenstat reiterated the need for “just and fair solutions” which amount to selling off these unclaimed assets after giving research one more try. Meanwhile, the institutions holding such objects should educate their public about how they ended up in their collections. As an aside, Eizenstat lauded the Austrian solution to the heirless assets question, embodied in the National Fund run by Hannah Lessing. In short, if Austrian federal museums identify objects in their midst for which there are no identifiable owners, they are transferred to the National Fund which follows up with its own research and posts the objects on its website. After a period of time has elapsed, the Fund sets aside those objects for sale, the proceeds of which are disbursed amongst needy families of survivors. Ms. Lessing begged to differ during the question and answer period.
That was enough for one day.
Showing posts with label Terezin Declaration. Show all posts
Showing posts with label Terezin Declaration. Show all posts
22 November 2019
31 January 2016
When is “just and fair” fair and just?
by Marc Masurovsky
(updated on 5 July 2025)
It is difficult to pin down precisely the genesis of the concept known as “fair and just” or “just and fair” solution in matters pertaining to the restitution of art objects looted during the Holocaust. Who and when are almost impossible to trace.
A valid starting point is principle #8 of the “Washington Conference Principles on Nazi-confiscated art”. The “Washington Principles” were passed on December 3, 1998 at the close of the Washington Conference on Holocaust-era Assets.
“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."
Two years later, on October 5, 2000, a declaration came out of an international forum on Holocaust issues held 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 conference without getting into any specifics, diplomatie oblige, as to what would constitute 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. Hence restitution {again, without being properly defined] was invoked in the same breath as “just and fair solution.”
Eleven years after the Washington Conference of December 1998, a similar conclave of 40 odd nations and international NGOs gathered in Prague under the auspices of the hosting government of the Czech Republic. The International Conference on Holocaust-Era Assets issued a declaration, called the Terezin Declaration on June 30, 2009. In it, one can find multiple references to “just and fair solutions” without understanding at all what they are and how to achieve them. They do stipulate, however, that the Washington Conference of December 1998 established the moral (and non-binding) principle whereby looted art and cultural property should be “returned to victims or their heirs in a manner consistent with national laws and regulations [emphasis added] as well as international obligations, in order to achieve a just and fair solution.” Unless I am completely mixed up here, I read this as meaning that the restitution of looted cultural property achieves a “just and fair solution.”
In the years following the 1998 conference in Washington, DC, where the Principles were formulated, the tendency was to sharpen the link between restitution and “just and fair” or “fair and just” solutions. And yet….the word “restitution” was not defined in these declarations. If it was to mean the physical return of the looted object to the rightful owner and thereby transfer of legal title away from the current possessor to the rightful owner, many art market players like auction houses and museums, as well as governments, have violated the principle of what is just and fair by insisting that “just and fair” in all likelihood means upholding the good faith of the current possessor and asking—no, convincing—the claimant that financial compensation of some sort or another is the best result that can be achieved in the spirit of the Washington Principles of 1998. Best to invoke the trinity of Washington, Vilnius and Terezin in order to enshrine the physical return of the object.
Is that really what was meant or inferred at Vilnius in 2000 and at Prague in 2009? The answer is inconclusive, because most of the drafters and endorsers of these declarations were well aware that “national laws and regulations” would interfere with the actual physical restitution of the claimed object, especially in areas where the Idol of Good Faith rules all.
Hence, the apparent contradiction between settlements and the various declarations of Washington, Vilnius and Terezin disappears by stressing that the return of the object should be consistent with national laws and regulations. The emphasis of "fair and just" shifts in favor of the rights of the current possessor at the expense of those of the claimant.
"Dedham from Longham", by John Constable
An interesting twist to the Washington Principles involves a painting by John Constable being claimed by Alain Monteagle, representative of the Jaffe family’s restitution claim. The painting is presently located in the Fine Arts Museum of la Chaux de Fonds which is in the canton of Neuchatel in the French-speaking part of Switzerland. Historically, the Swiss federal government has always deferred to local governments’ discretion in the way that they manage or dispose of their cultural assets. If one should apply to the letter the principles enshrined in Washington and reiterated in Vilnius and Terezin, the museum at La Chaux de Fonds, which is municipal, should return the painting to Mr. Monteagle. However, if the return is subject to the “national laws and regulations” of Switzerland and the canton of Neuchatel, as well as the municipality of La Chaux de Fonds, Mr. Monteagle does not stand a chance, because civil law in Switzerland worships the good faith of the current possessor and no foreigner can come into Switzerland and claim what he/she feels is his/her rightful property, at least not since 1949, with a notable exception last year. At least, that is the impression that we are left with, if history serves as a valid reference point.
La Chaux de Fonds
Interestingly, in a 3-page report issued in January 2014, the Swiss Federal Office of Culture commented that “just and fair solutions must be sought—both when it has been possible to trace the victims and when identification has proved impossible.”
Hence, the principles of Washington, Vilnius and Terezin are not helpful in the real world and, more often than not, municipal governments and their national representatives heap scorn on them so as to safeguard their “cultural property.” If Mr. Monteagle wants his painting back, he has to wage total war against the Swiss government, the city council of La Chaux de Fonds which has oversight of its fine arts museum and the cantonal authorities in Neufchatel. To be successful, the battle for restitution must involve all aspects of civil society and should be waged inside and outside the legal system in order to "achieve a just and fair solution" consistent with Washington, Vilnius and Terezin.
Update of 5 July 2025
Since 1998, the concept of "Just and Fair" as applied to the resolution of Holocaust-era claims for Nazi looted art (encompassing losses suffered from the advent of Hitler to power on 30 January 1933 to the unconditional surrender of the Third Reich on 9 May 1945) has been embraced by governments, lawmakers, auction houses, museums (public and private), dealers and collectors, and many lawyers involved in looted art cases. It has become what lawyers and lawmakers describe as "soft law."
When "just and fair solutions" are invoked, they pave the way for a financial settlement allowing the current possessor to explain why it is not fair and just to them to relinquish the claimed object to the heirs of the victim who lost them. Moreover, these solutions undermine our understanding of the trauma of duress as experienced by those who lost their cultural goods as well as the rest of their belongings and assets.
As a historical footnote, the concept of just and fair was wholly concocted by Ambassador Stuart Eizenstat, organizer of the 1998 Washington Conference on Holocaust-era Assets and the US Government's chief negotiator and diplomat on matters dealing with reparations for Holocaust victims and their families. The American Alliance of Museums (AAM)--at the time known as the American Association of Museums--played a role in guiding Ambassador Eizenstat to formulate this concept which ended up being a gift to the class of current possessors at the expense of the interests of the claimants in their quest to obtain restitution (the physical return of their property).
Is it fair to ask whether Ambassador Eizenstat and his colleagues in major Jewish organizations involved in Holocaust reparations ever thought to sit down with claimants and restitution advocates about the implications of a "just and fair" approach to their request for restitution?
As for the Swiss government, it is on the brink of creating a Swiss commission inspired by those already in place in the United Kingdom, the Netherlands, France, Germany and Austria.
It is difficult to pin down precisely the genesis of the concept known as “fair and just” or “just and fair” solution in matters pertaining to the restitution of art objects looted during the Holocaust. Who and when are almost impossible to trace.
A valid starting point is principle #8 of the “Washington Conference Principles on Nazi-confiscated art”. The “Washington Principles” were passed on December 3, 1998 at the close of the Washington Conference on Holocaust-era Assets.
“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."
Two years later, on October 5, 2000, a declaration came out of an international forum on Holocaust issues held 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 conference without getting into any specifics, diplomatie oblige, as to what would constitute 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. Hence restitution {again, without being properly defined] was invoked in the same breath as “just and fair solution.”
Eleven years after the Washington Conference of December 1998, a similar conclave of 40 odd nations and international NGOs gathered in Prague under the auspices of the hosting government of the Czech Republic. The International Conference on Holocaust-Era Assets issued a declaration, called the Terezin Declaration on June 30, 2009. In it, one can find multiple references to “just and fair solutions” without understanding at all what they are and how to achieve them. They do stipulate, however, that the Washington Conference of December 1998 established the moral (and non-binding) principle whereby looted art and cultural property should be “returned to victims or their heirs in a manner consistent with national laws and regulations [emphasis added] as well as international obligations, in order to achieve a just and fair solution.” Unless I am completely mixed up here, I read this as meaning that the restitution of looted cultural property achieves a “just and fair solution.”
In the years following the 1998 conference in Washington, DC, where the Principles were formulated, the tendency was to sharpen the link between restitution and “just and fair” or “fair and just” solutions. And yet….the word “restitution” was not defined in these declarations. If it was to mean the physical return of the looted object to the rightful owner and thereby transfer of legal title away from the current possessor to the rightful owner, many art market players like auction houses and museums, as well as governments, have violated the principle of what is just and fair by insisting that “just and fair” in all likelihood means upholding the good faith of the current possessor and asking—no, convincing—the claimant that financial compensation of some sort or another is the best result that can be achieved in the spirit of the Washington Principles of 1998. Best to invoke the trinity of Washington, Vilnius and Terezin in order to enshrine the physical return of the object.
Is that really what was meant or inferred at Vilnius in 2000 and at Prague in 2009? The answer is inconclusive, because most of the drafters and endorsers of these declarations were well aware that “national laws and regulations” would interfere with the actual physical restitution of the claimed object, especially in areas where the Idol of Good Faith rules all.
Hence, the apparent contradiction between settlements and the various declarations of Washington, Vilnius and Terezin disappears by stressing that the return of the object should be consistent with national laws and regulations. The emphasis of "fair and just" shifts in favor of the rights of the current possessor at the expense of those of the claimant.
"Dedham from Longham", by John Constable
An interesting twist to the Washington Principles involves a painting by John Constable being claimed by Alain Monteagle, representative of the Jaffe family’s restitution claim. The painting is presently located in the Fine Arts Museum of la Chaux de Fonds which is in the canton of Neuchatel in the French-speaking part of Switzerland. Historically, the Swiss federal government has always deferred to local governments’ discretion in the way that they manage or dispose of their cultural assets. If one should apply to the letter the principles enshrined in Washington and reiterated in Vilnius and Terezin, the museum at La Chaux de Fonds, which is municipal, should return the painting to Mr. Monteagle. However, if the return is subject to the “national laws and regulations” of Switzerland and the canton of Neuchatel, as well as the municipality of La Chaux de Fonds, Mr. Monteagle does not stand a chance, because civil law in Switzerland worships the good faith of the current possessor and no foreigner can come into Switzerland and claim what he/she feels is his/her rightful property, at least not since 1949, with a notable exception last year. At least, that is the impression that we are left with, if history serves as a valid reference point.
La Chaux de Fonds
Interestingly, in a 3-page report issued in January 2014, the Swiss Federal Office of Culture commented that “just and fair solutions must be sought—both when it has been possible to trace the victims and when identification has proved impossible.”
Hence, the principles of Washington, Vilnius and Terezin are not helpful in the real world and, more often than not, municipal governments and their national representatives heap scorn on them so as to safeguard their “cultural property.” If Mr. Monteagle wants his painting back, he has to wage total war against the Swiss government, the city council of La Chaux de Fonds which has oversight of its fine arts museum and the cantonal authorities in Neufchatel. To be successful, the battle for restitution must involve all aspects of civil society and should be waged inside and outside the legal system in order to "achieve a just and fair solution" consistent with Washington, Vilnius and Terezin.
Update of 5 July 2025
Since 1998, the concept of "Just and Fair" as applied to the resolution of Holocaust-era claims for Nazi looted art (encompassing losses suffered from the advent of Hitler to power on 30 January 1933 to the unconditional surrender of the Third Reich on 9 May 1945) has been embraced by governments, lawmakers, auction houses, museums (public and private), dealers and collectors, and many lawyers involved in looted art cases. It has become what lawyers and lawmakers describe as "soft law."
When "just and fair solutions" are invoked, they pave the way for a financial settlement allowing the current possessor to explain why it is not fair and just to them to relinquish the claimed object to the heirs of the victim who lost them. Moreover, these solutions undermine our understanding of the trauma of duress as experienced by those who lost their cultural goods as well as the rest of their belongings and assets.
As a historical footnote, the concept of just and fair was wholly concocted by Ambassador Stuart Eizenstat, organizer of the 1998 Washington Conference on Holocaust-era Assets and the US Government's chief negotiator and diplomat on matters dealing with reparations for Holocaust victims and their families. The American Alliance of Museums (AAM)--at the time known as the American Association of Museums--played a role in guiding Ambassador Eizenstat to formulate this concept which ended up being a gift to the class of current possessors at the expense of the interests of the claimants in their quest to obtain restitution (the physical return of their property).
Is it fair to ask whether Ambassador Eizenstat and his colleagues in major Jewish organizations involved in Holocaust reparations ever thought to sit down with claimants and restitution advocates about the implications of a "just and fair" approach to their request for restitution?
As for the Swiss government, it is on the brink of creating a Swiss commission inspired by those already in place in the United Kingdom, the Netherlands, France, Germany and Austria.
03 December 2012
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 |
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
Netherlands: Dutch Restitutions Committee
United Kingdom: Spoliation Advisory Panel
24 August 2011
An imaginary conversation about Grosz v. MOMA
 |
"Max Hermann-Neisse"
All rights
reserved, Estate of George Grosz,
licensed
by VAGA, New York;
Image
courtesy of Museum of Modern Art
|
Patricia Cohen: “Museums are breaking their own ethics codes and causing the U.S. government to break its international commitments by invoking our courts to resolve Holocaust-era art claims on technical grounds rather than on the merits,” said Jennifer Anglim Kreder, co-chairwoman of the American Society of International Law’s Interest Group on Cultural Heritage & the Arts.
American museums have an obligation not to acquire or come into the possession of stolen cultural property, especially when they are the beneficiary recipients of Federal tax breaks which allow them, among other things, to raise unlimited sums to better serve their public and their donors. Unless otherwise stated, the National Stolen Property Act (NSPA) remains the basic legal instrument by which one can order the seizure of stolen cultural property assuming one can prove beyond a doubt that the property is in fact stolen. For the past five years, the Federal government has successfully intervened in art ownership disputes through seizures of looted cultural items which have resulted in the restitution of those items to their rightful owners.
The US government has been playing with legal fire for decades by declining to apply its postwar international commitments to its own citizens by which property under its jurisdiction which is proven to have been stolen as a result of acts of duress, persecution, or other forms of discrimination during the Nazi era, should be returned to their rightful owners. To date, no one has sought to compel the Federal government to right those wrongs. Neither has anyone thought to challenge the Federal largess to American museums as a means of pressuring them into disgorging their looted cultural assets.
Patricia Cohen: The museum, which acquired the works in the 1950s, declined to comment because the case is being litigated. But it has maintained in court documents that, regardless of the timing issue, it has diligently researched the artworks’ provenance and has found no evidence that the works were looted by the Nazis or any basis for disputing their legitimate ownership.
Affidavits filed on behalf of the plaintiffs in Grosz v. MOMA show a pattern of deceit, distortion and withholding of key documents on the part of MOMA and its legal team. In other words, MOMA has not done its utmost to research the provenance of the works.
 |
“Republican
Automation”
All
rights reserved, Estate of George Grosz,
licensed
by VAGA, New York;
Image
courtesy of Museum of Modern Art
|
Patricia Cohen: Raymond J. Dowd, the Groszs’ lawyer, counters that the lower court considered inadmissible evidence and also failed to take into account a 1998 federal law that was intended to help Holocaust-era victims recover their assets.
Section 202 of The Holocaust Victims Redress Act (HVRA) of 13 February 1998 states the following:
“It is the sense of the Congress that consistent with the 1907 Hague Convention, all governments should undertake good faith efforts to facilitate the return of private and public property, such as works of art, to the rightful owners in cases where assets were confiscated from the claimant during the period of Nazi rule and there is reasonable proof that the claimant is the rightful owner.”By definition, a “sense of” declaration by Congress is non-binding and merely reflects the fact that a majority in Congress shares this view, without going any further. Hence, it is a bit wrong-headed to state that the Act is there to help victims recover their assets. It exists to exert moral suasion on a government that refuses to become engaged in the act of restitution of looted cultural assets. The same would apply to the Washington Principles of December 1998 and to the Terezin Declaration of June 2009. Interestingly enough, the HVRA did not invoke the 1954 Hague Convention.
Patricia Cohen: The Grosz heirs say that Flechtheim was only temporarily caring for the three works and that he was forced to sell or abandon his holdings because of the climate of terror created by Hitler’s regime. The accompanying paper trail that shows bills of sale, liquidation papers and letters, they add, was later fabricated or distorted to mask illicit dealings.
The Grosz case hinges in part on the historical definition of a so-called forced sale, a commercial act that would not have occurred had circumstances been entirely different, in other words, had there not been a pervasive environment of anti-Jewish persecution and harassment sponsored by the National Socialist State. Or, put more simply, if Georg Grosz were alive today, he would have answered “no” to the question: “Mr. Grosz, would you have sold your works of art had the Nazis not persecuted and harassed you for what you are and who you are?”
Patricia Cohen: MOMA, which obtained the two oil paintings and the watercolor at different times in the early 1950s, has said it was unaware of any doubts about the chain of ownership. Grosz himself saw the portrait of Herrmann-Neisse hanging on the museum’s walls in 1953, and wrote to his brother-in-law, “Modern Museum exhibits a painting stolen from me (I am powerless against that) they bought it from someone, who stole it.” Grosz, who died in 1959, never contacted the museum about regaining possession, however.
Therein lies the rub. Did Georg Grosz know that he was within his rights to claim the painting once he saw it hanging on MOMA’s walls? Was he aware of statutory limits placed on claims for stolen property? How omniscient does a victim have to be in order to knock some commonsense into the insensitive souls of museum officials bent on safeguarding what they view to be rightfully theirs even if the historical evidence does not bear them out?
Patricia Cohen: During the Nazi regime about 100,000 artworks were looted from public and private collections, including forced sales.
That estimate is indefensible, uncorroborated, and historically rootless. There were at the very least 100,000 artworks forcibly removed from German-occupied France alone. Since there were 19 countries that were invaded, occupied, or otherwise under Axis control between 1933 and 1945, you can do the math.
Patricia Cohen: To address some of the issues such looting raised, the United States and more than 40 other nations adopted the 1998 Washington Conference Principles on Nazi-Confiscated Art, and the 2009 Terezin Declaration, which urge nations to decide claims “on the facts and merits” and to take historical circumstances into account when legal hurdles arise. American policymakers have frequently urged other countries to abide by these agreements.
Meanwhile, American policymakers have repeatedly refused to inject themselves into domestic ownership disputes involving cultural restitution claims, thus abandoning claimants to the formidable legal apparatus available to current possessors in the United States. Therein lies the failure of the Washington Conference of 1998 and all subsequent attempts at fostering greater understanding about looted art. How hypocritical can one be?
Patricia Cohen: In a keynote address at the Terezin conference, held in the Czech Republic, the leader of the United States delegation, Stuart E. Eizenstat, said he was concerned about the tendency to seek refuge in “technical defenses,” including the statutes of limitations.
Ambassador Eizenstat can express his many concerns for as long as he wishes but the truth remains that he does not lift a finger to apply his political weight on institutions like MOMA in the spirit of the Washington Conference of 1998 and the Holocaust-Era Assets Conference of June 2009 both of which he helped organize? Where are you, Ambassador Eizenstat, when claimants need you the most? Actions speak louder than words.
Patricia Cohen: Some lawyers who have represented MoMA and other museums in unrelated cases say that laws regarding time limits are not merely technical, but also speak to the question of whether it is possible to reconstruct an accurate historical record after a long lapse. Automatically giving claimants the benefit of the doubt can unfairly penalize honest and rightful owners, said Jo Backer Laird, a lawyer at Patterson, Belknap, Webb & Tyler, a New York firm that represents MoMA and other museums but is not currently involved in any restitution cases.
It is not in the interest of current possessors, especially institutional holders of looted cultural property, to conduct extensive, exhaustive research into the provenance of cultural objects in their collections. A recent and well-publicized restitution by the Boston Museum of Fine Arts clearly shows that, even if there are gaps in the ownership history of a painting, the critical mass of information pointing to ownership by a claimant is sufficient to incite the current possessor to return the claimed item rather than invoking hurtful, self-centered, and morally and ethically unjustifiable legal defenses in order to prevail as the current possessor.
We have not heard the last from the Grosz case. Alea jacta est...
07 August 2011
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.
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.
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