Washington Principle #6: A Critique

by Marc Masurovsky

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

Principle #6
VI. Efforts should be made to establish a central registry of such information.

“a central registry”:

The best way to kill an idea is to promote it and then abandon it. Ever since the “art restitution” movement kicked up some dust, there was talk of creating a central database of all art losses suffered by Jewish owners between 1933 and 1945. As the saying goes, talk is cheap while money talks. In the heady days of the late 1990s, much like the frightening realities which have set in worldwide as of 2016, it was easy to discuss the creation of a central database—a digital registry—of all cultural losses because no one had done it and, to accomplish this minor feat, one needed access to documents and lots of them (Principle #2), as well as a heap of resources and personnel (Principle #3). Since neither were forthcoming, then and now, twenty years later, the proposal put forth by the framers of the Principles is somewhat disingenuous.

After all, do they understand what effort it takes to undertake a central registry of all art
“confiscated” and displaced by the Nazis and their allies? It is a massive undertaking, which requires international cooperation, international partners, staff at multiple sites, a rugged online database, even more rugged servers, and teams of data extractors and data entry specialists. In 2018 dollars, a multi-million dollar affair. In 1998 dollars, it would have been much cheaper to accomplish.

The arguments around a central registry are legendary and date back to the aftermath of WWII when some of the Allied cultural advisers working in Munich, Germany, were bemoaning the fact that there was no central card index of art losses available for them to use as a reference source.

That discussion of a central registry died miserably especially when it became obvious that large postwar NGOs like the recently-established UNESCO did not succeed in taking over from the Allied powers the mantle of documenting and researching art losses suffered by victims of Nazism and Fascism.

In the 1990s, the idea has been repeatedly pooh-poohed as too expensive, impossible to undertake, and so forth. Meanwhile, as the arguments linger on from year to year, nothing gets done, which seems to be the point, no? So, proposing a central registry of art losses is tantamount to crying: The King is dead! Long live the King!—Substitute queen for king if that is your preference. In other words, it will not get done by the signatories of the Washington Principles because they have no interest in such a project. Why did they agree to it? Why sign off? Because it was easier to sign off than to challenge the idea, a hint that the intention to transform the principles into “hard law” never existed.

In June 2011, we noted that, based on the evidence, “Principle #6 is hereby decreed to be an unadulterated sham.” We still believe it today.

Principle #6 could be rewritten and broadened as follows:

Efforts shall be made to establish a central, fully searchable and interactive digital repository of artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and their Fascist allies across Europe between 1933 and 1945.

Overview of the first year of activity on the “plundered art” blog

In order to know who you, the readers of “plundered art”, are, Google provides a potent tool—Google Analytics—which provides a glimpse of the readership of a blog or a website. In the case of “plundered art”, the following can be said:

You, the readers of “plundered art”, are mostly women, followed closely by men. More than one third of you are at least 35 years old.

Your favorite posts were, in descending order of popularity:

1. Van Gogh's 1889 depiction of his mutilated self smoking a pipe—PR 144
2. The five Schiele drawings of Karl Maylander
3. Jacopo Zucchi, "The Bath of Bathseba": or how pieces of a story build a new story about the same story ex post facto
4. Nazi looted art conference at Lafayette College, Easton, PA: a debriefing (II)
5. Nazi looted art conference at Lafayette College, October 26-28, 2011: a debriefing (I)
6. In search of a triptych "Purificato Mariae" by Marco d'Oggione
7. MNR (Musées Nationaux Récupération) Notes—R 6 P « Femme au turban, » by Marie Laurencin
8. The Hemer case or how a claimant does not want to be a claimant
9. The Wildenstein reality check
10. French loot in Poland

You live in more than 1000 cities and towns located in 90 countries across 5 continents.

Many of you speak at least one of the following languages: English, French, Spanish, German, Italian, Dutch, Polish, Russian, Hebrew, Czech, Hungarian.

You work in global auction houses, multinational companies, national and supranational government agencies like the European Commission, the “Ministère des Affaires étrangères et européennes” in Paris, the National Academy of Sciences in Washington, DC, the United Nations, UNESCO, the US Department of Justice and the US Department of State.

On the academic front, you hail from universities, academies, and institutes in the Americas, the West Indies, Europe, and Asia.

You also work for international news agencies, libraries and archives, as well as world-renown art museums and galleries.

WOW!

First anniversary of "plundered art"

Happy holidays!

The “plundered art” blog just passed its first anniversary.

This might be a good time to revisit its reason for existence.

It’s not that simple to decide one day: “Oh! Let’s write about the restitution of art objects looted by those Nazis and Fascists during the 1930s and 1940s and how so much of it was never returned to the rightful owners and why the current owners of those objects look for every way under the sun not to return those objects and why governments pretend that there is no problem.”

This blog is certainly not about settling scores, old and new.

It’s actually a complicated beast.

At first, I was very shy about putting anything in writing about an issue that has already absorbed several decades of my life. Truth be told, the initial motivation for this blog was to share the story of the Holocaust Art Restitution Project (HARP), how it came into existence and what it was able to accomplish.

The telling of HARP’s story has not been a simple affair and is still incomplete.

It runs afoul of important and enduring taboos:

• the unwillingness of postwar Jewish organizations in the Americas, Europe, and the Middle East, to press for a complete accounting of the cultural losses suffered by Jewish owners during the 1930s and 1940s;
• the unwillingness of State-controlled cultural institutions across the globe to produce a complete inventory of cultural assets that entered their collections since the 1930s which might have been acquired illegally;
• the unwillingness of governments to come clean about the extent, scope, and breadth of cultural plunder in their respective nations and their efforts to produce complete inventories of those looted cultural assets in State-owned collections;
• the unwillingness of governments to come clean about the total number of looted cultural assets present in State-owned collections;
• the unwillingness of national and international groups to address the question of cultural rights, the sovereign right of individuals to culture and to the ownership of cultural assets over those of States, the question of cultural patrimony, cultural property, and cultural heritage, and how those abstract notions interfere with and are used against the right of individuals to recover and own looted cultural assets which are rightfully theirs. Those non-governmental organizations include but are not limited to: the United Nations, the United Nations Educational, Scientific and Cultural Organization (UNESCO), the International Council of Museums (ICOM) and many other organizations and agencies, supranational and national which are specifically concerned with cultural rights, and the protection of cultural assets;
• the unwillingness of law enforcement, police and security agencies—civilian and military—to repress and suppress the illicit international trade in looted cultural assets, including and especially the millions of objects that changed hands illegally against the backdrop of genocide, mass conflict and slaughter in the 1930s and 1940s and beyond;
• the unwillingness of cultural institutions, universities, colleges, institutes, foundations, and other cultural establishments to teach and educate young and old about the phenomenon of cultural plunder, the cultural rights of individuals, and ask the fundamental question as to who owns culture when discussing the illicit removal of art objects from the hands of their rightful owners and the attempts of the latter—mostly vain—to recover them as their own.

As of now, the following items remain unanswered, more than sixty-five years after plunder was denounced at the International Military Tribunal at Nurnberg as a crime against humanity and a war crime:

• the true extent, scope, and breadth of thefts of cultural assets during the 1930s and 1940s for racial, political, and other reasons;
• the actual number of lost cultural assets, by type, by owner, by country;
• the actual number of cultural assets recovered;
• the actual number of cultural assets restituted to their rightful owners;
• the actual number of cultural assets that were recovered but never restituted;
• the actual number of cultural assets that were looted and never restituted—by type, by owner, by country.
• the identity of the thieves;
• the identity of those who agreed to trade in these looted cultural assets;
• the identity of those who currently own these looted cultural assets.

To make a long story short, for now, the telling of HARP’s story ran afoul of these unanswered questions and the overwhelming taboo that endures today as strongly as it did two decades ago of venerable institutions that seek to educate the world about the Holocaust and genocide and yet refuse out of principle—yes, OUT OF PRINCIPLE!—to avoid at all costs any discussion, any debate, any addressing in any way, shape or form, of the question of cultural plunder, despite the fact that millions of members of the Jewish community suffered unspeakable losses, physical, material, and spiritual—among them, the loss of objects that tied them to culture—their own and that of others.

Let’s be clear about one thing: it is far easier to ignore the problem than to address it. And for those who seek to address it absent any filters, any caveats, any disclaimers, any compromises, the road is long, steep, and lonely. But every time progress is made, however small, even the mere existence of this blog, justifies the desire to induce even the slightest change in society’s approach to the question of cultural rights, cultural ownership, and cultural restitution.

The second year of the “plundered art” blog opens on a renewed commitment to speak, document, critique, applaud, proclaim, advocate and document, document, and document more. Because transparency is the only way by which we can grasp the full breadth and scope of the problem, a problem made so complicated by those who oppose restitution. Those who refuse to address it are simply acting as accomplices, aiding and abetting in the crime of rewriting history by denying its existence.

I wish to thank you, our readers, listeners, observers, and critics alike, for checking into “plundered art.” I invite you to continue.

Year two promises to explore cultural plunder in other realms, like the Far East, the universality of cultural rights and its nemesis, cultural plunder; and the search for enduring, long-term solutions to remedy the ills of cultural thefts anchored in mass conflict, genocide, ethnocide, and other forms of wholesale persecutions perpetrated by a State or a group against individuals because of who they are and what they are.

Works and objects will be discussed with dubious ownership histories which are displayed, bought, and sold, across the globe.

And, of course, there is no shortage of historical information on plundered objects that have either been restituted or remain out of reach of their rightful owners.

Until next time…

Seeking guidance from INTERPOL

The words vary but their meaning does not.

Plunder, looting, theft, spoliation, misappropriation, pillage—call it what you wish, it all comes down to the same thing: someone somewhere has committed a theft of cultural items either under cover of an international military conflict, a domestic uprising or insurrection or major civil unrest, or simply has broken into someone’s home, place of business, or public institution to commit the crime of art theft.

Lawyers will have a field day arguing that each word connotes something slightly different. But as one famous unnamed general said at the end of the Second World War, “Theft does not convey title”. Period.

Since 1945, much has been said but little has been done to address in absolute terms the global problem of cultural theft, especially when it has been fueled by considerations of race, ethnicity, belief, and/or greed and lucre.

INTERPOL
Source: Wikipedia

No global solution to the problem of cultural property theft, cultural plunder and looting, can be achieved without the full and engaged participation of international organizations, especially since the founding of the United Nations in 1945.  As part of an on-going effort to spark more interest in the role of the organized international community of experts and officials who take at least a nominal interest in questions of art crime, let’s take a brief look at one institution—INTERPOL—and its pronouncements between 2004 and 2007 regarding international art crime.

First off, we paid a visit to INTERPOL’s website datelined 2007 and found these remarkable items under the rubric of “frequently asked questions” or FAQs” :

• “In fact, it is very difficult to gain an exact idea of how many items of cultural property are stolen throughout the world and it is unlikely that there will ever be any accurate statistics. National statistics are often based on the circumstances of the theft (petty theft, theft by breaking and entering or armed robbery) rather than the type of object stolen. To illustrate this, every year, the Interpol General Secretariat asks all member countries for statistics on thefts of works of art, information on where the thefts took place, and the nature of the stolen objects. On average, we receive 60 replies a year (out of 186 member countries), some of which are incomplete or inform us that no statistics exist.”
• To the question, “Which countries are most affected by this type of crime?”, the answer is…….
  
  France
  Italy
  Russia
  Germany
• The most sought after items by thieves as reported by law enforcement agencies are:
  
  Paintings
  Sculptures and statues
  Religious items
• INTERPOL’s General Secretariat devised the following tools “to tackle the traffic in cultural property”:
  
  A "wanted" poster:
  
  In 1986, INTERPOL published “THE 12 MOST WANTED WORKS OF ART’ poster.  The following year, the poster was renamed “THE MOST WANTED WORKS OF ART", printed in black and white and updated twice. Since 1998, the poster has been printed in COLOR!
  
  A database of stolen works of art:
  
  As of 2007, Interpol’s computerized database contained 26,000 stolen works of art. The main caveat for eligibility to be entered into the Interpol Stolen Works of Art database is that the object be “fully identifiable.”  The most astounding development occurred in 2010 when, for the first time, INTERPOL agreed to publish a series of paintings stolen from Max Stern, a German Jewish art dealer once based in Duesseldorf whose business was liquidated by the Nazi government and he was forced to flee to Canada.  At his death, Concordia University became the executor of his estate and launched a unique program under the guise of the "Max Stern Foundation" to publicize the cultural losses suffered by Max Stern and promote the identification and restitution of his cultural property, with some measure of success, thanks in part to the crucial role played by the Immigration and Customs Enforcement (ICE) unit of the Department of Homeland Security in the apprehension and restitution of some of Stern's works from private collections in the United States.

Max Stern in Germany, c. 1925
Source: National Gallery of Canada, Library and Archives, Fonds Max Stern via Max Stern Art Restition Project, Concordia University

Since INTERPOL is comprised of representatives from police forces the world over, it is well-positioned to make recommendations that allow its law enforcement members to do their job more efficiently and curb the global crime wave of art theft.

When reading these recommendations, please keep in mind that we are now in the year 2011. Our planet has suffered through two global wars since 1914 which accounted for combined human casualties of close to 80 million individuals and massive thefts of cultural property. Since 1945, there has been at least one international military conflict in some part of the globe. Each conflict has produced its fair share of cultural plunder.

INTERPOL believes that the following conditions need to be met in order to achieve lasting long-term solutions to the problems of global art crime:

1. bring in laws to protect cultural heritage and regulate the art market. 
2.  become party to international conventions (1970 UNESCO Convention and the 1995 UNIDROIT Convention)
3. prepare inventories of public collections using standards which will make it possible to circulate information in the event of theft
4. develop a computerized database along the lines of those currently in use, to avoid duplication of effort. 
5. circulate information on thefts as rapidly as possible
6. raise public awareness with regard to the cultural heritage both in the country and abroad
7. set up specialized police units to tackle this type of crime
8. hold training courses for the police, other law enforcement services and customs, with the support of cultural institutions.

In order to appreciate the tedium of political discourse at the international level and the degree to which raising international awareness can best be compared to La Fontaine’s fable of the “Turtle and the Hare” (We know who won the race, right?), here are some highlights of meetings convened by INTERPOL between 2004 and 2007:

Meeting place: Sinaïa City, Romania 
Date: September 7-9, 2004
Title: 4th International Conference on the Illicit Traffic in Cultural Property Stolen in Central and Eastern Europe

The participants acknowledged that there were serious problems east of the Oder River “concerning the protection and documentation of cultural property”.

They recommended the following:

• “To monitor the art market including the increasing sales on the Internet.”
• “To encourage the completion of inventories including photographs of cultural property for public and private collections using international description standards such as Object ID.”

Castelul Peles, Sinaia, Romania
Source: Wikipedia

Meeting place: Washington, DC
Date: May 23, 2005
Title: 3rd Meeting of the Interpol Tracking Task Force to Fight the Illicit Trafficking of Cultural Property Stolen in Iraq

The participants realized that the Internet is becoming a favorite venue for the sale of cultural items stolen in Iraq.

Meeting place: Lyon, France
Date: June 21-23, 2005
Title: 6th International Symposium on the Theft of and Illicit Traffic in Works of Art, Cultural Property and Antiques

The participants recommended the adoption of a “model export certificate for cultural property jointly developed by UNESCO and the World Customs Organization.”

More importantly, albeit very diplomatically, the participants invite their members to “consider adopting legislation and developing procedures that require proper examination of appropriate documentation for all cultural goods entering their country.” Remember, we are now in 2005, not in 1955.

The participants agreed to provide “relevant law enforcement agencies” around the world access to Interpol’s Stolen Works of Art database.

This one is the clincher:

The participants asked that the governments of their respective nations should “consider whether their cultural heritage legislation should include a provision for proof of ownership of cultural property prior to their trade.” In other words, was there no requirement until 2005 to prove the ownership of a cultural item before it entered the art trade?

Other recommendations included:

“Countries seeking the return of their cultural property provide adequate relevant documentation detailing the date and place of the theft with a full inventory of the stolen objects including descriptions and photographs. For incidents of looting, date and place with documented justification of the provenance of the items should be provided.”

“Establishment of minimum documentation for all cultural objects and use of the Object ID checklist for this purpose.”

Meeting place: Lyon, France
Date: March 7-8, 2006
Title: 3rd Meeting of the Interpol Expert Group (IEG) on Stolen Cultural Property

The participants admitted that they needed the assistance of “art market professionals in the trade in cultural objects” in order to enable law enforcement agencies to locate stolen cultural items more effectively. Interesting… Should one surmise that the international art trade has not had to worry about the heavy arm of law enforcement until very recently?

As a result of high-profile looted art cases which required years of litigation and tentative outcomes, the participants focused on alternative dispute resolutions as one way of facilitating the restitution of stolen art to countries of origin.

Not only did they propose that “law enforcement agencies extend their co-operation efforts to art market professionals as valuable partners and sources of information,” but, in the same breath, the participants suggested that “creative solutions” be found to facilitate the “return of cultural objects.” These solutions might include: arbitration, conciliation, mediation or negotiation procedures. More worrisome is the notion that long term loans could be used as an acceptable compromise to achieve the return of coveted stolen objects. Worrisome in light of the deals struck by the Metropolitan Museum of Art, the Wadsworth Atheneum in Connecticut, the Getty Museum in Los Angeles. These institutions have sufficient clout, despite their egregious behavior concerning the harboring of looted art and antiquities, to convince the injured parties—in these instances, foreign nations—to accept complex deals whose outcome is to dilute the responsibility of the institution responsible for benefiting from the misappropriation of a cultural object.

In other words, the aiding and abetting of art crimes has a way of turning into a profitable moment for all parties concerned, fueled for the most part by commercial and financial incentives at the expense of ethics. Let's hope that INTERPOL and other like-minded well-intentioned organizations do not fall into this gilded trap.  Theft is theft, no matter how you look at it and cultural institutions that profit from it should be held accountable even if it costs them an exhibit or two and the ill-gotten items that they have acquired.

A comprehensive database of looted art: fantasy or reality?

At present, there is no comprehensive database for works of art and objets d’art looted during the Second World War and under the Nazi regime.

Let’s assume that a comprehensive database of looted art objects is created and operational. What would it look like?

It would be dynamic, not static. In other words, it would link different types of events together to recreate a historical context for each object and its purported owner. This comprehensive database would be a dynamic beast acting as an intelligence tool for the market, the claimants, and law enforcement, a market research instrument, and a tracking device for lost objects.

Do we start from scratch and create such a database or do we try and make do with what already exists and improve upon it?

That all depends on what type of result you might expect. Both solutions can cost the same amount of money, resources, and time. One relies on a bottom-up approach with a fresh team of experts, researchers, data entry specialists and programmers, while the other stakes its credibility on the ability of stakeholders to work collaboratively, unlock their proprietary databases, build sophisticated interfaces to link these far-flung efforts. Assuming that one can set aside corporate, governmental, and ego-driven considerations to allow for this type of collaboration, the question will still remain: what will the interface accomplish? What results do we expect? What improvements will be needed across the board to create the equivalent of a comprehensive database? As Hamlet said, that’s the rub.

How will it affect the international art market?

One consequence will be the production of reliable and detailed provenances on a wide variety of objects that either come up for sale or are accessioned into museum collections or which can already be found in private and public collections around the world. In other word, the database will make it very difficult for anyone to claim ‘willful ignorance’ when selling or buying or donating or lending an object.

Where there are uncertainties about the provenance of an object, the database will contain sufficient circumstantial and contextual data to allow the researcher to either infer certain notions about the origin of the object under consideration or establish with a fair amount of accuracy the nature of the gaps in the provenance and how best to answer them. One must remember that there will always be a certain degree of uncertainty about the origin of most objects entering or leaving the market. The function of this database is to reduce these uncertainties.

The existence of such a tool raises a number of policy questions which hark back to the Washington Conference on Holocaust Assets of December 1998.

The international conference produced a set of so-called Washington Principles which have become a milestone and point of reference for the international art trade, museum community, and global cultural policy pertaining to Holocaust-era thefts and recovery efforts.

I will cite only those principles which are particularly relevant:

• share results of research on Nazi thefts
• advocate openness and transparency with respect to archives, research and dissemination of relevant information
• encourage research into public collections and promote the search for heirs
• establish provenance research projects in the private sector as a routine practice
• promote and implement international cooperation among interested groups
• create a guide to archives and a central repository of relevant data

The good news is that we have at least one guide produced by the American Association of Museums to assist international provenance research efforts. And there is a modicum of international cooperation among some institutions with respect to specific projects. However, the not-so-good news is that there is very little dissemination of research results on Nazi thefts, there is systematic opacity in the field; there has been erratic research within museums, often motivated by ignorance of the details of the Nazi-sponsored plunder, thus producing ‘false’ positives. There have been few if no efforts to seek out heirs except those deployed by a number of for-profit entities and NGOs. And there are no indications that, aside from the main auction houses and a handful of art dealers, the international art trade pays even remote attention to questions of due diligence and provenance research.

In the United States, the main museum organization is a self-policing entity which does not clearly define what constitutes ‘best practices’ for conducting provenance research and minimizing exposure to accusations of harboring loot.

One positive example of international cooperation in the recovery and restitution of looted cultural property came about shortly after the sacking of the Baghdad Museum in 2003. Within two weeks of the plunder, a series of meetings were held in Paris and London, bringing together under one roof scholars, archaeologists, antiquities officials, dealers, Culture Ministry officials from various countries, and members of NGO’s like UNESCO and ICOM. These officials established the framework for joint collaboration in order to recover thousands of objects that were now entering the international art trade and possibly even private and public collections. The group agreed that the most urgent priority consisted of building a database of the looted objects. Within a month, the Swiss government agreed to underwrite its initial expense at a cost of 250,000 Swiss Francs. This sum would allow the group to digitize the Museum’s inventory and thus facilitate recovery. The data were standardized to conform to the Object ID used by Interpol in its database of looted objects. In other words, they defined a common standard. Very shortly thereafter, recoveries occurred in Jordan and Turkey and warnings had been issued throughout the international art market as far as New York and London.

Over the last three years, Interpol has been calling for the creation of complete inventories, closer monitoring of the international art trade, requiring proof of ownership before any trade occurs, and increased cooperation between law enforcement and the art trade.

In other words, where there is a will, there is a way. After Holocaust-era claimants pass on, their heirs may or may not continue to press for some form of recovery in the years to come. Nevertheless, the problem of looted art will not go away all by itself. The larger issues pertaining to loot and plunder go far beyond the Jewish specificity of the question and preoccupy most countries of the world as they experience daily assaults on their cultural heritage. This is where we can make a clear difference and draw up a new international framework for finding concrete and workable solutions that we can apply over time, but sooner rather than later.