The “heirless” game update.

by Marc Masurovsky

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

Simple? Not quite.

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

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

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

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

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

Principle #9 addressed the unidentifiable ownership issue:

“If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, cannot be identified, steps should be taken expeditiously to achieve a just and fair solution.” I referred to this as “diplomatic hogwash.”

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

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

What to do?

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

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

I am clearly opposed to the following:

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

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

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

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

Restitution is an elite sport

by Marc Masurovsky

The post-1945 years have shown that State intervention in the treatment of restitution claims arising from wholesale plunder of Jewish-owned property ensured that the playing field would be somewhat level, allowing victims of modest income to have equal access to State officials as did members of elite and well-connected families, by reason of rank, status, and income.

This illusion of equal access did not last long. The vast majority of restitution claims were converted into compensation requests. In other words, the message to claimants was clear. Unless we think that your loss lessened the cultural patrimony or heritage of the Nation, you are better off asking for some form of financial compensation. Goodbye!

We can actually date this change of mind, somewhere between 1946 and 1947, not more than two years after the most destructive war devastated most of the European continent.

Jewish groups have behaved in similar fashion. Rushing to declare all unidentified Jewish cultural losses as “heirless”, they lobbied postwar officials and Allied military authorities in Germany and Austria across Western and Central Europe to turn over to them hundreds of tons of unclaimed Jewish property so that they could be sold off to benefit displaced persons and refugees. Choice pieces were transferred to Palestine/Israel where they were inevitably incorporated into Israeli cultural institutions.

Without a lawyer, an accountant, and one or more friends in “high places,” if your name was not Rothschild, Zuckerhandl, Seligmann, Bernheim, Rosenberg, Mannheimer, and so forth, your loss as a result of Nazi/Fascist anti-Jewish persecution and plunder was your problem, no one else’s.

Fast forward to the last 20 years…


The US government, at the outset of the Washington Conference on Holocaust-era Assets of December 1998, issued 11 principles, most of which shaped and framed by American museum officials, to guide the future behavior of museums and governments alike when faced with restitution claims. As soon as the conference ended and the Principles were announced to great fanfare, everyone went home and the 42 governments that had sent representatives to what was supposed to be a watershed moment in the postwar treatment of Jewish losses, forgot why they had attended the conference and business resumed as usual in some kind of amnesia-driven haze which had characterized their behavior since 1945 when confronted with Jewish losses-human and material.

Enter the private sector to fill the yawning void left gaping by governmental neglect, indifference and absenteeism. Private lawyers, consultants, researchers, treasure hunters and other glory seekers, entered the fray to “help claimants” with their quest for justice. The catch? If your loss was not “interesting”, viz., if your objects did not fetch a high enough value on the art market, your claim was dead. If, on the other hand, your objects, if found and recovered, could yield several hundred thousand dollars or euros and up to the tens of millions of dollars, sometimes hundreds of millions, you could easily find enough logistical and political support to carry you through the tedium of a restitution claim. High-value objects signed Schiele, Klimt, Pissarro, Picasso, Kirchner, Grosz, Modigliani, and many others, have shaped th public’s understanding of cultural plunder. Why would anyone steal something other than a “masterpiece”? It’s as if there were only a hundred artists in the entire world whose works the Nazis coveted. Wrong again. Still, the restitution game has fueled that perception which, in its very essence, is a-historical and a profound lie.

In the end, the top 1 to 5 percent of the claimant class can afford to obtain support for their quest for justice in the shape of a “solution” to the adverse ownership of an object looted and recycled on the international art market. For the beleaguered rest, go fish!

Justice is elusive for those who cannot afford it.

As of today, there is no mechanism, twenty years after the Washington Principles, 74 years since the end of WWII, which allows claimants to achieve measurable justice that rises above the word “imperfect” so perfectly touted by Ambassador Stuart Eizenstat and his ilk.

What’s worse is that wealthy claimants do not feel any compunction to come to the aid of the less fortunate amongst them. Not one, not a single one, and their lawyers, after recovering millions of dollars from the sale of restituted objects, has thought to support the less fortunate claimants with research and legal support. It is dog eat dog out there, no room for solidarity, compassion or commonality of interest, just like during the Holocaust. If you were of modest income, you were on your own and you definitely could not rely on your wealthy neighbors to bail you out. Too bad. Life’s not fair. Far more worthwhile to plant trees and give to your favorite animal rescue effort. History? Who cares? Culture? Who cares? Cultural rights? Yeah, right. Justice? Get over yourself.

Mainstream Jewish organizations have taken the greater part of 70 years before paying attention to victims of plunder. In so doing, they have continued to ignore individual claimants who seek the return of cultural objects from museums, auction houses and private collectors, except for the Claims Conference, the Commission for Art Recovery and the Holocaust Art Restitution Project.

Organizations established to promote the cause of restitution and aid in recovery efforts found themselves blurring the lines between justice and profit.

Holocaust memorials around the world pretend that the word “plunder” does not apply to their mission and should not be taught to their visitors. Selective ignorance is bliss.

The State of Israel has had a very ambivalent attitude towards the victims of plunder, preferring to ignore them rather than helping them, with the exception of Hashava, a State agency set up to assist in recovering looted objects and property located in Israel. It unfortunately closed its doors last year, therefore, Israel has no mechanism by which to assist claimants whose families endured the worst cataclysm to befall the Jewish people.

The only state agency in the United States that gives claimants a glimmer of hope is the Holocaust Claims Processing Office (HCPO) which has been in existence for over 20 years.

In the end, the 95 percent of claimants have been on their own since 1945. No wonder so many of them have chosen to forgo the torture of seeking the return of their lost property, to the great relief of those who own their property. After all, what are laws for except to protect the interests of those who own property even if looted during an act of genocide?

Plunder pays for itself. It is a crime against people, against communities, against culture which the international community has decried but done nothing measurable and concrete to prevent and to punish. Ownership of private property is more important than restorative justice for losses incurred during genocidal acts, objects ripped out of the ground of source nations, or forcibly removed from indigenous communities worldwide, powerless to oppose the white devils and their fire-breathing sticks.

Why should we expect museums, galleries, auction houses, art dealers and collectors to behave any differently? There is no incentive for them to be more “ethical”, no rewards for good behavior and no measurable consequence for bad behavior resulting in the acquisition and possession of looted cultural assets. They keep on doing what they do best—aid and abet the plundering ways of our fellow brothers and sisters around the world across generations. Catch us if you dare!

Arnold Toynbee summed it up beautifully when he declared that our species, Homo sapiens, should be renamed Homo cruellis.

Washington Principle #11: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference in Berlin, Germany, on November 26-28, 2018 and entitled "20 years Washington Principles: Roadmap for the Future," it would be worthwhile to revisit these Principles and to put them through a linguistic, methodological and substantive meat grinder, and see what comes out of this critique. There will be eleven articles, each one devoted to one of the Principles enacted in a non-binding fashion in Washington, DC, on December 3, 1998.]

Principle #11
Nations are encouraged to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues.

This principle, to put it mildly, translated into a big zero plus one. It escaped absolute zero because of Austria’s decision to pass an actual Art Restitution Act. However imperfect it may be, it’s a law, it’s been effectual, and it still exists.

The same cannot be said for the four other nations hosting a restitution committee of sorts focused on cultural claims—France, the United Kingdom, the Netherlands and Germany never followed in the footsteps of the Austrians. Apparently, the stakes were sufficiently high for the Austrians to pass their law, prompted by the physical seizure of works of art by an iconic “national treasure” named Egon Schiele, while on display at the Museum of Modern Art in New York. Seizure, sequestration, were the tools that provoked mayhem among Austrian lawmakers, politicians, and museum administrators to “act”. Does the same scenario have to unfold for other countries to pass a restitution law? The answer may unfortunately be yes.

The failure of Principle #11 underscores the overall failure of the legacy of the Washington Conference on Holocaust-era assets of December 1998. Not one of the signatories to the Washington Principles saw fit, once he/she returned to their respective homeland, to set in motion a national debate on the notion of restitution of art objects looted during the Nazi era, which would lead to comprehensive legislation and/or decrees establishing some form of mechanism with which to address those claims. Not one.

To make matters worse and, perversely, ironic, those nations which are so anxious to recover their State cultural losses—Italy, Belgium, Poland, are standouts—refuse outright to return to the rightful owners art objects in their public collections which clearly have been proven to be looted, no questions asked, historical evidence on hand to support those claims. The double standard is brazen but real and continues to function unabated, despite international calls for these nations to honor restitution claims. To paraphrase government officials from those nations, they are happy to restitute the objects as long as the claimants don’t mind coming to their country to “visit” with the object while it is still on display in a museum collection.

The most important hurdle that these nations face when confronted with a restitution claim is how to de-accession these objects from State-run collections. Few of those nations have on their books a comprehensive de-accession law that extends to the return of objects claimed by individuals, as opposed to nations.

Principle #11 could be rewritten as follows:

Nations shall enact directives, laws and decrees as appropriate to implement these principles, particularly as they relate to the resolution of ownership issues. These directives or laws should include comprehensive de-accession procedures that apply to art objects looted or displaced during the Nazi era which are the subject of a restitution claim.

Washington Principle #9: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference in Berlin, Germany, on November 26-28, 2018 and entitled "20 years Washington Principles: Roadmap for the Future," it would be worthwhile to revisit these Principles and to put them through a linguistic, methodological and substantive meat grinder, and see what comes out of this critique. There will be eleven articles, each one devoted to one of the Principles enacted in a non-binding fashion in Washington, DC, on December 3, 1998.]

Principle #9
If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, can not be identified, steps should be taken expeditiously to achieve a just and fair solution.

There are several elements in this principle which require our full attention.

1/ unidentifiable pre-war owners of looted cultural assets:

No cultural, artistic or ritual object is produced out of thin air. It requires one or more creators and one or more owners. In other words, every object is owned by someone. The question is to find out who owns what. Ownership records are, most oftentimes, generic, fragmentary or they do not exist, because the people owning objects possessing a recognized esthetic quality and value which can be passed off as “art” do not necessarily feel compelled to record the fact that they own the object in question. When falling victim to acts of State-sponsored and sanctioned persecution and terror accompanied by thievery and plunder, the strands of ownership, however weak they might have been at the outset, are gone forever. Out of the millions of objects which changed hands illegally during the Nazi years across Europe, one can argue that a high percentage of those objects ended up in 1945 as having “unidentifiable” owners, not because they were all murdered, but because ownership traceability proved to be a daunting task which Allied planners and Jewish relief organizations alike were in no measure to pursue. Instead of looking for owners, procedures and policies were put in place across post-1945 “liberated territories” to consider those objects as “heirless”, not likely to be claimed and, therefore, they should be sold to benefit postwar governments and Jewish survivors. The speed at which the decision to sell off those assets was made is simply vertiginous.

Today, the discussion over the fate of “heirless” assets, those for whom no pre-war owners can be found, continues to divide and produce acrimony on both sides of the Atlantic Ocean and as far as Israel.

2/ just and fair solution

How can one achieve a “just and fair solution” when there are no owners around who can speak for themselves and, in their absence, those deciding on the fate of such "heirless" assets do not take seriously the arguments of specialists in matters pertaining to cultural plunder and restitution? 

This principle was conceived to establish a framework within which Jewish organizations could negotiate, as successor organizations to the victims of the Holocaust, with auction houses and museums a mechanism by which objects in their collections or consigned to them could be singled out and transferred to Jewish organizations. No thought was given to finding alternative, non-monetary, solutions to the question of “heirless” assets. In the case of a museum, whether private or public, the objects designated as “heirless” in their collection could be highlighted as such and their histories, or at least, how they ended up in the museum’s collection, could be revealed and presented to the public as a pedagogical, teachable opportunity, to discuss the fate of such objects during periods of mass conflict and persecution. It would also outline for the public the ways in which these objects evolved over time and space during and after WWII, in order to help museum patrons understand how art travels and survives war, plunder, genocide.

In sum, the fate of Principle #9 rests with how Jewish groups, governments, museums, auction houses, lawyers, lawmakers diplomats and historians wrestle with what constitutes "heirless property" and how best to treat heirless cultural objects. The work has barely begun.

Principle #9 could be rewritten as follows:If the pre-1933 owners of artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945 that are found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, cannot be identified, processes shall be put into place with all stakeholders so as to find an equitable solution as to how to treat these objects with due consideration to their artistic relevance and to their individual history.

Washington Principle #8: A Critique

by Marc Masurovsky

[Editor's note: Due to the momentous nature of the upcoming international conference to be held in Berlin, Germany, on November 26-28, 2018, and entitled "20 years Washington Principles: Roadmap for the Future," it would be worthwhile to revisit these Principles and to put them through a linguistic, methodological and substantive meat grinder, and see what comes out of this critique. There will be eleven articles, each one devoted to one of the Principles enacted in a non-binding fashion in Washington, DC, on December 3, 1998.]

Principle #8

"If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case."

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

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

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

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

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

Principle #8 could be rewritten as follows:

If the pre-1933 owners of artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945 and not subsequently restituted, or their heirs, are identified, steps will be taken expeditiously to initiate restitution proceedings or any other solution deemed just and fair by all parties concerned, according to the facts and circumstances surrounding a specific case. In each and every case, the interests of the claimants will be placed on an equal footing with those of the current possessors.


Update dated 5 July 2025:


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

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

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

Washington Principle #7: 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 #7
Pre-War owners and their heirs should be encouraged to come forward and make known their claims to art that was confiscated by the Nazis and not subsequently restituted.

In June 2011, we noted the following:

“There is nothing good to be said about Principle VII except for the fact that there are no solid mechanisms put into place to allow all owners to come forward and make their claims known regardless of socio-economic background. It is one thing to make their claims known, but the purpose of publicizing a claim is to obtain justice. Principle VII is uninformed and useless until effective national and international public policies are enacted to systematize the processes inherent to this principle and protective of the rights of claimants to seek redress without penalties.”

Seven years later, there has not been substantial progress in establishing mechanisms for “pre-war owners and their heirs to come forward.” Those who are directly related to the victims of plunder are now the grandchildren and great-grandchildren. In other words, they are three to four times removed from the crime and the loss suffered during the Third Reich. What little memory of the events stayed with the victims proper has all but vanished and few of those evidentiary strands have been transmitted to the next generation so that it can sue for redress.

The more likely path is from the outside—researchers, genealogists, aggressive lawyers, historians and the like—are those more likely to stumble on the evidence of the crime and the losses suffered by individuals. These external players are more likely than not to contact the heirs of the pre-war owners with the evidence of their losses. For a fee, unfortunately. In this regard, governments have created little monsters on both sides of the Atlantic Ocean, by not rising above the fray and taking on the mantle of justice for the victims of plunder. Leaving the field wide open for entrepreneurs and private sector players to set the rules for how research is conducted and, more importantly, how claims are to be handled and prosecuted.

Seven years after our initial assessment of the effectiveness of Principle #7, it is time to call it for what it is—a total failure and an open invitation for profiteering at the expense of the claimants, of history and of justice.

Principle #7 could be rewritten and expanded as follows:

The parties signatory to the Washington Principles of December 3, 1998, must ensure that all efforts will be made to disseminate information to as wide public as possible regarding the mechanisms by which pre-war owners and their heirs can make their claims known. Also, pre-1933 owners and their heirs must be encouraged to submit their claims for artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945 and not subsequently restituted.

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.

Washington Principle #5: A Critique

by Marc Masurovsky

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Principle #5 could be rewritten and broadened as follows:

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

Washington Principle #4: 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 #4
IV. In establishing that a work of art had been confiscated by the Nazis and not subsequently restituted, consideration should be given to unavoidable gaps or ambiguities in the provenance in light of the passage of time and the circumstances of the Holocaust era.

In view of the number of legally-trained individuals who are involved in international diplomatic negotiations and the drafting of complex documents for submission to representatives of many foreign nations, one would think that better care would be paid to vocabulary.

“work of art”:

The definitions vary for this word grouping. For some, “work of art” is interchangeable with “art piece” or “artwork” or “objet d’art”. For others, it has a narrower and more elitist meaning: “an object made with great skill, especially a painting, a drawing, or a statue.”  One way or another, high quality is synonymous with those words. And those words exclude all other “objets d’art” which, ironically, serve as synonym for “works of art.”

“consideration”:

Another way of saying “Careful thought” or “deliberation.”

“unavoidable gaps” in provenance:

As there are no uniform standards that define what an “unavoidable gap” is in the history of ownership (provenance) of a cultural, artistic or ritual object, let’s give this our “consideration.”

It is a well-established fact that we will never know everything about the history of an object. The older it is, the less likely it is that we can reconstruct a detailed path of ownership for the object in question. However, the obverse is equally true. The more we search for information about the history of an object, the more likely we are to develop a clearer history of that object, notwithstanding the “unavoidable” gaps. But one important function of research is to narrow these “unavoidable gaps.” If Principle III is properly put into effect, chances are that researchers can fill these gaps. But to what extent can they? It all depends on access to materials (Principle II) in public and private archives that can shed light on their owners and the objects they owned.

If we follow the dicta of global museums such as the British Museum, the provenance will contain only “relevant” and “important” information. Another layer of complexity, another filter of information added to the task of “filling the unavoidable gap.”

Quite clearly, this principle was written with a Museum association in mind which rails constantly against those who demand that their provenances be impeccable and gap-free. No one has and will ever make such a request from a museum or gallery or auction house.

Gap-filling (not like at the dentist’s) pertains mostly to the 1933-1945 period. It would be good practice on the part of museums, and the rest of the art world, to exercise enough diligence so as to include as much “relevant” information as possible in the provenance of an object under their care and ownership.

Gaps are unavoidable because no one has paid enough attention to them and considered them to be “normal.” If the art world changes its behavior towards the writing of a provenance, the gap issue might wither away naturally. But, being the optimist that I am, it will take at least twenty years for such behavior to change on a systematic, industry-wide scale across continents.

“Ambiguities”:

That word can only be addressed through careful research. The structure of the provenance itself allows its author or anyone else for that matter to use footnotes in order to address the “ambiguities” inherent in the provenance. That strategy has been in force for quite some time and appears to work very well.

“passage of time”:

Time is elusive and so are record-keeping and people’s memories. Passage of time is a non-issue and should not even be included. In fact, when one reads that expression, one can only see a veiled threat by a museum invoking “latches” and flinging it at the claimant for not having “done enough” to research the fate of his/her object.

“circumstances of the Holocaust era”:

A lovely historical misnomer which reduces the relevant domain of inquiry to the period 1940-1945. In other words, it is a misreading of history and is inconsistent with the phrasing “Nazi era” which lasted from 1933 to 1945.

In June 2011, we noted that “Principle IV is the kiss of death for claimants. No one follows this Principle because provenance is everything. If there is a gap in the provenance, it is because the information is not available. If the information is not available, it is because access is being denied to the relevant information.” Hence, Principle IV is wishful thinking at best and utter diplomatic cynicism at worst. It can only be salvaged if action is taken to enforce Principles II and III.

Principle #4 could be rewritten and expanded as follows:

In establishing that a cultural, artistic and/or ritual object has been confiscated, misappropriated, been subject to a forced sale and/or other acts of illicit dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945 and not subsequently restituted, every diligent effort shall be made to produce as complete a provenance as possible by filling gaps and resolving ambiguities produced within and/or facilitated by a context of racial persecution, warfare, and genocide during the entire period of the Third Reich, the Holocaust, and the Second World War, across Axis-controlled Europe between 1933 and 1945.

Washington Principle #3: 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 #3

III. Resources and personnel should be made available to facilitate the identification of all art that had been confiscated by the Nazis and not subsequently restituted.

“Resources and personnel”:

The only way to ensure that a principle is enacted properly is to allocate resources and personnel which are dedicated to ensuring its viability. In the case of “identification of all art”, the “art” in question is located in a myriad places, both public and private, accessible and inaccessible. Even if archives are open, someone has to do the research and be paid for it. If museums grant access to their records, someone has to be able to consult them and be paid for that task. If we ask art institutions to cover those costs, little will be done, that’s for certain. Hence, external sources of funding have to be made available in the form of grants, fellowships, project funds, to allow institutions to recruit the personnel needed to conduct relevant searches into relevant records so as to “identify all art”. The only country that has done so, and to a limited extent truth be told, is Germany. After Germany, we have Austria. And that’s about the extent of it, with scattered efforts to work on discrete projects with no immediate consequence on the ability to “identify all art that had been confiscated” and displaced by other means. The United States, case in point, has turned out to be a miserable failure in this department, its government providing neither resources nor personnel to make good on its own dicta stemming from the Washington Conference on Holocaust Assets of December 1998.

But in order to “identify all art”, one must know what one is searching for. The widespread lack of understanding of the crime of plunder is staggering and impedes any large-scale at identifying the relevant objects that may fall under the category of “confiscated,” “dispossessed”, “sold under duress,” “looted”, “plundered,” etc.

In June 2011, we noted an inconsistency in language between Principles I and III: “Principle III embraces the notion that “all art” confiscated by the Nazis should be identified, as opposed to Principle I which just discusses “art.” Did the diplomats of the Washington Conference intend to maintain this inconsistency for any particular reason? Principle III is a massive failure.”

On a more positive note, we note that the Gurlitt exercise (since 2013) has forced the German government to reassess its provenance research funding priorities with a view to increasing funds allocated to German museums. A side effect of the Gurlitt exercise has been to compel the Swiss government to acknowledge that there has never been any systematic effort in Swiss museums to conduct research into their holdings. The Gurlitt collection’s presence at the Kunstmuseum of Bern is changing this dynamic as basic funds are being allocated for a limited study of Swiss institutions to survey their collections for any item falling under the rubric of “confiscated” or “displaced” during the 1933-1945 period. Of course, these objects would have been misappropriated in another country and then brought into Switzerland.

Likewise, an international conference recently convened in Jerusalem on October 4 renewed a call from Jewish groups worldwide to focus on provenance research as a way of identifying so-called “heirless” property.

And the regional provenance research project, TransCultAA, recently funded by the European Union, has shown the way to create historical research projects addressing the “translocation” of Jewish-owned cultural assets at the regional level, in this case the area flanked by Austria, Italy, and the Western Balkans.

For research to take place, it requires capital and people. It won’t happen without them. We’ve been twenty years for Principle #3 to be implemented on a systematic scale and it has not happened to date. The failure lies with the signatory governments to the Washington Conference of December 1998 who essentially made a deceitful commitment to provide such resources and personnel. Hence, Principle #3 is a failure.

Principle #3 should be rewritten and expanded as follows:

Resources and personnel “grants, fellowships, project funds and other financial allocation mechanism, shall be made available to facilitate the identification of all artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945 and not subsequently restituted.

Washington Principle #2: 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 #2

II. Relevant records and archives should be open and accessible to researchers, in accordance with the guidelines of the International Council on Archives.

“Relevant”:

Archival collections abound worldwide. Most of them consist of documents, reports, correspondence, photographs, transcripts, memoranda, lists, etc., compiled by municipal, regional and national agencies, both civilian and military. “Relevance” addresses the extent to which these archives shed light on the fate of cultural objects owned by Jewish individuals, their families, friends, businesses, and the like. Hence, these documents can be found in financial, cultural, economic, administrative, police, political, and other archival collections. They name objects, names of people, and locations where objects were located, extracted, transferred, bought and sold, traded, exchanged, ferried, crated, and deposited.

Access to archival records produced since the 1930s has grown exponentially from North America to Western and Central Europe. However, there has also been a reaction to such open access under various disguises: privacy concerns, national security concerns, legal concerns.

Where access to “relevant” documents is granted, the right to publish the documents is suppressed, especially in their digital form. The right to publish and reproduce documents extracted from public and private records will remain a source of friction for some time until privacy concerns are eased for documents that are now more than 80 years old.

In June 2011, we noted the following:

“The main hitch that impedes exhaustive research into Nazi/Fascist looting is the difficulty experienced by all researchers in gaining access to private archives and especially those developed by art dealers, art collectors, private and State-owned museums, and other cultural institutions. As noted in recent court cases in the United States, American museums have been loath to release all records that would shed a full historical light on transactions involving works being claimed for restitution. There, Principle II continues to be completely ineffectual.”

Since 1998, there has been very little progress registered in gaining access to private gallery and museum records. Art trade practitioners continue to hide behind shields of trade secrecy, confidentiality, protection of clients’ and consigners’ identities, amid general suspicion that the desire for access to their records rests on dark motives. All that one wants to know is how objects travel from one point to the next. Art market professionals should feel bold enough to share such information without sacrificing confidential and sensitive client information. But to gain this level of trust requires a lot of handholding and one-on-one communication that could take a lifetime to achieve with meager results. Hence, new strategies should be explored in order to gain access to such records. Otherwise the full truth shall never be known as to the fate of thousands of objects from the time of their forced removal from Jewish ownership to their present whereabouts.

Principle #2 could be rewritten and expanded as follows:

All records and archives must be declassified, open and accessible to researchers, in accordance with the guidelines of the International Council on Archives, EU directives and other relevant legal and diplomatic instrumentalities. In consultation with art trade representatives, mechanisms shall be developed and implemented to ensure that proper access to relevant documents is ensured for all those who request it under conditions that are mutually agreed to between the parties.

Washington Principle #1: 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.]


Washington Principle #1

I. Art that had been confiscated by the Nazis and not subsequently restituted should be identified.
“Art”:

In conventional terms, we think of “art” as paintings, works on paper, and sculpture, especially of the highest quality, museum-worthy pieces. This definition would be consistent with the overall approach applied by the United States, the United Kingdom, France, and other countries in the immediate postwar years as their agencies searched for looted “art.” But in reality, “art” covers many disciplines and media, many forms of expression and purposes whose quality varies greatly in content, style and esthetics. Most of the “art” that had been “confiscated” by the Nazis did not consist solely of paintings, works on paper, and sculpture. It included furniture, accessories, other kinds of decorative objects, any object that, although functional, and even ritualistic presents esthetic values which would earn it the label of “art.” The ERR database, for instance, is clear proof of this broad expanse known as “art.”

“confiscated by the Nazis”: 

the word connotes an order from on high to seize someone’s property. Hence, we are to understand that the Nazi government or authorities order the “confiscation” of “art” from their designated victims. This narrow definition of how “art” changed hands illicitly begs for clarification as it is historically reductionist and therefore conveys a skewed vision of the historical reality. The word “confiscated” excludes other forms of dispossession brought about as a consequence of the Nazi seizure of power in January 1933 and does not reflect the myriad ways in which property owned by Jews could be forced out of their hands.

“not subsequently restituted”: 

what does “restituted” really mean in this context? Physically returned to the aggrieved individual or entity whose “art” was “confiscated”? Does it mean “returned” to the country of origin? The lack of clarity fills this word with ambiguity.

“should be identified”: 

it’s not an obligation, mind you. But just in case the thought crossed your mind, would you be so kind and identify “art” confiscated” by the Nazis which sits in your midst? And to whom is this Principle addressed? To museums—public and private? To art galleries and auction houses? To individual private owners? To institutional owners? To religious entities? It’s hard to know. And how does “identified” work? Is it simply a question of spotting the item in a collection, taking notes of its presence, and leaving for lunch? The mission inherent in Principle #1 is narrow in scope. What do you do once the object is identified? And how is it identified? Using what methods, exactly?

In June 2011, we wrote that “the process of identification, in and of itself, is known as a Catch-22—it contains its own paradox. In order to identify looted art, one must understand the concept of looting. Looting, per se, can be as simple as forced removal of property at the point of a gun and/or with the assistance of local law enforcement and judicial authorities working in tandem with the occupation authority. It can also be the result of so-called forced sales or duress sales. There, too, we run into problems because not every country that attended the Washington Conference even acknowledges that such sales occurred on its territory during those fateful dark years.” And so it goes. After 20 years or so, “there are no firm standards by which to move forward on identification…Moreover, this Principle does not make it explicit that such efforts should be exhaustive and definitive. Hence, each country can produce an ‘ad minima’ effort and feel that it has abided by Principle I. How diplomatic!” 

Principle #1 could be rewritten and expanded as follows:

Artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945, and not subsequently restituted to their rightful owners shall be identified using the highest standards of scientific and empirical research and analysis.

An "heirless" journey

by Marc Masurovsky

How has the discussion on "heirless" cultural assets evolved between 2011 and 2018, as reflected in various entries in the "plundered art" blog?

Overall, the debate goes nowhere, primarily because the "heirless" status of a looted object is, by nature, political and administrative. From a research standpoint, it represents one final assessment whereby no concrete links could be drawn between that object and one or more individuals acting as its owner at a particular point in time. It is--and should be--the outcome of a lengthy and methodical research effort undertaken in various archives.

The future lies in breaking the stalemate over the "heirless" object: does it really boil down to selling these objects off or can there be a genuine commitment on the part of the holders of these objects to do their best to find an "owner", thereby establish a clear, even if incomplete, provenance of the object sufficient to allow us to tell its story, or a story about its trajectory.

April 9, 2011

How best to handle so-called heirless or unidentifiable property? In today’s mercenary, hyper-materialistic and insensitive world, one approach is to share the proceeds of sales of heirless property along carefully delineated lines. It’s just an idea, but the issue of looted cultural property from the Second World War will never, and I mean never, go away without some form of global political and financial settlement of those stolen works that have been left in netherland.

Perhaps, it’s time to think about creating an international entity responsible for disposing of so-called heirless objects in a manner that is of ultimate benefit to the families of victims, and which underwrites and promotes further research into the fate of such objects.

June 25, 2011

Washington Principle IX spells out the following: “If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, can not be identified, steps should be taken expeditiously to achieve a just and fair solution.”

Principle IX is diplomatic hogwash at its best. Let’s use the phraseology that best suits the Principle: heirless property. These two words put together offer a lethal mixture to Jewish organizations and postwar governments alike. No one knows what to do with heirless property. They don’t. How long has it been since the end of World War II? How long has it been since the Washington Principles were enacted? We are still at level one of the discussion.

Principle IX should simply be re-written completely and the words “heirless property” injected into a new paragraph that rethinks the fate of heirless property.

July 3, 2011

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

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

August 21, 2011

Nazi authorities did not bother to associate the works with their victims which renders these cultural assets, a direct result of “internal” looting or plunder, as “heirless” or “unidentifiable”, until someone recognizes them and claims them on behalf of their family.

February 14, 2015

Principle 9: If the pre-War owners of art that is found to have been confiscated by the Nazis, or their heirs, cannot be identified, steps should be taken expeditiously to achieve a just and fair solution.

A number of international Jewish organizations and other interested parties have come forward and made numerous suggestions about how to dispose of the ‘heirless’ component of the Gurlitt commission. This initial determination of “heirless” is contingent on the research and the ability to fill gaps and ambiguities in the history of the objects in the Gurlitt collection. According to the agreement signed by the German government with the estate of the late Cornelius Gurlitt and the Kunstmuseum Bern, 2020 is the deadline at which a final determination will be made about the status of the objects being researched under the aegis of the Gurlitt Task Force and by the Kunstmuseum Bern. Some have suggested that the “heirless” items be sent to Israel. Others have asked that they be sold and the proceeds distributed among needy Holocaust survivors and their families. The German government has tentatively endorsed the idea that the “heirless” items should be housed and displayed in a German museum “for a while” once the last ‘clean’ items are transferred to the Kunstmuseum Bern and the “identifiable” items have been returned to their rightful owners. A fair and just solution? So far it’s been unfair and unjust. Therefore, we must cast an interim NO until further notice.

January 13, 2017

What does one do with objects deemed heirless? Remember that heirless property is simply unclaimed property for which no owners have been found ---yet. Since there are no well-funded research organizations or institutions in the business of searching for these objects’ rightful owners, they remain to a large extent heirless, deprived of their history, their context and their identity.

For instance, Jewish museums are stocked with heirless objects, coming from communities that have been systematically erased from the face of the earth. But not all displaced objects in Jewish museums are heirless. The mission of Jewish museums is to safeguard these objects, not necessarily restitute them. Hence, when faced with a restitution claim, a Jewish museum is more likely to behave like most art museums by opposing the act of restitution which would require de-accessioning the claimed object from its collection.

In an ideal world, the most logical way to address the question of researching and documenting the complete history of cultural plunder between 1933 and 1945 is to orchestrate a massive inflow of research monies and establish an international research and documentation infrastructure. Only in this way can one address systematically the full scope of looted cultural heritage (outside of Judaica which has attracted significant attention over the past decades) of the Jewish people, identify the location of plundered objects, figure out which ones have still not been restituted, match them with their rightful owners. If there are none, then the question of heirless property comes into the picture.

A vast international, even transcontinental, network or infrastructure of research institutions facilitated and nurtured by a mix of government agencies, independent organizations, and academic centers across the Americas and Europe should coordinate this effort. This is not a one-or three-person job. In order to get a handle on what was stolen, where, when, by whom, sold and resold to whom and where and when, one needs a small army of intelligent, motivated, educated, trained, PAID, worker bees.

There is a strong likelihood that “heirless” objects having once belonged to Jewish owners before the Holocaust era ended up in the permanent collections of museums, be they State-controlled or privately owned.

How does one persuade these cultural institutions to de-accession heirless objects which they argue were acquired in good faith and have no owner?

October 8, 2018

No object is heirless unless it is labeled as such. Every object begins with an owner who happens to be its maker or creator. Once the object leaves its original, primal owner and the place where it sat or hung, the path of the object will either be licit or illicit depending on the circumstances of its removal, transfers, and the transactions that it was subjected to and the larger historical context in which these movements or translocations took place. Those are the objective facts surrounding the life of an object and its peregrination through time and space. That is what constitutes the provenance of an object. To put it simply, every object is connected at any given point, to a person, to a location and to a date.

In my view, the paradox is as follows: An object becomes heirless because it has been labeled as such for reasons having nothing to do with the object itself. On the other hand, an object always has an owner, whether identified or not.

New and enhanced version of the Washington Principles, starting in December 2018 (wishful thinking)

by Marc Masurovsky

Proposal for a modified and enhanced version of the Washington Principles to be enacted in commemoration of their 20th anniversary in December 2018 or soon thereafter,

Principle #1

Artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945, and not subsequently restituted shall be identified.

Principle #2

All records and archives must be declassified, open and accessible to researchers, in accordance with the guidelines of the International Council on Archives, EU directives and other relevant legal and diplomatic instrumentalities.

Principle #3

Resources and personnel shall be made available to facilitate the identification of all artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945 and not subsequently restituted.

Principle #4

In establishing that a cultural, artistic and/or ritual object has been confiscated, misappropriated, been subject to a forced sale and/or other form of act of illicit dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945 and not subsequently restituted, every diligent effort shall be made to produce as complete a provenance as possible by filling gaps and resolving ambiguities produced and/or facilitated by a context of racial persecution, warfare, and genocide during the entire period of the Third Reich and throughout Axis-controlled Europe between 1933 and 1945.

Principle #5
In order to facilitate the location of pre-1933 owners and/or their heirs, every effort shall be made to draw up and disseminate to as wide a public as possible all information regarding artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945 and not subsequently restituted.

Principle #6
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.

Principle #7

Pre-1933 owners and their heirs must be encouraged to submit their claims for artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945 and not subsequently restituted.

Principle #8
If the pre-1933 owners of artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945 and not subsequently restituted, or their heirs, are identified, steps will be taken expeditiously to initiate restitution proceedings or any other solution deemed just and fair by all parties concerned, according to the facts and circumstances surrounding a specific case. In each and every case, the interests of the claimants will be placed on an equal footing with those of the current possessors.

Principle #9
If the pre-1933 owners of artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945 that are found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, cannot be identified, processes shall be put into place with all stakeholders so as to find an equitable solution as to how to treat these objects with due consideration to their artistic relevance and to their individual history.

Principle #10

Commissions or other bodies shall be established to assist in addressing ownership issues for unrestituted artistic, cultural and ritual objects confiscated, misappropriated, sold under duress and/or forced sales, subjected to other forms of illicit acts of dispossession by the Nazis, their supporters, profiteers and Fascist allies across Europe between 1933 and 1945; these commissions or other bodies shall have a balanced membership consisting of, but not limited to, members of the art trade, civil servants, current possessors, claimants and their representatives, historians and specialists.

Principle #11

Nations shall enact directives, laws and decrees as appropriate to implement these principles, particularly as they relate to the resolution of ownership issues.

Twenty years of Washington Principles: yet another conference

by Marc Masurovsky

On November 26-28, 2018, almost exactly twenty years after the start of the Washington Conference on Holocaust-Era Assets, the German Lost Art Foundation will host an international “specialist” conference entitled: “20 Years of Wash­ing­ton Prin­ci­ples: Chal­lenges for the Fu­ture”. The aims of the conference are as follows:

“Be­gin­ning with a look back at the Wash­ing­ton Con­fer­ence of 1998, the con­fer­ence aims to dis­cuss the de­vel­op­ments that have tak­en place in the in­di­vid­u­al coun­tries since then, in or­der to ad­dress a num­ber of ques­tions for the fu­ture: What spec­trum is there for fair and just so­lu­tions? How can open gaps in prove­nance be dealt with? What does prove­nance re­search need in or­der to be able to work ef­fec­tive­ly? How can its meth­ods be used ad­e­quate­ly in ed­u­ca­tion and train­ing, in ex­hi­bi­tions and in mu­se­um com­mu­ni­ca­tion? And above all: What con­tri­bu­tion to a cul­ture of re­mem­brance can prove­nance re­search achieve?"

Twenty years ago, eleven Washington Principles were defined and issued as non-binding recommendations for national governments, cultural institutions and the proverbial art market to follow and abide by as a “soft” means of raising awareness about the racially- and politically-motivated displacements of Jewish-held property, cultural and other, between 1933 and 1945, which provoked illegal transfers of title and ownership from Jewish to non-Jewish possessors. Since then, there have been countless lawsuits and judicial proceedings filed by Holocaust claimants and their families in different legal settings on both sides of the Atlantic Ocean to try and recover what they argued was rightfully theirs. At the same time, museums and auction houses were placed under closer scrutiny, not by regulatory overseers, but by lawmakers, Jewish officials, lawyers, historians, researchers, journalists and NGO’s, in how they presented the contents of their collections, especially those items that were transacted between 1933 and 1945. In the case of the two largest auction houses, Christie’s and Sotheby’s, their sales and consignment practices fell under the magnifying glass to screen the provenance of items offered for sale and ensure that they did not indicate possible mishandling during the Nazi years, which could lead to a possible claim to block the sale of the item in order to facilitate a restitution to an aggrieved owner.

How can open gaps in prove­nance be dealt with?

Way too much ink has been spilled since the late 1990s on the subject of “provenance research.” Art historians and museum professionals had never encountered such pressure to explicitly describe and, many times, justify their recourse to “provenance research” in their daily practice as a means by which to ensure that the institution which they served was freed of any possible accusation of holding items which had been illegally displaced during the Nazi years and never returned to their rightful owners. One of the key issues motivating such research was “how to fill gaps” in the known ownership history of objects under their care or being offered for sale through auction houses or in other market venues. Filling a provenance gap has become a regular feature of provenance research, discussed at a plethora of conferences, symposia, and colloquia, organized both inside and outside academic circles in North America, Europe and even Asia. Researchers of all stripes and convictions have built part time or full time careers (as long as they work for defense lawyers and governments!) delving into the sinews of ownership trails to try and find crucial details that might fill up the spatio-temporal abyss known as “the gap.”

Here we are, in 2018, contemplating yet another international conference to reminisce over the Washington Principles. At that conclave, participants will be asked to contemplate “how to deal with open gaps in provenances.” What exactly has happened since 1998, if it is not putting into place complex strategies on how to address those “gaps.” It is hard to imagine how this question is pertinent unless the organizers of the conference have not been keeping tabs with the evolution of the provenance research field, however quixotic it has been.

What spec­trum is there for fair and just so­lu­tions?

Washington Principle #8 states: 

“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.” As stated in previous articles published on the plundered-art blog, the idea of “a just and fair solution” was not the brainchild of a Holocaust claimant seeking the physical return—restitution—of his/her lost property from the possessing institution, be it public or private.

The real question should be: have current possessors been fair and just to Holocaust claimants? Please explain your response, whether positive or negative.

What does prove­nance re­search need in or­der to be able to work ef­fec­tive­ly?

The framers of the November Berlin conference on Washington Principles should make up their minds about the focus of their gathering. Is it about the future of the Washington Principles or is it about provenance research? Is it about assessing the merits and limitations of the Principles or is it about provenance research? Are they suggesting that provenance research lies at the root of restitution proceedings and “fair and just solutions”? If so, they should state this idea openly. In other words, they seem mighty confused about what they are trying to achieve in November 2018, as if twenty years have come and gone without them witnessing too much. One can grow impatient with such “innocent” questions raised almost in rhetorical fashion to stimulate a discussion which might not actually happen. If one wishes to delve deep into the vagaries and limitations imposed on provenance research by institutions subsidizing and acquiring such research, the discussion might soon become contentious. But contention is not a desired outcome, much as it unfolded at the Franco-German Bonn Conference of November 2017 on the wartime art market in France, where the fault lines on the financing of research in Germany by the Lost Art Foundation were exposed in a rather blunt manner. Do we want such a recurrence to take place in Berlin? I doubt it. If that is the case, the line of questioning should be altered and focused on the crucial issues facing provenance research—lack of funding, lack of focus, too much political meddling in the direction of the research.

How can [the] meth­ods [of provenance research] be used ad­e­quate­ly in ed­u­ca­tion and train­ing, in ex­hi­bi­tions and in mu­se­um com­mu­ni­ca­tion?

That’s a rather funny question because most museums—public and private—in Europe and North America oppose almost religiously any discussion of National Socialism, the Holocaust, the Second World War, Nazi expansionism, collaboration with the Nazis, as integral parts of the narrative to explain how these movements, trends, and events would have shaped the fate of objects in their collections. So instead of asking “innocently” how these methods can be used “in ed­u­ca­tion and train­ing, in ex­hi­bi­tions and in mu­se­um com­mu­ni­ca­tion”, perhaps the framers of the Berlin conference should provide a sober assessment to the participants as a starting point:

There is no education, there is very little provenance training, if any, there is no talk of the larger historical context in the presentation of ownership histories in exhibitions and in “museum communication”. Ask why that is, instead of pretending that there is training and education.

What con­tri­bu­tion to a cul­ture of re­mem­brance can prove­nance re­search achieve?

This question is astounding in and of itself. It might subsume that restitutions and “fair and just solutions” combined will become obsolete and a thing of the past. Instead of focusing on justice, why not use the history of objects to engage in “remembrance” of lost lives, lost art, the Holocaust and all of its ugliness. Isn’t it better that way? Remembrance is the ticket out for many people to clear their conscience and feel that they are being morally and ethically correct in how they treat objects with dubious histories. Perhaps, we should just set aside the ugliness of the past and focus instead on the loss of human life, as perceived or hinted at through the history of objects with Holocaust-laden stories and interruptions.

It’s hard to fathom how, after twenty years, adult men and women who are supposed to be experts and who are respected for their wisdom and insights, who occupy positions of leadership in institutions that steer and foster research and education on the most complex, most heinous crime—genocide and its corollary, plunder—perpetrated by men and women against other men, women, and children, only because of what they were—Jews--, can propose a framework of discussion which suggests that not much has happened in the twenty years that elapsed since the Washington Conference on Holocaust Assets.

I am tongue-tied.

In the mean time, the best advice that I can give is to hold a parallel conference that discusses the following themes:

-Throw out the Washington Principles, rewrite them and adapt them to the realities of the 21st century;

-Forget about “fair and just solutions”: they constitute a corporate welfare program for claimants, or how to buy out the claim without losing title to looted works in one’s collection.

-Fund provenance research at much higher levels than they are currently,

-Establish provenance research training programs on both sides of the Atlantic in order to train new generations of researchers, art historians into the finer aspects of contextual research that actually weaves the larger history into the history of displaced objects and inculcates critical thinking into their methodologies.

-Learn how to tell stories that are meaningful and truthful, not spun and woven tales designed to make museums feel better about themselves.