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.

When is “just and fair” fair and just?

by Marc Masurovsky

(updated on 5 July 2025)

It is difficult to pin down precisely the genesis of the concept known as “fair and just” or “just and fair” solution in matters pertaining to the restitution of art objects looted during the Holocaust. Who and when are almost impossible to trace.

A valid starting point is principle #8 of the “Washington Conference Principles on Nazi-confiscated art”. The “Washington Principles” were passed on December 3, 1998 at the close of the Washington Conference on Holocaust-era Assets.


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

Two years later, on October 5, 2000, a declaration came out of an international forum on Holocaust issues held in Vilnius, Lithuania, which placed heavy emphasis on the search for fair and just solutions “to the return” of looted art and cultural property. It went a bit further than the Washington conference without getting into any specifics, diplomatie oblige, as to what would constitute a just and fair solution to a claim for restitution. Forum participants did ask that “every reasonable effort be undertaken" to “achieve the restitution” of looted cultural assets. Hence restitution {again, without being properly defined] was invoked in the same breath as “just and fair solution.”

Eleven years after the Washington Conference of December 1998, a similar conclave of 40 odd nations and international NGOs gathered in Prague under the auspices of the hosting government of the Czech Republic. The International Conference on Holocaust-Era Assets issued a declaration, called the Terezin Declaration on June 30, 2009. In it, one can find multiple references to “just and fair solutions” without understanding at all what they are and how to achieve them. They do stipulate, however, that the Washington Conference of December 1998 established the moral (and non-binding) principle whereby looted art and cultural property should be “returned to victims or their heirs in a manner consistent with national laws and regulations [emphasis added] as well as international obligations, in order to achieve a just and fair solution.” Unless I am completely mixed up here, I read this as meaning that the restitution of looted cultural property achieves a “just and fair solution.”

In the years following the 1998 conference in Washington, DC, where the Principles were formulated, the tendency was to sharpen the link between restitution and “just and fair” or “fair and just” solutions. And yet….the word “restitution” was not defined in these declarations. If it was to mean the physical return of the looted object to the rightful owner and thereby transfer of legal title away from the current possessor to the rightful owner, many art market players like auction houses and museums, as well as governments, have violated the principle of what is just and fair by insisting that “just and fair” in all likelihood means upholding the good faith of the current possessor and asking—no, convincing—the claimant that financial compensation of some sort or another is the best result that can be achieved in the spirit of the Washington Principles of 1998. Best to invoke the trinity of Washington, Vilnius and Terezin in order to enshrine the physical return of the object.

Is that really what was meant or inferred at Vilnius in 2000 and at Prague in 2009? The answer is inconclusive, because most of the drafters and endorsers of these declarations were well aware that “national laws and regulations” would interfere with the actual physical restitution of the claimed object, especially in areas where the Idol of Good Faith rules all.

Hence, the apparent contradiction between settlements and the various declarations of Washington, Vilnius and Terezin disappears by stressing that the return of the object should be consistent with national laws and regulations. The emphasis of "fair and just" shifts in favor of the rights of the current possessor at the expense of those of the claimant.




"Dedham from Longham", by John Constable

An interesting twist to the Washington Principles involves a painting by John Constable being claimed by Alain Monteagle, representative of the Jaffe family’s restitution claim. The painting is presently located in the Fine Arts Museum of la Chaux de Fonds which is in the canton of Neuchatel in the French-speaking part of Switzerland. Historically, the Swiss federal government has always deferred to local governments’ discretion in the way that they manage or dispose of their cultural assets. If one should apply to the letter the principles enshrined in Washington and reiterated in Vilnius and Terezin, the museum at La Chaux de Fonds, which is municipal, should return the painting to Mr. Monteagle. However, if the return is subject to the “national laws and regulations” of Switzerland and the canton of Neuchatel, as well as the municipality of La Chaux de Fonds, Mr. Monteagle does not stand a chance, because civil law in Switzerland worships the good faith of the current possessor and no foreigner can come into Switzerland and claim what he/she feels is his/her rightful property, at least not since 1949, with a notable exception last year. At least, that is the impression that we are left with, if history serves as a valid reference point.




La Chaux de Fonds 

Interestingly, in a 3-page report issued in January 2014, the Swiss Federal Office of Culture commented that “just and fair solutions must be sought—both when it has been possible to trace the victims and when identification has proved impossible.”

Hence, the principles of Washington, Vilnius and Terezin are not helpful in the real world and, more often than not, municipal governments and their national representatives heap scorn on them so as to safeguard their “cultural property.” If Mr. Monteagle wants his painting back, he has to wage total war against the Swiss government, the city council of La Chaux de Fonds which has oversight of its fine arts museum and the cantonal authorities in Neufchatel. To be successful, the battle for restitution must involve all aspects of civil society and should be waged inside and outside the legal system in order to "achieve a just and fair solution" consistent with Washington, Vilnius and Terezin.

Update of 5 July 2025

Since 1998, the concept of "Just and Fair" as applied to the resolution of Holocaust-era claims for Nazi looted art (encompassing losses suffered from the advent of Hitler to power on 30 January 1933 to the unconditional surrender of the Third Reich on 9 May 1945) has been embraced by governments, lawmakers, auction houses, museums (public and private), dealers and collectors, and many lawyers involved in looted art cases. It has become what lawyers and lawmakers describe as "soft law."

When "just and fair solutions" are invoked, they pave the way for a financial settlement allowing the current possessor to explain why it is not fair and just to them to relinquish the claimed object to the heirs of the victim who lost them. Moreover, these solutions undermine our understanding of the trauma of duress as experienced by those who lost their cultural goods as well as the rest of their belongings and assets.

As a historical footnote, the concept of just and fair was wholly concocted by Ambassador Stuart Eizenstat, organizer of the 1998 Washington Conference on Holocaust-era Assets and the US Government's chief negotiator and diplomat on matters dealing with reparations for Holocaust victims and their families. The American Alliance of Museums (AAM)--at the time known as the American Association of Museums--played a role in guiding Ambassador Eizenstat to formulate this concept which ended up being a gift to the class of current possessors at the expense of the interests of the claimants in their quest to obtain restitution (the physical return of their property).

Is it fair to ask whether Ambassador Eizenstat and his colleagues in major Jewish organizations involved in Holocaust reparations ever thought to sit down with claimants and restitution advocates about the implications of a "just and fair" approach to their request for restitution?

As for the Swiss government, it is on the brink of creating a Swiss commission inspired by those already in place in the United Kingdom, the Netherlands, France, Germany and Austria.

What does restitution mean to me?

by Marc Masurovsky

[Editor's note: this is an opinion piece which reflects the views of the author and does not necessarily commit those of others to what is argued hereunder.]

For our purposes, I will limit my comments to Jewish losses and restitutions to people of Jewish descent who either were persecuted or were blood relatives of victims of anti-Jewish persecutions between 1933 and 1945.

In plain English, (I am not a lawyer) as often repeated on the blog of the Holocaust Art Restitution Project and elsewhere, restitution is the physical return of an object stolen or misappropriated as a result of racial, ethnic, political, religious, and other forms of persecution perpetrated against individuals or groups of individuals because of their faith, ethnicity, beliefs, and/or sexual orientation.

Most commonly, the notion of restitution has been associated in the minds of both the public and legal practitioners and policymakers with anti-Jewish persecution.

The actual physical return of the looted object affirms the transfer of legitimate title to the stolen/recovered property to the rightful owner/claimant.

National governments, their agencies, and international organizations, view the word “restitution” in a different light. It would be easier to use words like “return” or more aptly “transfer.” Indeed, after WWII ended, Allied governments detailed cultural specialists to recently liberated territories in Europe and the Far East to sort out the origins of cultural and religious objects discovered by troops on the march and during their occupation of captured sites.

Once they identified the origin of the objects, as in the country from where the objects had been forcibly removed by the occupying power’s representatives—civilian and military—these cultural specialists, referred to in popular culture as “Monuments Men”—had the objects inventoried, marked as “restituted” and shipped back to the country of origin where they assumed that the returned objects would be then physically restituted to their rightful owners. Here, restitution is a bureaucratic word that holds a specific meaning distinct from the physical return of the object to the rightful owner.

Now that I have ascertained in a “nutshell” what restitution is all about and how it differs in meaning depending on who or what uses the word, what happens when an object is actually not restituted but when some kind of agreement is reached that results:

1/ in an exchange of money from the current possessor to the claimant and
2/ the maintenance of legal title in the hands of the current possessor?

Ever since the end of WWII, government officials overseeing the restitution programs of postwar nations had to contend with current possessors of the objects suspected of being looted who had to respond to claims filed by the aggrieved parties. Very quickly, they sought alternative ways of resolving what were viewed essentially as property disputes over who has good title to an object of art. In other words, the debate over restitution shifted away from the righteousness to apply in concrete terms a responsibility to restitute an object stolen during a genocidal undertaking.

The current possessors pushed back almost immediately after Victory Day. They hid behind national and local property laws that upheld their good faith in the way that they had come into possession of the looted object. The act of restitution was, in effect, held hostage to property laws which regulate who gets to hold title to an object and under what circumstances. Genocide did not figure in the equation. It was simpler that way and continues to be that way today. Good faith is almost like a religion.

As a result of a societal predisposition to invoke good faith arguments when challenges to ownership occur resulting from Holocaust-related events, restitution—meaning the physical return of the looted object to its rightful owner—has become a complex, difficult  and almost insurmountable goal to achieve for thousands of claimants, victims or relatives of victims of acts of plunder committed during the Nazi/Fascist era.

Financial settlements—indemnification or compensation for loss of the claimed property—have been the rule of thumb for most claimants until today and the preferred way of “restituting” practiced by the art market and governments alike. In other words, the looted objects remain in the possession of those who have acquired them either on the art market or by inheritance or by exchange for other objects or obtained them directly through the commission of crimes against humanity. Legal title is not transferred to the rightful owner.  In defense of many claimants who choose financial settlements over the arduous challenges posed by restitution, a settlement can be rationalized as a tacit, unspoken (words are dangerous, especially written ones) acknowledgment of the wrong that produced the loss of the object in the context of persecution and genocide.

Nevertheless, theft committed during unspeakable acts against individuals and groups pays for itself as long as one’s good faith can be upheld.

Nowadays, financial settlements are referred to as “fair and just solutions.” Based on the above, you can figure out rather quickly for whom those solutions work best.

It’s up to you to decide whether a financial settlement can help right the wrongs of the past. For me, the physical return of the object to the rightful owner and the transfer of legal title to said owner, are the only true form of restitution. The rest is a rewrite of history, a sanitized approach to the byproduct of unspeakable crimes so that trade can continue and good faith can remain as a pillar of protection of private property for those who stand to profit the most from the act of possession of those un-restituted objects. Most "current possessors" feel no guilt or remorse over their ownership of objects tainted by genocide. Instead, they can be rather offended that a claimant can show up at their door decades after the events and ask for the object back.  Genocide is not barred by statute.  However, its byproduct of plunder and theft is shielded by antiquated property laws regarding good faith and title to the property.

In the end, this is not just about losses incurred during anti-Jewish persecutions and the Holocaust. The debate over restitution applies just as well to any theft of objects plundered during the commission of crimes against humanity regardless of where they were committed and by whom.

It has been 15 years since that fateful year of 1998: what do we have in 2013?

The American government prefers to let the market decide on what is fair and just for Holocaust victims of cultural plunder.

European governments are loath to challenge the cultural institutions that they subsidize directly and indirectly. By so doing, they legitimize the misappropriation of untold numbers of art objects and they prevent an impartial and scientific examination of the history of these objects which “ended up” in their basements and depots during and after the Second World War.

On the brighter side…

A growing number of curators and other art professionals have changed the way they work in American and European institutions when faced with problematic ownership histories for objects being accessioned or already in their collections—that’s reason enough to be guardedly optimistic.

“Art market players” are more aware than in the recent past regarding the complications arising from the trade in looted cultural assets. But that is all relative. Outside of Paris, London, and New York, that statement becomes moot. Moreover, the absence of verifiable statistics makes it nigh impossible to measure the result of such “increased awareness” because of the near impossibility of coming up with even a gross estimate of restitutions triggered exclusively by the art market’s due diligence efforts. Something to work towards for the sake of “transparency.”

Back to the dark side…

Fewer than five—yes, a number between 0 and 5—institutions of higher learning in the world—as far as one can tell—offer either intermittent or regular academic programs focused solely on provenance research. If universities, colleges, institutes—private and public—continue to be obstinate in their refusal to satisfy a growing demand for such programs, the only possible remedy is to create alternative programs that specialize in provenance research and its interdisciplinary corollaries. Where there is a will, there is a way!

There is no public policy--national or international—with which victims of plunder can assert their interests in seeking the recovery of their stolen cultural property.  It’s time to shame international non-governmental organizations that have repeatedly ignored calls to meet the needs of individuals, entities, and groups whose cultural assets have been and continue to be the targets of theft and plunder.

Some lawyers who call themselves “restitution lawyers” have never recovered anything on behalf of their clients, and yet… they command the respect of their peers in the legal profession.

After all these years, claimants still cannot rely on the international Jewish community to support their quest for restitution of stolen cultural assets. Exceptions are few and duly noted: the New York-based Claims Conference—although the Claims Conference does not handle individual art claims, it stands out as the principal advocate on a global scale for laws and policies that favor the return of looted cultural assets to their rightful owners. Oh yes! In Israel, there is a parastatal organization called Hashavah whose mandate for recovery of looted art only pertains to objects that are located in Israel proper. . And that’s about the size of it, folks.

Left standing are the Holocaust Art Restitution Project and the Commission for Art Recovery, both American-based organizations devoted in their specifically different ways to securing some measure of justice for claimants and to documenting cultural losses during the Holocaust. In the United Kingdom, the Commission for Looted Art in Europe marches on.

What is to be done?

Hashava Poster, Source: Federation of Jewish Men's Clubs