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.

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.