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.

Provenance research can be challenging

by Marc Masurovsky

In the two decades since the now-infamous Washington Conference on Holocaust-era Assets of December 1998 which produced the "Washington Principles." many American museums were placed quite naturally on the defensive since they became the focal point of attention of lawmakers, Jewish organizations, an emerging motley group of art restitution experts, including attorneys, researchers, claimants and assorted historians and NGOs.

In the years following the issuance of the above-mentioned Principles, declarations of faith made by American museum associations--the then-American Association of Museums (AAM) and the Association of Art Museum Directors (AAMD) to the effect that they had the "Nazi-era" provenance problem under control were rarely taken seriously, if at all. The specialized public associated either directly or indirectly with questions of art restitution and Holocaust-related thefts of Jewish-owned property, believed--rightly or wrongly--that a vast majority of museum professionals, including their curators, directors and trustees, held the view that whatever entered their collections was there to stay.  Moreover the threshold of evidence needed to consider returning an object was so high that no one on earth could rightfully claim to meet that standard. Hence, all was good in their minds; restitution would remain a dead letter. So they thought.

Since the late 1990s, Holocaust victims and their heirs have challenged American cultural institutions by asking their representatives for the restitution of their families'  objects which they believed had been spoliated, plundered, misappropriated during the commission of an act of genocide. In response to those claims, museum professionals and their legal representatives have tried to show publicly their "good faith" in meeting these historic claims on a solid footing of historical and forensic inquiry leading to some kind of reasonable outcome even if it meant, in the extreme cases, that they would have to part ways with the claimed objects in their collections.

In that spirit, a number of American museums have gone out of their way to convince the public that the research is challenging. The act of documenting the historical path of these claimed objects for the purpose of unearthing misdeeds which would call into question the museum's ownership of these objects poses challenges.  Here are three examples:

Art Institute of Chicago

Provenance research can prove challenging as records may have been lost or destroyed in the upheaval of war. In addition, the passage of time and world events often make important information difficult to locate. Gaps in the provenance of a particular work may be attributable to different causes, from an owner's desire for anonymity to the unavailability of records of purchase and sale. Thus, incomplete provenance information does not necessarily mean that a work has been tainted by the events of the Nazi era. In addition, in some cases, a work may have been seized by the Nazis but later restituted to its original owners and subsequently donated or sold by them.

Stanford University

This research can be very complex and challenging due to a number of factors, including changes in the attribution and title; physical alteration of a work; the absence, loss, or destruction of transfer documents and other records; ambiguities in family histories; an owner’s desire for anonymity; societal and political upheaval; natural disasters; and poor record-keeping over time. Consequently, gaps in provenance are common and do not necessarily mean the object has a problematic past.

Walters Art Museum, Baltimore, MD

Provenance research is conducted by museum staff, fellows, and interns, and information generated by this work is continually added to individual object records. Although the museum seeks to verify and expand the provenance information associated with individual works of art in its collection, establishing a complete history of ownership can often prove challenging. The museum therefore encourages the sharing of information that might help to clarify the provenance of objects in its collection.

Live and learn...

TD 51072

by Marc Masurovsky

Treasury Directive TD 51072 was passed on June 8, 1944, two days after D-Day, under sections 3(a) and 5(b) of the Trade with the Enemy Act. Its aim was to restrict the importation into the US of any art object with a value exceeding 5000 dollars or is of artistic, historic and scholarly interest irrespective of monetary value.” The method of restriction was sequestration of objects falling under the aegis of the Directive. The Roberts Commission was charged with reviewing the documentation accompanying these sequestered objects and either approving or refusing their release under a license issued by Treasury.

The directive applied to any art object that had changed hands since March 12, 1938, two days after the absorption of Austria into the German Reich, known as the Anschluss. In other words, any art object subjected to “internal plunder” from 1933 to 1938, was exempted de facto from the Directive.

Further exemptions to the TD weakened its impact upon enactment.  For instance, objects imported from the United Kingdom and its dominions were exempted from TD 51072. Also, objects coming in from so-called neutral or non-belligerent countries were exempted from inspection at the US Border. However, importers were still required to file two separate forms, a TFE-1 (license to import) and FFC-168 (questionnaire) [FFC-Foreign Funds Control was the main investigative arm of the Treasury and the predecessor to the Office of Foreign Assets Control at the US Department of Treasury]. These forms were designed to shed light on the origin of the objects and the circumstances of their acquisition prior to their entry into the US.

The loophole created by the “artistic, historic or scholarly” value of the object meant that cultural objects viewed as “ordinary” might be allowed in without further ado. What the US authorities together with the museum professionals of the Roberts Commission did not realize is that the vast majority of art objects looted by the Axis fell under that category of “ordinariness.”

The impact of TD 51072 on cultural imports into the US was limited owing to these many exemptions. Also, the Roberts Commission worked hard to dilute its impact and eventually lobbied the Treasury to have the directive revoked on grounds that there was no evidence of loot entering the US. A note here: the Roberts commission would not have known how to identify a looted cultural or artistic object if if it was staring at them, as there were no exhaustive listings of what had been looted by the Axis at the time the Directive was enacted. The Roberts Commission succeeded in getting the TD 51072 revoked and, feeling that its work was done, voted itself out of existence in July 1946, confident that business as usual should resume post haste.

Why all the fuss about provenance research?

by Marc Masurovsky

Up until the mid-to late 1990s, provenance research remained within the province of trained art historians working in cultural institutions where art objects are cared for and displayed for the benefit of the public. The research aims to enhance the understanding of the object—its author, its physical attributes, the period in which it was produced, the reasons for its existence, and how it evolved over time and space.

This kind of research is an academic/intellectual exercise that helps ascertain the authenticity of an object and its place in the history of art, writ large.

It is not a requirement incumbent upon its practitioner. Provenance research is one of many duties that “come with the job.” If it does not get done, no one gets fired. More often than not, the information that is collected about the object does not enter the “public record” insofar as it is communicated to the general public. If it is communicated, that is left up to the discretion of the institution where the research is conducted.

Then, the 1990s came and went, and, all of a sudden, “provenance research” became something else entirely.

If I had been working in a museum in the wake of the scandal surrounding the misuse of Swiss bank accounts owned by persons of Jewish descent who may or may not have perished during the Holocaust, I would have been rather oblivious to any debate about loot in general. Once the debate about the mishandling of “Jewish bank accounts” (I hate that expression!) transferred into the (mis)handling of art objects nestled in the permanent collections of countless museums both in North America and Europe, provenance research entered the spotlight front and center.

If I had been working in a museum at the time that the “Portrait of Wally” by Egon Schiele had been seized at the Museum of Modern Art of New York in early January 1998, I probably would have wondered: what is that all about? And I would have naturally sided with the then owners of the painting, the Leopold Foundation of Vienna, and the exhibitors, the Museum of Modern Art, wondering what Robert Morgenthau, then district attorney of Manhattan, had had for coffee on the day that he decided to order the New York Police Department to seize the painting.

I would have done so because my training would have precluded me from even wondering if I should even worry about whether or not the institution that I served had actual title to the objects under my care and examination. Why should I have worried about title since I simply assumed that my institution was the rightful owner?

The right thing to do is to acknowledge that the beast that has become “provenance research” has been transformed from an innocuous art-historical practice into a tendentious, litigation-laced, means to an end: does the research into the origins of an object lead to the maintenance of that object in the collection that I help steward or does it lead to the de-accessioning of the object because of some historical wrong that broke the chain of ownership of the object, thus changing its status to “restitutable”?

Since the seizure of “Portrait of Wally” in early January 1998, provenance research lost its innocence. Battle lines have been drawn between defendants upholding their rights to keep art objects under fire for being “looted”, on one side, and plaintiffs demanding the return of those art objects arguing that they were the rightful owners whose families had been despoiled for racial, ethnic, religious and other reasons at some point between 1933 and 1945 during the twelve year reign of the Nazi Party and as a result of the expansionist war decreed by Adolf Hitler and his minions against Europe’s “undesirables”-Jews, Slavs, Jehovah’s Witnesses, homosexuals, emotionally and physically challenged individuals, and anyone else who was caught in the crosshairs of a continental-wide fit of man-made madness, verging on an apocalyptic nightmare worthy of any painting signed by Hieronymous Bosch.

There had been a glimmer of hope at the time of the so-called Washington Conference on Holocaust-Era Assets of November 30-December 3, 1998. Art was not supposed to be on the calendar of the conference. The seizure of the Schiele paintings (actually, two paintings had been seized at MoMA in early January 1998) changed the configuration of the planning for the Washington Conference. American policymakers were not pleased about the seizure because they argued that it had besmirched the bilateral relations of the United States with Austria. In so stating, the US government had sided against the claimants and had upheld Austria’s argument at the time that the entire flap over “Wally” was a private matter to be resolved between the claimants—heirs of Ruth Bondi-Jarai—and the Leopold Foundation, then owner of the seized paintings. Still, and this is for another installment, Morgenthau’s muscled intervention at MoMA triggered an existential debate inside Austrian political and cultural circles which forced Austria to reexamine its entire relationship with its past as it affected the illegal seizures of Jewish cultural property. The end result: the only restitution law in the world which mandates “provenance research” in all Federal public cultural institutions of the Republic of Austria.

Begrudgingly, the US government and its many allies at the planning table for the Washington Conference inserted art as one of the many different types of looted assets whose fate needed to be deliberated on by the attending nations and Non-Governmental Organizations (NGO). The Washington Conference produced the so-called non-binding “Washington Principles”—11 recommendations that have become de facto “policy” for lack of a better word in many nations that want to remove that cultural monkey off their backs.

For some, the Washington Conference was a success. For others, it was a dismal failure. For those who deemed it a success, the Conference provided a unique forum to get a sense of where the world stood as far as justice to Holocaust survivors was concerned. The principles notwithstanding, everyone went home thinking they had done God’s work for three days. Those who saw in the Conference a dismal failure balked at the so-called Principles as yet another diplomatic way out of taking full responsibility for not having done anything concrete to render justice to the victims of plunder while throwing a sop at museums, auction houses, and other privateers of the art market by reassuring them that, although provenance research was highly recommended to fill “unavoidable gaps” in the history of ownership of art objects under their care and stewardship, “fair and just solutions” ought to be sought in order to ensure a measure of justice for all. In the end, for the naysayers, the Washington Conference led to a massive failure of international public policy, thus creating a vacuum of power and decision-making over the fate of countless art objects whose newfound status in legal limbo—plundered or not? Restitutable or not?—had to be resolved not with legislation but through, oftentimes, vicious legal battles pitting museums’ hired guns against plaintiffs’ hired guns.

The search for justice over a massive crime of plunder tied to genocide has turned into an international legal slugfest. Instead of chasing airplane crash victims, it has become more profitable to seek out victims of plunder.