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Are the principles set out for identifying Nazi-looted art fit for purpose?

29 October 2018

Twenty years after the Washington Principles provided a framework for the restitution of Nazi-confiscated art – and with an anniversary conference held in Berlin this November – their effectiveness is up for debate

Nicholas M. O’Donnell

The 20th anniversary of the Washington Principles on Nazi-Confiscated Art is an appropriate occasion for reflection on their historical effect and future usefulness. The dynamic of the discussion about the restitution of Nazi-looted art is very different from what it was in 1998, and the principles deserve credit for that. Like any high-level pronouncement, however, the principles are always at risk of losing their strength when wielded as generalisations to justify any particular decision.

The legal context that preceded the Washington conference is instructive. Nazi-tainted provenance was little-discussed with respect to collections in Europe, where private claims were almost universally time-barred under laws that expired in the 1960s and where cultural property laws forbade the removal of any art from state ownership. In the United States, time standards were more flexible but courts had simply not grappled with whether and how the passage of time had to be considered in this context.

The most important aspect of the Washington Principles is the moral imperative that they state: regardless of the strict application of property law, the issue must be grappled with. It is worth considering the terminology underlying the principles: ‘Nazi-confiscated art’ evokes the most overt kind of theft, but an understanding has evolved since of the continuum of ways in which Nazi persecution dispossessed Jews of their property, ranging from outright seizure, to sales under questionable circumstances, or ‘flight goods’ – property sold out of necessity by people fleeing persecution. There is no consensus on how flight goods should be handled, while the sharpest disagreements have come over which kinds of transactions are forced sale, and which are not.

As detailed in a report by the Claims Conference in 2014, the majority of nations who signed the Washington Principles have since done nothing. The United States has no applicable commission, but it also has no state collections to speak of. After early struggles, the Austrian Art Restitution Advisory Board has shown a positive attitude towards historical nuance and who should bear the burden of dealing with historical uncertainty. The Dutch commission, too, has handled a commendable number of claims, but has engendered controversy in weighing the interests of the present-day museums. The United Kingdom Spoliation Panel has been the most consistently even-handed, but has fewer occasions to address the topic. France has processed many claims but the state of progress is uncertain. And Germany’s Advisory Commission has been in disarray since at least 2014, unable to compel museums to submit to it and having issued some deeply questionable recommendations that waved away undeniable persecution. Increasingly, one sees the principles invoked to defend a refusal to restitute, along the lines of ‘while we are committed to the Washington Principles, nonetheless…’.

In the United States, the Washington Principles have informed negotiated restitutions and court cases. In court, judges have recognised the principles as part of US policy and turned down foreign sovereign powers seeking to dismiss cases against them, in no small part because of the explicit references to the principles in the Holocaust Expropriated Art Recovery Act of 2016. The guidance of the major museum organisations has been instrumental in encouraging American institutions either to return objects with suspect provenance or to engage in a meaningful dialogue to reach a negotiated solution.

What does the future hold? The existing European commissions need refinement and support. Accountability is lacking – not a surprise in a soft-law realm of international agreement. The effect of the JUST Act – which compels the US State Department to track and report on progress on Holocaust issues – will be interesting to watch. Some have called for a revised set of principles, but this does not seem worth the effort. More drafting and wordsmithing would likely be a distraction from the question of whether the original signatories are striving for real progress.

O’Donnell is an art lawyer and a litigation partner at Sullivan & Worcester LLP.

Illustration by Graham Roumieu/Dutch Uncle

Illustration by Graham Roumieu/Dutch Uncle

Martin P. Levy

In 1943, while the Second World War was still raging, the allied governments issued a declaration that addressed ‘the systematic spoliation of occupied or controlled territory […] transfers or dealings [that] have taken the form of open looting or plunder, or of transactions apparently legal in form, even when they purport to be voluntarily effected.’ Many major works of art thus appropriated were repatriated at the end of the war, but much remained missing.

In 1998 the Washington Conference on Holocaust-Era Assets revisited the issue of ‘Nazi-confiscated art’. The aim of the Washinton Principles, that ‘art that had been confiscated by the Nazis and not subsequently restituted should be identified’, has guided the bodies that were set up thereafter. Although their underlying aims are the same, the mechanisms whereby claims are treated in Austria, France, Germany and the Netherlands vary, and are different from those that pertain to the United Kingdom. However, what all the systems have in common is that they act as advisory arbitrators, and offer an alternative to legal solutions. In the United States, spoliation issues are dealt with through the courts.

In the UK, the Spoliation Advisory Panel was established in 2000, and has subsequently advised the Secretary of State at the Department for Digital, Culture, Media and Sport on 20 cases. The panel’s terms of reference instruct it to ‘consider claims from anyone (or from any one or more of their heirs), who lost possession of a cultural object (“the object”) during the Nazi era (1933–1945), where such an object is now in the possession of a UK national collection or in the possession of another UK museum or gallery established for the public benefit (“the institution”)’. As claims are excluded by the statute of limitations, the panel is empowered ‘to give due weight to the moral strength of the claimant’s case’. While works of art that might be identified in private collections are part of the panel’s remit, none has been considered.

In 2017, the DCMS and the Commission for Looted Art in Europe hosted a conference ‘70 Years and Counting: the Final Opportunity?’ at the National Gallery in London. Recommendations included that the five European nations noted above should prepare a written framework for best practice; panels should address differences in approach to common definitions of spoliation, such as ‘loss’ and ‘forced sale’; should provide international guidelines setting out best practice for privately owned works of art; should ensure greater consistency of information gathered from both public and private sources; should consider carefully the questions of lineage and genealogy; and should take steps to improve education in the art-dealing market, focusing on tailored training for both auctioneers, dealers and smaller museums. Representatives of the five nations have since met in London to discuss and coordinate this work.

Informed by the 2014 show ‘Raubkunst?at the Museum für Kunst und Gewerbe, Hamburg, this writer highlighted at the conference the particular difficulty in identifying so-called decorative arts. To the left of the entrance to the Hamburg exhibition was a stark display filled with anonymous-looking silver: a poignant reminder of how many commonplace artefacts were appropriated from anyone who was subject to persecution. Here we see not Klimts, Constables and Old Master drawings, nor even Meissen porcelain and antique clocks, but the domestic silver that formed part of everyday middle-class life.

What can be done to make owners and the market more aware of the issue? Perhaps all art-market transactions should explicitly state that attention has been given to an object’s history during the period 1933–45. While this would not be foolproof, it would certainly raise awareness, and might well draw out more spoliated works of art.

Given the passage of time, and the consequent difficulties in establishing facts surrounding losses, the Washington Principles remain a valid basis for the consideration of issues surrounding spoliation. At the same time, as the National Gallery conference in 2017 concluded, we must constantly strive to enable efforts regarding the restitution of Nazi-era spoliation to be more effective. And this includes trying to bring the approaches of the various panels and commissions into greater harmony.

Levy serves on the Spoliation Advisory Panel. He writes here in a personal capacity.

From the November 2018 issue of Apollo. Preview and subscribe here.