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Twenty-Five Years from the Washington Principles

Ilaria Bortot

June 1st, 2023

December 2023 will mark the 25th anniversary of the Washington Principles on Nazi-Confiscated Art, and an evaluation of their effectiveness is in order. In 1998, 53 years after the end of World War II, the Department of State and the U.S. Holocaust Memorial Museum brought together participants from 44 countries to address the still ongoing loss of artworks and cultural objects caused by the Nazis before and during the war.

Although the principles started a new wave of restitution and global awareness towards looted art, their flaws must be acknowledged. Therefore, this article will look at both the achievements and the areas of concern of the principles. Furthermore, it will analyse how the points expressed in the Washington Principles have been implemented, or not, in some of the countries that had a key role during the war and that today are leading players in the art market.

The Nazi Plunder, i.e., the removal of European cultural treasures by the Nazis, is one of the biggest thefts in history. It involved the looting of more than 20% of items around different countries, and, today, at least 30,000 of them are still missing.[1] There were three main reasons behind Hitler’s confiscations and “acquisitions” between 1938 and 1945: cultural, political, and economic.[2] Interestingly enough, they were often overlapping. Hitler was fascinated by Greek art, and he believed the German culture to be the direct heir of the Greek one.[3] Mostly, he saw in the Greek statuary the embodiment of the perfect Aryan Man; thus, Hitler used classical art for his own purposes and to validate his racial ideology".

In terms of politics, Mein Kanf states that an unshakable authority is based on the perfect combination of popularity, power, and tradition. [4] Therefore, art was used by the Reich as a propagandistic tool and visual representation of Nazi control. Through major exhibitions such as the Grosse Deutsche Kunstausstellung (the Great German Art Exhibition), the Nazis could show the power of the Party, and reach out to the people, who, happy to see their culture and tradition validated, would increase the Nazis’ popularity. Finally, the confiscation of cultural objects from Jewish families was a source of income for the Reich. On the other hand, depriving people of their art and valuable objects, such as menorahs, meant depriving them of their own culture, traditions, and dignity. Here, again, art and its removal played a significant role in Hitler’s political and ideological agenda.

 In 1944, General Eisenhower issued the Monuments Men with the challenging task to protect cultural collections, monuments, and art from the destruction of the war. Furthermore, they had the role to stop the Allied soldiers from taking European artworks and sending them home.[5]  The greatest contribution of the Monuments Men was the discovery of hundreds of mines and caves where the Nazis stored stolen masterpieces and artefacts from some of the most prestigious museums in Europe. For instance, in May 1946, in the salt mine at Alt Aussee in Austria, the Monuments Men managed to recover over 6,500 paintings, including the Ghent Altarpiece, meant for Hitler’s Museum in Linz and Goering’s personal collection.

 

 The rescuing of the artworks stolen by the Nazis would not be possible without the local efforts of museums and citizens. Both the National Gallery in London and the Louvre hid their treasures, and when the Nazis arrived, they found the museums empty. In addition, without the help of Rose Valland, employed at the Jeu de Paume Museum in Paris, which was used to store plundered art, most of the French cultural patrimony would be lost. She risked her life by secretly taking notes on the destinations of the trains containing looted art, which she eventually shared with Monuments Men Capitan James Rorimer and which led to the discovery and saving of hundreds of artworks kept in the Neuschwanstein Castle in the Bavarian Alps.[6]

With the end of the Second World War, a long and difficult process of identification and return of European cultural objects began. Nonetheless, several confiscated works were never returned to their rightful owners. Many of them are still missing, but many are on display in museums and galleries all around the world. In 1998, the Department of State, the U.S. Holocaust Memorial Museum and participants from 44 countries endorsed eleven principles in order to regulate the return of looted art in World War II:

  1. Art that had been confiscated by the Nazis and not subsequently restituted should be identified.

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

  3. 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.

  4. 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.

  5. 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.

  6. Efforts should be made to establish a central registry of such information.

  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.

  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.

  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.

  10. Commissions or other bodies established to identify art that was confiscated by the Nazis and to assist in addressing ownership issues should have a balanced membership.

  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.[7]

The principles represent the first internationally agreed-upon document concerning the return of looted art in World War II. However, it is important to remember that the Principles are not legally binding. As any tools in international law, they are considered to be regulations, suggestions, or guidelines. They therefore create a moral commitment, but they do not intend to create legal rights or obligations. In other words, they are not laws. In order to be legally binding, they have to be implemented at the national level; hence, states need to create a national ad hoc law based on the agreement, as it is expressed by Principle 11. Otherwise, they are not legally obligated to follow the content of the regulations.

 

Among the European countries that signed the Washington Principles, only five of them, the United Kingdom, France, Germany, Austria, and the Netherlands, created specific panels meant to deal with restitution cases. The U.S. on the other hand failed to create a working panel, but American courts provide the most favorable, although not always financially affordable, jurisdictions for claimants due to the 2016 Holocaust Expropriated Art Recovery (HEAR) Act. However, as the article will explore, the presence of panels or national laws does not imply the certainty of the restitution.

Before analyzing the flaws of the Washington Principles, it is important to acknowledge their achievements. As mentioned in the introduction, the Principles represent the start of a new era of restitution cases. Although the presence of the UNIDTROIT Convention in 1995 already marked an important turning point for the return of looted art in international claims, the Washington Principles, for the first time, raised awareness of the connection between stolen art and human rights. Because of the size of the loot, the racial ideology behind it, and the attempted genocide of Jewish people, Nazi plunder is today seen as a crime against humanity. The association between people’s history and lives and their cultural heritage riches its peak in World War II, and the principles are the first international instruments that acknowledged it. The chain effect that started 25 years ago is still in motion.

 After only two months after the enactment of the Principles, the Commission of Looted Art in Europe was founded, and it has provided, so far, the successful restitution of over 3,500 Nazi-looted objects to their rightful owners.[8] Furthermore, the Washington Principles paved the way to the creation of accessible databases such as the German Lost Art Database, the Database of Art Objects at the Jeu de Paume, and the online provenance research database of the Getty Museum. Finally, international awareness around Nazi-looted art is constantly renewed through agreements, such as the Terezin Declaration in 2009, which reaffirmed the Principles, and conferences, for instance the Berlin Conference in 2018 which assessed the success of the Washington Principles in their 20th anniversary.

Most importantly, the principles generated the formation of specific legal panels that only deal with cultural objects stolen during the Second World War. As this paragraph will show, the panels are not without weaknesses, and, despite the noble intent, they are often criticised. The Austrian Council for Art Restitution is considered to be exemplary. It has dealt with 350 cases since 1998, and the details of the reports are available online, which makes the panel transparent and reliable. However, it only handles cases concerning federal museums: hence, individual owners or private institutions cannot rely on this tool.[9] In France, the Commission for the Compensation of Victims of Spoliation, founded in 1999, not only has worked on 298 cases about artworks but also other 4,033 concerning cultural property that cannot be individually identified. Because of privacy restrictions, the panel does not publish the cases online, and it has often been criticised because offers compensation rather than the restitution of the objects.[10] In 2003, Germany established the Advisory Commission. It has covered 15 cases, and it is the least effective panel. Not only it hears very few cases, but it also has extremely slow processes. Also, the panel can be used only if both sides agree: hence, most museums simply refuse to appear in front of the Advisory Commission, and the case is consequently dropped.[11] Similar to the Austrian example, the Netherlands, which has covered 156 cases, provided extremely detailed reports that are available online. However, the Dutch committee focuses on the value of the artwork to its current owner, which can lead to unfair and biased solutions.[12] Finally, although the English Spoliation Advisory Panel is globally respected, it has covered only 22 cases, probably because the country was never under the Nazi domination.[13]

The summary of the work of the panels already shows some of the main problems concerning the Washington Principles, such as the many bureaucratic steps that clients have to face, the elusive notion of a “fair solution”, and the issues between original owners and their heirs, and current owners, who might have bought the artworks in good faith. It is finally important to highlight that the panels’ recommendations are, again, not legally binding. The panels do not represent a court, although they deal with both the legal and moral aspects of the claims. Because of the moral component, which is highly subjective, the panels have different approaches, and their perception of what can be considered immoral is subjected to the role they played in the war. For instance, Austria, which has experienced Nazi rule, tends to have a more sensitive moral compass than a country such as the United Kingdom, which has never been under Nazi Germany.

One of the elements that raises more issues in the application of the Washington Principles is their broad definition. They indeed refer to “art confiscated by Nazis”, but they do not acknowledge that before the war, Jewish families had to sell their properties in order to flee Nazi Germany. These objects are today known as “flight art”. At the time, the flight tax was 25% of the Jewish asset amounts as the Nazis valued it; hence, it was often higher than 25%.[14] Because selling under duress cannot be considered a legal action, the Principles were expected to take flight art into account. However, it is not even mentioned, which leaves the definition of Nazi-looted art in a grey area that can be easily exploited by museums. Many institutions refuse to include flight art in the “Nazi Plunder” category, and they state that the sales were the result of the economic conditions caused by the great depression. This is simply not true. Germany was not under an economic crisis, but under a dictatorship that had the slaughter of the entire Jewish race as its first aim.

 

The Washington Principles were meant to encourage claimants to step forward. However, the fight individual-museum is not an even battle, and often cases can be so time-consuming and expensive that people are simply discouraged. Museums usually have very strict policies on deaccessioning, and artworks stolen by the Nazis do not to make the process smoother. For instance, in the UK, according to the Limitation Act 1980, a claimant has 6 years to ask for the recovery of the stolen property.[15] Time starts running from the moment when someone is informed of the existence of the property, so the length of time between the theft and the discovery does not count. However, claimants have to show they have title to the object, and that it was indeed stolen. It follows that because of the Holocaust, the original owners are no longer alive, and it is very hard for their heirs to prove ownership due to the lack of documentation and provenance. In fact, specific pieces of information are often in the possession of the new owners, who might not disclose them. In addition, the heirs often must deal with the chance that the current owners had acquired the artwork in good faith. In that case, the Panel might recommend either ex gratia payment to the claimants, or the display of a label that acknowledges the history of the artwork and a special reference to the original owner.[16]

 

The last point of concern around the Washington Principles is provenance itself. Using the words of Marc Masurovsky, co-founder of the Holocaust Art Research Project (HARP), museums, institutions, and professionals struggle in dealing with the “dangers of provenance research”, which is a “toxic field of study”.[17] Provenance research should simply be the study of the ownership of an object, its “biography”. However, it can soon turn into a problem when it unveils a country’s dark past. According to Masurovsky, there are things that people would rather forget, and provenance makes the task impossible. In the United Kingdom, each looted artefact that comes from a former colony carries the blood and atrocity of the country’s colonialist past. Cases of Nazi-looted art in Germany and Austria echo the role that the countries played in World War II. Likewise, discovering that a national museum still holds artefacts and artworks from these historic periods, and it refuses to return them, speaks for the illegality of the acquisition, and the institution’s indifference towards morality. Although it might be true that provenance research often raises an uncomfortable fact, it is still a fact, and it should be treated as such. Hiding or ignoring the story of an object does not change it. The role of provenance research lies in the awareness that it raises. Only by accepting the mistakes of the past it is possible to prevent their reiteration. The Nazi Plunder was one of the biggest and most horrible thefts in history, and people still have to deal with its legacy. Museums and institutions are the main custodians of cultural heritage. They have a duty to preserve this heritage, including those that have been deprived of their own.

In terms of numbers, the effectiveness of the Washington Principles is far from positive. Not many countries have created national laws for the repatriation of art looted in War World II, and those who have taken some steps, such as France, Austria or the UK, are still struggling with finding a good and permanent resolution to the problem. Perhaps, changing the perspective in which the Principles are seen might give a new outcome. In fact, the Washington Principles, if contextualised in their framework, result to be extremely effective. They represent the first international tool that addressed the problem of Nazi Plunder. They recognised a persistent issue that after 53 years from the war was still overlooked. They raised awareness, and they contributed to the formation of important organisations and commissions dedicated to the mission of restitution. The effectiveness of the Principles results to be negative if nations accept them as the solution rather than a starting point. Therefore, nations now have the responsibility of taking tangible legal steps based on the content of the Principles, and the museums have the duty to tell the true stories of the artworks they are supposed to protect.

 

[1] H. Nicholas Lynn, The Rape of Europa, the Fate of Europe’s Treasures in the Third Reich and the Second World War, (New York, Vintage Books, 1995).

[2] Because of Hitler’s dictatorship, his acquisitions still result to be illegitimate. Hence, in this case there is no real difference between confiscating and acquiring.

[3] Peter Adam and Mazal Holocaust Collection, Art of the Third Reich. (New York: H.N Abrams, 1992)

[4] Adolf Hitler, La Mia Battaglia (Bompiani & Co., 1940): 73-77.

[5]The Monuments Men were a group of volunteers  who joined the Monuments, Fine Arts, and Archives Program (MFAA), which was part of the allied army effort.  

[6] Monuments Men and Women Foundation, “Rose Valland” https://www.monumentsmenandwomenfnd.org/valland-capt-rose#:~:text=The%20information%20Valland%20had%20risked,Castle%20in%20the%20Bavarian%20Alps.

[7] U.S. Department of State, “Washington Principles on Nazi- Confiscated Art” https://www.state.gov/washington-conference-principles-on-nazi-confiscated-art/

[8] Commission of Looted Art in Europe https://www.lootedartcommission.com/Services

[9] Kunstrückgabebeirat (Council for Art Restitution) https://provenienzforschung.gv.at/empfehlungen-des-beirats/

[10]Commission pour l’Indemnisation des Victims de Spoliations (Commission for the Compensation of Victims of Spoliation)  https://www.civs.gouv.fr/

[11] Beratende Kommission (Advisory Commission) https://www.beratende-kommission.de/en

[12] Restitutie Commissie (Restitutions Commission) https://www.restitutiecommissie.nl/en/#:~:text=The%20Restitutions%20Committee%20has%20advised,and%20Science%20but%20operates%20independently.

[13] Spoliation Advisory Panel https://www.gov.uk/government/groups/spoliation-advisory-panel#rules-of-procedure

[14] Jennifer Anglim Kreder, “The New Battleground of Museum Ethics and Holocaust-Era Claims: Technicalities Trumping Justice or Responsible Stewardship for the Public Trust”,  Oregon Law Review, Vol. 88, No. 1, p. 37, 2009

[15] Limitation period in Germany is 30 years, and no specific exception applies to Nazi looted art https://thelawreviews.co.uk/title/the-art-law-review/germany

[16] Limitation Act 1980 https://www.legislation.gov.uk/ukpga/1980/58  

[17] Noah Charney, “20 Years On, It’s Time to Admit Our Rules for Handling Nazi-Looted Art Have Failed” (2018) https://observer.com/2018/11/washington-principles-nazi-looted-art-failed-what-went-wrong/

 

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