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Remarks by Stuart Eizenstat, Special Adviser on Holocaust Issues, Bureau of European and Eurasian Affairs

As prepared

Ladies and gentlemen, I am thrilled to be here with you today.  As evidenced by the Secretary of State’s speech, the restitution of Nazi-confiscated art is a priority for the U.S. government.  The Best Practices document we wrote together will advance that goal.  Before I go into detail about the meaning and significance of the Best Practices, let me trace the history.

There was nothing inevitable about the Holocaust.  It is a tragic example of the worst manifestations of antisemitism and racism, a Nazi ideology which targeted Jews as an inferior race, leading one of the most cultured countries in the world to turn on its neighbors.  The Holocaust was then facilitated by the indifference of the world to the fate of European Jewry.  The result:  in 1939, there were 17 million Jews in a world of one billion; today, with the loss of six million Jews, there are only 14.7 million in a world of eight billion.  The losses were not just numerical, but in Germany and throughout Europe, it was the destruction of the flower of Jewish culture, art, scholarship, and religion.

The Holocaust was not only the greatest genocide in world history.  It was also the greatest theft of property in history.  The theft was not random or incidental, but an integral part of the Nazis’ plan to eliminate all vestiges of Jewish life in Germany and Europe, root and branch – homes, businesses, bank accounts, insurance policies, personal possessions like jewelry, artworks, and cultural and religious objects.  Leading German banks and insurance companies facilitated the exploitation of Jewish assets, and large numbers of ordinary Germans purchased Jewish assets on the cheap, from pots and pans to costly rugs and furnishings.

The Washington Principles on Nazi-Confiscated Art

As many as 600,000 artworks and millions of books and religious objects were stolen with the same efficiency, brutality, and scale as the Holocaust itself.  The Allies during World War II were already aware of the theft of art, issuing on January 5, 1943, the London declaration, calling on neutral nations not to trade in art looted by the Nazis.  This was not fully followed.  U.S. Army commanders included curators and other art historians in their armies as they fought their way to Berlin, as “monuments, fine arts, and archives” officers.  These “monument men and women,” as they were called, found a wealth of looted art and cultural objects that they dispatched to collecting points in Germany to be catalogued and repatriated to the countries from which they were stolen, under an order by President Harry Truman.  They relied on each government to trace the owners and ultimately return the stolen property.  This was done imperfectly, and much of the looted art ended up in public museums of Western nations, from France to the Netherlands, or was sold and ended up in private collections.

The full dimensions of the theft only became known when the wall of silence on the fate of the remaining looted art was breached after the end of the Cold War, as archives in the former Soviet Union and former East Bloc countries were opened.

At the December 1997 London Gold Conference, I invited the participating countries to come to Washington for a conference devoted exclusively to looted art and cultural objects.  Then after a Congressional hearing in February 1998, the Association of Art Museum Directors created a set of standards for American museums to research, identify, and return Nazi-looted art.

My staff (led by Ambassador J.D. Bindenagel) and I worked for months at the State Department and here at the United States Holocaust Memorial Museum leading up to the Washington Conference to try to build a consensus among European countries on those standards.  We repackaged them into 11 principles, and I felt if we could persuade one European country to take the lead, others might follow.  I found a courageous leader in Austrian Minister of Education and Culture Elisabeth Gehrer, who assured me her country would pass a new law that would allow Nazi-looted art in their museums to be returned to the rightful owners.  Austria did so the day the Washington Conference opened.

Still, after three days of intensive negotiations in Washington, we teetered on the brink of failure.  With only a few hours before the closing session, I convened representatives from France, Germany, and Switzerland and offered language that assured them the Washington Principles would be voluntary:  each nation could “act within the context of their own laws.”  That did it.

Critics immediately derided the Principles as useless. They were proven wrong. At the closing plenary Phillippe de Montebello, Director of the Metropolitan Museum of Art, got it right, whispering to me, “the art world will never be the same.”

Voluntary though they are, the Washington Principles have been transformative, creating a moral and ethical obligation on the holders of Nazi-looted art, which many, though not all, have assumed to return them to their rightful owners or devise other “just and fair solutions,” like compensation, long-term loans, and other negotiated agreements.  Thousands of artworks, books, and Jewish cultural objects have been restituted and claims have been successfully resolved. 

Five nations – Austria, Germany, France, the Netherlands, and the United Kingdom – created claims commissions to provide a forum for heirs to recover art confiscated from their families.  They each publish their decisions and in the last five years formed a network to share experience and knowledge to guide best practices.

In June 2009, the Washington Principles were strengthened by the Terezin Declaration at the Prague Holocaust Era Assets Conference organized by the Czech Republic.  In November 2022, again with the leadership of the Czech government, the Terezin II conference was held in Prague, reaffirming the Terezin declaration.

The Best Practices document introduced today is another step in strengthening the implementation of the Washington Principles.  However, as shown in the report issued today by the World Jewish Restitution Organization – which is a leader on these restitution efforts – while much has been accomplished, much still remains to be done in achieving justice for those robbed of their artworks and cultural and religious objects in the Holocaust.  We are only at the tip of the iceberg.  It is estimated that over 100,000 of the 600,000 paintings and many more of the millions of books, manuscripts, ritual religious items, and other cultural objects stolen have never been returned, and for those who do get them recovered, it can take decades of hard and expensive work.  And Russia’s brutal war against Ukraine has seen a wanton destruction of Ukraine’s cultural heritage and massive theft of art once again in Europe.

The Best Practices document welcomed today by Secretary Blinken is significant because it keeps the spotlight on this great theft and on the continuing need to find a measure of justice for Holocaust survivors and their heirs.  The Washington Principles, introduced in 1998, continue to be the fundamental and timeless basis for art restitution.  Today’s Best Practices are meant to help the practical implementation of the Washington Principles, based on the last 25 years of experience in applying them.  And as was the case with the Principles, the Best Practices were drafted with the awareness that there are differing legal systems and that states act within the context of their own laws.  While they are legally non-binding, they are morally important and, as with the Washington Principles, will advance art restitution.  The United States is proud to endorse these Best Practices.

The Washington Principles made the seemingly obvious points that art that had been confiscated by the Nazis should be identified and publicized, pre-war owners and their heirs should be encouraged to make their claims known, and efforts should be made to achieve a “just and fair solution” to those claims.  The Principles also recommended that records and archives be open and accessible, a central registry of confiscated art should be established, and countries should develop national processes to implement the Principles, particularly alternative dispute resolution mechanisms for resolving ownership issues, to avoid lengthy and costly litigation.

Art and cultural property that was the property of Jewish communities is part of the collective memory of the Jewish people.  Jewish communities around the world and institutions in Israel and other countries care greatly about preserving this cultural heritage.  The Best Practices make the important point that such property that is in individual hands should be returned to an institution, organization, or existing successor community, or a successor organization for the Jewish people as a whole.   The U.S. government acknowledges that, where appropriate, such cultural property could be held at Israeli institutions where other Jewish cultural heritage already exists.  And in any event, items that exist in textual form, such as manuscripts, archives, scrolls, and books, should be digitized and the information in them made easily accessible worldwide over the internet.

Today’s Best Practices will help implement the Washington Principles.  How do they do this?  First, they make clear the fundamental point that the Washington Conference Principles refer not only to visual artworks but also to other cultural property belonging to victims of the Holocaust and other victims of Nazi persecution; and that they refer to property belonging to individuals and to communities; and to property currently in public or in private hands.  They also make clear that “Nazi-confiscated” and “Nazi-looted” refer to what was taken not only by the Nazis but also by the fascists and by collaborators.  And the Best Practices explain that “just and fair solutions” means first and foremost just and fair for the victims and their heirs, and that the primary just and fair solution is restitution, although there can be others.  And when restitution does happen, current possessors should not seek repayment from pre-war owners or their heirs, and compensation should be tax exempt.

Another important definition is that the sale of art and cultural property by a persecuted person between 1933-1945 can be considered equivalent to an involuntary transfer of property.  This means flight goods can be covered.  This matters because persecuted persons often lost their sources of income, and many survived by selling their artworks under duress.

The Best Practices also make important statements about provenance research, something often familiar only to art experts but which is vital for the restitution of art.  So they encourage provenance research and greater transparency by governments and private organizations and individuals, because without that, recoveries are impossible.  Unfortunately, as the U.S. government’s 2020 JUST Act report said, many European countries have not conducted provenance research on their art collections.  The Best Practices clarify that such provenance research includes making available on the internet public and private archives, dealer records, and the inventories of public and private collections.  Researchers should have access to all relevant archives and source documents; those who currently possess items should make all documentation available to claimants; and ideally, provenance research should be conducted by an independent research body to avoid possible conflicts of interest.

Transparency is key in all this, and the Best Practices encourage countries and institutions to maintain and publish comprehensive online information on provenance research and actions taken to identify and restitute art or achieve other fair and just solutions. 

Importantly, the Best Practices encourage countries to create an independent expert body, to which unilateral access is available, that can adjudicate cases and arrive at or recommend a binding or non-binding decision.  Alternative resolution mechanisms are encouraged to avoid litigation.  And the grounds for decisions should be made fully transparent to claimants. 

To make possible restitution of art and cultural property that remain in state-owned collections and private hands, the Best Practices urge countries to consider making exceptions to barriers such as regulations against deaccessioning from state collections, as the UK did in 2009 and France has recently done; statutes of limitation (as in the HEAR Act in the U.S.), so they run only from the time heirs reasonably have notice of the confiscation during the War-time period; and other obstacles.

Conclusion

The Washington Conference Principles are a reminder of the importance of striving for justice.  But there is much more work to be done to reach this goal.  We hope that this Best Practices document will add momentum to our effort.  And we hope many more countries will see fit to join in endorsing the Best Practices. 

The Washington Principles have had a lasting impact beyond anything we could have imagined at the time. This battle must go on.

Source:
U.S. Department of State 5 March 2024
https://www.state.gov/the-lasting-impact-of-the-washington-principles-and-best-practices-for-the-restitution-of-nazi-confiscated-art/

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