Glass Half Full or Half Empty? Detailed Report Published on Worldwide Efforts to Restitute Nazi-Looted Art Since the 1998 Washington Conference

Art Law Report 11 September 2014
By Nicholas O'Donnell

After the 1998 Washington Conference on Holocaust Era Assets and the eponymous Washington Conference Principles on Nazi-Stolen Art that came out of it, it is hardly surprising that a recurring theme has been to assess the progress of those nations that participated and signed on.  Equally unsurprisingly, those assessments are usually more anecdotal than empirical, and usually arise out of a particular case or cases in the context of that country’s response.

As part of the International Council of Museums (ICOM) Museum and Politics Conference currently taking place in St. Petersburg, two writers have aimed to change that, and have issued a remarkably detailed yet broad report on the progress of the forty-four countries that endorsed the Washington Conference Principles, and the forty-seven that endorsed the 2009 Terezin Declaration after that conference on the tenth anniversary of the Washington Conference.  Dr. Wesley A. Fisher and Dr. Ruth Weinberger, on behalf of the World Jewish Restitution Organization (WJRO) and the Conference on Jewish Material Claims Against Germany (Claims Conference) give an overview of recent history, and then address each country one by one.  It is a most impressive piece of work. What does it all mean?  Most are unimpressed with the results (not the report), Graham Bowkley’s headline in the New York Times reads “Nations Called Lax in Returning Art Looted From Jews.”

The report begins with a definition:

“Looted art,” as defined for the purposes of this paper, consists of artworks, including paintings, prints and sculptures, as well as other cultural property plundered from Jews by the Nazis, their allies and collaborators.

Notably, this does not include “flight goods,” and it is not clear whether it is meant to include forced sales or inherently coercive sales under duress (I, sham transactions well below market value).  The latter forms a critical part of the universe of Nazi-looted art, given the bizarre propensity for papering these illegitimate sales with receipts and “paying” their victims for their art.

In any event, the report takes a high level view at what progress has been made.  Just to review, the Washington Conference Principles, while deliberately non-specific in many regards, have an overarching theme: that countries should take a variety of steps (archival openness, fair processes, internal review) to improve what had been the state of restitution and provenance research.  Thanks to the sea-change in attitudes, at least, it is almost easy to forget that in 1998 the problem was almost unaddressed, and barely acknowledged.  The Terezin Declaration took stock of some progress, and recommitted the participants to the effort. 

The Washington Conference Principles are of greatest relevance to those countries both with significant state collections, and where the events of the war or occupation took place.  This is for several reasons: while private museums and foundations (particularly in the United States) can be encouraged to undertake certain steps (as the Association of Art Museum Directors and American Alliance of Museums do), those institutions hold private property of which the U.S. government cannot dictate a transfer.  California’s revision of its statute of limitations is a notable exception.  But in the museums of Europe, most are owned by their respective states, so assuming a will to act, the outcome is within reach.  And, of course, simple geography means that so much of the art that changed hands during the war went somewhere, but still in Europe. 

How one views the report from there really is a matter of outlook.  At first blush, this quote is terribly depressing:

Of the 50 countries for which summaries are appended to this report, only 4 may be said to have made major progress towards implementing the Washington Conference principles and the Terezin Declaration, while an additional 11 have made substantial progress in this regard.

Yet two of the countries lauded for significant progress are Germany and Austria, which are of unique importance for obvious reasons.  The Netherlands and the Czech Republic, two countries whose significant Jewish populations and collections were decimated, round out the circle of honor.  So in a certain sense, if you had to pick a short list of countries where progress is essential, these would be on it.  Austria is clearly the gold standard, and perhaps the greatest reason for optimism for one simple reason: at the time of the first Washington Conference, Austria was at the other end of the spectrum, known for foot-dragging and hiding behind its post-war restitution laws that facially returned Jewish property but forbade its export.  In 1998, however, Austria passed its revised restitution law that has created a formal arbitration process and led to the restitution of dozens, if not hundreds, of works.  Change is clearly possible. 

Germany is a harder case to assess.  The report lauds the creation of the German Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property (Beratende Kommission im Zusammenhang mit der Rückgabe NS-verfolgungsbedingt entzogoner Kulturgüter, insbesondere aus jüdischem Besitz).  That commission, better known from presiding member Jutta Limbach, has indeed recommended some restitution.  But the number of cases it has handled is low, and it has recently put its foot in it twice in a row

The report was complimentary of the information made available in Germany, but noted that most research is still conducted by the museums themselves.  That makes any progress necessarily slow.  The proposed national research center (which German Minister of Culture Monika Grütters was quoted yesterday in Die Welt as possibly opening this year) is also cited favorably.  The report discusses the Gurlitt case, but more as a matter of reporting, and mentions the assertions of Gurlitt’s representatives somewhat uncritically. 

Lastly, the so-called “Lex Gurlitt” to extend the statute of limitations is discussed.  This is timely, because after almost eight months languishing in the Bundesrat, Bavarian Minister of Culture Winfried Bausbeck has renewed his push to get the law passed, but the results are uncertain and the effect of the proposed law is debatable (from the standpoint of both efficacy and, apparently, constitutionality). 

The Netherlands is rightfully treated as a success story.  Like Austria, while all the people can’t be pleased all the time, most regard the national claims system there as fair and comprehensive. 

That’s the glass is half full view.

France gets the designation of “substantial progress” with Belgium, Luxembourg, Norway and Slovakia.  I think France failing to make the top category has to be regarded as a disappointment, however, because of its importance.  The targeting of French Jews, whether in Vichy territory or under German occupation, was among the most organized and ruthless aspects of Nazi art looting.  And the French national museums’ seemingly annual announcement that they are about to get serious on the issue is best tuned out at this point.  France’s 2,000 “heirless” objects have been a known commodity for two decades, with little change.  To be fair, France does have a 1999-created Commission for the Compensation of Victims of Spoliations. 

That’s as good as it gets, however.  From there, the only question in report is just how bad the offenders are.  Progress in nearly all of eastern Europe is regarded as non-existent (in addition to those discussed specifically below: Belarus, Bosnia, Bulgaria, Estonia, Latvia, Macedonia, Poland, Romania, Serbia, Slovenia, and Ukraine).

Italy is singled out for particular criticism, and fairly so, frankly.  Italy has pursued antiquities, museums, even curators, to the ends of the earth (even objects found in international waters), so one might expect a comparable effort with regard to Nazi-looted art closer to home (Italy’s established Jewish community fared well by comparison until late in the war and Mussolini’s collapse, after which the Nazis took over the persecution in earnest).  Not so, regrettably.  The report states succinctly:

It does not appear that provenance research is taking place in Italy, nor is there a legislative background that would allow for the restitution of cultural and religious property.

Hungary also gets worked over in the report:

About 90-92 % of the artworks taken out of the country were returned between 1945 and 1948, with approximately 20% remaining in Hungary’s cultural institutions – including artworks looted from Hungarian Jews. The National Gallery and the Museum of Fine Arts are known to hold looted art. Despite numerous legal attempts, the heirs to the Herzog collection, the Hungarian banker Baron Mor Lipot Herzog, who had collected between 1,500 and 2,500 artworks, have been denied any restitution. In 2010, the heirs to the Herzog collection filed a lawsuit in the United States against Hungary. The Herzog collection is not the only collection of Jewish artworks kept by Hungarian cultural institutions. According to experts in the field, Hungarian museums still store several hundred works of art obtained under questionable circumstances.

Hungary has never set up a historical commission to investigate Hungary’s role and participation in the financial and physical annihilation of its Jews, and it has not initiated any provenance research by its cultural institutions. While a few restitutions have taken place, important works of art have consistently been kept from being restituted to their rightful owners.

Many other countries are criticized for giving lip service to the Washington Principles but little else. 

In the end, there is no question that the state of affairs now relative to 1997 is night and day.  That should be acknowledged and celebrated.  But there is clearly more to be done.
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