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WYWH: “Restitution of Nazi-Looted Art: The Next 25 Years”

March 9, 2024

Amanda Buonaiuto, Photography of the cover photo of the online conference "Restitution of Nazi-looted Art: The next 25 Years", 17 January 2024.

By Amanda Buonaiuto

Since the signing of the Washington Principles 25 years ago, some (remarkable or not enough is subject to debate) progress has been made to address the restitution of Nazi-looted art, particularly within signatory countries such as Austria, France, Germany, the Netherlands, and the UK. These nations, having established restitution Commissions under Article X^{^[1]} of the Washington Principles, significantly contributed to advancing the restitution cause. With a quarter of a century passing since 1998, a question emerges: What can be expected in the next 25 years?

In order to assemble prospects for this uncertainty and to bring closure to a three-year joint project^{^[2]} between the University of Bonn and the University of Tel Aviv, the online conference “Restitution of Nazi-looted Art: The Next 25 Years” was conducted on January 17, 2024. At the conference, four speakers were invited to discuss the past and the future of the restitution of looted art: Ambassador Stuart Elliot Eizenstat, Professor James D. Bindenagel, Professor Dr. Matthias Weller and Professor Dr. Leora Bilsky.

Speaker 1 – Ambassador Stuart Elliot Eizenstat

Opening the discussions was Ambassador Stuart Elliot Eizenstat who helped organize the Washington Conference in 1998. Ambassador Eizenstat’s presentation focused on an overview of the 25 year history of the Washington Principles.

Eizenstat remarked that the Holocaust was not only the most extensive genocide in world history but also the most significant theft of property ever recorded in modern history. According to the speaker, such theft was not a random occurrence. Rather, the calculated seizures were part of the Nazi plan to eliminate everything related to the Jewish religion and culture.

The ambassador commented on the Allies’ actions during World War II, citing the London Declaration of 1943^{^[3]} and the proactive measures undertaken specifically by the U.S. government to reveal and safeguard looted art and archives.^{^[4]} He also acknowledged that an increase of awareness about Nazi-looted art occurred after the Cold War with the advent of the Washington Conference in 1998.

Eizenstat alleged that the significance of the Washington Conference extended beyond merely drawing global attention to Nazi-looted art. The Conference became a pivotal moment in transforming the moral and ethical obligations surrounding Holocaust-era assets by challenging the assumptions that many artworks had already been rightfully returned to their owners.

The ambassador continued his message by mentioning several efforts that have already been accomplished since the Washington Principles. As a highlight, he praised auction houses, such as Sotheby’s and Christie’s, for establishing special provenance research teams to review all sales and for refraining from trading items considered as looted property. Additionally, Eizenstat mentioned that the Washington Principles led several countries to reconsider their legislation regarding looted art in general, resulting in many recent cases of restitution of colonial looted items.

To conclude his presentation, Eizenstat outlined what he thinks should happen over the next 25 years. The ambassador believes that a project^{^[5]} to develop best practices for Nazi-looted art should be undertaken, based on what was learned during the 25 years that the Washington Principles were adopted. Some of the best practices described include: (1) modification of exception laws that ban museums from returning art in Nazi-looted art cases; (2) amendment of statutes of limitations for Nazi-looted art; (3) maintenance of comprehensive statistics on restitution; (4) ensurement that the burdens of proof are directed to those holding Nazi-confiscated art and not the victim or their heirs; (5) development of creative solutions for heirless Nazi-looted art; and (6) increase the emphasis on provenance research, because without it is impossible to restitutions to take place and yet it is a very low priority for museums.

Speaker 2 – Professor James D. Bindenagel

Following the ambassador’s speech, Professor James D. Bindenagel began his presentation by asserting that the Washington Principles were always meant to be more than merely the restitution of cultural property. Professor Bindenagel enquired: If the Washington Principles go beyond restitution, what then is the true purpose of them? According to Professor Bindenagel, the Washington Principles aim to ensure that events like the Holocaust never happen again. In order to accomplish this goal, Bindenagel believed two critical issues that have become evident over the past 25 years should be addressed.

The first issue mentioned by the professor is that governments should be more transparent^{^[6]} and cease concealing claims related to Nazi-looted art. Museums, universities, auction houses and art dealers should also have the public duty to collect, organize and disseminate comprehensive information about this theme. Such transparency would validate the memory of Holocaust victims and provide a powerful reminder that such atrocities should never happen again.

The other issue raised by Professor Bindenagel is that governments should stop treating looted art as if it were their property, and they should never profit from it, even if indirectly. The professor added that a policy considering government custody superior to the custody of the real owners makes governments complicit in the theft and diminishes the interesse in accomplishing restitutions.

To conclude his presentation, Professor Bindenagel made some suggestions for museums to implement that would assist in ensuring the continued restitution of artworks confiscated by the Nazis: (1) maintain a list of art pieces held in their trust; (2) conduct provenance research for each artwork in the museum’s possession; (3) make the previous information public; (4) make an initiative to contact owners or their heirs about pieces that they suspect are looted art pieces.

Speaker 3 – Professor Dr. Matthias Weller

Professor Dr. Matthias Weller started his presentation by outlining the steps that should be taken next to ensure that more restitutions of Nazi-looted art take place in the future. According to the professor, comparable educational programs comparable to the joint project between the University of Bonn and the University of Tel Aviv should be widely adopted in universities across all countries that are signatories to the Washington Conference. Such programs should involve face-to-face dialogues for extended periods of time. These are the ideal conditions to guarantee a positive atmosphere and help the participants to deal with the dense subject teached.

Above all, Professor Weller affirmed that the most important step is guaranteeing transparency at all levels:

“(…) we cannot expect the victims and their families to naively trust in restitution proceedings set up in the spheres of the states that have to take the historical responsibility for the Holocaust, first and foremost my own country, Germany. Rather, these states, in implementing the Washington Principles faithfully, must provide to the fullest possible extent for transparency on all levels, in order to make themselves observable.”^{^[7]}

Since the claimants of Nazi-looted art, the Jewish world in its entirety, and the public in general have the right to know about the existence and whereabouts of all Nazi-looted items in museums, Professor Weller emphasized that the primary step toward transparency should commence with them. Professor Weller advocated for museums to publicly disclose information about every item in their possession. Further, the professor explained the importance of provenance research for all these pieces and emphasized that this research should be also undertaken and the results made publicly accessible.

According to the professor, the second level of transparency should be related to the just and fair solutions in Nazi-looted art restitution cases. In other words, all the decisions from restitution commissions, judicial courts, and even private settlements^{^[8]} should be made public with comprehensive explanations of the solution and the reasoning in order to come to terms with remaining unjust enrichments attributable to the Holocaust.

Professor Weller believes that the last step for reaching and maintaining full transparency in Nazi-looted art restitutions is creating a “grammar of reasons” for restitution. This guide, which would outline recommendations and decisions, would bring structure to the entire process, and allow for maximum predictability for all parties involved. Professor Weller concluded his presentation by pointing out that the University of Bonn’s project “Restatement of Restitution Rules For Nazi-Confiscated Art” could serve as a reference for implementing best practices.

Speaker 4 – Professor Dr. Leora Bilsky

Professor Dr. Leora Bilsky’s presentation concluded the conference. In order to help the audience gain some perspective, Professor Bilsky centered her discussion towards a comparative analysis. Her objective was to articulate an alternative vision of restitution and challenge the prevailing focus on Nazi-looted art. In contrast, she highlighted the campaign for Post-Colonial restitution, which seeks to decolonize European museums by uniting multiple countries in advocating for the return of cultural artifacts, human remains, and religious objects.

While Professor Bilsky acknowledged the disparities between both struggles, she emphasized that similarities emerge when comparing them. Both the Jewish and post-colonial struggles focus on group rights over individual ones. However, while the post-colonial struggle remains entangled until today, because it’s perceived as an interstate issue, consequently marginalizing groups that still strive to have a voice, the Jewish campaign was able to create Holocaust exceptions by modifying or creating laws to establish a link between cultural restitution and the crime of genocide. The greatest example are the Washington Principles, which are ethical principles related to Nazi-looted art that stimulate the creation of legal precedents to overcome legal obstacles and serve as a model towards Looted art in general.

Professor Bilsky concluded that in the next 25 years, the restitution scenario will be slowly moving away from the individual property paradigm towards a collective approach. Restitution will not merely be seen as an end result (return of a physical item) but as a dynamic process that can empower groups to build new relations between communities and objects that carry a cultural meaning for them.

Conclusion

As one of the students participating in the joint project between the University of Bonn and the University of Tel Aviv, and as an attendee at the conference “Restitution of Nazi-looted Art: The Next 25 Years,” it is essential to emphasize that both served as a valuable space for experts to share the progress made in addressing the restitution of Nazi-looted art and to discuss future projections.

After all the presentations at the conference, it can be understood that all speakers agreed that much has already been achieved, and much more remains to be accomplished in the next 25 years since the creation of the Washington Principles. In accordance with them, if the focus of restitution efforts is directed towards transparency, comparison methods, and guidelines of best practices, the next 25 years hold the promise of being filled with new achievements in the restitution of looted art in general.

Retrospective and discussions held in 2023-2024 should pave the way for the current collective efforts to serve as a foundation for a future where the return of looted cultural assessments stands as a testament to commitment to rectifying historical injustices.

Sources:

Article X, Washington Principles: “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.” https://www.state.gov/washington-conference-principles-on-nazi-confiscated-art/ ↑
The concept for the class emerging from this project aimed to explore the thoughts surrounding earliest and future directions of the Washington Principles through stimulating teaching experiences. The lectures offered new perspectives on how legal practices and research approaches can adapt to find just and fair solutions in a restitution-era art world. Such drive to do justice was demonstrated by a large number of international guest speakers from diverse backgrounds (representatives of the Minister of Justice of israel, academic specialists related to the practice of Nazi-looted art, participants of the five restitution Committees already established and also from the countries (Israel and Switzerland) that are working to enact Commissions ↑
The London Declaration urged the Allies and neutral countries to declare as invalid any property transfers that happened in the Axis and occupied territories. Douglas Davidson, Should Nazi-Looted Art Works Be Returned? The View From the State Department, (March, 25, 2013), https://2009-2017.state.gov/p/eur/rls/rm/2013/mar/206719.htm ↑
Numerous art pieces were deemed of great importance by President Truman. Those were cataloged and returned to their countries of origin. The subsequent phases of the process relied on these nations to trace the owners and facilitate the return of the stolen property. ↑
Eizenstat affirmed that a project to develop best practices for Nazi-looted art is already underway. 14 countries have worked for months to develop the guide. A conference promoting it, was presented by the U.S. Department of State and the World Jewish Restitution Organisation (WJRO) on 5, March, 2024. ↑
According to Prof. Bindenagel, governments should make public the statistics, findings and lists of identified artworks in order to achieve transparency. ↑
Matthias Weller, The Restitution of Nazi-Looted Art: The Next 25 Years, The Institute of Art & Law (Jan. 14 2024), https://ial.uk.com/nazi-looted-art-25-years/ ↑
Confidential bilateral settlements might bring solace to the specific parties engaged, but they disregard the public aspect of the restitution process. ↑

Disclaimer: This article is for educational purposes only and is not meant to provide legal advice. Readers should not construe or rely on any comment or statement in this article as legal advice. For legal advice, readers should seek a consultation with an attorney.