Redressing Historical Injustice: New Guidelines Address Nazi-Era Looted Art

Redressing Historical Injustice: New Guidelines Address Nazi-Era Looted Art

Edited by:  Fern Sidman

In a significant move marking a quarter-century since the endorsement of the Washington Principles on returning Nazi-looted art, a smaller coalition of nations, spearheaded by the United States, has taken a pivotal step forward by signing an agreement aimed at fortifying these guidelines, as was recently reported in the New York Times. This fresh accord, titled “Best Practices for the Washington Principles on Nazi-Confiscated Art,” was unveiled at a ceremony on Tuesday held at the United States Holocaust Memorial Museum in Washington, underscoring the enduring commitment to rectifying historical injustices.

The Washington Principles, originally ratified by 44 countries in 1998, have served as a cornerstone in the quest for justice regarding artworks unlawfully seized or coerced from their rightful owners during the Nazi era. According to the information provided in the NYT report, despite being nonbinding, these principles have provided a moral framework that catalyzed the restitution process, facilitating the return of numerous artworks to their original heirs. However, over the years, discrepancies in interpretation have arisen, fueling debates and disputes among nations involved.

One notable point of contention revolved around the notion of “just and fair” solutions, with varying interpretations surfacing regarding whose interests should be prioritized in the restitution process. The report in the NYT indicated that in the Netherlands, for instance, a “balance of interests” policy was implemented, weighing the rights of claimants against those of Dutch museums currently in possession of the contested artworks. This approach drew criticism, prompting the Dutch government to reassess its stance and ultimately discard the policy in 2020.

The unveiling of the new guidelines aims to provide clarity on this matter, unequivocally stating that “‘Just and fair’ means just and fair solutions first and foremost for the victims of the Holocaust (Shoah) and other victims of Nazi persecution and for their heirs, the NYT report said. By refocusing restitution efforts squarely on the victims and their descendants, the agreement seeks to rectify past ambiguities and ensure a more equitable resolution process.

As of now, 22 countries have committed to the new agreement, with the United States Department of State and the World Jewish Restitution Organization leading the charge.  According to the report in the NYT, Secretary of State Antony J. Blinken emphasized the significance of these “best practices,” noting their role in delineating what constitutes Nazi-looted art, addressing challenges in provenance research, rectifying biases favoring current possessors, and urging nations to bolster their restitution endeavors.

“These best practices more precisely define what is considered Nazi-looted art,” remarked Secretary Blinken in prerecorded remarks screened at the ceremony, the NYT reported. “They identify solutions when provenance research is lacking. They remedy processes that favor current possessors over rightful owners. They urge countries to bolster their restitution efforts.”

Stuart Eizenstat, the Secretary of State’s Special Adviser on Holocaust Issues and a pivotal figure in crafting the original principles, emphasized the profound impact of these voluntary international standards.

“It’s a great example of how voluntary international principles, if they’re undergirded by strong moral and ethical principles, can have a dramatic impact,” Eizenstat stated in an interview, reflecting on the enduring significance of the Washington Principles, as was noted in the NYT report. Despite their widespread acceptance, he underscored the ongoing imperative for progress, acknowledging the substantial work that remains.

“There’s still a huge amount of work to be done,” Eizenstat remarked, as was reported by the NYT. “The new guidelines are taking 25 years of experience and seeing where the gaps are, where we could strengthen the principles and create new momentum.”

The original Washington Principles, along with subsequent agreements forged in Vilnius, Lithuania, and Terezin, Czech Republic, catalyzed legislative reforms in numerous countries, favoring claimants of Nazi-looted art and advancing research into the provenance of artworks in public collections. As per the information contained in the NYT report, nations such as Germany, Austria, Britain, the Netherlands, and France established commissions tasked with adjudicating claims for artworks within public holdings, aligning with the accord’s directive to identify and address ownership issues surrounding Nazi-confiscated art.

Eizenstat highlighted the ripple effect generated by the Washington Principles, noting its broader implications beyond the realm of Nazi-era restitution. “All of this is connected and just wouldn’t have happened otherwise,” he asserted, according to the NYT report. The principles not only facilitated the return of looted objects to their rightful owners but also spurred initiatives such as the restitution of hundreds of Benin Bronzes to Nigeria. Moreover, the pursuit of provenance research has transcended geographical boundaries, underscoring a collective commitment to rectifying historical injustices and promoting transparency within the art world.

One of the key clarifications put forward in these best practices pertains to the definition of a sale under duress, a scenario frequently encountered by Jews in Nazi Germany and occupied territories. Forced to sell their artworks, often at discounted rates, to mitigate punitive measures or secure funds for survival amid discriminatory policies, many faced harrowing circumstances that compelled them to part with their prized possessions, as was stated in the NYT report. However, the Washington Principles had hitherto remained silent on how to address such claims.

The Terezin Declaration of 2009, signed by 47 countries, provided a broader framework that extended the imperative for “just and fair” solutions to include artworks sold under duress. Despite this, museums have often demanded rigorous proof from claimants to establish the coerced nature of such sales, particularly if they occurred prior to 1936, as was pointed out by the NYT. Yet, sourcing such evidence proves challenging, as Jewish collectors fleeing persecution often departed with scant documentation.

The unveiling of the new “best practices” marks a pivotal shift, alleviating the burden of proof from claimants and acknowledges the inherent coercion underlying art sales during the Holocaust era.

According to Olaf Ossmann, a Swiss lawyer specializing in art restitution cases and a contributor to the drafting of these guidelines, the onus now falls on current holders to demonstrate exemption from this general rule, the NYT report said.

“Now it’s up to the current holder to prove the exemption from this general rule,” Ossmann affirmed, encapsulating the pivotal role reversal in burden of proof stipulated by the new guidelines.

Furthermore, the “best practices” also refine the Washington Principles’ call for the establishment of independent expert bodies to adjudicate restitution cases, as was indicated in the NYT report. Emphasizing the principle of unilateral access, the guidelines advocate for heirs to have the right to submit claims for evaluation without requiring the consent of the current possessor.

Art restitution has emerged as a contentious issue in Germany, where efforts to address Nazi-era looted art have encountered significant hurdles. The NYT report noted that at the center of the debate is the government’s advisory commission, which currently requires the consent of both parties to adjudicate claims—a stipulation criticized as inadequate by Claudia Roth, the German culture minister.

Speaking at an event commemorating the 25th anniversary of the Washington Principles, Roth highlighted the shortcomings of the advisory commission’s mandate, lamenting that Germany is falling short of its responsibilities in addressing restitution issues, according to the information in the NYT report. Despite her efforts to expand the panel’s authority to evaluate claims unilaterally, opposition from the 16 state governments, notably Bavaria, has thwarted progress. The report added that Bavaria, in particular, has resisted calls to submit a dispute over Pablo Picasso’s “Portrait of Madame Soler” to the advisory panel, underscoring the entrenched resistance to reform.

“Germany, which has done so very much in other areas, has really lagged in art restitution,” remarked Stuart Eizenstat, underscoring the imperative for Germany to assume leadership in rectifying historical injustices.

Despite the challenges, Germany is among seven countries recognized for making “major progress” in implementing the Washington Principles, according to a report jointly published by the World Jewish Restitution Organization and the Claims Conference, and was reported on by the NYT. Joining Germany in this category are Austria, France, the Netherlands, Britain, the Czech Republic, and the United States.

The report also delineates the progress made by other nations, with Canada, Israel, and Switzerland acknowledged for “substantial progress,” the NYT report said. Thirteen additional countries, including Croatia, Italy, Sweden, and Poland, have made “some progress.” However, it also highlights the significant disparities in progress among the 44 nations that endorsed the Washington Principles. The NYT report added that twenty-four countries, including Russia, Finland, Australia, and Ukraine, have made “little or no progress,” underscoring the immense work that remains to be done.

“This report shows both the progress made and the immense work still to be done to secure justice,” emphasized Gideon Taylor, the president of the restitution organization, echoing the sentiment of urgency in addressing the ongoing challenges of art restitution, as was noted in the NYT report.

According to a press release distributed to the media last week by the World Jewish Restitution Organization, other speakers that were slated to deliver remarks at the event in Washington included, Sara J. Bloomfield, Director, United States Holocaust Memorial Museum; Ellen Germain, U.S. State Department Special Envoy for Holocaust Issues; Lord Eric Pickles, United Kingdom Special Envoy for post-Holocaust Issues; and Colette Avital, Chairperson, Center of Organizations of Holocaust Survivors in Israel.

As Germany grapples with internal resistance to reform, the broader international community remains vigilant in its pursuit of justice, underscoring the imperative of collective action to redress the lingering legacies of Nazi-era looted art. With calls for accountability echoing across nations, the path towards reconciliation and restitution continues to be fraught with challenges, emphasizing the pressing need for concerted efforts and an unwavering commitment to the principles enshrined in the Washington Principles.