Roundtable Discussion on Nazi-Looted Art
Tuesday, June 9, 1998
United States Holocaust Memorial Museum
100 Raoul Wallenberg Pl., SW
Washington, DC 20024
On June 9, 1998, the US Department of State and the United States Holocaust Memorial Museum co-hosted a Roundtable Discussion on Nazi-Looted Art at the Museum. This roundtable is one of a series of events in preparation for the Washington Conference on Holocaust Era Assets, which takes place at the Department of State from November 30 to December 3, 1998.
This event brought together government officials, scholars, and representatives of interested and affected institutions, in order to provide an educational opportunity for all parties involved as well as to gain a better understanding of the numerous complex issues associated with the restitution of Nazi-confiscated art. In order to structure the discussion effectively, the roundtable was divided into three sections that focused on separate elements of the issue.
I. Nazi Looting of Artworks: History and Sources
The history session discussed the gaps in our knowledge of the history of Nazi-looted art, needed archival sources, and concerns related to such archival sources. The implications of issues surrounding Holocaust-era confiscated art extend beyond individual cases to affect the entire process of art collection, whether by individuals or institutions, such as museums or galleries. The question of restitution of works of art to individual victims of the Holocaust is complex. There is a large body of unclaimed and unidentified works. In addition, there are works that are unaccounted for, which came to their current owners through a variety of channels. These works may have been sold under duress, sent to Nazi leaders from occupied countries, lesser known works by minor artists, so-called "degenerate" artworks that were stolen and fed to the art trade, works taken to the Soviet Union, or art considered "war loot". Many of these unrecovered works are in private collections and therefore virtually untraceable. Heirless works, for which no claimants remain living, compose another difficult category of relevant art works. Art restitution efforts by Allies after WWII were sometimes incomplete and some artworks, handed over to their country of origin, were not returned to their prewar owners. National restitution efforts during the postwar period were largely considered completed by the late 1960s.
Large-scale restitution measures could possibly affect the art market in the areas of purchasing, exhibiting and borrowing. Three areas of difficulty were identified that may contribute to the enormity of the problem of art restitution: determining what is missing, determining locations and owners, and devising an equitable method of restitution for past and present owners.
The need to create a comprehensive inventory of international, freely accessible archival holdings of materials related to restitution issues was considered one of the most important steps. Sources are presently dispersed in archives, government repositories, and private collections, as well as among personal papers belonging to organizations and individuals. Archives in many countries continue to hamper and restrict research efforts by being inaccessible, maintaining prohibitive classification systems or by using local privacy laws as the basis for blacking out references to specific individuals. A lack of funding for the support of scholars further limits research efforts in this area.
Many participants called upon archives to extend their identification of relevant source material to include the war and postwar period. Although numerous restitution claims were made during the 1960s, they were unsuccessful in part because the claimants, rather than the current owners, were required to produce documentation of ownership rights. In order to help families to properly identify their missing works of art, relevant documents should be made available to them to allow for a complete research effort. This is important because many families are unable to fully identify their lost assets, since inventories of collections were often taken at the time that the works of art were taken. Proposals included making Nazi documents available for those not aware of specific losses. Additionally, insurance companies should be asked to audit policies with art schedules in order to help individuals and families close gaps in provenance, and to provide victims with full appraisals, locations, titles, and names to be checked against published sources.
In order to be able to effectively research and resolve claims, the creation of a database of private and state claims, as well as the creation of a framework for research guidelines was suggested. The framework should address both the practical concerns of claimants as well as the moral implications of research into Holocaust era assets. The creation of a board of experts, tasked with the assessment of the historical record regarding individual works of art, was also suggested as a means of contributing to a more structured approach in restitution measures. Underlying the discussion was the need to research both for historical momentum and for the benefit of individual Holocaust victims.
II. Legal, Moral, and Policy Perspectives
The London Declaration of 1943 was one of the defining policy and legal tenants regarding art transactions within Nazi-occupied territories. This Declaration gave the signatory countries the right to declare invalid the transfer of goods situated in occupied lands, including sales under duress. An examination of the validity of the London Declaration was proposed as a point of discussion for the Washington Conference. Also requiring review is a 1946 accord, which signed away Allied rights to German assets held by Switzerland or Sweden. The accord was cited as problematic in the establishment of ownership rights. It was suggested that claims to artworks which were sold by museums in Germany before the war, including so-called "degenerate" art, should be considered acts of state and therefore to be invalid.
Legal differences from country to country, from state to state, on the issues of property rights, good-faith purchases, statutes of limitations, adjudication means, and costs and methods, complicate action that has been and may be taken by claimants. Since many restitution laws do not apply internationally, one suggestion was that US courts be the ones to judge restitution cases in order to avoid incurring vast costs in unsuccessful attempts by Holocaust survivors to reclaim property in numerous countries. Many of these victims are now reaching the end of their lives. Claimants face varying statutes of limitations. It was recognized that the codification of statutes of limitations on the basis of moral issues is extremely problematic. One participant suggested that if Nazi confiscation of art is considered a war crime, no specific statute would apply. Despite the ethical ramifications, present-day owners have, in some claims cases, used statutes of limitations as a trump card in order to retain Nazi-confiscated art.
In discussing broader implications of this debate on cultural property, all agreed that the Washington Conference define its art issue to deal only with Nazi confiscated art or forced sales of art. Unlike gold, insurance, or bank accounts, art is now primarily owned by good-faith purchasers, who have no knowledge of the questionable history of their objects. Many participants, concerned about the dilemma created by such good-faith purchasers, suggested that some form of non-binding mediation be made available to reach agreements. The practicality of reaching international consensus on restitution issues was questioned. Instead, it was felt that international pressure should be applied to those possessing looted art. In cases where claimants have found that museums regarded restitution cases as closed, and were not interested in dealing with survivors, means of dispute resolution is needed on moral grounds. Similarly, claimants have found it difficult or impossible to lodge claims in some countries in which art, returned at the end of the war, was nationalized.
Concern was raised that many claimants to Nazi-looted art simply cannot afford to fight current owners; legal fees alone can run very high. In many cases, current owners possess greater means and may not be willing to go to arbitration to settle disputes. Alternative methods of resolution, such as mediation, were suggested as a means of creating non-binding agreements aimed to solve individual cases. Specifically, participants proposed the formation of a comprehensive, searchable list of claims (as in the first session), called for an inventory of all national and international laws concerning the restitution of art works, and suggested alternative, non-binding forms of resolution to individual cases. Additionally, participants asked for an exploration of assistance measures for claimants without the means to pursue lawsuits, and called for tax breaks or other incentives for good-faith purchasers of artworks with a tainted provenance.
III. Principles, Processes, and Practical Steps
This session examined the possibility of establishing guiding principles for claims processes, as well as practical steps necessary for such procedures. There is strong and urgent public interest in seeing that Holocaust victims recover lost assets. Stabilizing the international art market and cultural exchange are also major concerns. Museums and galleries are fearful of purchasing any work of art with even the slightest question of provenance. This is hindering the availability of works of art for public knowledge, research, and exhibition. Participants noted that the art world craves certainties, especially when considering a purchase. US museums must play a proactive role, serving as leaders in the restitution and research process. The guidelines recently created by the Association of Art Museum Directors were included, as an example of an effort to clarify and establish needed measures to ensure consistency of action among an affected group.
Participants saw the immediate creation of a complete, user friendly database as the single most important measure for claims research. The Art Loss Registry has announced a new endeavor to locate and identify looted art. Working with museums, galleries, dealers, and collectors, the ALR will attempt to return stability to the art market. The ALR will offer its services free-of-charge to Holocaust survivors.
While participants recognized that some questions of provenance will never be answered, they found it vital to call upon buyers and sellers of works of art to investigate gaps in provenance, alerting affected parties of possible tainted histories. Possible regulatory mechanisms for claims cases could be found in non-binding third-party intervention. Increased availability of archives and documentation, the expanded publication and display of art objects, and international consensus can contribute to an open environment.
Momentum created by the London Conference on Nazi Gold will be expanded to focus on previously excluded asset categories. Inevitably, participants addressed the inclusion of claims that extend beyond the realm of the Holocaust period. There was recognition, however, that while principles and processes discussed in relation to the restitution of Holocaust era art relate to art restitution claims in general, this particular forum should focus itself exclusively on addressing the immediate concerns of victims of this period.