June 2009 in Prague: The Washington Holocaust Era Conference Revisited

June 2009Art & Advocacy, Volume 2

In 1998, the U.S. government hosted the Washington Conference on Nazi- Looted Assets, at which representatives of 44 countries met to discuss how to deal with Nazi-looted property, including artwork, that had not been returned to their true owners after World War II. The experts at the conference considered and debated the many issues raised by the continuing discovery of Nazi-looted assets, and promulgated 11 principles concerning Nazi-looted art; among them, that pre-war owners and heirs should be encouraged to come forward to make their claims known and, once this happens, steps should be taken expeditiously to develop “fair and just claims procedures” with liberal rules of evidence so that the art can be returned to its rightful owners.1

Much good has come of this. For example, several nations began researching art with questionable provenance and developing the requisite legal regimes. Also, auction houses, museums, and collectors began paying special attention to art with gaps in provenance between 1933 and 1945 and, in many cases, refuse to deal with or acquire such artwork. Governments and non-governmental organizations responded to the Washington Conference in a variety of ways, including adopting resolutions, developing sets of guidelines, and enacting laws concerning Holocaust-looted assets. Among other developments, in November 1999, the Parliamentary Assembly of the Council of Europe, representing 41 nations, unanimously passed Resolution 1205, calling for the restitution of looted Jewish cultural property in Europe.2 The Association of American Museum Directors (“AAMD”) developed a set of guidelines for museums on topics such as provenance research and the resolution of claims regarding property illegally confiscated during the Nazi era and not yet restituted.3 Following suit, the International Council of Museums (“ICOM”) and the Association of American Museums (“AAM”) passed similar resolutions and guidelines. In 2000,  the AAMD, the AAM, and the Presidential Advisory Commission on Holocaust Assets in the United States (“PCHA”) agreed that museums were doing a lackluster job of providing information to the public about objects in their collections that were transferred in Europe during the Nazi era.4 To address the issue and make provenance information on such objects easily accessible, the AAM developed an Internet database called the  Nazi-Era Provenance Internet Portal, which is intended “to provide a searchable registry of objects in U.S. museum collections that changed hands in Continental Europe during  the Nazi era (1933–1945).”5

While substantial progress has been made in the recovery of Holocaust era assets, the goal of the Washington Conference — that the signatory nations should commit themselves to developing “just and fair” solutions for claims by victims of Nazi looting of property not previously restituted — has yet to be fully realized.  Although a few countries, most notably the Netherlands, Germany, Austria, France, and the United Kingdom, have adopted restitution regimes that address the problem in varying degrees, former Under Secretary of State Stuart Eizenstat, the force behind the Washington Conference, recently reported that more often than not the Washington Principles have been ignored.6 Many who work in this field continue to experience great frustration throughout the world, especially in the former Eastern bloc nations, as well as in the United States and Western Europe. 

In 2005, seven years after the Washington Conference principles were promulgated and the first AAM Guidelines were adopted,  the Jewish Claims Conference began a dialogue with the AAM concerning the participation of U.S. museums in the Nazi-Era Provenance Internet Portal and the adherence of U.S. museums to the AAM Guidelines. In July 2006, the Claims Conference conducted a survey regarding the response of U.S. museums to the Washington Conference. Of the 332 museums in the U.S. that received the questionnaire, 118 did not respond. In addition, it was reported that only 12% of potentially problematic works had been fully researched and publicized: only 20 museums reported that claims had been made for items in their collections.7

One problem is that all countries have procedural and technical roadblocks that impede the resolution of otherwise valid claims for the return of Holocaust loot. For several years, Herrick, Feinstein has been assisting claimants all over the world in their efforts to obtain restitution of their lost assets. While many of those claims have been successful, experience shows that governments and private institutions often overlook the underlying ideals of the Washington Conference. As Stuart Eizenstat stated at the Washington Conference, “we [should] recognize that as a moral matter we should not apply rules designed for commercial transactions of societies that operate under the rule of law to people whose property and very lives were taken by one of the most profoundly illegal regimes the world has ever known.”8

Now, 10 years after the Washington Conference, the Government of the Czech Republic, in cooperation with the Documentation Centre of Property Transfers of Cultural Assets of WW II Victims, the Federation of Jewish Communities in the Czech Republic, the Jewish Museum in Prague, the Terezín Memorial, the Institute of Jewish Studies at the Hussite Theological Faculty of the Charles University in Prague, and the Forum 2000 Foundation will host a “Holocaust Era Assets” conference in Prague from June 26 – 30, 2009.9 Experts from a variety of fields will assess the progress made since Washington, review current practices regarding provenance research and restitution, and perhaps, where needed, define new effective instruments to improve these efforts. The hope is that the conference will not only allow for international collaboration and networking to establish tangible solutions for mitigating the injustices caused by the Holocaust, but also emphasize the importance of Holocaust education and remembrance. As Thomas Kraus, the executive director of the Federation of Jewish Communities in the Czech Republic, has stated, “the legacy of the Holocaust, as a phenomenon, is so vivid and so urgent that it cannot  be forgotten.”10

But many concerns have been raised about the Prague conference. Some critics have raised doubts as to whether the Prague conference has the potential to effect real change. If the issues are not addressed in a clear, direct, and thorough fashion, the outcome will likely be similar to so many conferences in the past where there were powerful and even passionate calls for action but no concrete results.  Sidney Zabludoff is an economist who, upon his retirement from the U.S. government after more than 30 years of service, began to research and publish studies on issues relating to the restitution of Jewish assets looted during the Holocaust era. He recently wrote: “the Prague Conference . . . needs to establish a clear and detailed mechanism to address this issue if it is going to have any meaning beyond diplomatic niceties.”11 He proposes two solutions: the creation of an international organization to create and manage a single location of all records relating to stolen Holocaust era assets, and the establishment of an International Remembrance Fund. Other experts in various fields are expected to bring to the table different sets of issues and proposed solutions.

The non-binding principles from the Washington Conference were a good starting point, but in order for “just and fair” solutions to be implemented, the applicable rules need to be reconciled among nations and made legally enforceable. One issue that needs to be addressed in Prague is the procedural roadblocks that impede the resolution of claims on the merits, such as statutes of limitations, or constructs such as laches (in the United States) and acquisitive prescription (in many European jurisdictions). An enlargement of the rights and remedies available to Holocaust victims and their heirs in order to fundamentally ease their efforts to recover Holocaust assets looted by the Nazis would be a most welcome outcome.

As Kraus says, “it’s about justice and moral issues. We may never have the full picture, but at least we can open some of the chapters.”12 We hope the Prague Conference will be a substantial step in this direction.

1  See generally Washington Conference Principles on Nazi-Confiscated Art, released in connection with The Washington Conference on Holocaust Era Assets, Washington, DC, December 3, 1998, available at http://www.state.gov/p/eur/rt/hlcst/122038.htm.

2  See Resolution 1205 of the Parliamentary Assembly of the Council of Europe, April 19, 1999, available at http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta99/ERES1205.htm.

3  Association of Art Museum Directors, Report of the AAMD Task Force on the Spoliation of Art During the Nazi/World War II Era (1933-1945), available at http://www.aamd.org/papers/guideln.php.

4  See AAM Recommended Procedures for Providing Information to the Public about Objects Transferred in Europe during the Nazi Era, October 2000, available at http://www.aam-us. org/museumresources/prov/procedures.cfm.

5  See The Nazi-Era Provenance Internet Portal Project, available at http://www.nepip.org/.

See Stuart Eizenstat, Testimony on the Status of Art Restitution Worldwide, before the subcommittee on Domestic and International Monetary Policy, Trade, and Technology Committee on Financial Services, U.S. House of Representatives, Washington, DC (July 27, 2006), pp. 13-15.

7  Claims Conference/WJRO Looted Jewish Art and Cultural Property Initiative, Nazi-Era Stolen Art and U.S. Museums: A Survey, July 25, 2006. Report available at http://www. claimscon.org/forms/U.S._Museum_Survey_Report.pdf.

8  Stuart E. Eizenstat, In Support of Principles on Nazi-Confiscated Art, Presentation at the Washington Conference on Holocaust Era Assets, Washington, DC, December 3, 1998, available at http://fcit.usf.edu/HOLOCAUST/RESOURCE/assets/art.htm.

9  See generally, http://www.holocausteraassets.eu/.

10  Curtis M. Wong, “EU Presidency to Highlight Jewish Restitution,” The Prague Post (August 13, 2008).

11  Sidney Zabludoff, “Holocaust Restitution-Prague Conference in June Seen as Last Effort,” The Cutting Edge (April 13, 2009).

12  Curtis M. Wong, “EU Presidency to Highlight Jewish Restitution,” The Prague Post (August 13, 2008).