A number of events and presentations marked the 25th anniversary of the Washington Principles on Nazi-Confiscated Art. Among these were “Marking 25 Years of the Washington Principles – Restitution of Nazi-Looted Art“ at the Leo Baeck Institute for the Study of German-Jewish History and Culture at New York on 3 December 2023, but also, for example, an earlier event on 12 July 2023 that I hosted myself at my University, the University of Bonn, Germany, together with the Coordination Office for Provenance Research of the State of North Rhine Westphalia (“Koordinationsstelle Provenienzforschung Nordrhein-Westfalen [KPF:NRW]”), on “25 Jahre Washington Principles: Tendenzen und Thesen“.
While considerable progress has been achieved over the last 25 years, at least in the five countries that established a restitution commission according to Articles 10 and 11 of the Washington Principles at an early stage (these are, in alphabetical order, Austria, France, Germany, the Netherlands, the UK; Israel and Switzerland have embarked on a process of setting up such a commission, see here and here), the question now is how to go on for the next 25 years. This is a topic that the following online conference on 17 January 2024, (4 p.m. London; 5 p.m. Berlin; 6 p.m. Tel Aviv; 11 a.m. New York), will address: “The Restitution of Nazi-Looted Art: The Next 25 Years“. This event will include a key note by Special Advisor on Holocaust Issues to the US Secretary of State Stuart Eizenstat, a comment by James Bindenagel, US Ambassador for Holocaust Issues at the Washington Conference in 1998 and editor of the Conference Materials and two presentations, one by my colleague Professor Leora Bilsky, The Benno Gitter Chair in Human Rights and Holocaust Research, Faculty of Law, Tel Aviv University and Director of The Minerva Center of Human Rights, Tel Aviv University, Israel and one by myself. The two presentations will reflect, with a view to the future, on a joint project of the Universities of Bonn and Tel Aviv over the last three years: teaching the restitution of Nazi-looted art in comparative perspectives. Over the last three Winter Semesters Israeli and German students were invited to come together weekly on screen to receive lectures on this complex issue and discuss the input from the two professors and a large number of guest speakers with diverse backgrounds from all over the world.
One central take away of this intriguing and intense experience may be that transparency is of the essence: as early as 1950, Hannah Arendt taught us, with reference to Immanuel Kant, about “the radical evil“ (“das radikal Böse“) of the Holocaust that destroyed the trust in humanity in a most fundamental and unprecedented way. Against this background 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.
First, this demand relates to transparency in respect to all stocks of museums. The claimants, the Jewish world in its entirety as well as the public in general have a right to know about the existence and the whereabouts of all items in public collections – it is public property, or at least property serving public purposes, after all, and we are the public. In addition, the state of provenance research must be made public in respect to all objects. Second, each and every “just and fair solution” must be made public, since it is a concern of the public, i.e. of all of us, to come to terms with remaining unjust enrichments attributable to the Holocaust. Secret bilateral settlements may comfort the individual parties involved, but such settlements neglect the public dimension of the restitution process. We need to record this process, in order to be able to respond to recurring and pressing questions on where we are standing and whether we are on the right track. The publication of just and fair solutions must include the respective reasonings on how the relevant solution was configured and why. Summarising press releases with generic statements on the facts and, if at all, the reasons, as they often occur in Germany, are not sufficient to serve the public purpose of restitution. In particular, the recommendations of restitution commissions must provide for comprehensive reasoning. As a matter of fundamental procedural rights of both sides (on the part of public holders as a matter of objective values injected into the normative order carrying the process rather than via subjective fundamental rights), this requirement most intensely relates to arguments and submissions of each of the parties. Third, there must be transparency in respect to the reasons as such, i.e. the assessment framework or, as I like to put it, the “grammar of reasons” for restitution. Recommendations and decisions must be as predictable as possible. Provenance research must know what to research and must remain focused on the points relevant for assessment. Practice needs to be stabilised by structure. Any kind of ‘justice’ needs structure. Last but not least, the procedure for producing a just and fair solution must be transparent.
Norman Palmer, co-founder and academic principal of the Institute of Art and Law, perfectly set the stage in his seminal contribution “The Best We Can Do”, in Evelien Campfens (ed.), Fair and Just Solutions – Alternatives to Litigation in Nazi-Looted Art Disputes: Status Quo and New Developments, Den Haag 2015, pp. 153-186. The author of these lines is seeking to further contribute with a “Restatement of Restitution Rules of Nazi-Confiscated Art”, a comparative legal analysis of 1100 pages on the practice of the restitution of Nazi-looted art in six jurisdictions (Germany, Austria, the Netherlands, France, the United Kingdom, Switzerland) over the last 25 years, in order to pave the way for meaningful and informed, i.e. transparent discourse on best practices during the next 25 years. This research will be released to the public in open access mode, after five years of work with a team of a dozen researchers at the University of Bonn, during the next months, both in German and in English.
If you want to hear more and if you want to participate in the discussion about the restitution of Nazi-looted art during the next 25 years, consider registering for our Conference on 17 January 2024 with firstname.lastname@example.org. We look forward to seeing you there.