10 February 2016

Archival research can be truly daunting

by Marc Masurovsky

Archival research can be truly daunting, no, let’s be clear, it is overwhelming and intimidating. And it is addictive.

The digital world is ubiquitous. Many of us cannot get through the day without “signing on”, clicking on a website, “googling” keywords, looking for art objects, artists, galleries, collectors, dealers, exhibits, framers, robbers, victims, you name it. The Internet is as good as the information which is made available to virtual searching.

The Internet is upon us, around us, at our fingertips. We can consult digital archives at any time of the day or night, documents which have been either photographed or scanned and compiled in clever ways with or without finding aids and inventories, so that we can find them more easily. These documents are “tagged”, described, to make it harder or easier for us to find them.

Physical archives still dominate our research lives, those where we choke on historical dust, where we actually get to touch the documents, stored in grey Hollinger boxes, or big fat oversized tan cardboard boxes, or we get to play with microfilms and microfiches, which only twenty years ago, were the peak of archival storage technology or so it seemed.

Research. For those who really enjoy getting lost in an archive, much like getting lost in the stacks of a library or a bookstore, reading finding aids, ordering boxes or microfilms, lifting files crammed with documents from their boxes, scrolling through images on a microfilm, searching for clues, seeking documents that might answer a riddle or two about a historical kerfuffle that happened many decades ago.

This might all sound like the raving words of a hopeless geek, but research is an acquired taste, rooted perhaps in a(n) (un)healthy dose of curiosity, sprinkled with stubbornness, persistence, and a refusal to accept the fact that there is no answer to the question that prompted the research in the first place. In the most extreme cases, arduous research in an archive can become an excuse for not writing, not committing the fruits of research onto paper. We all subject ourselves to such torture. It makes us human.

When you read a document, look for what is not written, ask: why was it written? what was its point: what is it not saying?

Never give up.

Ask questions.

Don't let up. 

Stay curious. 

Be inquisitive.

Thoughts about provenance research, 1995-2016

by Marc Masurovsky

It has been almost twenty years, yes, 20, two times 10, 4 times 5, since “provenance research” entered the public sphere in the context of Holocaust-related matters.

Up to that time, no one uttered those two words who was not an art historian or an art expert and only in the most guarded ways. Provenance research had always been the exclusive province of art historians and, by extension, museum professionals and stewards of art collections.

Several events, when viewed cumulatively, can be blamed for upsetting the apple cart of provenance.

1/ the January 1995 “Spoils of War” International conference sponsored by the Bard [College] Graduate Center for Studies in the Decorative Arts. Although focused in part on Soviet “takings” of cultural objects which were located in their zone of military occupation in the waning months of WWII, the conference was an opportunity to revisit the massive looting of art objects by all sides, mostly by the Axis powers, during the Nazi era, the Holocaust and WWII. Implicit was the understanding that the provenance history of these mislaid, stolen, plundered, displaced art objects had been severely disrupted as a result of war, occupation, and genocide. In attendance were art historians, lawyers and government officials from a variety of countries.

2/ The Swiss bank crisis regarding Jewish dormant accounts emerged in 1995 initially pitting the World Jewish Congress and its president, Edgar Bronfman, against the Swiss Bankers Association. It exploded into a series of landmark hearings organized by Republican Senator Alfons d’Amato, chairman of the Senate Banking Committee, and the launching of a class action suit by 22 American lawyers representing Holocaust survivors and their heirs whose assets were on deposit in Swiss banks. What did this have to do with provenance research? Writ large, the Swiss bank crisis paved the way for a more public discussion of the fate of Jewish assets held in various parts of Europe by institutions, financial and cultural, which had no business holding on to them. If anything, the debate over Swiss banking misdeeds called into question the illicit ownership of tangible assets misappropriated from their rightful owners, Jewish victims of Nazism.

3/ The “Eizenstat reports” of 1996 and 1997 on the (mis)handling of gold looted by the Nazis, sold and/or deposited in Swiss banks and in financial institutions in other so-called “neutral countries” during WWII. Although not focused on art, we can argue that the "provenance" of the gold looted by the Nazis lay at the center of the US government study of "looted gold" and the Swiss role in recycling it.

4/ the September 1997 international conference in Washington, DC on the “legal and moral consequences of art restitution” organized by Ori Z. Soltes, director of the Klutznick Museum of B’nai B’rith in Washington, DC, placed looted art and the challenges of postwar restitution squarely in the forefront of public debate over looted art. That conference witnessed the birth of the Holocaust Art Restitution Project (HARP).

4a/ The World Jewish Congress (WJC) announced the establishment of its own looted art project, the “Commission for Art Recovery", chaired by Ronald S. Lauder.

5/ the seizure of “Portrait of Wally” and “Night City III” by Egon Schiele at the Museum of Modern Art in January 1998 opened wide the doors on how looted art is able to travel, claimed and unrestituted, for decades and end up on loan at an eminent New York cultural institution.

6/ the Washington Conference on Holocaust-Era Assets of December 1998 which produced the much heralded and reviled non-binding “Washington Principles”, acting as guidelines for handling “looted art”. Provenance research lay at the core of these principles.

7/ the legislating of a Presidential Advisory Commission on Holocaust Assets (PCHA) which saw the light of day in June 1998, and opened its doors in spring of 1999. Art was one of three “assets” to be investigated by an executive commission until 2001. Excluded from consideration were looted art objects in the United States, a critical failure of the PCHA.

8/ the American Association of Museums and the Association of Art Museum Directors (AAMD) enacted their own guidelines on how to handle art objects in their collections.

9/ the AAM published a “Guide to Provenance Research” co-authored by Nancy Yeide of the National Gallery of Art, Amy Walsh of the Los Angeles County Museum of Art, and Konstantin Akinsha, author of “Beautiful Loot.”

In the space of five years, art historians found themselves “sharing” provenance research and with attorneys, government officials, non-art historians, researchers, Holocaust claimants and their advocates, and NGO’s concerned with the location, identification and restitution of art objects misappropriated between 1933 and 1945.

Once viewed as a discrete task limited to the scholarly documentation of the history of art objects, provenance research became politicized overnight with battle lines drawn over how far such research would go and what the ultimate goal of provenance research should be. Is it really about documenting and verifying who has good title to an object? Or should such questions not haunt an art historian’s quest for information about an object?

The debate still rages, the camps have solidified, alliances between American and German museum professionals are the latest incarnation of this struggle as museum professionals and “provenance researchers” on both sides of the Atlantic Ocean cement their strategic partnerships within the museum world. Outside that sphere are those who advocate a more ecumenical and interdisciplinary approach to provenance research, closely connected with political, economic and social history, the upheavals that they document, and using such research to right some wrongs and inject ethics into the stewardship of collections while shedding light on the mechanics of cultural plunder and helping to (re)write the history of art as seen through the distorted prism of mass conflict, dictatorship and genocide. Not pretty but necessary.

31 January 2016

When is “just and fair” fair and just?

by Marc Masurovsky

It is difficult to pin down precisely the genesis of the concept known as “fair and just” or “just and fair” solution in matters pertaining to the restitution of art objects looted during the Holocaust. Who and when are almost impossible to trace.

A valid starting point is principle #8 of the “Washington Conference Principles on Nazi-confiscated art”. The “Washington Principles” were passed on December 3, 1998 at the close of the Washington Conference on Holocaust-era Assets.

“If the pre-War owners of art that is found to have been confiscated by the Nazis and not subsequently restituted, or their heirs, can be identified, steps should be taken expeditiously to achieve a just and fair solution, recognizing this may vary according to the facts and circumstances surrounding a specific case."

Two years later, on October 5, 2000, a declaration came out of an international forum on Holocaust issues held in Vilnius, Lithuania, which placed heavy emphasis on the search for fair and just solutions “to the return” of looted art and cultural property. It went a bit further than the Washington conference without getting into any specifics, diplomatie oblige, as to what would constitute a just and fair solution to a claim for restitution. Forum participants did ask that “every reasonable effort be undertaken" to “achieve the restitution” of looted cultural assets. Hence restitution {again, without being properly defined] was invoked in the same breath as “just and fair solution.”

Eleven years after the Washington Conference of December 1998, a similar conclave of 40 odd nations and international NGOs gathered in Prague under the auspices of the hosting government of the Czech Republic. The International Conference on Holocaust-Era Assets issued a declaration, called the Terezin Declaration on June 30, 2009. In it, one can find multiple references to “just and fair solutions” without understanding at all what they are and how to achieve them. They do stipulate, however, that the Washington Conference of December 1998 established the moral (and non-binding) principle whereby looted art and cultural property should be “returned to victims or their heirs in a manner consistent with national laws and regulations [emphasis added] as well as international obligations, in order to achieve a just and fair solution.” Unless I am completely mixed up here, I read this as meaning that the restitution of looted cultural property achieves a “just and fair solution.”

In the years following the 1998 conference in Washington, DC, where the Principles were formulated, the tendency was to sharpen the link between restitution and “just and fair” or “fair and just” solutions. And yet….the word “restitution” was not defined in these declarations. If it was to mean the physical return of the looted object to the rightful owner and thereby transfer of legal title away from the current possessor to the rightful owner, many art market players like auction houses and museums, as well as governments, have violated the principle of what is just and fair by insisting that “just and fair” in all likelihood means upholding the good faith of the current possessor and asking—no, convincing—the claimant that financial compensation of some sort or another is the best result that can be achieved in the spirit of the Washington Principles of 1998. Best to invoke the trinity of Washington, Vilnius and Terezin in order to enshrine the physical return of the object.

Is that really what was meant or inferred at Vilnius in 2000 and at Prague in 2009? The answer is inconclusive, because most of the drafters and endorsers of these declarations were well aware that “national laws and regulations” would interfere with the actual physical restitution of the claimed object, especially in areas where the Idol of Good Faith rules all.

Hence, the apparent contradiction between settlements and the various declarations of Washington, Vilnius and Terezin disappears by stressing that the return of the object should be consistent with national laws and regulations. The emphasis of "fair and just" shifts in favor of the rights of the current possessor at the expense of those of the claimant.

"Dedham from Longham", by John Constable

An interesting twist to the Washington Principles involves a painting by John Constable being claimed by Alain Monteagle, representative of the Jaffe family’s restitution claim. The painting is presently located in the Fine Arts Museum of la Chaux de Fonds which is in the canton of Neuchatel in the French-speaking part of Switzerland. Historically, the Swiss federal government has always deferred to local governments’ discretion in the way that they manage or dispose of their cultural assets. If one should apply to the letter the principles enshrined in Washington and reiterated in Vilnius and Terezin, the museum at La Chaux de Fonds, which is municipal, should return the painting to Mr. Monteagle. However, if the return is subject to the “national laws and regulations” of Switzerland and the canton of Neuchatel, as well as the municipality of La Chaux de Fonds, Mr. Monteagle does not stand a chance, because civil law in Switzerland worships the good faith of the current possessor and no foreigner can come into Switzerland and claim what he/she feels is his/her rightful property, at least not since 1949, with a notable exception last year.  At least, that is the impression that we are left with, if history serves as a valid reference point.

La Chaux de Fonds
Interestingly, in a 3-page report issued in January 2014, the Swiss Federal Office of Culture commented that “just and fair solutions must be sought—both when it has been possible to trace the victims and when identification has proved impossible.”

Hence, the principles of Washington, Vilnius and Terezin are not helpful in the real world and, more often than not, municipal governments and their national representatives heap scorn on them so as to safeguard their “cultural property.” If Mr. Monteagle wants his painting back, he has to wage total war against the Swiss government, the city council of La Chaux de Fonds which has oversight of its fine arts museum and the cantonal authorities in Neufchatel. To be successful, the battle for restitution must involve all aspects of civil society and should be waged inside and outside the legal system in order to "achieve a just and fair solution" consistent with Washington, Vilnius and Terezin.

What does restitution mean to me?

by Marc Masurovsky

[Editor's note: this is an opinion piece which reflects the views of the author and does not necessarily commit those of others to what is argued hereunder.]

For our purposes, I will limit my comments to Jewish losses and restitutions to people of Jewish descent who either were persecuted or were blood relatives of victims of anti-Jewish persecutions between 1933 and 1945.

In plain English, (I am not a lawyer) as often repeated on the blog of the Holocaust Art Restitution Project and elsewhere, restitution is the physical return of an object stolen or misappropriated as a result of racial, ethnic, political, religious, and other forms of persecution perpetrated against individuals or groups of individuals because of their faith, ethnicity, beliefs, and/or sexual orientation.

Most commonly, the notion of restitution has been associated in the minds of both the public and legal practitioners and policymakers with anti-Jewish persecution.

The actual physical return of the looted object affirms the transfer of legitimate title to the stolen/recovered property to the rightful owner/claimant.

National governments, their agencies, and international organizations, view the word “restitution” in a different light. It would be easier to use words like “return” or more aptly “transfer.” Indeed, after WWII ended, Allied governments detailed cultural specialists to recently liberated territories in Europe and the Far East to sort out the origins of cultural and religious objects discovered by troops on the march and during their occupation of captured sites.

Once they identified the origin of the objects, as in the country from where the objects had been forcibly removed by the occupying power’s representatives—civilian and military—these cultural specialists, referred to in popular culture as “Monuments Men”—had the objects inventoried, marked as “restituted” and shipped back to the country of origin where they assumed that the returned objects would be then physically restituted to their rightful owners. Here, restitution is a bureaucratic word that holds a specific meaning distinct from the physical return of the object to the rightful owner.

Now that I have ascertained in a “nutshell” what restitution is all about and how it differs in meaning depending on who or what uses the word, what happens when an object is actually not restituted but when some kind of agreement is reached that results:

1/ in an exchange of money from the current possessor to the claimant and
2/ the maintenance of legal title in the hands of the current possessor?

Ever since the end of WWII, government officials overseeing the restitution programs of postwar nations had to contend with current possessors of the objects suspected of being looted who had to respond to claims filed by the aggrieved parties. Very quickly, they sought alternative ways of resolving what were viewed essentially as property disputes over who has good title to an object of art. In other words, the debate over restitution shifted away from the righteousness to apply in concrete terms a responsibility to restitute an object stolen during a genocidal undertaking.

The current possessors pushed back almost immediately after Victory Day. They hid behind national and local property laws that upheld their good faith in the way that they had come into possession of the looted object. The act of restitution was, in effect, held hostage to property laws which regulate who gets to hold title to an object and under what circumstances. Genocide did not figure in the equation. It was simpler that way and continues to be that way today. Good faith is almost like a religion.

As a result of a societal predisposition to invoke good faith arguments when challenges to ownership occur resulting from Holocaust-related events, restitution—meaning the physical return of the looted object to its rightful owner—has become a complex, difficult  and almost insurmountable goal to achieve for thousands of claimants, victims or relatives of victims of acts of plunder committed during the Nazi/Fascist era.

Financial settlements—indemnification or compensation for loss of the claimed property—have been the rule of thumb for most claimants until today and the preferred way of “restituting” practiced by the art market and governments alike. In other words, the looted objects remain in the possession of those who have acquired them either on the art market or by inheritance or by exchange for other objects or obtained them directly through the commission of crimes against humanity. Legal title is not transferred to the rightful owner.  In defense of many claimants who choose financial settlements over the arduous challenges posed by restitution, a settlement can be rationalized as a tacit, unspoken (words are dangerous, especially written ones) acknowledgment of the wrong that produced the loss of the object in the context of persecution and genocide.

Nevertheless, theft committed during unspeakable acts against individuals and groups pays for itself as long as one’s good faith can be upheld.

Nowadays, financial settlements are referred to as “fair and just solutions.” Based on the above, you can figure out rather quickly for whom those solutions work best.

It’s up to you to decide whether a financial settlement can help right the wrongs of the past. For me, the physical return of the object to the rightful owner and the transfer of legal title to said owner, are the only true form of restitution. The rest is a rewrite of history, a sanitized approach to the byproduct of unspeakable crimes so that trade can continue and good faith can remain as a pillar of protection of private property for those who stand to profit the most from the act of possession of those un-restituted objects. Most "current possessors" feel no guilt or remorse over their ownership of objects tainted by genocide. Instead, they can be rather offended that a claimant can show up at their door decades after the events and ask for the object back.  Genocide is not barred by statute.  However, its byproduct of plunder and theft is shielded by antiquated property laws regarding good faith and title to the property.

In the end, this is not just about losses incurred during anti-Jewish persecutions and the Holocaust. The debate over restitution applies just as well to any theft of objects plundered during the commission of crimes against humanity regardless of where they were committed and by whom.