FREUNDESKREIS
THE RESTITUTION OF LOOTED ART LOOKING BACK ON THIRTY YEARS OF EXPERIENCE Peter Raue
It is remarkable – and one of many saddening realisations – how post-war society in the Federal Republic of Germany has dealt with the injustices inflicted by the National Socialists, particularly on their Jewish fellow citizens. For decades, even the most reputable art dealers and auction houses traded in Jewish-owned artworks, paintings and sculptures, and museums acquired “tainted” works without the parties involved investigating the issue of their provenance. It was not until 1998, fifty-three years after the Second World War, that a turning point was reached with a non-binding agreement under international law: The Washington Principles laid the foundation for systematic provenance research to locate and restitute cultural property looted primarily from Jewish citizens.
THE WASHINGTON PRINCIPLES Under international law, this agreement is a voluntary commitment by all states signatory to the declaration, including of course the Federal Republic of Germany, to identify works “confiscated” (!) during the National Socialist era as “looted art”, to locate their pre-war owners and come to a “just and fair solution” with them. In Germany, this voluntary commitment finds its expression in the Statement of the Federal Government, the Länder and the national associations of local authori ties on the tracing and return of Nazi-confiscated art, especially Jewish property (the Common Statement); it is followed by the Guidelines on implementing the claims for restitution (most recently from 2019). This document, which is also “intended as legally non-binding guidance to the implementation of the Common Statement”, provides an assessment procedure, according to
56
Franz Marc, The Foxes, 1913, oil on canvas Kunstpalast, Dusseldorf
which the following questions are to be asked: Was the applicant persecuted by National Socialist acts of violence on the grounds of “race, creed or ideology”? Did [...] the loss of property occur through forced sale, expropriation or in any other way? In this case, the presumption that the loss of the artwork is due to persecution can only be rebutted if the seller received appropriate proceeds from their sale and could freely dispose of them. This arrangement is more stringent for sales after 15 September 1935. From this point on – according to the Guidelines – an investigation must show whether “the legal transaction [...] would also have been concluded without National Socialist rule”. The Guidelines explicitly point out that – following The Washington Principles – in the event of a restitution claim, a “just and fair solution” is to be sought, which “can only be achieved together with the rightful
owners”. Repurchase, permanent loan, and exchange are also possible alternatives to restitution. If the parties – the parties claiming restitution and the owners of the reclaimed works of art – cannot reach an agreement, they can appeal to the Coordination Office for the Loss of Cultural Assets, which is an Advisory Commission on the return of cultural property seized as a result of Nazi persecution. Both sides must agree before an appeal to the Advisory Commission can be made, and the commission can only make recommendations; that is, the Advisory Commission has no decision-making authority. A fact that is often overlooked in the discussion should be emphasised: The Washington Principles and the associated national provisions are addressed exclusively to the public authorities (Federal Government, Länder, and local authorities). Under The Washington Principles, these bodies alone are obliged to provide restitution and to seek a just and fair solution.
