In the mid-2000s there was a push in scholarship to create arbitration panels to address Holocaust-era art recovery in line with the 1998 Washington Conference on Holocaust-Era Assets. This Conference promulgated the Washington Principles, which 44 countries agreed to follow as guidelines in efforts to return Nazi-looted art. However, the conversation was largely stifled in 2016 when Congress passed the Holocaust Expropriated Art Recovery Act (HEAR Act). The Act passed unanimously in Congress, yet there has been a large debate on its effectiveness in dealing with Nazi-looted art. Although the HEAR Act may enable the United States to satisfy the majority of the Washington Principles, it ignores the overarching purpose: to create just and fair solutions by nations, especially in terms of alternative dispute resolution mechanisms (ADR). Since Section 2 of the HEAR Act acknowledges that ADR is the best vehicle for resolving disputes, it is submitted that it should be revised to establish arbitration panels as an alternative forum that continues past the 2027 end-date of the HEAR Act in order to bring the United States fully in line with the Washington Principles.
Looking carefully at the Arch of Titus on the Via Sacra in Rome reveals the long history of looting and destruction of monuments and artefacts during times of armed conflict. Built in CE 82, the honorific arch depicts the Roman army carrying the spoils from the Siege of Jerusalem in CE 70 back to Rome. Cultural looting during armed conflict serves several purposes, which include: exhibiting the power of the conqueror and weakness of the conquered, eradicating the physical elements of the previous culture to force assimilation, appropriating the culture of the defeated and raising funds to help pay the army and fund future wars.
Nazi Looting During the Second World War
Cultural property was systematically looted under the Nazi Regime. As in the scenes depicted on the Arch of Titus, erected nearly 2,000 years before the onslaught of the Second World War, the Nazis considered the plunder and destruction of artwork another way to eradicate the Jews and other targeted groups and to fund subsequent military campaigns.
As early as 1933, the year Adolf Hitler took power, the Hohe Schule der NASDAP, a Nazioriented university, began collecting cultural materials belonging to those opposed to Nazi ideology, led by Alfred Rosenberg. (1) A 1940 Fiihrer Directive transformed this group led by Rosenberg into a taskforce entitled the Einsatzstab Reichsleiter Rosenberg (ERR) to confiscate:
precious manuscripts and books from national libraries and archives; important artifacts of ecclesiastical authorities and Masonic lodges; all valuable cultural property belonging to Jews. (2) Alongside the ERR, Hitler created the Reichskulturkammer, a chamber of culture, headed by Joseph Goebbels to "stimulate the Aryanization of German culture and to prohibit, for example, atonal Jewish music, the blues, surrealism, cubism, and Dadaism." (3) Hitler established a hierarchical scale of art in which Roman and Greek Classicism and Northern Renaissance works were immensely valuable and Modern or 'degenerate' art was mocked. As such, valuable works were collected and stored. The Third Reich's lowest tier of art was collected and displayed at 'degenerate' art exhibitions then destroyed or sold to non-German nations. The Nazis used secret police and art historians to locate art galleries and dealers in their attempt to create the "largest private art collection in Europe". (4) The number of decrees and laws regarding culture promulgated by the Third Reich, alongside the creation of internal taskforces, indicates that the Nazi regime was highly systematic and methodological in its wartime looting of cultural property.
Looting and confiscation of cultural property by the Third Reich was widespread and resulted in looted artefacts dispersed throughout the world. Although the Nazis rarely paid full value, if anything at all, for an artwork, collecting became a hefty government expenditure. Germany's central bank dedicated 40 million francs to purchase art and antiquities solely in France. (5) Germany acquired cultural property by varied means. In cases of clear looting, Nazi soldiers would raid auction houses, homes and museums. Other times property was acquired during forced sales at extremely reduced prices. Finally, several art dealers and Jewish collectors sold their work quickly at reduced prices in order to avoid being approached by the ERR. Approximately 650,000 works of art were looted or destroyed during the Nazi regime, and this number does not include more modern notions of cultural property such as books, archaeological materials, etc. (6) In 1945, the value of Nazi looted art was approximately 2.5 billion. Today, that value is worth nearly 33.2 billion, which far "exceeded the total value of all artworks in the United States in 1945". (7) The United States holds an estimated $5.8 billion worth of un-restituted Nazi-looted art within its jurisdictional control. (8)
Locating and Restituting Nazi-Looted Cultural Property
Because of the efficient system the Third Reich had in place for looting cultural property it has proven difficult to account for and establish title to looted art. In many cases, the discovery of this cultural property has been made possible only by technological advances, scholarship and the unsealing of records by various nations. In addition, actions by other nations and individual parties post-Second World War have made locating and restituting lost cultural property problematic. According to the National Archives, nearly one sixth of the art is still at large. (9) Even in the case of relocated art, challenges in provenance research result in disputed title.
Restitution typically begins with provenance research. This research is document-focused and involves a detailed historical study of the object. The work is then crosschecked with lists of artwork that have gaps in provenance. Recent increases in technology and funding have made establishing title easier. Records and documents have been unsealed; for instance, US records were declassified after the fall of the Iron Curtain. (10) The Nazi-Era Provenance Internet Portal is now a major resource for claimants to establish title of lost art, whereas provenance documents before the advent of the Internet were scattered throughout various homes, archives and libraries in different countries. (11) Even now, however, provenance research proves a very complex practice. The claimant must be able to describe the cultural property adequately in order for it to be identified by one of the various provenance databases, and even then a majority of private owners and museums keep their collections sealed, making it challenging to locate the current possessor of the artwork. Regardless of whether the claimant knows both the current possessor and location of the cultural property, provenance research must be completed to establish a direct line from the time the property was looted to establish a viable claim for restitution. All this is made more complicated by the length of time that has passed since the Second World War.
As noted above, increased scholarship and modern technology have allowed claimants increased success in establishing title, a prerequisite for a restitution claim. Yet, the influx of claims has revealed problems in restitution schemes for cultural property looted during armed conflict. In the case of Holocaust-era claims there are often procedural hurdles, such as the expiration of limitation periods, conflict of laws and the applicability of antiseizure legislation. These issues led the US Federal Government to participate in a series of international conferences, including the Washington Conference, and enact federal legislation such as the HEAR Act, the Holocaust Victims Redress Act (1998) and the US Holocaust Assets Commission Act of 1998, which created the Presidential Advisory Commission on Holocaust Assets.
The Washington Conference and the Washington Principles
The Washington Conference on Holocaust-Era Assets ('Washington Conference') was the "first large international governmental meeting to address the unfinished business of art that was forcibly transferred as a result of Nazi policies", and was hosted by the United States in Washington D.C. (12) The 1998 Conference brought together 44 nations, ultimately all of which agreed to embrace eleven Principles, the 'Washington Principles', aimed at improving the recovery of Nazi-looted cultural property. The Principles call for increased access to information and more lenient rules of evidence, the establishment of a central registry for identified art and the creation of "just and fair solutionis]". (13) The final Principle encouraged nations "to develop national processes to implement these principles, particularly as they relate to alternative dispute resolution mechanisms for resolving ownership issues". (14)
Although all attending States agreed to abide by them, the Washington Principles were "non-binding commitments". (15) The preface to the Washington Principles contemplated the "differing legal systems" of the participating nations and encouraged each to act "within the context of their own laws". (16) Many of the participating States, including the United States, have arguably failed to satisfy the Washington Principles. Despite assurances for future enhancement, subsequent international gatherings have only reiterated the non-binding nature of the Washington Conference. For example, the Council of Europe promoted non-binding Resolution 1205 on Looted Jewish Cultural Property in 1999 to extend the Washington Principles to "all possible causes of loss".
Ten years after the Washington Conference, representatives from different nations gathered to discuss Nazi looting, issuing the Terezin...