39 Spring 2023 initially interpreted literally. How can such a dissenting point of view and interpretation come about? The Swiss delegation representatives discussed their literal interpretation of the terms “looted and confiscated” in the context of Swiss political neutrality, just as they had already done in the period immediately after the war. Switzerland was neither an occupier nor was it occupied, and therefore cannot be held responsible for the acts committed by those who participated in the war. The “Glossary of Nazi-looted art” of the Federal Office of Culture (BAK) reflects this position by defining three relevant terms as follows: Nazi-looted art The Washington Guidelines of 1998 define Nazi-looted art in the title and under numbers I, III-V, VII-X as “works of art confiscated by the National Socialists.” In the exercise of its ethical and moral responsibility, the central government assumes that – irrespective of a categorization – every individual case requires a comprehensive examination. The decisive question for the central government in the sense of the Washington Guidelines is whether a change of hands between 1933 and 1945 had an expropriating effect. In addition to direct confiscation, bogus sales, sales at bargain prices and sales without legitimation also fall under the term “Nazilooted art.” In cases of “escape art,” “escape assets,” or “displacement due to persecution,” it must be correspondingly assessed whether the change in ownership was expropriating and therefore a case of Nazi-looted art, so that just and fair solutions can be found or achieved. 8. https://www.beratende-kommission.de/media/pages/ netzwerk/newsletter-september-2022n014/8b602c3c46-1673948266/newsletter_2022-14.pdf 9. https://www.gesetze-im-internet.de/vermg/ BJNR211590990.html, § 1, 6: “Pursuant to Section II of Order BK/O (49) 180 issued by the Allied Command in Berlin on July 26, 1949 (VOBl. for Greater Berlin I p. 221). The beneficiary is presumed to have lost property as a result of the persecution.” An editorial in the newsletter published by the Advisory Commission on September 14, 2022, said: The Guidelines for verifying whether a work of art was Nazi-confiscated and for preparing decisions on restitution claims [p. 29] offered here are essentially based on the US Military Government Law No. 59 of 10 November 1947. While the Washington Principles are limited to works of art “confiscated by the National Socialists,” the Guidelines – in accordance with US Military Government Law No. 59 – expand the definition of Nazi-confiscated art to include property lost as a result of forced sale or for other reasons. US Military Government Law No. 59 was not intended to apply to the appraisal of a sale of cultural property outside the borders of the Nazi sphere of power: the Act was exclusively focused on business transactions that took place within territory under Nazi control. The criteria enumerated in the Guidelines are therefore not readily applicable to the appraisal of a legal transaction which took place outside this domain.8 Meanwhile, the current version of the 2019 Guidelines states: “However, even if an item changed hands outside of those territories [German Reich and occupied territories], it still cannot be ruled out that the item changed hands as a result of Nazi persecution” (p. 21). This passage is a mistaken account of the historical events. The planners of the 1998 Washington Conference and the authors of the Principles used the restitution and compensation regulations, laws and practices created by the Allies from 1947 onwards as a basis for the final Principles. In the 2009 Terezin Declaration, the terms “looted and confiscated” explicitly refer to the same concepts that are used in the Allied laws of the post-war era and all subsequent legal regulations that draw reference to these, including the 1990 law regulating unresolved matters relating to assets for the former territory of the GDR.9 Opponents see in this an “expansion” of the original area of application of the Washington Principles, although it is in fact a clarification. The Swiss Interpretation of the Washington Declaration In Switzerland, the terms “looted and confiscated” were
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