42 No. 69 JUSTICE ago, an appraisal of the inventory of Kunstmuseum Zürich is now pending. Now, research is to be carried out in line with the principles of context-based provenance research and include all alternative forms of withdrawal, as well as persecution-related sales in Switzerland.16 Germany’s Advisory Commission Is Criticized for Its Interpretation of the Washington Principles Switzerland is now determined to adopt a new approach. Instead of ignoring the causal relationship between the persecution and the asset sales that took place in Nazicontrolled territories, Switzerland now considers the persecution process having been uniform and ongoing. However, the former German office supervisor and current consultant to the Advisory Commission criticizes the guidelines and decisions of the Commission in the aforementioned Newsletter of the Advisory Commission from September 2022: While the Washington Principles are limited to works of art “confiscated by the Nazis,” the Guidelines – in accordance with U.S. Military Government Law 59 – expand the definition of Nazi-confiscated art to include assets lost through foreclosure or for other reasons. U.S. Military Government Law No. 59 was not intended to apply to the appraisal of a sale of cultural assets outside the boundaries of the Nazi sphere of power: The law was aimed exclusively at business transactions that took place within the Nazi area of control. The criteria listed in the Guidelines are therefore not readily applicable to the appraisal of a legal transaction that has taken place outside this scope.17 In this context, it becomes clear that once again the role of persecution at the time of a sale is being overlooked, and such sales are being justified based on principles of contract formation under civil law. And yet, the Washington Principles, like all restitution regulations to date, aim exclusively at establishing a causal relationship between the persecution and the legal act that led to the loss of an asset. Generally, those who managed to obtain a visa for a third country did so at great personal risk and at high financial cost. They also faced an uncertain future, including moving to another antisemitic milieu, and in most cases lost their entire wealth in Germany. Works of art were often the only liquid assets that could be exchanged for foreign currency, which made selling them the only available resource to escape National Socialism. This is why evaluating a restitution claim based solely on an assessment of the vendor’s other economic assets is not well suited to achieving the desired goals of the Washington Principles. While on the one hand it is undoubtedly difficult to estimate the actual value and availability of a person’s resources, there is the question of what the person needed to accomplish, and what assets could be used to achieve their specific goals. For example, a court may ask how many expenditures a person had to manage, the cost of traveling to one destination versus another, or what life changes seem appropriate from today’s point of view. What should the benchmark be? In some of the most recent cases, this approach has led to catastrophic outcomes. The Washington Principles try to recognize the impossibility of undoing the past by trying to offer a framework to at least return the artworks to their rightful owners. However, a more suitable method of achieving this goal would be to finally remove the remaining obstacles that stand in the way of asserting claims, for example, by allowing the unilateral appealability of cases to the German Advisory Commission and to stop allowing cases to hide behind the federal system, which never presented a problem for uniform regulations. What Länder arguments against unilaterally commissioning the Advisory Commission stand in the way of a regulation by Germany’s central government? The same question applies to the parliamentary initiative in Germany (which simply petered out) to lift the statute of limitations for cases where a sale took place in bad faith. The British Way of Comparing Moral Fortitude with the Strength of a Legal Title As the proceedings before the Spoliation Advisory Panel in England show, a purely moral consideration leads to a comparison between the moral strength of the claimant’s position and the legal strength of the current owner’s interest in the artwork. From the current owner’s perspective, their position is far removed from the aims of the Washington Principles, especially when one 16. Gerhard Mack, “The Kunsthaus Zürich softens its position in the debate about art that was acquired during the Nazi era,” MAGAZIN DER NZZ, March 11, 2023, p. 61. 17. https://www.beratende-kommission.de/media/pages/ netzwerk/newsletter-september-2022n014/31cd62e614-1664873516/network_newsletter_14_ september_2022.pdf
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