Standards Regarding the Unlawful Appropriation of Objects During the Nazi Era
This area of collections stewardship is of such sensitivity and high importance that it has separate standards and best-practice statements regarding a museum’s obligations. These statements have been promulgated by the field to provide guidance to museums in fulfilling their public trust responsibilities.
From the time it came into power in 1933 through the end of World War II in 1945, the Nazi regime orchestrated a system of theft, confiscation, coercive transfer, looting, pillage, and destruction of objects of art and other cultural property in Europe on a massive and unprecedented scale. Millions of such objects were unlawfully and often forcibly taken from their rightful owners, who included private citizens, victims of the Holocaust; public and private museums and galleries; and religious, educational, and other institutions.
In recent years, public awareness of the extent and significance of Nazi looting of cultural property has grown significantly. The American museum community, the American Alliance of Museums (the Alliance), and the International Council of Museums (ICOM) are committed to continually identifying and implementing the highest standard of legal and ethical practices. The Alliance recognizes that the atrocities of the Nazi era demand that it specifically address this topic in an effort to guide American museums as they strive to achieve excellence in ethical museum practice.
The Alliance Board of Directors and the ICOM Board formed a joint working group in January 1999 to study issues of cultural property and to make recommendations to the boards for action. The report that resulted from the initial meeting of the Joint Working Group on Cultural Property included the recommendation that the Alliance and ICOM offer guidance to assist museums in addressing the problems of objects that were unlawfully appropriated during the Nazi era without subsequent restitution (i.e., return of the object or payment of compensation to the object’s original owner or legal successor).
The efforts of the Working Group were greatly informed by the important work on the topic that had gone before. In particular, three documents served as a starting point for the Alliance guidelines, and portions of them have been incorporated into this document. These include: Report of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933-1945); ICOM Recommendations Concerning the Return of Works of Art Belonging to Jewish Owners; and Washington Conference Principles on Nazi-Appropriated Art released in connection with the Washington Conference on Holocaust-Era Assets co-hosted by the U.S. Department of State and the United States Holocaust Memorial Museum.
The Presidential Advisory Commission on Holocaust Assets in the United States (PCHA) was created in June 1998 to study and report to the president on issues relating to Holocaust victims’ assets in the United States. The Alliance and the Association of Art Museum Directors (AAMD) worked with the PCHA to establish a standard for disclosure of collections information to aid in the identification and discovery of unlawfully appropriated objects that may be in the custody of museums. In January 2001, the PCHA issued its final report, which incorporated the agreed standard for disclosure and recommended the creation of a searchable central registry of the information museums disclose in accordance with the new standard. The Alliance and AAMD agreed to support this recommendation, and these guidelines have been amended to reflect the agreed standard for disclosure of information.
Finally, the Alliance and ICOM acknowledge the tremendous efforts that were made by the Allied forces and governments following World War II to return objects to their countries of origin and to original owners. Much of the cultural property that was unlawfully appropriated was recovered and returned, or owners received compensation. The Alliance and ICOM take pride in the fact that members of the American museum community are widely recognized to have been instrumental in the success of the post-war restitution effort. Today, the responsibility of the museum community is to strive to identify any material for which restitution was never made.
The Alliance, ICOM, and the American museum community are committed to continually identifying and achieving the highest standard of legal and ethical collections stewardship practices. The Alliance's Code of Ethics for Museums states that the “stewardship of collections entails the highest public trust and carries with it the presumption of rightful ownership, permanence, care, documentation, accessibility, and responsible disposal.”
When faced with the possibility that an object in a museum’s custody might have been unlawfully appropriated as part of the abhorrent practices of the Nazi regime, the museum’s responsibility to practice ethical stewardship is paramount. Museums should develop and implement policies and practices that address this issue in accordance with these guidelines.
These guidelines are intended to assist museums in addressing issues relating to objects that may have been unlawfully appropriated during the Nazi era (1933–1945) as a result of actions in furtherance of the Holocaust or that were taken by the Nazis or their collaborators. For the purposes of these guidelines, objects that were acquired through theft, confiscation, coercive transfer or other methods of wrongful expropriation may be considered to have been unlawfully appropriated, depending on the specific circumstances.
In order to aid in the identification and discovery of unlawfully appropriated objects that may be in the custody of museums, the PCHA, AAMD, and the Alliance have agreed that museums should strive to: (1) identify all objects in their collections that were created before 1946 and acquired by the museum after 1932, that underwent a change of ownership between 1932 and 1946, and that were or might reasonably be thought to have been in continental Europe between those dates (hereafter, “covered objects”); (2) make currently available object and provenance (history of ownership) information on those objects accessible; and (3) give priority to continuing provenance research as resources allow. The Alliance, AAMD and PCHA also agreed that the initial focus of research should be European paintings and Judaica.
Because of the Internet’s global accessibility, museums are encouraged to expand online access to collection information that could aid in the discovery of objects unlawfully appropriated during the Nazi era without subsequent restitution.
The Alliance and ICOM acknowledge that during World War II and the years following the end of the war, much of the information needed to establish provenance and prove ownership was dispersed or lost. In determining whether an object may have been unlawfully appropriated without restitution, reasonable consideration should be given to gaps or ambiguities in provenance in light of the passage of time and the circumstances of the Holocaust era. The Alliance and ICOM support efforts to make archives and other resources more accessible and to establish databases that help track and organize information.
The Alliance urges museums to handle questions of provenance on a case-by-case basis in light of the complexity of this problem. Museums should work to produce information that will help to clarify the status of objects with an uncertain Nazi-era provenance. Where competing interests may arise, museums should strive to foster a climate of cooperation, reconciliation and commonality of purpose.
The Alliance affirms that museums act in the public interest when acquiring, exhibiting and studying objects. These guidelines are intended to facilitate the desire and ability of museums to act ethically and lawfully as stewards of the objects in their care, and should not be interpreted to place an undue burden on the ability of museums to achieve their missions.
It is the Alliance's position that museums should take all reasonable steps to resolve the Nazi-era provenance status of objects before acquiring them for their collections—whether by purchase, gift, bequest or exchange.
- Standard research on objects being considered for acquisition should include a request that the sellers, donors or estate executors offering an object provide as much provenance information as they have available, with particular regard to the Nazi era.
- Where the Nazi-era provenance is incomplete or uncertain for a proposed acquisition, the museum should consider what additional research would be prudent or necessary to resolve the Nazi-era provenance status of the object before acquiring it. Such research may involve consulting appropriate sources of information, including available records and outside databases that track information concerning unlawfully appropriated objects.
- In the absence of evidence of unlawful appropriation without subsequent restitution, the museum may proceed with the acquisition.
- Currently available object and provenance information about any covered object should be made public as soon as practicable after the acquisition
- If credible evidence of unlawful appropriation without subsequent restitution is discovered, the museum should notify the donor, seller or estate executor of the nature of the evidence and should not proceed with acquisition of the object until taking further action to resolve these issues. Depending on the circumstances of the particular case, prudent or necessary actions may include consulting with qualified legal counsel and notifying other interested parties of the museum’s findings.
- The Alliance acknowledges that under certain circumstances acquisition of objects with uncertain provenance may reveal further information about the object and may facilitate the possible resolution of its status. In such circumstances, the museum may choose to proceed with the acquisition after determining that it would be lawful, appropriate and prudent and provided that currently available object and provenance information is made public as soon as practicable after the acquisition.
- Museums should document their research into the Nazi-era provenance of acquisitions.
- Consistent with current practice in the museum field, museums should publish, display or otherwise make accessible recent gifts, bequests and purchases, thereby making all acquisitions available for further research, examination and public review and accountability.
- It is the Alliance's position that in their role as temporary custodians of objects on loan, museums should be aware of their ethical responsibility to consider the status of material they borrow as well as the possibility of claims being brought against a loaned object in their custody.
- Standard research on objects being considered for incoming loan should include a request that lenders provide as much provenance information as they have available, with particular regard to the Nazi era.
- Where the Nazi-era provenance is incomplete or uncertain for a proposed loan, the museum should consider what additional research would be prudent or necessary to resolve the Nazi-era provenance status of the object before borrowing it.
- In the absence of evidence of unlawful appropriation without subsequent restitution, the museum may proceed with the loan.
- If credible evidence of unlawful appropriation without subsequent restitution is discovered, the museum should notify the lender of the nature of the evidence and should not proceed with the loan until taking further action to clarify these issues. Depending on the circumstances of the particular case, prudent or necessary actions may include consulting with qualified legal counsel and notifying other interested parties of the museum’s findings.
- The Alliance acknowledges that in certain circumstances public exhibition of objects with uncertain provenance may reveal further information about the object and may facilitate the resolution of its status. In such circumstances, the museum may choose to proceed with the loan after determining that it would be lawful and prudent and provided that the available provenance about the object is made public.
- Museums should document their research into the Nazi-era provenance of loans.
It is the Alliance's position that museums should make serious efforts to allocate time and funding to conduct research on covered objects in their collections whose provenance is incomplete or uncertain. Recognizing that resources available for the often lengthy and arduous process of provenance research are limited, museums should establish priorities, taking into consideration available resources and the nature of their collections.
- Museums should identify covered objects in their collections and make public currently available object and provenance information.
- Museums should review the covered objects in their collections to identify those whose characteristics or provenance suggest that research be conducted to determine whether they may have been unlawfully appropriated during the Nazi era without subsequent restitution.
- In undertaking provenance research, museums should search their own records thoroughly and, when necessary, contact established archives, databases, art dealers, auction houses, donors, scholars and researchers who may be able to provide Nazi-era provenance information.
- Museums should incorporate Nazi-era provenance research into their standard research on collections.
- When seeking funds for applicable exhibition or public programs research, museums are encouraged to incorporate Nazi-era provenance research into their proposals. Depending on their particular circumstances, museums are also encouraged to pursue special funding to undertake Nazi-era provenance research.
- Museums should document their research into the Nazi-era provenance of objects in their collections.
Discovery of Evidence of Unlawfully Appropriated Objects
- If credible evidence of unlawful appropriation without subsequent restitution is discovered through research, the museum should take prudent and necessary steps to resolve the status of the object, in consultation with qualified legal counsel. Such steps should include making such information public and, if possible, notifying potential claimants.
- In the event that conclusive evidence of unlawful appropriation without subsequent restitution is found but no valid claim of ownership is made, the museum should take prudent and necessary steps to address the situation, in consultation with qualified legal counsel. These steps may include retaining the object in the collection or otherwise disposing of it.
- The Alliance acknowledges that retaining an unclaimed object that may have been unlawfully appropriated without subsequent restitution allows a museum to continue to care for, research and exhibit the object for the benefit of the widest possible audience and provides the opportunity to inform the public about the object’s history. If the museum retains such an object in its collection, it should acknowledge the object’s history on labels and publications.
Claims of Ownership
- It is the Alliance's position that museums should address claims of ownership asserted in connection with objects in their custody openly, seriously, responsively and with respect for the dignity of all parties involved. Each claim should be considered on its own merits.
- Museums should review promptly and thoroughly a claim that an object in its collection was unlawfully appropriated during the Nazi era without subsequent restitution.
- In addition to conducting their own research, museums should request evidence of ownership from the claimant in order to assist in determining the provenance of the object.
- If a museum determines that an object in its collection was unlawfully appropriated during the Nazi era without subsequent restitution, the museum should seek to resolve the matter with the claimant in an equitable, appropriate and mutually agreeable manner.
- If a museum receives a claim that a borrowed object in its custody was unlawfully appropriated without subsequent restitution, it should promptly notify the lender and should comply with its legal obligations as temporary custodian of the object in consultation with qualified legal counsel.
- When appropriate and reasonably practical, museums should seek methods other than litigation (such as mediation) to resolve claims that an object was unlawfully appropriated during the Nazi era without subsequent restitution.
- The Alliance acknowledges that in order to achieve an equitable and appropriate resolution of claims, museums may elect to waive certain available defenses.
Museums affirm that they hold their collections in the public trust when undertaking the activities listed above. Their stewardship duties and their responsibilities to the public they serve require that any decision to acquire, borrow, or dispose of objects be taken only after the completion of appropriate steps and careful consideration.
- Toward this end, museums should develop policies and practices to address the issues discussed in these guidelines.
- Museums should be prepared to respond appropriately and promptly to public and media inquiries.