Symposium on Confronting Colonial Objects: Are Museums Entering a New Era of Repatriation of Human Remains?

[Marie-Sophie de Clippele is Assistant Professor in Law at UC Louvain Saint-Louis – Bruxelles]

The centrality of the human body as site of colonial violence, and its implication for contemporary restitution policies, are discussed in Chapter 5 of Confronting Colonial Objects. The book shows that human remains and natural history objects are more than objects or human biological material. It draws on the interplay between human rights, transitional justice, heritage law and soft law to develop relational cultural justice principles regarding entangled objects. In this post, I wish to expand on the discussion, by inquiring to what extent museums are entering a new era of repatriation relating to human remains, in a transnational context. I draw partly on findings of my work on human remains and cultural heritage, published in a recent book, to argue in favour of an inclusive heritage justice model. That research was conducted under the auspices of the collective and interdisciplinary HOME project financed by the Belgian Science Policy Office (Belspo).

The presence of human remains in museums originates from various sources: they may have been preserved immediately after death, excavated during archaeological digs, or collected in foreign countries, the latter often under contentious circumstances during colonial periods. Most of these colonial takings occurred via military appropriation of trophies, scientific expeditions grounded in racial theories, or medical research operations, the violence of which underscores also their ‘particular category’ in the realm of colonial acquisitions.

What justifies the presence of these human remains in collections? Do they not rightfully belong to their place of origin? The concept of belonging is especially delicate when it concerns human remains, as it opens toward the wider question of how the living interact with the deceased. Belonging and repatriation then go hand in hand, as human remains should go back to where they belong, back to their patria, fatherland. The word repatriation is often used specifically for human remains, as to insist on their distinctiveness compared to cultural objects and the special bond with families and communities. But some sacred objects, not human remains, may deserve equal special attention, making the distinction sometimes questionable. Nonetheless, given the use of the term ‘repatriation’ in soft law instruments, I will use it here too, even if the notion of restitution or even return, may also be valid.

Even if repatriation of human remains is sometimes regulated, such as in humanitarian law on the repatriation of soldiers’ bodies from battlefields or in some domestic criminal law on the recovery of the remains by family members, there is currently no (international) right to repatriate human remains preserved in collections located in a country other than their country of origin. Despite these legal shortcomings some recent developments are interesting to note. The recent changes seem to welcome a new era of repatriations, based on an inclusive heritage justice model.

1.     Beyond Legal Shortcomings, a New Era of Repatriation

International law does not offer a satisfying solution to the issue of repatriating human remains. Few international conventions address the issue, as they are not retroactive. The majority of acquisitions of human remains took place mainly during colonial times, i.e. before the entry into force of these international treaties in most continental laws. The former colonial powers did not rush to enact specific provisions to address this gap, taking refuge behind the principle of the intertemporality of law. Since colonial acquisitions were legal at the time – but not necessarily so – the property title could not be questioned. Even if some actions were already forbidden, such as mutilation of corpses, it did not preclude special scientific exemptions, illustrating one of the complex “entangled legalities” surrounding colonial acquisitions. From a purely European continental law perspective, common civil law applies, which tends to reinforce the rights of the possessor.

Although there is no overarching framework for the repatriation of human remains at the international level, most repatriation efforts now operate within a more rigorous legal framework at the national and subnational level, which includes national laws and guidelines from public authorities.

At the national level, certain countries like the United States, Australia, New Zealand, and Canada have enacted specific legislation primarily focused on the internal repatriation of human remains belonging to their indigenous populations. Beyond the settler-colony context, a new wave of legislations has been adopted, mostly focused on colonial heritage and sometimes also on human remains. France has for instance recently enacted a general repatriation law for human remains in public collections. Belgium has adopted a general law for the restitution of colonial collections in its federal museums, a pioneering framework which however explicitly excludes human remains, even if a draft bill on forbidding the sale of human remains is currently being discussed. On the other side of the spectrum, notably in the Democratic Republic of Congo, a Decree has been adopted to create a national commission on the restitution and reconstitution of cultural objects, human remains and archives.

In contrast, other countries, such as Germany, The Netherlands or Switzerland, adhere to museum-related policies at the national or local level, encompassing recommendations from museums and academia rather than parliamentary bills, which can however equally be effective in guiding repatriation efforts.

To get back at the international level, the landscape has also evolved significantly in recent decades, paving the way toward a new era of repatriations. Indigenous peoples’ fundamental rights, such as the right to self-determination and the repatriation of their cultural heritage and ancestral remains, recognized in the United Nations Declaration on the Rights of Indigenous People (2007), are now partly considered customary law. Additionally, their basic right to cultural heritage has gained acknowledgment from bodies like the Inter-American Court of Human Rights and the European Court of Human Rights, and to some extent, the International Court of Justice. This collective right to cultural heritage, also laid down in the Council of Europe Framework Convention on the Value of Cultural Heritage for Society (2005), is progressively extended to all people, according to the former UN special rapporteur on cultural rights, Farida Shaheed (Shaheed, 2011), and according to scholars. Furthermore, discussions surrounding the legality of acquiring human remains in the context of colonial history present arguments supporting repatriation. Lastly, the collective impact of non-binding international legal instruments contributes to the development of a global ethical framework for repatriation, such as the recent Dakar Declaration or the G20 Culture Meeting.

2.     Toward a Model of Inclusive Heritage Justice?

When examining current practices of repatriations in various countries, it is also interesting to note that diplomatic channels are primarily favoured over judicial avenues. Demanding repatriation before a judge remains fraught with risks (burden of proof, time lapse, black and white solutions…), even if recently happened with the tooth of Lumumba, albeit not in a representative way. The diplomatic approach offers multiple avenues for achieving repatriation without the need for binding judicial decisions, effectively sidestepping the inherent challenges of court proceedings. However, the diplomatic route often has a more political dimension, especially when initiated by state authorities, and can be instrumentalized within the context of cultural diplomacy with objectives that extend beyond restitution.

When it comes to human remains, a diplomatic, state-to-state approach is probably not enough. The involvement of non-state actors is critical, even more than for cultural objects. There is some higher “moral burden” because of the connection between the living and the deceased. Repatriating human remains or ancestral remains, along with related sacred objects, should be viewed as a restoration of this connection. Families and communities should be central to the process, ensuring that repatriation holds meaning and contributes to inclusive heritage justice.

In this regard, transitional justice mechanisms may help, especially for addressing repatriation procedures involving human remains acquired within a colonial context. Recently a UN report included colonial violence in transitional justice, widening its application in countries who juggle with colonial history. If the four pillars of transitional justice were to be applied to human remains, it would mean:

(1) in terms of seeking the truth, acknowledging the circumstances and context that led to the illegitimate acquisition of human remains and the connected crimes;

(2) concerning the right to justice, fostering a dialogue between the descendants of deceased individuals whose bodies were exhumed or taken as trophies and the institutions that received these remains from those responsible for such actions;

(3) in relation to reparations, planning for the physical return of the remains and other forms of symbolic compensation;

(4) with regard to non-recurrence and reconciliation, bringing about reconciliation between the involved parties through dialogue, apologies, and forgiveness, thereby enabling the descendants of victims to move forward and attain a sense of closure.

These mechanisms were also at the heart of the truth and reconciliation commission on the colonial past in the Belgian Parliament. But the Commission failed to adopt common recommendations, painfully displaying the lack of political will to acknowledge the hurtful truth and to reconcile with Belgium’s colonial past in Congo, Rwanda and Burundi. There seems to be still a long way to go in terms of justice with that past.

If we are to enter a new era of repatriations, I argue it might follow a model of inclusive heritage justice, based on the interaction of the following aspects (also shown in the figure below):

• International legal standards (heritage conventions, if applicable despite their non-retroactive nature) or national-level standards (laws addressing the repatriation of human remains, either in a general sense or through ad hoc legislation).
• Human rights, particularly the collective and individual right to cultural heritage, cultural rights, and the right to self-determination of indigenous peoples.
• Ethical principles, including the principle of dignity and the sacredness of human remains, as addressed in soft law guidelines concerning human remains, along with considerations regarding the legitimacy of their acquisition.
• Institutional practices that promote the repatriation of human remains, encompassing manuals, museum and academic recommendations, and case-specific practices.
• Transitional justice mechanisms designed to comprehensively support repatriation processes, ensuring that they hold significance, especially for the originating community.

All put together, these rights, standards, principles and practices could develop in a transitional justice dimension. The model would build further on the premise of the principles of dignity, respect and decency, as contained in the French Civil Code and advised by the Belgian Committee on Bio-ethics, but it would also recognise the memorial complex behind the dead, as most human remains collected in the colonial context carry a heavy history of racial violence to be reconciled with. Regarding human remains as (missing) persons also insists on the human dimension.

But how far back in time should the human dimension go? Does it include human fossils from prehistoric times? The Dutch case of the Java Man is quite revealing. Even though the humanoid fossil – a homo erectus – cannot be identified to any living community, the context of acquisition plays a predominant role here: these Java bone remains were excavated during colonial rule by Western powers, including the Dutch. Therefore, the Java Man could also be up for repatriation according to the Dutch Minister of Culture’s policy.

The importance of the context of acquisition also makes the case for provenance research, at the core of any sensible repatriation and restitution endeavour. As indicated in ethical guidelines for Belgian colonial collections, drafted by an independent group of researchers, provenance should mean diversifying the sources consulted, including oral sources and testimonies, consulting communities of origin and using digital tools to increase access to information. Starting from provenance research principles, some ethical international guidelines could be drafted at the international level, for instance by transposing the Washington principles to colonial heritage, and bring together multiple transnational stakeholder as was the case for the Benin Dialogue Group, seen by some as a potential game changer for a more inclusive restitution model.