Symposium on Confronting Colonial Objects: Beyond Return, Towards Repair – Litigating Restitution of Entangled Objects along the Spectrum of Legalities and (Post)colonial Justice

[Sarah Imani, LL.M. (NYU), is a German qualified lawyer and legal advisor at the European Center for Constitutional and Human Rights (ECCH) in Berlin. She is responsible for its work on German and European colonial crimes, reparations and restitution as well as critical and decolonial perspectives on the law.]

Addressing colonial injustices has not been conceived as a matter of the law for a long time, let alone as a matter of human rights. Rather two, actually complementary phenomena defined the field of reparations, restitution and reparative justice in the colonial context.

The “R-word” closed all doors to meaningful discussions and negotiations, while restitution of “looted art” has been constrained to the field of cultural politics and interstate relations or even more problematically so, exclusionary to art markets. Proponents of the so-called “Third World Approaches of International Law” (TWAIL) have been for far too long painfully aware of this situation, a situation that is defined by all kinds of colonial continuities, both in policy and practice. That is also why they repeatedly raised and criticized this issue, may it be academically, or as part of their mandate within the United Nations system. And while it is true that the matter of restitution of cultural heritage from the colonial context, and as a matter of fact decolonization as such, has been entering and leaving the world stage in waves since the time of actual decolonization and the establishment of newly independent states, restitution beyond return and restitution as part of reparative justice frameworks, especially when respective demands and claims are based in (collective) human rights, are fairly new concepts to the agenda.

It is for these reasons that Carsten Stahn’s book “Confronting Colonial Objects” is a timely, enriching and thought-provoking addition to the debate. First of all, despite its distinctively academic nature, it entails valuable insights and arguments that potentially provide the grounds for conceptualizing and operationalizing strategies of critical and decolonial human rights litigation in the field of restitution. Since any successful litigation strategy before and beyond the courts needs to aware of the political context, it also needs to be aware of respective fields of engagement both in theory and practice. In the context of restitution that may involve areas that typical human rights advocates not necessarily have in mind as sites and spaces for human rights work. Hence, it is very much welcomed, how this book takes the reader through the manifold histories, cultures and political, social and yes also legal contexts in which the matter of restitution and repatriation of both human remains/ Ancestors as well as cultural belongings are being currently debated in. In that the book speaks to a very important point for those of us working on restitution as a matter of first postcolonial justice, second as a matter of the wider (legal) framework of reparations and thirdly as a matter of human rights of the affected communities and hence a decolonial legal praxis “from below”.

1. Confronting Coloniality through Human Rights

Decolonial legal praxis “from below” entails four forms of critical practice with aspects that resonates well with some elements of Stahn’s concept of “cultural relational justice”, where restitution goes beyond return and is the beginning of new relations of repair, and where the differentiated context and object sensitive forms of consent by the affected communities in restitution processes are strengthened. Yet, another important aspect less prominent advocated for by Stahn, remains the question of redress and even redistribution, both very essential elements of a decolonial legal praxis. Advocacy through the arts and (artistic) activism complements that praxis.

First, we have the systemic critique that often translates into political, sometimes even academic advocacy and consultancy in fora like universities and expert committees. Secondly, we have approaches that introduce the legal dimension and present a matter as a matter of law, where (Western) stakeholders for strategic reasons do not want it to be considered a matter of law, but rather frame it as mere ethics or a matter of pure morality. The best example for that is the so-called “Reconciliation Agreement” between Namibia and Germany. Thirdly, we have the analytical aspect of the practice, i.e. the decolonization of the law through legal interpretation and argumentation. This form is of particular interest for litigating restitution claims or more broadly introducing non-liberal concepts of rights, e.g. collective rights as spelled out for instance under the UNDRIP to Western courts and other judicial fora. And finally, closely related to this third form, is strategic human rights litigation in regard to colonial wrongs/ crimes, either directly when preparing for litigation, e.g. through strategically developing publicly arguments and litigating reparations and restitution claims before e.g. German courts or indirectly when addressing colonial continuities as structural violence, e.g. by focusing on particular perpetrators and/ or type of crimes.

Against this background, it might be true that “cultural relational justice” accounts for just some of the aspects of a decolonial legal praxis. Still, its analytical and normative grounds are an essential part of it, especially where it combines well known transitional justice mechanism and basic principles with best practices from the cultural heritage field of practice. In that sense it is very intriguing, how the book opens up the complex universe “entangled objects” inhabit and travel in time and space and respective epistemologies and ontologies and translates this fluidity into a flexibility and culture sensitive relational justice model.

By building his analysis on a foundation of very informative historical accounts of different colonial contexts, followed by a comprehensive presentation of the different legal fields relevant to them in past and present, he manages to disentangle the complexities that are at play, when such systemic injustice as colonialism and its repercussions are to be tackled in a constructive way. The in-depth depiction of the multitude of perspectives, rationalities and meanings these “objects” encompass not only frees human remains as Ancestors from the racist legacy of being labelled as “bio-capital” and the logical of racial capitalism, but also foreground the cultural and spiritual nature many of the “objects” violently taken during colonial time carry within themselves and in relation to the affected communities in past, present and future. Those are often meaning(s) that for someone who deems the question of restitution to be about merely objects, property and their market values will never fully being able to grasp. All of these points are important  in order to translate theoretical findings on the nature of entanglements into a decolonial legal praxis. Besides this very successful portrait of the institutional complexities and multi-layered practices involved in these entanglements and the effects they can have when multiple stakeholders talk about restitution, Stahn’s analysis elegantly disrupts the one-dimensional false dichotomy between the legal and the political, the ethical and the rights-based sphere of engagement. The spectrum of legalities, “formalized ethics” and three models of responsibility provide helpful conceptual input for an operationalization of decolonial legal praxis and can inform strategic choices of effective approaches, depending on context and form of entanglement along the line of the spectrum of legalities.

What does that mean concretely for a decolonial legal praxis “from below” that builds on a human rights-based approach to restitution, repatriation and repair?

2. Litigating Rights, Restitution and Repair

The European Center for Constitutional and Human Rights together with diasporic organizations like Berlin Postkolonial, Decolonize, ISD as well as artists like Flinn works applied this approach recently to human rights litigation strategies developed along the spectrum of legalities, national and international law and “formalized ethics” that defines especially the field of repatriation of Ancestors/ human remains, but also the restitution of cultural belongings.

The base line argument that permeates all the different legal intervention within the broader strategy is that the matter of repatriation of human remains and restitution of cultural belonging in the German context is a matter not only of international human rights law, namely for instance Arts. 1, 27 ICCPR, Art. 15 ISCESCR, Arts. 1, 11, 12, 18 UNDRIP, but also German constitutional guarantees like access to justice and fundamental rights under the German constitution (Grundgesetz – GG). Without going into all the intricate details, the main line of argument is that in cases of human remains/ Ancestors the current treatment of human remains/Ancestors in German (state) institutions violates rights guaranteed by the German Constitution as further spelled out in jurisprudence, especially by the Federal Constitutional Court (Bundesverfassungsgericht). Here, the following rights are concerned pursuant to Arts. 1, 2 GG:  the post-mortal right to human dignity, right to peace in death, the right to commemoration and the right to care for the deceased. In cases of cultural belongings like the restitution claims of Bangwa Lefem figures (see e.g., Chief Taku’s Call for the Return of Bangwa heritage) we have the right to one’s cultural identity as part of the general personality right (Allgemeines Persönlichkeitsrecht) and the right to know one’s (cultural) origin also under Arts 1,2 GG. And while these legal strategies of decolonial legal praxis include manifold forms and fora of intervention, one element of the implementation of a decolonial legal praxis was to present this line of argument to the UN Committee on the Elimination of Racial Discrimination (CERD) as part of the state review process on Germany in 2023. The above mentioned organizations made the central point that – reminiscent of Stahn’s three models of responsibility and an intersectional approach to their implementation – to not only address the injustices of the past, but to connect them as an ongoing human rights infringement, Arts. 1, 2, 5, 6 ICERD to the present, stressing the effects on the living communities and descendants, the relationship to their “objects” as part of their human dignity,  of their current lived experiences, and consequently the denial of access to their culture and knowledge systems  as a matter of racial justice for them and their future generations.

Hence it was a real success, when CERD in its concluding observations not only picked up the topic of (post)colonial justice, reparations and restitution for the first time in their history in regard to Germany, but made it clear that “[a] comprehensive policy for the restitution of colonial objects and cultural artifacts, in particular the restitution of human remains of ancestors“ is a question of access to justice, Art 6.  Followed by:

 (…) 48. The Committee recommends that the State party:
(a) Adopt a more comprehensive approach regarding reparation for colonial wrongdoings, in terms of restitution, compensation and satisfaction, as appropriate;
(b) Ensure meaningful participation of affected communities and individuals, as well as descendants of victims when deciding on reparation processes; (…)”.

Finally it attributed “particular importance“ to “…(Reparation for colonial past) above and requests the State party to provide detailed information in its next periodic report on the concrete measures taken to implement those recommendations.”

This example shows how the matter of restitution can be moved into the realm of the law and can and must inform not only the substantial understanding of rights and legal obligations, but must inform processes such as interstate negotiations as are currently ongoing for instance in the case of Tanzania and Cameroon, where hopefully not the same mistakes will be made as in the case of Namibia. With the next state review on Germany under CERD coming up in 2027 and the currently ongoing official initiatives and consultations regarding the redrafting of the German Framework Principles for dealing with collection from colonial context (2019) and regional political initiatives from former colonies on the African Continent spearheaded by the African Union and other regional stakeholders like Afrimuhere or Open Restitution Africa, it remains to be seen, whether there are lesson learned from the past and whether political stakeholders will be more willing to navigate the spectrum of legalities with more sensitivities and respect to the rights and communities’ interests involved, thereby paying tribute to their responsibility and the complex entanglements of “objects” and people alike.

3. Opening Spaces for (Post)colonial Justice

This brings us to the final question of this post, namely what constitutes an adequate space for making demands for restitution and transitional justice in the (post)colonial context.

Based on practical experiences in critical human rights work in the field of reparations and restitution, it is rather skepticism than hope that shapes the outlook on the idea that museums can be such a space. Because in the past successful restitution efforts rather relied on case-to-case individual engagement of courageous people within the respective institutions rather than systemic change in the institutional set up and mindset, especially in leadership. Suggesting these same museums as spaces of transitional justice therefore holds the danger to perpetuate that situation and obscure pervading asymmetric relationships stemming from the colonial encounter and structures of coloniality. Moreover, it unfairly adds to these institutions the label of justice and legitimacy that comes with acting as a transitional justice mechanism.

Reading this book offered a range of impressions: from confirming some intuitions based on one’s own practical work on legal grounds for restitution claims, all the while constructively challenging for the better some normative convictions and the persuasiveness and effectiveness of some legal interventions. It hence shall be recommended for anybody engaging with the topic for several and all the right reasons, some of which are explored in other posts in this symposium. It is an important contribution to the currently growing interest in scholarship and praxis, especially within the legal community, as it not only contains a wide array of references and sources relevant to the field, but also because it masters a nuanced analysis based on truly interdisciplinary research. Its further engagement with the wide and rich field of research that takes the reader through different disciplines, sometimes conflicting professional fields and respective logics of how to effectively challenge injustices and misconception about what restitution of cultural belongings and the repatriation of Ancestors/ human remains is all about.

As the author himself states “this is not a conclusion”. Hence one shall take it as an invitation to think about spaces for reparative justice for (post)colonial injustices, always mindful that a critical, decolonial  (human) rights based approach can assume a crucial role in tackling the problematic foundations of the political economy of the current restitution and access to culture regime in (international) law, thereby countering the asymmetric relationship between “the West and the Rest” shaped by continuous abuse of rights and not a common shared rule of law.