Symposium on Confronting Colonial Objects: Returning Colonial Objects – The Role of Transitional Justice and Alternative Dispute Resolution

[Alessandro Chechi is Senior lecturer at the University of Geneva, the Catholic University of Lille, and the Geneva Academy of International Humanitarian Law and Human Rights]

The question of returning colonial objects that were displaced during the colonial era by European invaders is by no means a new one. Already in 1978, the then UNESCO Director-General, Amadou-Mahtar M’Bow, issued a ‘Plea for the Return of an Irreplaceable Cultural Heritage to Those Who Created It’. However, this question has gained unprecedented prominence today following the 2017 speech of French President Emmanuel Macron (where he publicly committed to inaugurate a policy of gradual return of colonial objects to sub-Saharan African countries) and the 2018 Sarr-Savoy Report (which laid out a chronological, juridical and financial framework to facilitate the return of the colonial objects that were removed through violence or situations of unequal relations). Carsten Stahn’s ‘Confronting Colonial Objects’ emerges in this crucial time as a comprehensive exploration of the calls for the restitution of the cultural objects that bear the scars of colonial histories and hence for the reparation of colonial injustice.

The removal of colonial objects by European invaders was carried out – in most cases – without the full and free consent of former owners, through the infliction of all sorts of injustice against native populations, ranging from mass atrocities, deprivation of rights, exploitation, identity-taking, racial discrimination, to political or cultural imposition. Furthermore, in their quest to secure the bodily remains of indigenous peoples, scientists took ancestral remains from burial places, execution sites and battlefields.

‘Confronting Colonial Objects’ invites readers to embark on a journey through the intricate intersections of history, politics and law. In particular, whilst acknowledging that in some States changes have occurred on the micro-level (museum practices) and the meso-level (policy guidelines), this volume calls for action to be taken at the macro-level, notably through the adoption of legal instruments, such as conventions, resolutions or common principles. Furthermore, by examining  claims that remain unresolved, ‘Confronting Colonial Objects’ powerfully demonstrates that the movement advocating the restitution of colonial objects has evolved to encompass calls for transitional justice.

Transitional justice can be defined as a set of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of protracted and large-scale violence, serious human rights abuses and mass atrocities in order to ensure accountability, serve justice and achieve reconciliation. In particular, transitional justice seeks to provide justice, truth, reparation and reconciliation in societies in transition.Such processes and mechanisms require the full and effective participation of victims, from discussions about the design of each of them to the supervision of the implementation of decisions.

Although transitional justice is traditionally resorted to in societies marred by abuses committed in the context of past – but recent – armed conflicts, military dictatorships, post-communist and post-fascist regimes, its scope has recently expanded. In his Report of 2021, the UN Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Fabián Salvioli, indicated that transitional justice can be useful in responding to the gross human rights violations committed during the colonial era, including the removal of cultural objects. The reason for this shift is twofold. First, because the negative effects of the violations committed in colonial contexts are still perceived today. The fact that – for obvious reasons – the perpetrators of such crimes cannot be prosecuted is not an obstacle to resorting to transitional justice. For the purposes of restitution, the identification of the descendants of the victims of misappropriations and the current holders of looted cultural objects suffices. Second, because the nations and communities seeking to recover the cultural objects that are essential to their history, heritage, identity and self-determination are still in a phase of societal transition. These nations and communities are still traumatized because of the looting of such vital cultural objects. The massive removal of colonial objects (as well as the violence that led to it) left its marks on the collective memory of survivors. Moreover, the descendants of the victims of imperial powers also feel a sense of distress stemming from the continuing absence of the looted objects and their retention by Western collecting institutions. In other words, the process of decolonization is still ongoing for these nations and communities, though colonial occupation ended decades ago.

True, many colonial objects have been handed back over to the countries of origin since the 1960s. However, no steady restitution trend can be discerned to date. In effect, the engagement of former imperial powers and their museums reveals inconsistencies and shortcomings. On many occasions museums and other holding institutions have responded to restitution claims with denials or offers of long-term loans. In particular, museums and their constituencies resist restitution claims by relying on their rights under the general law of possession and ownership, the expiry of limitation periods, the statutory measures constraining the deaccessioning of artworks from public collections, the non-retroactivity of existing legal instruments, or the fact that during colonialism the practice of art plunder was lawful. It must be stressed, however, that these legal barriers are pertinent only when colonial objects are claimed through litigation. Yet, litigation cannot be regarded as a suitable method to settle claims concerning colonial objects because it is affected by the following drawbacks. First, access to courts is barred by the non-retroactivity of legal norms and the expiry of limitation periods. Second, claimants carry the burden of proving that they have a superior right of possession to a requested object. Third, judges are unable to investigate what the requested objects actually mean to the claimants; courts are not concerned with historical research. The fact that the judicial avenue is not suitable for disputes over the restitution of colonial cultural objects is further proved by the international practice of the past few decades. This shows that many artefacts have gone back to their place of origin when parties have resorted to methods of dispute settlement alternative to litigation, namely negotiation, mediation and conciliation (the so-called Alternative Dispute Resolution (ADR) methods). In this sense, it should be observed that UNESCO has acted to strengthen this trend by broadening the mandate of the Intergovernmental Committee for Promoting the Return of Cultural Property to Its Countries of Origin or Its Restitution in Case of Illicit Appropriation (ICPRCP). Established in 1978, this intergovernmental body was entrusted with the mandate to seek ways and means of facilitating bilateral negotiations for the restitution of cultural objects to their countries of origin, including objects that had been lost as a result of colonial occupation. In 2010, the mandate of the ICPRCP was broadened to include mediation and conciliation. However, UNESCO members States have shown a lack of appetite for these procedures to date.

The preference for ADR means is due to the fact that they combine important virtues. The first advantage resides in the parties’ power to tailor the settlement process. The parties can make sure that the process focuses on their objectives and needs. This means that the parties can set aside all existing obstacles posed by ordinary laws. This also means that non-legal issues, such as moral or ethical considerations, as well as historical, emotional and spiritual factors can be accommodated within the process. Accordingly, ADR methods allow the resolution of cases concerning colonial objects by prioritizing, for instance, the factual circumstances of the taking and the meaning that the claimed objects have for the claimants’ culture. Second, non-judicial mechanisms allow disputants to appoint independent specialists with expertise in the subject matter at issue. Third, ADR methods allow the parties to achieve the objectives typically pursued through transitional justice processes: justice, truth, reparation and reconciliation. In effect, non-adversarial dispute settlement mechanisms allow the parties to establish a conversation over historical cases with a view to investigating and acknowledging the circumstances that led to the misappropriation and the crimes associated with it. In addition, they allow the parties to find an agreement on how to repair the harm caused. By providing for flexibility and creativity, ADR methods broaden the number of solutions available to the parties beyond simple restitution. Therefore, the value of ADR means in this context lies in their transformative potential, namely their ability to empower the parties involved in disputes over the return of colonial objects to move from unjust to just relations.

With a view to coping with colonial injustice, ‘Confronting Colonial Objects’ proposes a set of ‘relational’ principles, which are axed on the traditional goals of transitional justice – truth, accountability, reparation, memorialization and non-recurrence. For instance, it envisages that former colonizing States and former colonies (including communities of origin and their descendants) establish mechanisms for investigation and truth-seeking within their areas of competence and jurisdiction not only to shed light on the circumstances of the removal of colonial objects, but also to highlight the importance of the claimed objects for the requesting group. Accordingly, if it is ascertained that an object is crucial for a people’s enjoyment of its right to self-determination, development and access to cultural heritage, the parties involved should feel compelled to find arrangements ensuring the fulfilment of such rights and the reparation of the relationship between that object and the claimant group. Furthermore, the volume submits that there exists no ready-made ‘just and fair solutions’ as these vastly depend on the nature of the object at stake and how the provenance stakeholder and the institution holding the object engage with each other. As another outcome of negotiations, memorialization is examined as a long-term process that can enable the parties involved to engage meaningfully with colonial objects and the restitution process. Whereas measures should be adopted by former colonial powers and entities deaccessioning colonial objects to prevent the erasure of history and responsibility following restitution, other forms of memorialization are required in the source countries or communities in order to keep memories of the past alive and to resocialize such objects following their return. In this respect, the book emphasises that the return of colonial objects is not a mere question of ownership determination. Rather, it is a charged process through which the parties at stake have the power to choose how to address the connection between objects and people. It is for this reason that memorialisation, as an alternative to restitution, becomes relevant. Finally, the volume indicates the legislative strategies that can deployed to address the continuing effects of colonialism. These include the amendment (or abrogation) of the national legal rules providing for the inalienability of public collections, deaccessioning constrains and facilitating the acquisition of ownership titles of colonial objects even in the presence of return claims by source countries or communities. As such, these measures can be regarded as measures of non-recurrence.

To conclude, States and communities should harness the momentum for seeking the restitution of their treasures by combining the use of ADR mechanisms with strategies grounded on the interplay between international cultural heritage law, human rights law and transitional justice. First, claimants should endeavour to persuade holding institutions to settle colonial-era restitution claims by involving not only cultural heritage experts, but also transitional justice specialists. The aim is to ensure that parties consciously pursue the goals of transitional justice – and not unwittingly as in past settlements. Second, States and communities should advocate for the development, application and ‘hardening’ of principles guiding the conduct of all parties entangled in disputes over the restitution of colonial objects. In this sense, while the principles identified by ‘Confronting Colonial Objects’ represent a comprehensive global strategy, one could argue that UNESCO should in the near future act to transform such principles into binding legal rules.