Symposium on Confronting Colonial Objects: Charting a Cultural Relational Justice – Unraveling the Complexity of Human Remains Restitution in the Democratic Republic of Congo

[Gracia Lwanzo Kasongo is a PhD researcher at the Catholic University of Louvain (UCLouvain) in Belgium and a member of the Institute of Political Science Louvain-Europe (ISPOLE). She is a legal scholar and political scientist and former fellow of the American Bar Association (ABA)]

1. Introduction 

In the colonialist moves to collect human remains, and the desire to demonstrate grandeur and strength, many soldiers relied on racist and blood-thirsty narratives to rationalize their cruel actions. The best known example in Belgium is the notebook of Lieutenant-General Emile Storms, who describes in chilling detail the massacre of the Lusinga chief Iwa Ng’ombe and presents the remains as spoils of war, proof of his crushing victory over this stubborn king to install another, more compliant chief. Another example are the  memoirs of German officers of the Swakopmund camp, also mentioned in Confronting Colonial Objects (pp. 237, 272-274). They were published in 1907 and cruelly describe the collection of human remains by the Germans in South-West Africa, particularly the Herero skulls, through a triumphant image of skulls piled up like bricks. They illustrate the dehumanisation of human remains in colonial violence and the degrading methods of collection and preservation, creating a whole industry in the trade of body parts. The process of restitution of these human remains continually raises questions of a scientific, cultural, and ethical nature, while highlighting the injustices and racist implications associated with the extraction and study of the human remains of colonised populations. These issues give rise to divergent points of view among researchers, political leaders, and indigenous communities. 

Some believe that the collection of human remains was done for scientific reasons. Others argue that it was driven by purely racist and dehumanising reasons.   In the majority of cases, this motive of collecting for scientific purposes has concealed a fetish for the colonised and an almost schizophrenic attempt to prove the superiority of the colonist enterprise over the dominated people. This was inter alia demonstrated by the famous case of Saartjie Baartman, known as the “Venus Hottentot” or “black Venus”, who was brought to England to be exhibited as an object of sexual fantasy (see also Confronting Colonial Objects, pp. 268-271). In 1814, Saartjie Baartman was taken to Paris where she continued to be exhibited as a sexual curiosity. She became the subject of scientific and medical research that laid the foundations for European ideas on black female sexuality. When she died in 1816, the Musée de l’Homme in Paris took a mortuary cast of her body, removed her skeleton, and preserved her brain and genitals in jars. These were on display at the museum until 1985.

In the Democratic Republic of the Congo (DRC), the topic gained an international attention for the first time in an international colloquium held at the University of Lubumbashi.It brought  together a number of stakeholders, including politicians, academics from the universities of the DRC, Belgium and Geneva, students, artists, the traditional chief of the Wamba community and a spokesperson for the community. Two subjects have recently attracted a great deal of attention in the debates. Firstly, the exhumation of seven skeletons in the Wamba region by Dr Boris Adé, whose remains are now housed at the University of Geneva. In 2018, a property transfer agreement was signed between the University of Geneva and the University of Lubumbashi, giving the latter legal ownership of these human remains held in Geneva. As a result, the University of Lubumbashi is now responsible for granting authorisation for remote research on these collections. The second issue concerns the 300 skulls conserved at the Université Libre de Bruxelles. In 2019, an agreement was signed between the University of Lubumbashi and the Université Libre de Bruxelles, aimed a facilitating the return of these human remains by 2025.

The main objective of the conference was to analyse the debate surrounding the restitution of human remains, focusing on the recommendations made by the Congolese scientific community, civil society and communities of origin concerning the return of these remains. At the conclusion of the deliberations, an event of particular importance occurred, raising a major ethical question concerning the return of the human remains. The Wamba community categorically rejected the repatriation of these human remains, claiming that it would bring great misfortune to the community according to their beliefs. For instance, the customary chief of the Wamba community, Mr Alexandre Medjedje, asked: “Do these spirits not haunt you so that you decide today to bring these ghosts to us?

This refusal openly posed the question whether the logic of restitution confronts the contemporary challenges of affected communities. It shows that it is imperative  to listen to the demands of the communities themselves and not limit ourselves to a certain prototypes of restorative justice, which reinforce a certain post-colonial domination and neo-colonialism under the disguise of cosmetic altruism. Rather, what is needed, is a genuine epistemological questioning on the part of the former colonising countries. 

The Wamba community asked for material compensation. They felt that there was no ritual for a second burial in the custom of the Wamba community. Restitution of the remains of human bodies in this case would go against their traditions and their system of thought.

This scenario raises a fundamental question: how can restitution be carried out when the beneficiary community is opposed to it? How can this theoretical misunderstanding be addressed, and how can it be addressed fairly, taking into account the needs articulated by the community? In this post, I will first examine the legal frames and challenges governing the restitution of human remains. I will pay particular attention to the case of the Wamba community, which calls into question conventional inter-state methodologies. I will then explore the potential of relational justice to mitigate dilemmas.

2. Moving Beyond the Interstate Approach: Towards Cultural Relational Justice

The legal frameworks governing the restitution of human remains are sometimes complex and ambiguous. Among these texts, the 1970 Convention on the Prohibition of the Illicit Traffic in Cultural Property occupies a prominent place. Articles 7 and 13 of this convention set out specific provisions relating to the restitution of stolen objects, whether from museums, public monuments, or religious buildings. These provisions not only encourage cooperation between States, but also impose national responsibility for the return of stolen goods. Similarly, Article 18 of the 1954 Hague Convention on the Protection of Cultural Property in the Event of Armed Conflict sets out the conditions for the return of cultural property acquired abroad during armed conflict. This stipulates that any property acquired must be returned within six months of the end of the conflict, subject to a formal request for restitution. 

Furthermore, Article 4 of the Hague Convention clearly prohibits acts of theft and pillage, while its Protocol, in Articles 3(3) and 4(4), defines the specific conditions for the restitution of cultural objects. In addition, Article 4 of the Hague Convention explicitly prohibits acts of theft and pillage, while its protocol sets out the specific conditions for restitution. This rule applies to both international and non-international armed conflicts. 

Alongside these international legal instruments, customary law firmly enshrines the principle of protecting cultural property during armed conflict, expressly prohibiting its targeting. An important example of this development is the 1995 Duško Tadić case by the International Criminal Tribunal for the former Yugoslavia which affirmed the customary rule of international law prohibiting acts of theft and vandalism during non-international armed conflicts.

The United Nations Declaration on the Rights of Indigenous Peoples, in Articles 11 and 12, enshrines not only the right to repatriation of human remains through fair, transparent and effective mechanisms, but also the right to restitution of religious and spiritual property, as well as the right to use and dispose of ritual objects. Furthermore, the ICOM Code of Ethics firmly establishes the principle that museums are prohibited from holding stolen or illegally acquired objects.

Two essential aspects should be emphasised. Firstly, although some texts may indirectly deal with the restitution of human remains, no international convention specifically addresses this issue. In some cases, these instruments may advocate values that are contrary and contradictory to those of the indigenous populations Secondly, it is crucial to note that existing regulations, in most cases, lack effective enforcement mechanisms.

At the national level, in Belgium for instance, on 30 June 2022 the Belgian Parliament adopted a law “recognising the alienable nature of goods linked to the colonial past of the Belgian State and determining a legal framework for their restitution and return”. This law only deals with the issue of cultural goods present in federal museums in Belgium and does not analyse the specific issues relating to the restitution of cultural goods. In the DRC, a legal act was issued by the Minister of Culture and Heritage, Ms Cathia Katungu. This is the decree of 26 February 2023 which appointed  members to the bodies of the national commission responsible for the repatriation of cultural property, archives and the remains of human bodies removed from the Congolese cultural heritage, CNR/ PCC. 

Unlike the Belgian law, this decree sets up a commission in response to Belgium’s global initiative on restitution, making the issue of the repatriation of human remains and archives part of the restitution negotiations.  

A project involving researchers from seven institutions aims to address the underlying ethical issues and establish a basis for requests for the restitution of the human remains of non-Belgians found in Belgium: The Human remains Origins Multidisciplinary Evaluation project (HOME). It was set up in Belgium to address this issue, and the terminology used in this text, in particular the concept of ‘human remains’, and its particularities, which were not sufficiently substantiated from the perspective of the Congolese side and gave rise to theoretical and methodological misunderstanding between the two countries. For restitution to be meaningful, it is necessary to re-signify existing meanings.

Led by a consortium of seven Belgian partners, the HOME project aims to develop a multidisciplinary approach to assessing and managing historical collections of human remains in Belgium. The objectives include an inventory of the collections, a study of the provenance of the remains, genetic analysis for identification purposes, and an examination of the legal and ethical aspects of repatriation. 

In addition, the project includes virtual restitution and examines the challenges of protecting personal data. However, this approach could exacerbate inequalities in access to digital heritage (rather than doing justice). The intangible aspects, or what has become known as “immaterial restitution” (see also my post on Völkerrechtsblog) i.e.  the mere assignment of property rights or co-management without actual return, should not constitute an obstacle to the restitution of human remains. Such restitutions should be examined on a case-by-case basis. Altogether, these steps open a range of possibilities which, for the time being, encourage a open discussion of the past.

Now, this initiative operates on a voluntarist basis.  The fact that there are no principal partners from the institutions of the DRC or from the communities and consortia of descendants of the people concerned, is a major limitation of this project. One of its drawbacks is that it may once again be perceived  as yet another unilateral initiative on the part of Belgium to control former colonised countries and to formulate tailor-made legal regulations to strengthen its influence in the DRC.. 

3. Charting a Cultural Relational Justice

In Confronting Colonial Objects, Carsten Stahn has proposed a cultural relational justice approach, in to order to address some of the tension of restitution processes. Three ideas may be helpful to address the ongoing challenges in this case.

Firstly, relational justice is based on the premise that deconstructing the colonial edifice requires  a profound epistemological and paradigmatic re-evaluation and a  questioning of the claim of universal epistemology in order to open up space for multiple epistemologies and decolonise the production of knowledge. It is also important to think about participatory approaches that allow communities to be recognised as experts, since they are contacted to share their knowledge in such projects. For instance, it would be more fair to include the descendant of the Tabwa chief, Lusinga Lwa Ngombe, his descendent Thierry Lusinga Ngombe, the Wamba chief Medjedje Alexandre, the descendent of Nkinsi Nkondi Alphonse Kapita or the community knowledge holder in diverse projects and to consider them as experts not only as contributors or informants, so that they receive fair treatment and can follow up on the requests made. Such an approach would consist of establishing a link between the past and the present, as part of a project of symbolic reparation (I elaborate the proposition to invite the descendants directly concerned, the Afropeans and Afrodescendants, to share the story of the massacre and the continuity of the celebration of the lost ancestors in my doctoral thesis chapter and an chapter with Diala Touré in a forthcoming Brill handbook on memory studies in Africa). This would involve them in the decolonisation of post-colonial memory, which represents both a break with colonialism  and a continuity of their history and struggle with post-colonialism. To this end, the global policies that discriminate against sub-Saharan Africans need to be reviewed, giving equal weight to the expertise of local communities and that of Western experts. This means equivalent research time, similar salaries whether researchers are in the DRC or Belgium, and unrestricted access to archives and resources. 

During an interview with Christine Bluard, curator at the Royal Museum for Central Africa, it was revealed that the Congolese experts were subject to time constraints during their stay in Belgium, under the constant supervision of Belgian researchers, and that they did not have free access to the archives, which had been selected for them in advance.

Secondly, relational justice requires a case-by-case approach rather than a holistic one, and a consensus on the concept to be used (as Marie-Sophie De Clippele also noted in her book on the topic of human remains) in order to avoid theoretical misunderstandings.  Refusing to return the Lusinga skull, on the pretext that the Wamba community refuses to receive the remains of their ancestors, runs counter to the expectations of the parties concerned, even if holistic restitution would be supported by the Congolese state.

In addition, it is essential to reach a consensus on terminology and legal, scientific, customary, and axiological frameworks, in order not to offend the sensibilities of stakeholders. Recognising human remains as ‘bodies of people’, and not simply as scientific artefacts, is crucial to re-establishing a connection with the humanity and dignity of the deceased, thereby promoting relational justice. From an ethical point of view, Belgium, as the holder of these collections of human remains, has a responsibility to consider the emotional, cultural, and moral implications of their restitution. 

Thirdly and finally, the DRC must be made responsible (as I elaborate in an interview with  Brussels philosopher Gabor Tverdota) for initiating, developing and implementing appropriate policies.  The DRC should not be mobilized solely to validate policy frameworks already established in Belgium. It is therefore crucial to move away from the paternalistic approach inherited from Belgian colonisation and perpetuated by structural and cultural neo-colonisation, particularly in the context of bilateral development cooperation with Belgium.