Restitution of Nazi-Looted Art: The French Law of 2022

Posted in Le Monde in 2018.

Much has been written since the announce of the broad thrust of the Report commissioned by Emmanuel Macron to Bénédicte Savoy and Felwine Sarr, a few days before it was officially handed over to the president on 23 November. Supporters and opponents of the restitution of African art objects held in France’s national public collections to the African States on whose territories those objects were collected, in circumstances that were more or less violent or structurally unequal, have already begun to clash in intense public debate.

At the time the report was presented, however, the President clearly signalled his intention to pursue the course set out in the speech he delivered at the University of Ouagadougou in November 2017, announcing that « en cohérence avec la démarche engagée et sur proposition du Musée du quai Branly-Jacques Chirac et du ministère de la culture, j’ai décidé de restituer sans tarder 26 œuvres réclamées par les autorités du Bénin, prises de guerre du général Dodds dans le palais de Béhanzin, après les sanglants combats de 1892. Ces œuvres pourront être présentées au public béninois dans le cadre du projet de musée ambitieux porté par la République du Bénin. Je remercie le Musée du quai Branly-Jacques Chirac de soutenir cette restitution. Les mesures opérationnelles, et le cas échéant législatives, seront prises pour que ces œuvres puissent retourner au Bénin, accompagnées du savoir-faire du musée qui les a conservées jusqu’à présent." (in line with the process underway and on the proposal of the Musée du quai Branly-Jacques Chirac and the Ministry of Culture, I have decided, without delay, to restitute 26 works claimed by the authorities of Benin, war trophies taken by General Dodds from Béhanzin’s palace after the bloody fighting of 1892. These works may be presented to the Beninese public as part of the Republic of Benin’s ambitious museum project. I thank the Musée du quai Branly-Jacques Chirac for supporting this restitution. Operational measures, and where appropriate legislative measures, will be taken so that these works may return to Benin, accompanied by the expertise of the museum that has preserved them until now.)

This excerpt from the Élysée press release, while announcing a significant gesture promised to Benin, sketches in a few sentences the recommendations advanced by the report’s authors for organising the restitution of African cultural heritage. The report adopts a particularly firm position by defining the term "restitution" as a transfer of ownership. Such a transfer could therefore be granted to States claiming objects collected on the African continent in military contexts or during exploration missions, objects donated or bequeathed to French museums by agents of the colonial administration or their descendants during the colonial period, as well as objects acquired in proven circumstances of illicit trafficking after independence.

These transfers of ownership, which presuppose the deaccessioning of the objects from the inventories of the national collections and their removal from the public domain, are conceived as an exception to the principle of inalienability governing museum collections. That exception would be reserved solely for States whose territories correspond to former French colonies. The transfers would be negotiated through bilateral agreements concluded between the French State and the claimant State, with a substantial role assigned to scientific cooperation conducted through a bilateral commission of experts.

The Benin Case, an emblematic example

The authors of the report, like President Macron, stress the essential role of museums in this process, and the Élysée press release underlines that the decision to restitute 26 objects claimed by Benin was taken on the proposal of the Musée du quai Branly-Jacques Chirac, which holds a significant share of the African art collections preserved in French museums.

Benin is emblematic for more than one reason. It is there that Lionel Zinsou and his daughter Marie-Cécile have, through a foundation established in Cotonou for some fifteen years and through multiple initiatives, sought to “giving back its art to Africa”, (rendre son art à l'Afrique) Title of The interview with Marie-Cecile published in The World November 23rd. That foundation hosted, in 2006, an exhibition organised with the Musée du quai Branly-Jacques Chirac, entitled « Béhanzin, roi d’Abomey » (“Béhanzin, King of Abomey”), which presented part of the war trophies taken by General Dodds referred to by President Macron in his press release and attracted 275,000 visitors.

In 2016, Patrice Talon, the newly elected President of Benin, elected notably against the candidacy of Lionel Zinsou, formally claimed the return of the objects looted by Dodds, a claim rejected by the French government at the time on the basis of the inalienability of the national collections. Patrice Talon forcefully reiterated that claim during his address in Paris on 1 June 2018 at a conference organised by UNESCO on the theme “Circulation des biens culturels et patrimoine. enpartage : quelles nouvelles perspectives ?" (Circulation of culturalproperty and shared heritage: what new perpspective). In the wake of that intervention, a joint Franco-Beninese commission was created to consider the issue of restitution.

I am mindful of two members of that commission, Professor Joseph Adandé, an art historian, and Eliane Chouhanka, a jurist, who spoke at a conference organised by Avocap in Paris on 22 November, on the eve of the report’s presentation. With moving fervour, they pleaded for the return of the thrones of the Kings of Abomey to Benin, in order to restore the dignity of the Beninese people and to enable them to pass on to younger generations their ancestral culture and traditions.

Breaking out of an unequal relationship

The announced restitution of 26 objects to Benin is therefore part of a process of claims that is as exemplary as it is necessary if the return of cultural heritage to the African territories of origin is to meet the objective set by the President in his Ouagadougou speech one year earlier. Those restitutions must, he said, serve as a remedy for the consequences of colonisation, which he had also described as a crime against humanity during a visit to Algiers in February 2017.

This is where the issue becomes particularly charged for some opponents of the return of African heritage to its continent of origin, who see it as part of the President’s stated determination to have France confront this dramatic chapter of its history, namely the violence of colonisation. In that confrontation with a dark past, the restitution of cultural heritage must help to break free from an imbalanced relationship. It should be recalled that it was, in particular, by reference to international cultural heritage protection law that African States emerging from independence were long denied the possibility of asserting claims to their cultural heritage, because the international conventions organising such protection all contain a non-retroactivity clause preventing their application to harms inflicted on cultural heritage before the date of ratification.

By way of reminder, the 1970 UNESCO Convention [ interdire et empêcher l’importation, l’exportation et le transfert de propriété illicites des biens culturels »] (“to prohibit and prevent the illicit import, export and transfer of ownership of cultural property”) was ratified by France only in 1997, and the Savoy-Sarr report recommends, in particular, that France ratify the UNIDROIT Convention [« sur les biens culturels volés ou illicitements exportés ] (on stolen or illegally exported cultural objects) signed in Rome in 1995. African States protested in vain against this situation during the drafting of those conventions, and one recalls the powerful appeal issued on 7 June 1978 by Amadou-Mahtar M’Bow, then Director-General of UNESCO, « pour le retour, à ceux qui l’ont créé, d’un patrimoine culturel irremplaçable » (for the return, to those who created it, of an irreplaceable cultural heritage).

Forty years later, the path now opened towards the restitution of cultural property claimed by former colonies must offer France an opportunity to acknowledge the violence committed and to confront its consequences. The stakes of restitution must also be assessed in light of the importance of anchoring younger generations in a culture and tradition with which they can identify only through contact with the objects that constitute their foundation. How, then, should one receive the alarmed reactions of those who panic at the prospect of museums being emptied of their African art collections in the name of their love for that art. While it is beyond dispute that museums have contributed to the conservation and preservation of this heritage for more than a century, that cannot justify preventing the populations concerned from accessing their heritage. It will be for us to find a path by which this return can take place within a framework of sharing and mutual recognition.