On the question of restitution, in connection with Mati Diop's film Dahomey

Published in Grief 2025 (NO. 12/2).

Dahomey, directed by the Franco-Senegalese filmmaker Mati Diop, provides an opportunity to draw a comparison between the movement for the restitution of property spoliated from Jews during the period 1933–1945 and the movement for the return of objects collected in a colonial context^[1]. The unprecedented nature of the plunder perpetrated in Europe by the Nazis and their collaborators shocked public conscience and, before the end of hostilities, seventeen Allied governments considered it their duty to meet in London on 5 January 1943, in order to issue a solemn declaration:

Les gouvernements de l’Union sud-africaine, des États-Unis d’Amérique, d’Australie, de Belgique, du Canada, de Chine, de la République tchécoslovaque, du Royaume-Uni de Grande-Bretagne et d’Irlande du Nord, de Grèce, des Indes, du Luxembourg, des Pays-Bas, de Nouvelle-Zélande, de Norvège, de Pologne, de l’URSS, de Yougoslavie et le Comité national français,

Par la présente déclaration donnent l’avertissement officiel à tous les intéressés, et en particulier aux personnes résidant en pays neutres, qu’ils ont l’intention de faire tout ce qui est en leur pouvoir pour mettre en échec les méthodes d’expropriation pratiquées par les gouvernements avec lesquels ils sont en guerre, contre les pays et les populations qui ont été si cruellement assaillis et pillés.En conséquence, les gouvernements signataires de cette déclaration et le Comité national français se réservent tous les droits de déclarer non valables tous transferts ou transactions relatifs à la propriété, aux droits et aux intérêts, de quelque nature qu’ils soient, qui sont ou étaient dans les territoires sous l’occupation ou le contrôle direct ou indirect des gouvernements avec lesquels ils sont en guerre, ou qui appartiennent ou ont appartenu aux personnes (y compris les personnes juridiques) résidant dans ces territoires. Cet avertissement s’applique tant aux transferts ou transactions se manifestant sous forme de pillage avoué ou de mise à sac, qu’aux transactions d’apparence légale, même lorsqu’elles se présentent comme ayant été effectuées avec le consentement des victimes.Les gouvernements signataires de cette déclaration et le Comité national français prennent solennellement note de leur solidarité à cet égard^[2].

(The governments of the Union of South Africa, the United States of America, Australia, Belgium, Canada, China, the Czechoslovak Republic, the United Kingdom of Great Britain and Northern Ireland, Greece, India, Luxembourg, the Netherlands, New Zealand, Norway, Poland, the USSR, Yugoslavia, and the Comité national français,

by the present declaration give formal notice to all concerned, and in particular to persons residing in neutral countries, that they intend to do everything in their power to defeat the methods of expropriation practised by the governments with which they are at war against the countries and populations so cruelly attacked and plundered. Accordingly, the governments signatory to this declaration and the Comité national français all rights to declare invalid any transfers or dealings relating to property, rights and interests of whatever nature, which are or were situated in territories under the occupation or the direct or indirect control of the governments with which they are at war, or which belong or belonged to persons (including legal persons) residing in such territories. This warning applies both to transfers or dealings taking the form of open plunder or pillage, and to transactions of an apparently legal character, even where they purport to have been carried out with the consent of the victims. The governments signatory to this declaration and the Comité national français solemnly record their solidarity in this regard.)

This expressed the firm intention of the signatories, in the event of victory over the Axis, to organise restitution of spoliated property to its legitimate owners. The principles of that solemn declaration were transposed by the Comité national français into the Ordinance of 12 November 1943 on the nullity of acts of spoliation carried out by the enemy or under its control, published on 18 November 1943 in the Journal officiel de la République française, printed in Algiers. Indeed, since the resignation of the President of the Council, Paul Reynaud, on 16 June 1940, France had been led by Marshal Pétain, who established his government in Vichy.

After Liberation and the restoration of republican legality on national territory by the Ordinance of 9 August 1944, surviving Jews who had been exiled or deported returned to French society and found themselves, for many of them, confronted with the consequences of the policy of “Aryanisation” implemented by the occupying authorities, but also by the government of Marshal Pétain. It then became necessary to give concrete effect to the principles of the London solemn declaration, and it was ultimately the Ordinance of 21 April 1945, giving second effect to the Ordinance of 12 November 1943 on the nullity of acts of spoliation carried out by the enemy or under its control, which defined the conditions for judicial proceedings enabling the nullity of acts of disposition considered spoliatory to be obtained.

Two essential conditions were laid down by the text. First, the act of disposition must have been entered into after 16 June 1940, the date of Paul Reynaud’s resignation as President of the Council. Secondly, it must have been entered into as a consequence of measures departing from ordinary law that were in force from 16 June 1940 onwards. That legislation was extensively discussed in legal writing and gave rise to a very large number of decisions, the operative parts of which reflect the many nuances within French society at the end of a conflict, ranging from the most empathetic towards those who had been persecuted to the most nostalgic for the Ordre Nouveau (New Order). Article 21 of the Ordinance fixed 31 December 1951 as the date after which an application for nullity would no longer be admissible. The last claims were therefore decided in the early 1960s. Article 21 of the Ordinance set 31 December 1951 as the cut off date after which an application for nullity would no longer be admissible; the final such cases were therefore decided in the early 1960s. It was during that period that the work of the Commission de récupération artistique (CRA), responsible for assisting in locating and restituting the thousands of artistic assets spoliated from Jews, was brought to an end, France considering that it had thereby fulfilled the commitments entered into by the French National Committee when it signed the London solemn declaration on 5 January 1943. The restitution process closed, and a long silence fell over this episode in French history until 1995, when two books were published^[3] which contributed to reopening the matter of restitution of property spoliated from Jews during the period 1933-1945. on the occasion of a dispute with his publisher, I met the grandson of Federico Gentili di Giuseppe, an Italian Jew who had been established in France since the beginning of the twentieth century and a major collector of French and Italian paintings and drawings from the seventeenth and eighteenth centuries, eighteenth century French furniture, books, autographs, and manuscripts. He had read Hector Feliciano’s book and recognised in it the story of his grandfather, who died in Paris in April 1940, at a time when his two children, Marcello and Adriana, had been forced to flee persecution and were thereby prevented from administering their father’s estate. In their absence, the Tribunal civil de la Seine appointed an administrateur provisoire (provisional administrator) who organised the public auction sale of Federico Gentili di Giuseppe’s entire collections. The sales took place between 31 March and 29 May 1941 at the Hôtel Drouot in Paris. At the end of the conflict, hundreds of thousands of works of art were found by the Allies in various storage sites, including salt mines and castles, where the Germans had stored the proceeds of their plunder across the occupied countries. Objects whose provenance could be identified were returned to their countries of origin so that they could be restituted to their legitimate owners. In France, the CRA was responsible for overseeing these operations. According to the figures available, some 60,000 works were returned to France, of which 45,000 are said to have been reunited with their owners.Among those that remained “orphan” objects, a selection commission chose a little over 2,000, which were entrusted to the custody of the national museums and entered in a provisional inventory pending a claim. These are the works designated by the acronym MNR (Musées Nationaux Récupération). Five works from Federico Gentili di Giuseppe’s collection were entrusted to the Louvre: La Visitation, Moretto da Brescia (MNR 277); La Sainte Famille, Bernardo Strozzi (MNR 290); Alexandre et Campaspe chez le peintre Apelle, Giambattista Tiepolo (MNR 305); Joueurs de cartes devant une cheminée, Alessandro Magnasco (MNR 790); Portrait de femme, Rosalba Carriera (REC 73). Upon her return from the United States, where she had found refuge during the war, Adriana, Federico Gentili di Giuseppe’s daughter, sought restitution of these works, without success. The museum took the view that the public auction sale had been lawful and that, as a consequence, the works could not be restituted. After repeated unsuccessful attempts, Adriana ultimately abandoned her claims.  Upon her return from the United States, where she had found refuge during the war, Adriana, Federico Gentili di Giuseppe’s daughter, sought restitution of these works, without success. The museum took the view that the public auction sale had been lawful and that, as a consequence, the works could not be restituted. After repeated unsuccessful attempts, Adriana ultimately abandoned her claims. The two conditions laid down by the text appeared to be satisfied. The act of disposition, namely the auction adjudication, had indeed occurred after 16 June 1940. It remained to demonstrate that the act was the consequence of measures departing from ordinary law. Before addressing these two conditions, however, the action had to be admissible, whereas the Ordinance provided that the application had to be brought before 31 December 1951. We therefore relied on the mechanism of relevé de forclusion provided for in the second paragraph of Article 21 of the Ordinance, in the following terms:

Cependant, dans le cas où le propriétaire dépossédé fera la preuve qu’il s’est trouvé, même sans force majeure, dans l’impossibilité matérielle d’agir dans ce délai, le juge pourra le relever de la forclusion.

However, in the event that the possessed owner proves that he was, even without force majeure, in the material impossibility of acting within this period, the judge may relieve him of the foreclosure.

By a decision dated 10 July 1998, the Tribunal de grande instance de Paris granted the relevé de forclusion, but did not uphold spoliation. It was the Cour d'appel de Paris which, in its judgment of 2 June 1999, applied the provisions of the Ordinance of 21 April 1945 in a manner favourable to Federico Gentili di Giuseppe’s descendants, holding that:

Adriana et Marcello GENTILI di GIUSEPPE se sont, l’un et l’autre, trouvés, par l’effet de mesures exorbitantes du droit commun qui était en vigueur au l6 juin 1940, dans l’impossibilité absolue, d’une part, de revenir à Paris, lieu d’ouverture de la succession de leur auteur, à l’effet d’y accomplir les actes qu’appelaient l’appréhension et la libre gestion des biens composant cette succession, notamment des biens meubles se trouvant dans l’appartement sis 22 avenue Foch à Paris, au nombre desquels figuraient les tableaux litigieux, d’autre part, de comparaître devant le juge afin de s’en expliquer.

Adriana and Marcello GENTILI di GIUSEPPE had each found themselves, as a result of measures departing from ordinary law that were in force on 16 June 1940, in an absolute impossibility, on the one hand, of returning to Paris, the place where their father’s succession opened, in order to carry out the acts required for taking possession and freely administering the assets comprising the estate, in particular the movable property located in the apartment at 22 avenue Foch in Paris, among which were the paintings in dispute, and, on the other hand, of appearing before the judge to explain themselves.

The Court accordingly ordered the Louvre to restitute the five MNR works to the descendants of the spoliated owner. Following that decision, and under the impetus of the United States, which was deeply engaged in this movement at the turn of the twentieth and twenty-first centuries, public policy on the restitution of property spoliated from Jews between 1939 and 1945 evolved considerably, both in France and in many countries affected by the conflict.

The movement continued and gathered momentum over the past twenty-five years. More recently, it has been accompanied by a growing awareness of the need to better understand the origin and traceability of cultural property, from a memorial perspective.

A new discipline has emerged at the intersection of art history, history, law, sociology, and anthropology: provenance research. Claims by other populations have also asserted themselves: the peoples of former colonies whose cultural heritage was effectively drawn away by colonial powers and who demanded the return of their property without ever having been heard. In a speech delivered on 28 November 2017 before students of the University of Ouagadougou and the President of Burkina Faso, Roch Christian Kaboré, French President Emmanuel Macron stated that he wished to do what was necessary, within five years, to bring about temporary or permanent restitutions of African heritage. Such returns were presented as the first remedy for the consequences of colonisation, the harms of which he had set out.

In the wake of that speech, the President tasked two academics, Bénédicte Savoy and Felwine Sarr, with producing a report on the conditions under which the return of non-Western cultural objects held in the national collections might be organised. One of the main obstacles, previously invoked as a definitive refusal to any attempt at a claim, lies in the principles of inalienability and imprescriptibility attaching to property in the State’s public domain, which are pillars of the protection afforded to objects in the collections of the museums of France. In the wake of that speech, the President tasked two academics, Bénédicte Savoy and Felwine Sarr, with producing a report on the conditions under which the return of non-Western cultural objects held in the national collections might be organised. One of the main obstacles, previously invoked as a definitive refusal to any attempt at a claim, lies in the principles of inalienability and imprescriptibility attaching to property in the State’s public domain, which are pillars of the protection afforded to objects in the collections of the museums of France.To enable the restitution of objects from public collections whose provenance required their relocation, without recourse to ad hoc legislation, it was therefore necessary to create a legal framework derogating from the principle of inalienability. The Ministry of Culture proposed the adoption of three framework laws to achieve this: the first devoted to property spoliated from Jews between 1933 and 1945; the second to human remains held in public collections; and a third intended to cover objects collected in a colonial context. While the adoption of the first two laws raised no difficulty^[4],the draft framework law concerning objects collected in a colonial context was rejected by the Conseil d’État, as the text submitted to it did not define the motif impérieux (compelling reason) a necessary condition for applying a derogation from the principle of inalienability of public collections. A new bill was presented to the Council of Ministers on 30 July 2025, with a view to submission to a parliamentary vote.

The conditions for the return of African heritage are therefore not yet in place. Dahomey, by Mati Diop, which adopts the point of view of one of the twenty-six sculptures returned to Benin in November 2021, also makes it possible to hear the reactions of students at the University of Abomey-Calavi to the festivities that accompanied the return of these works. Frustration and anger surface, and while the exchanges reveal wounds of colonisation that remain raw, the question arises as to France’s genuine willingness to make the return of cultural property to Africa the remedy for those wounds.

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