Repatriation claims have become increasingly common since the 1950s, when “the stark truths of colonisation and war crimes against humanity” were exposed. This has necessitated legal support for restitution efforts. With the ever-increasing recent conflicts, these debates rely not only on the support of the law but also on a “restorative justice” which includes the difficult task of ensuring countries admit to wrongdoing when returning stolen art.
The primary arguments for repatriation include the following:
Stolen property should be returned to its true owner
Cultural objects belong to the cultures that created them, and remain a crucial part of their identity
Failure to return items promotes colonist mindsets and a notion of inherent inferiority
Museums which hold certain artefacts are not accessible to all as they are considered more “Western” institutions that retain colonial legacies
Understandings of ownership are constantly changing so legal behaviours and the ownership of collections must reflect contemporary beliefs
Regardless of morality, the issue of repatriation and restitution is inherently a legal one. The first legal document regarding the matter was the 1907 Hague Convention, which made it illegal to plunder during armed conflict. This, however, was not specific to cultural artefacts.
The following 1954 Hague Convention, crafted after World War II, specifically protected the looting of cultural artefacts. It also recognised that the damage to cultural property in times of conflict ultimately meant “damage to the cultural heritage of all mankind” because different cultural groups each make their own “contribution to the culture of the world”.
Subsequently, the 1970 United Nations Educational, Scientific, and Cultural Organisation (UNESCO) Convention discussed the importance of each State being aware of the cultural properties that exist within its territories and protect them “against the dangers of theft, clandestine excavation, and illicit export”. This focused mainly on the need to prove ownership in order to move cultural artefacts.
The 1995 International Institute for the Unification of Private Law (UNIDROIT) Convention on Stolen or Illegally Exported Cultural Objects then provided a framework to recognise ownership, protect objects from illegal removal, and facilitate restitution should these removals occur.
While extensive repatriation claims from colonial and imperial times remain, the issue of the repatriation of art to modern conflict zones is equally prevalent. Over the course of human history, the taking of cultural artefacts has been a consistent sign of power. It is a way for an invading force to exhibit control and effect change on a society, usually by destroying what has once existed and replacing it with their own cultural artefacts. For example, in 2001 in Afghanistan, the Taliban “banned all representations of the human form”, resulting in the decapitations of sculptures, destruction of paintings, and demolition of ancient monuments.
Once the Taliban were overthrown, local dealers smuggled these ruined artefacts out of Afghanistan to sell in Pakistan. This illegal trafficking eventually created a wide network of Afghan artefacts requiring return home, along with artefacts taken under similar circumstances from Iraq and Uzbekistan.
Since 2009, the British Museum has been involved with these efforts, resulting in over 2,345 objects being identified and returned. These pieces were part of a British operation involving the Art and Antiquities Unit of the Metropolitan Police. This also resulted in a signed agreement confirming cooperation between the National Museum of Afghanistan and the British Museum on the identification and return of these stolen pieces.
Similarly, in 2013, a pair of statues known as the “Kneeling Attendants” were finally returned to their homeland in Cambodia. These 10th-century pieces entered the world of stolen art when Cambodia became embroiled in a civil war in the 1970s and were taken from the Koh Ker temple as an example of the “Khmer empire’s cultural heritage”. They eventually appeared at the Metropolitan Museum of Art, “cut into four pieces”, in the early 1990s.
At this time, however, Cambodia was unable to consider pressing the matter in order to recover these antiquities, due to their ongoing civil war and instability that it wrought. This is due to concerns that returning objects to conflict zones may result in their destruction by offensive powers. Instead, Cambodia publicised their losses, pressuring museums to return these stolen items. In the years that followed, the Cambodian government worked with UNESCO and other supporters to return these statues to their home in the temple.
Finally, in 2012, UNESCO had sufficient evidence to legally approach the Metropolitan Museum, allowing Cambodia to secure not only these statues but others that had been taken from the same temple and placed in various American museums. Their case was supported by evidence of the “‘physical remains of these objects on the site of the bases from which they had been separated at some point’”, according to curator John Guy from the Met’s Southeast Asian collection. This evidence proved the forced removal of these statues from their rightful location, spurring the case along with enough evidence to garner a return of the stolen pieces. On June 11 2013, these statues returned home.
Since then, Cambodia has won similar cases, such as in 2013 when they settled with Sotheby’s, who promised to “repatriate a $3 million statue”. However, there have also been some setbacks, such as a 2014 investigation proving that an ancient Cambodian statue did not come from the Koh Ker temple complex, as Cambodian officials had alleged. This has demonstrated that attitudes towards collections are constantly shifting, as are notions of ownership and repatriation, resulting in a need for more flexible laws to account for these case-by-case realities.
Public opinion has also been changing as a result of increased looting in light of escalating conflicts around the world. Rather than viewing museums as “protective” bodies, public opinion is shifting to seeing them as “possessive” institutions, holding on to artefacts to which they have no rights. In turn, many of today’s repatriation processes have shifted from requiring a formal lawsuit to immediate voluntary return. This is also a more private way of dealing with the matter particularly as museums struggle with the negative publicity garnered by these restitution claims.
The most apparent example of this tension today is that of the Elgin Marbles currently held in the British Museum. Negotiations have been ongoing for years, with Greece claiming they were taken while the country was seized by the Ottoman Empire and Britain countering that the possession was justified given the occupied nature of Greece at the time. Moreover, they maintain that this return would open up too many cases for cultural artefacts around the world to be returned. However, negotiations seem to be reaching a head as the issue will be discussed by November 26 2020 when a trade deal is to be discussed and ratified in the European Parliament.
Only time will tell how these negotiations pan out, as well as how their result will impact other cases regarding the repatriation of art from conflict zones. Nevertheless, the issue of repatriation of stolen art from conflict zones is gaining increasing significance as museums are being forced to make amends for colonial and imperial actions of the past and the illegal conduct that has allowed them to gain possession of artefacts in the present. Whether these institutions will adapt to the current pressures of countries demanding their cultural artefacts be returned, and whether or not these pieces will one day all be returned to their rightful locations, remains to be seen.
This article is part of a collaborative series with publication Art Pot which aims to show how law and art have, and continue to be, interconnected. Read Art Pot's exploration of issues surrounding repatriation complains from modern conflict zones here.