Brief comments on german guidelines on handling objects acquired in colonial contexts

Restitution is a political act of reconciliation with legal implications. An instrument that is neither political nor legal is not likely to solve restitution problems.

by Kwame Opoku

Ever since President Macron’s famous declaration in Ouagadougou on 28 November 2017, (1) that ‘ African heritage must be highlighted in Paris, but also in Dakar, in Lagos, and in Cotonou and that he wants ‘ conditions to be met within the next five years for the temporary or permanent restitution of African heritage to Africa, there has been speculation as to what Germany would do, especially as there had been an open letter to the German Chancellor Angela Merkel urging her to take a similar position. (2)   There had also been various statements by Hermann Parzinger, President of the Prussian Cultural Heritage Foundation, Berlin, indicating that German authorities were in no rush to follow French policy. (3)

Given the general expectation of the German and international public of  Germany’s reaction to Macron’s declaration on restitution of African artefacts, when the German Federal Minister for Culture, Monica Grütters, presented on 14 May 2018, a document entitled, Leitfaden zum Umgang mit Sammlungsgut aus kolonialen Kontexten (Guidelines for dealing with artefacts acquired from  colonial contexts)  issued by the German Museums Association (Deutsche Museumsbund (DMB), the general conclusion was that this was  Germany’s answer. (4) The presentation on Government premises by a Federal Minister and all that was said by her, led to conclude that the document indeed constituted the German answer to the French initiative. An extraordinary situation which was reinforced by the presentation of a copy of the Guide by Minister Grütters on 1 June, at the UNESCO conference in Paris, on Circulation of cultural property & shared heritage: what new perspectives? (5)

The approach of the Guidelines is not focussed on the issue of restitution. Indeed, the title of the document’ Umgang’, ‘handling’, shows clearly a focus, not on restitution but on how to deal with several aspects of colonial artefacts in German museums.

The text is presented as a tentative attempt to provide guidance for German museums and their officials when faced with questions relating to artefacts acquired from colonial contexts. The President of the German Association of Museums, Prof.  Eckart Köhne states in the foreword under an interesting title: Ein erster Beitrag zu einer unverzichtbaren Diskussion (First contribution to an essential discussion)

In this present first version, the German Association of Museums therefore expresses first its own position concerning this important and very complex topic and presents it to the international public in this subject area for discussion.  (6)

We have seen statements to the effect that a workshop will be held in October 2018 when discussions will be held with international experts and thereafter, a second edition of the Guidelines would be issued. Some of the contributors to the Guidelines complained that they had been published earlier than expected.

When we come to the specific recommendations we read: The questions and answers stated here serve to outline the problems arising from objects from colonial contexts and to contribute to awareness. They provide suggestions for balanced judgments as well as assistance in forming opinions.  This text is concerned with recommendations and not with legal-binding rules.

In the current debate on colonial history and the handling of objects from colonial contexts, each museum must find itself, a position that suits its institution.’  (7)

The Guidelines are also intended to contribute to discussions on colonialism and the German colonial past which, according to the Foreword and to Minister Grütters, has been so far neglected. It seems certain parts of the German elite are now waking up to the need to discuss and examine the colonial past. This comes hundred years after Germany had lost her colonies and after one hundred and twenty-one years after Germany’s acquisition of the Benin bronzes.

Provenance Research
The title and the whole approach of the Guidelines seem rather odd after Germany has lost its colonies some hundred years ago. It almost sounds as if these artefacts had only recently arrived in Germany. The reason here appears to be that not much provenance research was done in the last decades. Anytime the question of restitution is raised, someone declares there must be provenance research and Parzinger and others have often insisted that provenance research costs money and requires time

There is of course the suspicion that some may want to use the excuse of provenance research for delaying restitution altogether. This is not helped by the results of the recent provenance research at the Hamburg Kunst und Gewerbe Museum. After research had shown that three Benin bronzes were indeed part of the loot of 1897, the pieces were not returned to the Oba of Benin but handed over to the Hamburg Völkerkunde Museum that has already 196 pieces. That they could provide a better framework for displaying Benin bronzes. (8)) So, what is the point of the research? There is no guarantee in the non-binding Guidelines that provenance research would lead to restitution if proved that the object was looted.

The Guidelines suggest that not every discussion that looks like restitution demand must end in restitution. The museum official must find out what the real interests and needs of the potential claimers are; they may be interested in knowledge, capacity- building, digitalization and even co-operation. They may also be interested in participating in deciding how objects may be displayed. The museums are urged to consider alternatives to restitution of the physical objectWhen faced with any potential demands for restitution, the museum official is advised to look for legal expert and that there can be no restitution without a law to that effect.  (9)

However, the Guidelines suggest that if there is a clear right to restitution, then the object must be given back and the museum or the relevant authority should not advance the argument based on prescription or time lapse.  (10)

However, a reference is then made to the part of the Guidelines dealing with legal aspects. However, that part of the Guidelines declares that all claims dating to the colonial times are time-barred.

Legal aspects – background information
A section of the Guidelines devoted to law states explicitly that it is based entirely on European and German views of the law.

Legal discussions on law about acquisition of artefacts should be clearly put in the colonial context of permanent violence and oppression. Readers should not be lulled indirectly into thinking that legal matters in German colonies were like legal matters in present-day Germany. In the face of heavy racist and colonial might, many legal concepts lose their validity and efficacy. Where every German colonialist could beat any adult African with a whip, the provisions of individual rights lose their significance.

When it is said that the statute of limitations, rule of prescription, Verjährung, will defeat African claims, one must ask, under which conditions the principle of limitations could be legally and legitimately applied in the colonial context of confiscation and misappropriation of African property. According to present German Law, all claims for return of property based on acts in the colonial period (during formal colonial rule) are time-barred.  (11) No case has been cited to support this assertion which would be contrary to notions of justice, given the unjust and brutal nature of colonial rule.

This issue has never been properly decided by any judicial body. The principle of limitation is to encourage individuals whose rights have been violated to act promptly as soon as they can. That is, as soon as they have knowledge of the violation of their rights and the whereabouts of their stolen property and can do so. Which Africans would dare under colonial rule to bring an action against a colonial official or any European for tempering with his rights? More important for the question of prescription is that even today, in the year 2018, most African peoples have no idea about where their artefacts taken by Europeans are to be found. Let us also remember that most museum officials cannot know about the thousands of objects lying in boxes that have not been opened for decades.

We should also remember that apart from breakages during violent acts of

acquisition, many museums also sell or exchange looted artefacts with other

institutions and thus make it difficult to trace the whereabouts of a looted artefact.

Most Africans have no idea what the Belgians, British, Dutch, French and Germans, did with the looted artefacts. And did anybody tell Africans where all the artefacts were that European missionaries collected, claiming they were heathen objects which had to be burnt? The German museums are said to be full of unopened boxes with artefacts from Africa and none of the officials can tell you about the thousands of objects in their depots. So how is an African in an African village to know this and in pursuance of a legal action for restitution be faced with a statute of limitation?

Concerning applicable law on the acquisition of property, I wish the authors had put some emphasis on the national laws of the areas from which artefacts were looted rather than on the law of the State that engineered the violent looting. They could have found out that in some cases, such as in Benin, no European or African could have legally and legitimately acquired Benin artefacts. They belonged solely to the Oba whose person and property were considered sacrosanct. Would any court, European or African, sanction the 1897 looting of the Benin Palace since by 1815, after the devastating Napoleonic despoliations in Europe, the taking of enemy cultural artefacts during war was disapproved. Benin was not even at war with Britain and so the looting in 1897 was simple stealing following aggression, allegedly in retaliation.

The acquisition of Benin artefacts at London auctions by Germans would not have been legal because there was no bona fides or Guten Glauben on the part of Luschan and others who knew the artefacts had been looted three months previously by the British. The detailed legal questions concerning looted Benin artefacts, like most African artefacts, have never been before any court.

Deciding the legality of artefacts looted by colonialists on the basis of colonialist law must lead to some reflection. Would one decide the legality of Nazi-looted artefacts solely on the basis of Nazi-laws? We should remember that German colonial rule was, in many ways, a preparatory school, a Vorschule, for the Nazi regime: racists confiscations, concentration camps, genocide and similar hall-marks of the Nazi-terror regime had been practised under German colonial rule.    (12)

Legal analysis can lead to an advice to the political decision- maker. But what should museum workers do with such analysis? Under a regime characterised by violence and injustice, law as such has limited importance and efficacity. This is what museum officials should bear in mind when dealing with looted cultural artefacts. They should also not forget that the purpose of law is to establish norms for maintaining order and justice to secure a minimum of morality. Regimes based on racial discrimination and oppression cannot be credited with legality and legitimacy.

At the end of 132 pages, there is no clear indication of German policy on the thousands of artefacts, looted or stolen, that are in German museums and depots some of which are being claimed by the original owners. Indeed, it is stated in the foreword to the Guidelines which are not binding and have no legal effect, that the text is a first version, to be followed by a second version after discussions and suggestions have been made by both international and German critics.

Some of the contents of the Leitfaden may be good in themselves but they are not directed towards restitution. For example, the parts on colonialism are very good for anyone who wants to understand colonialism but is this what we expect from the German authorities? They have not even drawn the conclusion that because of the violent, illegal and criminal nature of colonialism the looted artefacts must be returned.

The Guidelines do not offer guidance on the general policy of Germany on the contentious subject of restitution since this is a matter for politicians and not for museum officials. But why then present such a document as if it contained the Government’s answers to the difficult topic of restitution?  We can only speculate. It may well be that after Macron’s famous declaration of restitution of African artefacts, the German authorities felt they had to do something.  Perhaps Germany being a Federal Republic, Bundesrepublik, the Chancellor cannot act like Macron. Moreover, much of the property in museums and the rights thereof may be vested in other entities, and the Federal Government may not have the legal authority nor the political will to produce a uniform policy on restitution. Besides, there may not have been enough pressure from African and Asian States to produce such a policy.

Having a museum association that could produce such Guidelines shows at least that there are groups in Germany busy with the issues of restitution whatever the authorities may say about demands for restitution being rare. But this can only secure a short relief from pressure which will increase in 2019-2020 when the French begin to effect restitution of African artefacts at about the same time as the Humboldt Forum would be opening. One way or other, Germany would have to produce a political statement on the question of restitution. The problem will not just go away. The Leitfaden do not constitute such a political statement indicating German policy on restitution of African artefacts. It is clearly no answer to Macron’s Declaration at Ouagadougou on 28 November 2017 and would not have such a resonance as Macron’s statement which filled the hearts of many Africans with the hope for the future. Some of us even thought this was the beginning of a new era in African-European relations, assuming that Germany would join France in seeking methods of restitution of African artefacts.

As we have repeatedly written, Western States have no real alternative but to follow Macron’s policy which is nearer to the word and spirit of dozens of UNESCO/United Nations issued since 1972, urging the return of cultural artefacts to their countries of origin.  

Macron’s manifest determination to ensure the restitution of African artefacts from France has sent some of us into ecstasy but it has also caused panic among others who have not realized that decolonization necessarily implies restitution of some African artworks.


  1. See annex below.
  2. Christian Kopp and Sururu Mboro, Open Letter: Restitution of cultural objects and human remains from Africa.…/open-letter-restitution-of-cultu…
  3. K. Opoku, ‚We Will Return Looted and Stolen Objects‘: Parzinger’s Miraculous Change or Cultivated Misunderstanding?…/we-will-return-looted-and-stol..
  4. 4. Leitfaden zum Umgang mit Sammlungsgut aus kolonialen Kontexten. Leitfaden des Deutschen Museumsbundes: and French versions of this publication would be available soon.
  5. International Conferenceof leaders and thinkers examines new ……/international-conference-leaders-and-thinkers- examines-new-perspectives-displaced-heritage

  1. 6. In der vorliegenden ersten Fassung formuliert der Deutsche Museumsbund deswegen zunächst eine eigene Haltung zu diesem wichtigen und hoch komplexen Thema und stellt diese der internationalen Fachöffentlichkeit zur Diskussion. Leitfaden, p.5.
  2. Die hier aufgeführten Fragen und Antworten dienen dazu, die Problematiken zu Objekten aus kolonialen Kontexten zu umreißen und zur Sensibilisierung beizutragen. Sie geben Anregungen für differenzierte Beurteilungen sowie Hilfestellung bei der Meinungsbildung. Beim vorliegenden Text handelt es sich um Empfehlungen und keine (rechts-)verbindliche Vorschrift.

Jedes Museum muss in den aktuell stattfindenden Debatten zur Kolonialgeschichte und dem Umgang mit Objekten aus kolonialen Kontexten eine jeweils zum eigenen Haus passende Position selbst finden. Leitfaden, p.77.

      8. K. Opoku – Obviously Looted: Benin Bronzes in Museum of Arts and Crafts, Hamburg, Germany…

  1. Es sollte von Anfang an sensibel vorgegangen werden. Manche Herkunftsgesellschaften möchten gar keine Objekte aus europäischen Museen zurückbekommen, andere haben nur an bestimmten Objektgruppen Interesse, z.B. Objekten mit religiöser Signifikanz, oder die Rückgabe ist innerhalb des möglichen Adressatenkreises umstritten. Zum Teil besteht eher der Wunsch nach Austausch von Wissen, Capacity-Building oder daran, dass Digitalisate von Objekten zur Verfügung gestellt werden, als nach der physischen Rückführung von Objekten. Leitfaden, p. 97.
  2. Besteht ein eindeutiger rechtlicher Anspruch, sind die Objekte in der Regel herauszugeben, wenn der frühere Eigentümer (oder dessen Rechtsnachfolge) das möchte. Dann hat das Museum bzw. der Träger auch keinen Ermessensspielraum, eine Berufung auf Verjährung/Verwirkung möglicher Ansprüche sollte grundsätzlich nicht erfolgen. Näheres zu solchen rechtlichen Ansprüchen ist in den Hintergrundinformationen (s. S. 65) ausgeführt.‘
  3.  Leitfaden, p.71.
  4.  Zudem sind alle Herausgabeansprüche, die auf Vorgängen in der Kolonialzeit (während formaler Kolonialherrschaften) beruhen, nach deutschem Recht verjährt. 71, Leitfaden.p.71
  5. The Guardianwrites the following about German rule in Africa ( Germany moves to atone for ‚forgotten genocide‘ in Namibia | World ……/germany-moves-to-atone-for-forgotten-genocide-in-)

Jürgen Zimmerer, a historian at Hamburg University and consultant to the new exhibition, argued that “colonial amnesia” had created a warped perspective on later German crimes in the 20th century.

“If you focus only on the 30 years of imperial Germany’s excursions into Africa, then of course the story pales in comparison to the colonial histories of other European nations, such as Britain or Belgium,” Zimmerer said

“But it’s important to see Germany’s history in Africa as continuous with its better-known dark chapters in the 30s and 40s. In Africa, Germany experimented with the criminal methods it later applied during the Third Reich, for example through … the colonisation of eastern and central Europe … There is a trend among the public to view the Nazi period as an aberration of an otherwise enlightened history. But engaging with our colonial history confronts us with a more uncomfortable thesis.”

Recent historical works have highlighted the links between the fate of the Herero and Nama, and that of European Jews. Ideas and techniques that would play a key role in the Holocaust have some of their roots in German atrocities in colonial Africa, researchers argue.



“…I cannot accept that a large part of cultural heritage of several African +countries is in France. There are historical explanations for that, but no valid justifications that are durable and unconditional. African heritage cannot only be in private collections and European museums. African heritage must be highlighted in Paris, but also in Dakar, in Lagos, in Cotonou, this will be one of my priorities. I want conditions to be met within the next five years for the temporary or permanent restitution of African heritage to Africa.

This will suppose a great deal of work and a scientific and museograhic partnership, because, make no mistake, in many African countries, it is often the African museum conservators and collectors who organized the illicit traffic and sometimes, it was the European museum conservators or collectors who saved these African artworks for Africa by wresting them away from the African traffickers, our common history is more complex than our reflexes!

But the best homage that I can pay not only to these artists but also to the Africans and Europeans who have fought to safeguard these works is to do everything so that the works return and to ensure that there is also security in Africa and care for the protection of these works. Therefore, the partnerships will ensure that there are well-trained conservators, that there are academic commitments, that there are State to State commitments to protect these arts, that is, your history, your heritage and, if you permit me, our history’.


… je ne peux pas accepter qu’une large part du patrimoine culturel de plusieurs pays africains soit en France. Il y a des explications historiques à cela mais il n’y a pas de justification valable, durable et inconditionnelle, le patrimoine africain ne peut pas être uniquement dans des collections privées et des musées européens. Le patrimoine africain doit être mis en valeur à Paris mais aussi à Dakar, à Lagos, à Cotonou, ce sera une de mes priorités. Je veux que d’ici cinq ans les conditions soient réunies pour des restitutions temporaires ou définitives du patrimoine africain en Afrique.

Ça supposera aussi un grand travail et un partenariat scientifique, muséographique parce que, ne vous trompez pas, dans beaucoup de pays d’Afrique ce sont parfois des conservateurs africains qui ont organisé le trafic et ce sont parfois des conservateurs européens ou des collectionneurs qui ont sauvé ces œuvres d’art africaines pour l’Afrique en les soustrayant à des trafiquants africains, notre histoire mutuelle est plus complexe que nos réflexes parfois !

Mais le meilleur hommage que je peux rendre non seulement à ces artistes mais à ces Africains ou ces Européens qui se sont battus pour sauvegarder ces œuvres c’est de tout faire pour qu’elles reviennent. C’est de tout faire aussi pour qu’il y ait la sécurité, le soin qui soit mis en Afrique pour protéger ces œuvres. Donc ces partenariats prendront aussi toutes les précautions pour qu’il y ait des conservateurs bien formés, pour qu’il y ait des engagements académiques et pour qu’il y ait des engagements d’Etat à Etat pour protéger ces œuvres d’art, c’est-à-dire votre histoire, votre patrimoine et, si vous m’y autorisez, le nôtre. ‘Le…/le-discours-de-ouagadougou-d-emman……/document-le-discours-demmanuel-ma Présidence de la République: Accueil