SOMETHING GRAVE HAPPENED AND IMPERIAL RULE OF LAW IS SUSTAINING IT!
In 1897 a great tragedy befell the kingdom of Benin when a British punitive expedition looted the treasury of treasures in the royal palace and plundered artefacts including those of great spirituality to the Bini people. Benin kingdom is now part of Nigeria and since Independence in 1960 Nigeria and also the Benin Royal Court have been anxious for the return of iconic and spiritual ones among the plundered cultural objects. The efforts have until recently been unsuccessful. President Emmanuel Macron of France in his Ouagadougou declaration has given momentum to the issue of restitution. Various arguments have been used to dismiss the requests. They include: public international law at the time permitted the seizure and preserving the status of universal museums in the various European countries. These ignore the concepts of what is right and wrong, and the need for ethics based repatriation. The paper examines the issues and concludes that only insistence on imperial rule of law or illegal rule of law can sustain the long standing refusal to contemplate restitution.
The Age of Plunder
The Greek historian Polybius (202-120 BC) wrote that the laws and the right of war oblige the victor to ruin and destroy fortresses, forts, towns, people, ships, resources and all other such like things belonging to the
*Faculty of Law, University of Ibadan, Ibadan. Paper delivered at International Conference “Museum Collections in Motion”, Cologne, Germany, 15th-17th July 2019.
enemy in order to undermine his strength while increasing the victor’s own. But the pointless destruction of temples, statutes and other sacred objects is the action of a madman. The aim of warfare for the Romans was conquest, and conquest was accompanied by massacres, destruction and pillage. Cicero on the other hand recommended moderation in pillage saying that it was not right for people to pillage for themselves but only to enrich or embellish their motherland. The situation in the Middle Ages was not very different. Towns, villages, castles and even churches were destroyed. The Germanic armies and the Crusaders; laid everything waste as they went. The church attempted to mitigate the consequences of war but did not forbid it, even though Saint Augustine had preached that the taking of booty was a sin. To protect churches, the Germanic emperor, Frederick I (1152-94) promulgated an edict in 1158 by which he forbade pillage. This edict and other prohibitions issued at the same time were little heeded. On the contrary, rules and customs concerning the division of booty multiplied.
The Age of Reason
The first stirrings of a wish to protect works of art were to be seen at the Renaissance. In the sixteenth and seventeenth centuries, the first references to the protection of cultural property appeared among writers on international law. Jacob Przyluski, for example, put forward the idea that every belligerent should show regard for a work of art, but not solely because of its religious nature. Alberic and Justin Gentilis held similar ideas. Beginning with the Peace of Westphalia (1648), we find more and more clauses providing for the restoration of things to their places of origin, first of archives alone and then of works of art, displaced in the course of war.
Thus appropriation of a nation’s art treasures has always been regarded as a trophy of war which adds to the glory of the victor and the humiliation of the vanquished. The practice has however often been condemned in the past going back to classical times. It is suffice to cite two modern (i.e. non classical) examples. In 1812, Sir Alexander Croke had a collection of prints and paintings returned to the Philadelphia Academy of Arts on the grounds that the arts and sciences are recognized by all civilized countries as forming an exception to the strict laws of war. To return them would therefore be in conformity with the law of nations, as practised by all civilized countries. During the wars at the time of the French Revolution, the booty of war included objets d’art and scientific objects. Restitution was made in 1815 of some of the items received as booty, when the Duke of Wellington declared that these annexations had been contrary to the practice of war between civilized nations. Similarly Lord Castlereagh in a memorandum circulated at the peace conference, maintained that the removal of works of art to France by Napoleon was “contrary to every principle of justice and to the usages of modern warfare.”
Back to the Age of Plunder in Africa
In 1897 a British expedition led by Consul James R. Phillips tried to reach Benin City in today’s Nigeria. It was motivated by the British desire to put an end to the restriction on British trade which had been imposed by the Oba (King) of Benin. In a letter written in November 1896 to the Under-Secretary of State in London, Phillips indicated that “sufficient ivory may be found in the King’s house to pay for the expenses incurred in removing the King from his stool.” The expedition was ambushed on its way to Benin City and seven out of nine members were killed. The British reaction was swift. The city was invaded and the palace where some tens of thousands of works of art in wood, ivory and bronze were kept was looted and eventually burnt down. The King was banished. The thousands of art pieces involved were first removed to London as spoils of war from where they were dispersed throughout the world. Many of the bronzes were sold by the British at auction to defray the expenses of the expedition. And “it was really owing to the initiative of the Germans, who secured the majority of the work for their own museums, that Benin became famous.” The importance of the Benin pieces was immediately recognised by the early German Africanist Felix von Luschan. Writing in 1919, he described them in glowing terms: “Benvenuto Cellini could not have cast them better and nobody else either, before or since Cellini … These bronzes are technically of the highest quality possible.” The result of the auction is that the bronzes and plaques have been scattered all over the world in museums and private collections, and is almost inaccessible to an African audience.
The Rape of Maqdala
The article in The Economist of 10 July 1999, captioned “Let’s Have Our Treasure Back, Please”, opened with the following account of the plunder of Ethiopia’s cultural treasures in 1868 by British forces: It took 15 elephants and 200 mules to carry off the loot from Ethiopia’s old capital, Magdala. The brutal sacking of the mountain-top city in 1868, Britain’s revenge on Emperor Tewodros for taking the British consul and a few other European hostages, razed the city to the ground. The hostages were released unharmed but the battle turned into a massacre and treasure hunt. Tewodros committed suicide and British soldiers stripped his body naked for souvenirs. They carted off his library and the treasures from a Coptic Christian church nearby. For £4, Richard Holmes, the British army’s “archaeologist”, acquired the crown of the Abun, the head of the Ethiopian church, and a solid gold chalice from a soldier who had looted them. The booty was collected and auctioned off near Magdala. Holmes bought 350 illuminated bibles and manuscripts for the British Museum. Other books went to the royal library at Windsor and libraries at Oxford and Cambridge. They are still there, though odd treasures have been returned – usually the less valuable one – as gestures, whenever the British needed to court Ethiopia.
BBC’s account of the sacking of Maqdala repeats that the British needed 15 elephants and 200 mules to carry away the treasures. It goes on to give its own details of the bounty carried away: “The forces left with more than 500 ancient parchment manuscripts, two gold crowns, crosses and chalices in gold, silver and copper, religious icons, royal and ecclesiastical vestments as well as shields and arms made between the 14th and 19th centuries.”
The civilized world has truly been extraordinarily brutal in her treatment of Africa and Africans. When the Italians carried to Italy as spoils of war the Obelisk Axum and the statue of Lion of Judah they were doing these things in the best tradition of Western unbridled imperialism.
The British have indeed on occasions returned some of the Maqdala loot. They include the manuscript Kebra Nagast, or “Glory of Kings” which embodied the legend of the Ethiopian ruling dynasty’s origin. Apparently they looted two copies of the MSS and returned the inferior copy.
The international rules preventing pillage were only codified in 1899 by the Hague Convention on the Laws of War (“Convention with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land.”) It was supplemented by 1907 Hague Convention on Laws and Customs of War on Land. The 1907 Convention made few major improvements from the 1899 Convention. Article 47 of the 1899 Convention simply states: “Pillage is formally prohibited.” Article 56 provides that:
The property of the communes, that of religious, charitable and educational institutions, and those of arts and science, even when state property, shall be treated as private property. All seizure of and destruction, or intentional damage done to such institutions, to historical monuments, works of art or science, is prohibited, and should be made subject of proceedings.
Thus while rules of international law preventing pillage was not codified until 1899, customary international law disallowed it as we have seen in the restitutions compelled by the Duke of Wellington and Lord Castlereagh at the Congress of Vienna in1815. By 1815 then, a new premise was enunciated to denounce the French confiscation of cultural objects from occupied territories and to justify their return upon the territories liberation following Napoleon’s defeat. There was broad agreement that the French confiscations of cultural objects were contrary to contemporary rules of law and that objects could not remain in Parisian collections. Clearly, at the time of the plunder of Benin City in 1897, and the rape of Maqdala earlier in 1868 the British rampages were contrary to customary international law. They happened because customary international law did not apply to Africans. As Ana Vrdoljak put it:
From the Congress of Vienna in 1815 to the mid twentieth century, victorious European powers sanctioned the restitution of cultural objects to territories restored following the collapse of empires. However, this recognition of the need to return ‘spoliations appertaining to those territories’ following independence did not extend necessarily to the dismantling of their own empires in the late twentieth century.
She went on to expose and explore how the seeds of the egregious nature of the double standard were planted. During the 1815 Congress of Vienna, there was little or no recognition of the scale and effect of confiscations by Napoleonic forces on communities outside Europe. This exclusion of non-European peoples from the application and protection of (European) International Law, and the universalisation of European international law into International Law, made the brutal sackings of Maqdala and Benin City normal.
The Age of UNESCO Neutered by the Legacy of the Age of Colonial Plunder
The United Nations Educational, Scientific and Cultural Organisation (UNESCO) was established in 1946. Its declared mission is to contribute to peace and security like its parent the United Nations through the promotion of international collaboration in education, sciences and culture. The unprecedented destruction of cultural heritage and the systematic sequestration of works of art in German-occupied countries prompted UNESCO to take urgent steps to protect cultural property during armed conflict. The treaty, the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict was adopted on 14 May 1954 and entered into force on 7 August 1956.
Immediately after the First World War, the League of Nations discussed the problem of illicit traffic in cultural heritage, particularly antiquities. By the end of the Second World War it had assumed alarming proportion. However priority was given to a treaty to protect cultural property in the event of armed conflict. In 1960 the campaign for an international instrument enabling the restitution of cultural objects to their country of origin, suspended because of the war, was put back on the international agenda by Mexico and Peru. However with the continuing influence of former metropolitan powers and their museums it became clear that the restitution of objects removed in the colonial period will not be contemplated. Consequently the 1970 UNESCO Convention compromised the rights of all peoples to their cultural heritage by accommodating the interests of former metropolitan powers.
It was not until April 1964 that UNESCO appointed a committee of experts to draft recommendations for a convention on illicit traffic. Four years later the General Conference of UNESCO adopted a Resolution authorising the convening of a committee to draft a Convention. The Draft was circulated for comments by Member States. In light of comments received, it was revised and sent to a Special Committee of Governmental Experts which met in April 1970 to prepare a final draft for submission to the General Conference later that year. The Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property was adopted on 14 November 1970 and entered into force on 24 April 1972.
Because of the perceived vulnerability of their museums the former metropolitan powers insisted on the inclusion of a provision confirming non-retroactivity in the 1970 Convention. Whilst no explicit provision was included in the treaty, Article 15 encourages States to enter bilateral negotiations to resolve claims for cultural objects removed before the entry into force of the Convention. The reason for the anxiety of metropolitan powers is due to the fact that during the colonial period – particularly in the nineteenth and early twentieth century – colonial officials, teachers, missionaries, settlers and adventurers indulged in collecting extravaganzas of cultural objects of the conquered people all over Africa. They carried them back to the metropolis. It was another aspect of controlling the resources of the conquered people and their identity. Ana Vrdoljak referred to the phenomenon as the “collecting frenzy of European empires”; Wole Soyinka adding: “The museums of Europe testify to this insatiable lust of Europe.” In the 1960s and 1970s after the attainment of independence the liberated African countries sought to recover symbols of the genius of their forebears as acts of firming their regained sovereignty by regaining objects of their lost sovereignty. This explains why the twelve States that sponsored the first United Nations General Assembly resolution on the subject of cultural property “Restitution of works of art to countries victims of expropriation” (Resolution 3187 of 1973) – were all African. The resolution in its preamble deplored “the wholesale removal, virtually without payment, of objets d’art from one country to another, frequently as a result of colonial or foreign occupation”; it went on to maintain in the first substantive paragraph that “the prompt restitution to a country of its works of art, monuments, museums pieces and manuscripts and documents by another country, without charge”, will constitute ‘just reparation for damage done.” In 1978, there followed “A Plea for the Return of an Irreplaceable Cultural Heritage to those who Created It”, issued by the then Director-General of UNESCO Amadou Mahtar M’Bow, himself an African. He lamented that “the vicissitudes of history” had robbed many peoples’ “priceless portion” and “irreplaceable masterpieces” of their inheritance.
Regardless of the fact that the 1970 UNESCO Convention does not have any provision for the return of cultural objects removed prior to Independence, two powerful groups, chief curators or more precisely directors of European museums, and art dealers associations were decidedly against the Convention. Several art market European countries waited upwards quarter of a century before joining the 1970 Convention. They are Belgium 2009, Denmark 2003, Finland 1999, France 1997, Germany 2007, Netherlands 2009, Norway 2007, Switzerland 2003 and United Kingdom 2002. Other European countries that are both source and market countries were quicker. They include Greece 1981, Italy 1978, Portugal 1985 and Spain 1986. The United States joined in 1983. It was the adoption in 1995 of UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects that tilted the scale toward ratification of the 1970 Convention by market European countries. The UNIDROIT Convention is complementary to UNESCO 1970 Convention.
The UNIDROIT Convention is quite an advance on the UNESCO Convention. It is sufficient to cite one example. The UNIDROIT Convention challenges legal obstacles preventing the recovery of stolen cultural property once it has entered the art market. The Convention puts the burden of proof on the holder of allegedly stolen cultural object. It provides in Article 3 (1) that the “possessor of a stolen cultural object must return it,” regardless of personal involvement or knowledge of the original theft. It further denies in Article 4 (1) any compensation for the return of a cultural object unless (1) “the possessor neither knew nor ought reasonably to have known that the object was stolen.” Thus European countries decided to choose the lesser of two evils by subscribing to the 1970 Convention.
Cultural Rights as Human Rights
In 1992 the Director General of Nigeria’s National Commission for Museums and Monuments wrote plaintively that “former colonial masters … hold in their museums the best and the most sensitive of the colonised nation’s cultural property.” He therefore urged that “the case of cultural property plundered during the colonial era should be re-examined. There is no way the former colonies can be independent when the very basis of their existence is being colonized.”
The 160 brass heads taken away by the looters among other objects are the Benin equivalent to chronological records. This is because each head represented an Oba (King), they recorded dynasties back to the twelfth century. When an Oba died, a formal head was cast in bronze as a furnishing for an altar erected to his memory. The bronzes in their thousands plundered by the 1897 punitive expedition against the Kingdom of Benin were dispersed among museums in Europe and the United States. In 2007 a magnificient exhibition Benin Kings and Rituals: Court Arts from Nigeria took place in Vienna, Austria at Museum fur Volkerkunde. It later toured Musee du quai Branly, Paris; Ethnologisches Museum – Staatliche Museen zu Berlin; and The Art Institute of Chicago. In his Introductory Note to the exhibition catalogue the Oba (King) of Benin at the time, Omo N’Oba Erediauwa, wrote with a heavy heart:
As you step into the exhibition hall today, you will behold some of Africa’s most exquisite works. But it is important to note that they were not originally meant to be mere museum pieces simply to be displayed for art lovers to admire. They were objects with religious and archival value to my people. They were made only under royal command. Whenever an event of significance took place, the Oba (King) commissioned the Igun-Eronmwon (members of the guild of bronze casters) to make a bronze-cast of it. Thus, the bronzes were records of events in the absence of photography. Those of the works, which were not made for record keeping, were made for a religious purpose and kept on altars. So, as you step into the hall today, you will be reading, as it were, the pages torn off from the book of a people’s life history; you will be viewing objects of our spirituality, albeit, you may not fully understand its import.
From 17-23 February 1997, activities were held in Benin to mark the centenary of the events of 1897. The Oba of Benin and grandson of the reigning Oba at the time of the invasion in his opening address alluded to the threat of some Bini to take the British government to the International Court of Justice over the event of 1897 in order to get a judgment for the British government to repatriate the looted works of art. While appreciating the good intention of such Benin people he cautioned that this is not a matter to be taken to the International Court of Justice or any court of law, even if those contemplating it could be able to finance such actions. Pointing out that success has been achieved in many international issues through what is known as quiet diplomacy, the Oba added: “At this very moment, I am happy to say, I am in contact with some eminent people in London who are supportive to our cause and seriously helping”. But it was a dialogue with the deaf. In this relationship, economic considerations have always trumped human rights. The various treaties entered into by the British in West Africa did not recognise the sovereign rights of Africans to their cultural property.
Economics Trumping Human Rights
Henry Cole the first director of Victoria and Albert Museum (originally known as South Kensington Museum 1852-1899) held the view that the physical possession of exemplary cultural objects was a source of national wealth. Paul Bator in his 1982 then seminal Essay on the International Trade in Art, enthusiastically supported this commoditization of culture posit. He held that cultural objects are exploitable commodities and classified them as part of the national patrimony. He used a prominent example of a most contentious restitution battle to clinch his controversial case.
The Elgin Marbles are part of England’s national patrimony. All such works of art are part of the national capital: they generate income (by attracting tourists, etc.) and they can produce social and psychological benefits for a country and its inhabitants.
The Bator thesis ignores the fact the best and most sensitive of African cultural heritage are in the West. While the thesis accommodates the “social and psychological benefits” of those who plundered it, it ignores the social and psychological dysfunction and deprivation of those whose ancestors made the objects. The scant attention always paid to the effect of the dispossession of former colonial peoples leaves very much to be desired. Prince Edun Akenzua, in his contribution to Whose Objects?” the catalogue of exhibition of Benin objects at the Museum of Ethnology in Stockholm on this aspect said:
I should like to point out the works were not intended for museums or galleries. Most of them were made to record events in the lives of the people. In other words, they were records of our people’s life. The others were made for religious purpose and kept on altars.
President Macron’s Declaration and British Intransigence
On 28 November 2017, President Emmanuel Macron of France speaking to students at the University of Ouagadougou, Burkina Faso, said: “I cannot accept that a large part of the cultural heritage of several African countries is in France…. I want conditions to be met within five years for temporary or definitive restitutions of African heritage to Africa.” Three major European countries with a colonial past in Africa; Belgium, Germany and Netherlands have since announced between 2018 and 2019 that they would consider restitution of cultural objects in colonial collections which had been looted during the colonial period. For example, in March 2019 the culture Ministers of Germany’s 16 States agree to create conditions for the repatriation of African colonial cultural objects in public collections that were taken “in ways that are legally or morally unjustifiable today.” They described their return as “an ethical and moral duty.” The British however remain obdurate. Mr. Jeremy Wright Britain’s Culture Secretary was reported by the London Sunday Times to have rejected President Macron’s view that African cultural objects should be returned to their countries of origin. He argued that there is real cultural benefit to the world in seeing objects from different civilizations in one place. If you follow the logic of restitution to its logical conclusion, there would be no single points where people can see multiple things he added. But it is simply scaremongering and not true that anyone wishes to push the restitution project to its logical conclusion. The universal museum pretext is now quite discredited and the British resistance is indeed pitiful and deplorable. They are not the only country with universal museums. And they must stop being in denial of the crimes of colonialism.
Imperial Rule of Law
The non recognition of sovereign rights of Africans to their cultural property condoned by the various treaties with the kingdoms that are now part of Nigeria, and the non applicability of customary international law to Africans and other colonised peoples laid the foundation of the imperial rule of law. It is now taken for granted by some curators that the Benin Bronzes no longer belong to the people of Benin. Two jarring examples will be given. In 2010 the booklet of the Benin objects exhibited at the Museum of Ethnography, Stockholm, is facetiously titled Whose Objects? One is reminded of the effrontery for several decades of naming the marbles plundered from the Acropolis after the plunderer Elgin christening them Elgin Marbles! If this can be done to a fellow European country (Greece) in the name of chauvinism why can it not be done to a country of “lesser breeds without the Law?” as Rudyard Kipling, the poet of British Imperialism put it in his 1897 poem Recessional.
The second example is from the Benin Dialogue Group. In December 2010 the workshop “New Cultures of Collaboration. Sharing of Collections and Quests for Restitution: the Benin Case” was organized in Vienna at the Museum of Ethnology. The workshop was between Nigerian museums officials and curators of European museums including British Museum, Ethnologisches Museum Berlin, and Museum of Ethnography Stockholm. The Group has met five times in Vienna, Berlin, Benin City, University of Cambridge, and Leiden. In its statement at the conclusion of the last meeting in Leiden in 2018 the Group did a somersault and abandoned the issue of restitution which was a prominent feature of the first meeting in Vienna. The Group declared that it “is not part of the business of the Benin Dialogue Group” to concern itself with “the eventual return of works of art removed from the Royal Court of Benin.”
Nigeria has emphasized the moral duty of current holders of the Benin objects to atone for their plundering of the cultural heritage of Africa during the colonial period, or being accessory after the fact. Specifically in his letter to the British Parliament Prince Akenzua contended that Britain being the principal looters of the Benin Palace, should take responsibility for retrieving the cultural property of the Bini or pay monetary compensation.
The response of the British Museum for the return of the Benin Bronzes has always been legalistic as it is in the case of the Parthenon Sculptures. And it is flawed. The British argument brings to mind the dark side of the rule of law as documented by Ugo Mattei and Laura Nader in Plunder: When the Rule of Law is Illegal. Using the concept of the rule of law to justify non-return is tantamount to justifying illegality with the aid of imperial rule of law that demeans the “lesser breeds without the Law”.
UNESCO Conventions on cultural heritage emphasize that cultural property belongs to all humanity. It was a small step to arguing that as a matter of human rights cultural objects expropriated in the colonial period should be returned. Indeed, in 1981 a member of UNESCO Intergovernmental Committee for Promoting the Return of Cultural Property to its Countries of Origin or its Restitution in Case of Illicit Appropriation from Panama who was unable to attend the second session of the Intergovernmental Committee in a telex message read to the session concluded it by asserting: “The right [of dispossessed countries] to the cultural heritage is one of human rights, let us defend it.” M’Bow in his 1978 Plea had argued that: “The men and women of these countries have the right to recover these cultural assets which are part of their being.” On 7 December 1999, Theo-Ben Gurirab, Foreign Minister of Namibia and also at the time President of the United Nations General Assembly in a discussion in the General Assembly on the issue of return of cultural objects maintained that “the lapse of time did not diminish ownership or the need for restitution.”
Restitution is the proper solution to the return of iconic cultural objects wrongfully acquired in colonial times and in war. Whatever the legal basis of these acquisitions in international law, the usurpation of the identity and history of a people should be seen as intolerable and genuine efforts made to reverse the supremacy of the rule of plunder. Legal Darwinism should give way to true rule of law.