Law and the Challenge of Rehumanization

The report “We want them back”, published earlier this year, found at least 5958 human remains from colonials contexts in the collections of museums and scientific institutions in the geographical area of Berlin. The report, commissioned by the Berlin Senate, is the first systematic survey of the provenance of human remains from colonial contexts in Berlin’s institutions. This number of human remains stands for persons, whose bodies were brought to Germany under varying circumstances, of which most if not all had in common that they disrespected the will of the deceased or their next of kin: persons who were killed in the atrocities accompanying military expeditions in Tanzania, who died in so-called concentration camps in Namibia and whose bodies were sent to Germany by the colonial administration, who had been excavated from village graveyards, or who were traded from an unclear origin under more or less similar circumstances.

The German constitution provides for a basic standard of dignity applying to the human body also post-mortem and, in principle, regardless of the different circumstances of the individual case (Art. 1 I of the German Grundgesetz – postmortaler Achtungsanspruch). It follows from this standard that the human body may never be treated as a mere object. In addition, as also the German Museums Association’s (GMA) guidelines regarding the care of human remains in museums and collections point out, human remains still subject to commemoration (Totenehrung) may be considered “res extra commercium”, and thus cannot be owned or traded. As always, the legal devil will be in the details, but the above considerations prompt a number of questions: Why – given the history – are these human remains still here?  Where is the systematic effort to repatriate them and return them to their families and communities of origin?

The politics of repatriation

A first, however general, reply is that a nation-wide, systematic effort to determine the provenance and repatriate the human remains in German collections is still missing. Repatriation practitioners currently still struggle with both the law and the facts: There is no comprehensive public inventory available for the descendants still looking for their next of kin. Moreover, the staff of the museums and research institutions has no clear statutory basis to rely on, which would provide a certain level of legal clarity regarding how to handle repatriation requests while upholding the fundamental rights of the deceased and their descendants. There is meanwhile a declared political will to repatriate human remains: In March 2019, the Conference of the Ministers of Education and the Arts  of the German Federal Republic and the German Länder (Kultusministerkonferenz) agreed on the so called “Eckpunktepapier zum Umgang mit Sammlungsgut aus kolonialen Kontexten“. This non-binding policy paper for the first time clearly stated that human remains stemming from colonial contexts must be returned. However, several aspects indicate that the described problems may persist. The existing programs for provenance research largely rely on the voluntary cooperation of museums and research institutions and they focus on public collections. As a result, institutions which are not willing to cooperate, can simply decide not to conduct any provenance research at all. What is more, provenance research is costly and time-intensive. Museums and research institutions with limited resources might thus be tempted to dedicate these resources to other fields. Split administrative responsibilities between the different units responsible for the collections add their part to an environment, which is not conducive for successful repatriation requests, to say the least.

Handling human remains from colonial contexts as a legal problem

Against this background, the following questions gain particular relevance in the field of law: Are institutions legally obliged to repatriate human remains? Is their possession at all legal? And what would be the right of those demanding the repatriations of human remains?

Despite a quite extensive jurisprudence on post-mortal rights, German courts haven’t decided a case involving human remains from colonial contexts so far. But the existing jurisprudence in cases dealing with human remains of more recently deceased persons suggests that several aspects about the possession of the colonial human remains are legally problematic. This follows from the importance placed therein on the actual or supposed will of the deceased and the dignified handling of the human remains. Likewise, the high standards of treatment for those remains of persons who are still subject to mourning suggest that the current handling of remains from colonial contexts is legally problematic.

Since any public institution is bound by the principle of legality (Rechtsstaatsprinzip, Art. 20 III GG), considering this legal context is legally mandatory when dealing with human remains.

Blind spots of the guidelines of the German Museums Association

The guidelines of the German Museums Association (GMA) provide a glimpse into the currently prevailing legal view of museums and research institutions. Although helpful in this regard, a closer view is rather disheartening when it comes to applying the guidelines to the case at hand: The legal status specifically of human remains from colonial contexts still seems to be a blind spot in legal practice.

There are two guidelines published by the GMA, which apply to human remains from colonial contexts: The guidelines regarding the care of collections from colonial contexts, and the guidelines regarding the care of human remains in museums and collections. Readers of the legal chapters of the guidelines on human remains will find a description of the legal framework applying to all kinds of remains, ranging from archeological findings to school skeletons. They are correctly informed that the way a deceased person is displayed needs to consider the basic standards of human dignity. The guidelines also touch upon the tension between the commemoration of the deceased and the property of human remains: human remains still subject to commemoration and mourning (Totengedenken) cannot be owned or traded. The legal question when a human body loses this protection and finally becomes a part of the world of things is still a grey area and only partly addressed in existing jurisprudence

Application of the standards to colonial contexts?

What remains unclear, however, is what follows from these standards in cases involving human remains from colonial contexts. For example, German courts put a strong focus on  the will of the deceased regarding the question how their body should be dealt with after their death. It is very clear that the bodies should not be displayed against the declared will of the deceased. Yet, this is precisely the case for most human remains from colonial contexts, raising serious legal problems, which remain unaddressed.

In a similar manner, the guidelines describe scientific exhibitions as a mostly unproblematic case of displaying human remains. Again, this statement is clearly not coined for colonial contexts, which often involve highly problematic understandings of science. Likewise, the guidelines mention that restrictions in the handling of human remains due to an ongoing mourning and commemoration of the deceased (Totenehrung) usually cannot be expected to apply for people who passed away a long time ago. This may be true for the standard example of an unidentified, archeological skeleton. The delicate and relevant question of how to deal with cases like the prominent one of Mangi Meli remains open: Mangi Meli was a leader of the resistance against the German colonizers in Tanzania. He was executed by the German military and his head was taken. Until today, his descendants search for this head and mourn Mangi Meli, who is considered a homeless soul is his culture until his body is buried.

As mentioned, there is another, recently published, set of GMA guidelines that deals specifically with collections from colonial contexts. However, turning to these guidelines with the questions just sketched in mind is not very illuminating either: The legal chapter provides a comprehensive description of the historic development of German colonial law, followed by a section dealing with the problem of tracing back property relations until the time of acquisition of the respective collections. Other chapters deal with the question, whether the collections were obtained in a “context of injustice”(Unrechtskontext). For cases involving human remains, this information is largely irrelevant, as most of the legal challenges already arise from the fact that we are dealing with unburied bodies of persons, who may still be subject to mourning, without their consent. Interestingly, after years of debate, what is still missing is a thorough assessment of how to legally deal with only human remains, not only with collections from colonial contexts but precisely with human remains from colonial contexts.

Constitutional law and the challenge of rehumanization

The sketched prevailing view considers both human remains and cultural artefacts as falling in the same category of “collections” (Sammlungsgut). This labeling of human remains and cultural artefacts primarily as objects in collections is a problem. Cultural artefacts and human remains from colonial contexts share a problematic history, but they are far from being the same.

The differences between the two play a relevant role, also from a legal perspective. As we have seen, the framing of human remains as objects in collections risks precluding relevant legal questions. These are, for example, related to the legality of the possession of the taking of a body from the next of kin against the explicit will, the continuing mourning and sometimes generation long search for the person, the at times undignified storage of such persons like objects in boxes, the lack of effort to identify and bury the deceased over decades for the legality of the possession.

On a more fundamental level, the treatment of human remains as Sammlungsgut seems to be in a tension with the so called Objektformel of the Federal Constitutional Court.  According to this  standard  any treatment of a person which degrades them to an object violates the right to human dignity (Article 1 of the Grundgesetz). It has been clarified in the jurisprudence of German courts that this standard applies to the handling of any dead human body regardless of the further circumstances of the case.

An inspiration for a possible way forward, which is very much in line with the described constitutional standards, may be found in the social sciences. Here, successful repatriation processes have been described as processes of rehumanization. Rehumanization – fully and consequently taking into account that what we are dealing with is a human being, a subject not an object of the law – is what still needs to happen in the legal departments dealing with these cases.

Practical outlook: On the power of (not holding) information

A question prompted by the above is: If the legality is in question, where are the court cases demanding repatriation or, in the language of German national law, the surrender (Herausgabe) of the bodies of the deceased? One should be cautious to consider this lack of legal proceedings as an indicator of a lack of interest of the communities of origin, because the practical and procedural hurdles for bringing such a transnational court case are extremely high.

To bring a successful claim, the plaintiffs – among other requirements – must fulfill a double task: They have to establish, according to German procedural legal standards, that the conduct of the defendant might violate their individual rights (Klagebefugnis). In addition, they have to show that the human remains possessed by the respective institution are those of the deceased person they are looking for. In a select number of cases, the first task could be achieved by showing that the plaintiffs qualify as next of kin of the missing deceased person, i.e. by drawing on old registers of churches. The second task – linking the human remains searched for to the defendant – is an even bigger challenge. It involves information needs to be provided by the defendant, or even worse – if no survey of the origin of the human remains has been conducted – information needs to be gained in the first place Additional legal hurdles are related to the costs of the proceedings, prescription periods, and also the length of court proceedings.

It is arguably only a limited set of persons who would find such a procedure a meaningful option. Still, such a case could be successful and filing it could put pressure on the responsible institutions and the legislator to make a more systematic effort to enable repatriations. Last, but not least, it would put the rights of the deceased and their descendants in the center of the proceedings and thus contribute to create what is still needed: A shift in perspectives that finally recognizes that repatriation is not only a matter of political discretion, but about the rights of the deceased and their living next of kin.