UN Criminal Courts – Preserving the Records

Renee Dopplick
International Law Blog Postings
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World-renowned archivist Trudy Huskamp Peterson is on a campaign for the preservation of and access to records of the temporary international criminal courts. She spoke in Washington, D.C. on 31 March 2006 at the American Society of International Law, during its centennial meeting, and again on 15 June 2006 at a private lunch. She addressed the legal, political, and archival issues influencing the retention of historical documents generated by temporary commissions and courts, which, by mandate, were designed to go out of existence. Because the mandates are generally silent on the retention and preservation of records, the United Nations and individual governments lack clarity on who gets to retain long-term official custody of data archives. Should the United Nations establish and maintain a global institutional repository for archives of temporary commissions and courts? Alternately, should domestic archival, property, or intellectual property laws govern? Who gets to decide what, when, where, and how to store records, and under what authority?

Proposed Centralized Repository under the UN

Peterson advocates for a centralized repository, under the auspices of the United Nations, to retain, preserve, and manage the archives of the temporary international criminal courts. The repository would contain the original records and could be located on any continent. A permanent staff of lawyers, preservationists, and librarians would maintain the records.

Scope
The scope of the archives would be limited to temporary international criminal courts, including truth commissions. Temporary international criminal courts include the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the Special Court for Sierra Leone. The scope would also include other transitional judicial entities, such as the East Timor Serious Crimes Investigation Unit (SCIU), which was established in 2000 and staffed primarily by UN-appointed international prosecutors and judges. Additionally, the scope would include archives from past, present, and future truth commissions, such as the National Truth and Reconciliation Commission of Chile and the Commission on the Truth for El Salvador. The repository would not be responsible for the archives of the International Court of Justice (ICJ) or the permanent International Criminal Court (ICC).

The archives would include physical records and objects created by the courts, as well as those received by them. This includes administrative, program, and investigative records. Physical records include papers, emails, websites, databases, maps, drawings, photographs, audiotapes, and videotapes. Physical objects include exhibits, such as x-rays, models, artifacts of clothing, and personal belongings, used in the hearings.

Controversially, Peterson asserts that not every record needs to be retained. She takes a pragmatic approach of balancing archival purposes with the costs involved in preservation, duplication, and maintenance. For example, one hour of ICTY court proceedings can generate fourteen audiotapes/videotapes. Duplication of audiotapes and videotapes is expensive. Thus, saving every record could require budgets to be allocated inefficiently and could create prohibitively expensive demands in the future.

She recommends that all records should be retained for at least the first case and cases involving the most important defendants. This retention policy would allow future users of the archives to contrast the important cases with the initial formation of the court. For other cases, she proposes that records should be retained on a discretionary basis. In contrast, archival purists require the retention of all records because of the implications to future users of the information.

National Archives – decentralized copies
To satisfy the desire by countries to access records in the originating country, copies of the original physical records, with the exception of classified information, could be provided upon request for national archives. The successor state could establish its own laws, regulations, and policies for the maintenance of and access to those physical records. If a copy is lost, damaged, or destroyed, the country could request a replacement copy. Thus, the proposed system permits duplication of unclassified information and different preservation and access rules by national archives.

Advantages
The advantages of a centralized system with decentralized copies include:

  • Encourages cost-efficient staffing and storage
  • Promotes research across temporary international criminal courts
  • Provides a means for continued official custodial protection of records
  • Ensures a secure storage area, away from areas of conflict, to prevent looting, tampering, and destruction of records

Disadvantages
The disadvantages of a centralized system with decentralized copies include:

  • Maintains sensitive records of a country’s repressive regimes outside the country’s control
  • Provides limited, not comprehensive, archives in successor states
  • Relies on the United Nations for access to records, privacy rules, and security reviews

Resources

United Nations – Permanent Courts

Temporary International Criminal Courts

Truth Commissions (partial list)

Organizations

Books

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