Archival commentaries 2018
January: DNA records and parentage
Did you read the article about the twins, both boys, born 4 minutes apart, one of whom is a U.S. citizen and one is not? If not, here is a summary: A legally married male same-sex couple, one with dual Canadian-U.S. citizenship and the other an Israeli citizen, were living in Canada. Wanting children, they combined an anonymous donor’s eggs with the sperm of the two men, and a surrogate “carried and delivered” their twins 16 months ago in Canada. The couple decided to move to California, so they went to the U.S. Consulate in Toronto to get U.S. passports for their sons, bringing their marriage certificate and the twins’ birth certificates. The consular official said the U.S. Immigration and Nationality Act requires “a blood relationship between a child and the U.S. citizen parent in order for the parent to transmit U.S. citizenship” and told the U.S. citizen that he “would have to undergo a DNA test to prove a biological link to each twin,” the Los Angeles Times reported. The results of the test showed that one of the twins is the biological son of the U.S. citizen and the other is the biological son of the Israeli citizen. Armed with that information, the U.S. issued a U.S. passport to one twin and denied the other. The couple, now living in California, are suing the U.S. government. http://www.latimes.com/local/lanow/la-me-ln-twins-citizenship-20180127-story.html
Think for a minute of the number of babies who may have been conceived outside a verified system of parentage: for example, heterosexual couples who use assisted reproduction in a foreign country; the non-citizen wife who has an affair with another non-citizen but whose husband is a citizen (laws in many jurisdictions presume a husband is the father of his wife’s children). The possibilities are, today, quite endless. In the past, would any consular official or registrar even think of asking for documentation of biological parentage? But now, because DNA tests are common, a new element has arisen: the record of DNA testing.
Archivists have long argued that knowing your past is an important element in a healthy life, whether of the person or the nation. Records of DNA tests challenge that assertion. People who take a DNA test learn the scientific makeup of the genes they carry, and testing companies will provide a list of countries or regions where the predominant genetic traits match their genetic makeup. As the Washington Post recently reported, surprising DNA test results elicit “a range of emotions,” from joy to curiosity to denial. https://www.washingtonpost.com/local/social-issues/they-considered-themselves-white-but-dna-tests-told-a-more-complex-story/2018/02/06/16215d1a-e181-11e7-8679-a9728984779c_story.html?utm_term=.65723a923a45 The ability to “reverse engineer” the DNA of the dead (see “medical records” below), the ambitious project of the World Economic Forum to create a databank of DNA of all living things (same section) and the Guatemala project to create a national DNA bank (“Guatemala” below) mean that the unsettling of personal assumptions of “who I am” is sure to continue. And as archives, like that of the International Committee of the Red Cross, begin to manage quantities of DNA records, archivists will continue to be central to the stories of genetics and geography that people tell about themselves and their families.
February: Artificial intelligence and the data that trains it
In a Russian history class I once took, the émigré professor insisted on a distinction between intellectuals and intelligentsia. Intelligentsia, he said, were people with education, but what distinguished them was their status as a group possessing influence in society. Intellectuals, on the other hand, were, well, just smart.
Artificial intelligence is all over today’s news. It combines the professor’s two definitions: it is smart (it has a huge memory, it makes decisions based on its memory) but the way it is smart reflects the social class of the people who had the power to build it. Just look at two examples:
*Researchers in the U.S. found that “three commercially released facial-analysis programs from major technology companies demonstrate both skin-type and gender biases.” In a set of photos, the artificial intelligence programs correctly identified white males as white males more than 99% or the time, but only 65% of the time correctly identified darker-skinned females. The probable reason: the data set used to “teach” the artificial intelligence was heavily male and white. http://news.mit.edu/2018/study-finds-gender-skin-type-bias-artificial-intelligence-systems-0212
*Human Rights Watch reported that authorities in China’s Xinjiang province are using big data analysis for a “predictive policing” program which “aggregates data about people—often without their knowledge.” The data is gathered from an enormous variety of sources, ranging from surveillance cameras to “wifi sniffers” to information obtained during home visits. Persons have been detained because the software identified them as potential threats. https://www.hrw.org/print/315321
Advocates argue that artificial intelligence algorithms can successfully take on questions as varied as identifying depression in people by analysis of facial expressions, reducing snarls in urban transport, pinpointing crime hotspots and upgrading slums. http://news.trust.org/item/20180228105555-8071d/; http://news.trust.org/item/20180227163731-j2fe9/ Medical researchers are rapidly adopting artificial intelligence tools, as a look at any recent issue of HRWG News will show.
Artificial intelligence relies on information, both the type of data selected to “teach” the programs and the data against which the programs run. And artificial intelligence produces information, such as when to arrest people in Xinjiang or to treat an illness. Archivists must be involved both in ensuring that the inputs are reliable data and in preserving the results. We have to get this right: people’s lives literally depend on it.
March: Borders and fences: Keeping out and keeping in.
Borders and edges, boundaries and walls and fences: they simultaneously keep out and keep in. On a farm, for instance, the yell, “The cattle are out!” means everyone rushes to round up the animals and get them back safely inside the fence where they belong—that is, keep them in. Or think of the Iron Curtain, which was erected to keep in, for example, the East Germans who might have strayed to the West. Then there is the fence that keeps out: your neighbor’s dog does not come in and jump on your toddler; the U.S. president wants to build a wall to keep Central Americans from entering the U.S.
Borders featured in disputes in March. Bolivia brought a case against Chile at the International Court of Justice, trying to “reclaim its coastal territory from Chile” to gain access to the Pacific Ocean, which it lost in the 1904 peace treaty that ended the 19th century War of the Pacific. Landlocked, Bolivia wants the court to order Chile to “negotiate in good will” over access to the sea because the 1904 treaty was “signed under duress.” In the early 1970s the two countries, both under dictatorships, worked together in Plan Condor, the South American states’ coordinated hunt to eliminate anyone linked to left-wing ideas. In 1975 Chile entered into negotiations with Bolivia and proposed an exchange of territory that would give Bolivia a corridor to the sea, but the negotiations broke down and the two governments have not had formal diplomatic relations since 1978. The attitudes of the people living in the proposed area whose citizenship would change from Chilean to Bolivian do not seem to be part of either state’s argument. https://www.telesurtv.net/english/news/Bolivias-Morales-Asks-for-Just-and-Accurate-Ruling-in-Sea-Access-Claim-20180319-0007.html?utm_source=planisys&utm_medium=NewsletterIngles&utm_campaign=NewsletterIngles&utm_content=10; https://www.telesurtv.net/english/news/Chile-Rebukes-Bolivia-at-International-Court-of-Justice-Denies-Being-Isolationist-Villain--20180322-0003.html?utm_source=planisys&utm_medium=NewsletterIngles&utm_campaign=NewsletterIngles&utm_content=10 ; https://www.telesurtv.net/english/news/Bolivia-to-Chile-at-International-Court-of-Justice-You-Took-Our-Coast-by-Force-20180326-0005.html
Across the Pacific, Australia and Timor-Leste signed a treaty, mediated by a commission established under the UN convention on the Law of the Sea, defining the permanent maritime boundary between them. The border was seen by Timor-Leste as an issue of sovereignty, while Australia “sought a boundary that was aligned with its continental shelf.” The basic question, however, was the exploitation of the oil and gas fields between the two countries and the associated pipeline and processing plants. In the background was the 1989 Timor Gap Treaty that was signed between Australia and Indonesia, while Timor-Leste was still ruled by Jakarta, and the 1972 “continental shelf boundary” agreement between them. Timor-Leste has yet to reach an agreement with Indonesia on its maritime boundaries, and Timor-Leste’s petroleum minister said those negotiations could be “complicated.” http://www.eurasiareview.com/28032018-timor-leste-australia-maritime-boundary-treaty-victory-for-dili-analysis/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+eurasiareview%2FVsnE+%28Eurasia+Review%29; http://www.eurasiareview.com/14032018-bullied-relations-australia-east-timor-and-natural-resources-oped/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+eurasiareview%2FVsnE+%28Eurasia+Review%29
In Europe, Kosovo’s parliament ratified the border with Montenegro, which the European Union required for Kosovars to gain visa-free travel to the EU states. https://www.balkaninsight.com/en/article/xx-kosovo-parliament-approves-montenegro-border-deal-03-21-2018 Meanwhile, the border disputes in Kashmir, in Ngorno-Karabakh, in Gaza, and in war-torn Syria continue to foster death and despair.
Settling disagreements by international courts or mediation is surely preferable to continued conflict. In preparation for such negotiations, it is helpful if not essential for communities to build “collective territorial viewpoints.” The techniques and resources outlined in the Manual of Collective Mapping: Critical Cartographic Resources for Territorial Processes of Collaborative Creation by the Argentine team of Julia Risler and Pablo Ares are useful tools in such processes. https://issuu.com/iconoclasistas/docs/manual_mapping_ingles Whether mapping the location of oil and gas, the route to the sea, or a fence between neighbors, a border line is socially constructed, and its acceptance depends on acknowledging the human rights of people who live on both sides of it. Archives maintain the drawn maps and the treaties, but those documents, important as they are, only recognize the current political reality. It is the intertwined social threads that make a boundary real, even if the cattle do get out.
April: The New York Times and the ISIS Files
The New York Times obtained 15,000 internal Islamic State (IS) documents, including at least two CD-ROMs, from recent battle sites in Iraq, mainly around Mosul. Some came from offices, others from store rooms or abandoned briefcases. The journalist got the materials during five trips to Iraq in a little over a year. She said her team “lifted up the mattresses and pulled back the headboards of beds,” “rifled through the closets, opened kitchen cupboards, followed the stairs to the roof and scanned the grounds.” As a rationale for taking the materials she wrote, “Iraqi security forces nearly always accompanied our team. They led the way and gave permission to take the documents. In time, the troops escorting us became our sources and they, in turn, shared what they found, augmenting our cache by hundreds of records.” https://www.nytimes.com/interactive/2018/04/04/world/middleeast/isis-documents-mosul-iraq.html
After the Times article on the “ISIS Files” appeared, Al Jazeera published an opinion piece by Iraqi writer Sinan Antoon headlined, “How the NYT partook in the plunder of Iraq.” He argued that the documents belong to Iraqis: “Why have they been deprived of troves of documents containing evidence of crimes committed against them?” https://www.aljazeera.com/indepth/opinion/nyt-partook-plunder-iraq-180424100839509.html
This is a complicated archival fact situation. Whose documents are these? Who had the authority to give them to the Times? What use will be made of them? What are the interests in the long term disposition of the records? To whose history do they belong?
Under common law in the United States, anyone can take abandoned property. The Times journalists likely were operating under this assumption. I do not know whether Iraqi law covers abandoned property or, if it does, what it says. However, the security forces that accompanied the Times team should have known their own law as well as the property restrictions in the laws of war. And even if they did not, they are officers of the Iraqi government; therefore, the government had knowledge of the existence of the materials and either had actual control of them or could have chosen to control them. The security forces must have understood that these materials could be used in trials of IS participants. They lacked authority to give away the materials.
Given the locations searched, it is likely that personal papers and perhaps private business records are in the cache of materials. If so, they probably were left behind by people fleeing destruction who hoped to retrieve them some day. Not truly “abandoned,” they should not be converted to the finder’s personal property.
The destruction wrought by IS in Iraq is catastrophic. The records of the way the country was administered and the violence against the population are an essential part of Iraq’s history. They need to be returned to Iraq. If they are personal papers or private business records swept up in the process, they should be returned to the person or family or business owner, not the government.
Deciding when and to whom to return the materials is an important step. Iraq has a functioning national archives; however, if the IS materials are to be used in criminal cases the judicial or prosecutorial archives would need to be strong and stable enough to handle these sensitive records. The International Council on Archives’ Working Document “Basic Principles on the Role of Archivists and Records Managers in Support of Human Rights” says, in Principle 18:
Institutions and archivists should cooperate with institutions and individuals in other countries to manage and settle claims about disputed displaced archives in a spirit of fairness and mutual respect. If returning displaced archives is likely to risk their destruction, their use for repressive purposes, or will place at risk persons whose actions are reflected in the archives, return should be postponed.
Until an appropriate, secure Iraqi institution is identified to receive the materials, postponement is a reasonable choice. During that interim, however, the materials should be held by a neutral party in a safe haven repository.
May: Faith, conflict and archives
With a wave of her wand Circe turned Odysseus’s sailors into pigs—at least, that’s what Homer told us. Circe was a witch. http://www.theoi.com/Text/HomerOdyssey10.html
Witches are having a moment in the spotlight right now. U.S. President Trump regularly calls the investigation into Russian actions in the 2016 U.S. presidential elections a “witch hunt.” Any number of men accused of sexual harassment claim to be the victim of a “witch hunt.” A law firm in England is accused of conducting a “witch hunt” against British troops who served in Iraq. https://www.telegraph.co.uk/news/2018/05/14/british-soldiers-face-new-witch-hunt-law-firm-lodges-hundreds/ Check today’s news feeds and see how many references you find.
While the figure of speech is common, it hides the real problem of harm caused to people today accused of witchcraft. In 2009, Gambia’s leader “ordered security forces to round up hundreds of ‘sorcerers’” and over the next seven years, victims told the Washington Post, “armed soldiers targeted poor, elderly farmers, forcing them to drink a hallucinogenic liquid before pressuring them into confessing to murders by sorcery,” leading to “a pattern of kidnappings, beatings and forced confessions that have had lasting health implications for survivors and resulted in several deaths.” https://www.iol.co.za/news/africa/gambia-still-haunted-by-dictator-jammehs-witch-hunts-15210039 In Cameroon, where the health ministry estimates that sickle-cell disease is responsible for 16% of all deaths of children under five, Thomson Reuters Foundation interviewed 19 people with sickle-cell disease, of whom “16 said they were called ‘sorcerers’ and ‘devils’ as children, abandoned by their fathers and subjected to ‘demystification rituals’ that could have killed them.” A woman who murdered her 5-year-old son stricken with sickle-cell disease said she was told by traditional healers that he was a sorcerer who “came into the world to torture you.” http://news.trust.org/item/20180528000119-t2o29/
The reality is that the ancient belief in witches has never gone away, and European pagan traditions have had a renaissance in the latter half of the 20th century as Wicca, a decentralized religion. Prejudices against witches are akin to the religious racism found in persecutions of one or another faith-based group in every geographical location. Mosques are attacked in the U.S.; a synagogue in Sweden was attacked in 2017; in May a family of suicide bombers attacked Christian churches in Indonesia killing 13 and injuring dozens https://edition.cnn.com/2018/05/13/asia/indonesia-church-attacks-surabaya/index.html; a church was attacked in the Central African Republic and in retaliation a mosque was burned; Hindus who were attacked in Pakistan in turn attacked Sikhs; Buddhists attacked Muslims in Sri Lanka: the list goes on and on, not to mention intra-faith conflicts such as that between Sunni and Shia.
While these may be actions by private groups, governments are also complicit. In 2014, the nongovernmental Pew Research Centre found that 18 of the 20 countries of the Middle East and North Africa criminalize blasphemy (lacking reverence for the sacred) and 14 criminalize apostasy (abandoning faith), with legal punishments ranging from fines to death. http://mpc-journal.org/blog/2018/05/15/atheists-in-muslim-majority-countries-between-inclusion-and-exclusion/ The persecution of Baha’i adherents in Iran was the subject of a February 2018 protest to the government by international legal experts (see HRWG News 2018-02). In Russia in May, Jehovah’s Witness homes were targeted in 28 new raids leading to “detentions, house arrest, travel restrictions, and criminal charges.” eurasiareview.com/28052018-russia-jehovahs-witness-homes-targeted-in-28-new-raids-now-20-criminal-investigations/ Also last month the Supreme Court in Chad required government members to be sworn in on either the Koran or the Bible, and when one non-Muslim refused to swear on the Bible the Supreme Court fired him. https://www.crisisgroup.org/crisiswatch/print?utm_source=Sign+Up+to+Crisis+Group%27s+Email+Updates&utm_campaign=80e70f1737-EMAIL_CAMPAIGN_2018_06_01_12_45&utm_medium=email&utm_term=0_1dab8c11ea-80e70f1737-359425329&t=Crisiswatch+May+2018&crisiswatch=6122&date=May+2018
With this destruction of persons and places comes destruction of the records of faith. Archival associations seem to know very little about the preservation of faith-based records other than those of Christian and Jewish groups. A quick review of the 590 members of the Society of American Archivists’ Section of Religious Collections turned up only a few members representing Jewish institutions and one Baha’i, while of the 74 members of the International Council on Archives’ Section of Archives of Faith Traditions (where it is much more difficult to identify representation), the overwhelming majority of members represent Christian groups. And yet we know all faith-based organizations and schools and fellowship bodies keep records, of adherents and rituals and rites. How are the records of these bodies preserved? What condition are they in? The professional associations appear not to know. As important as faith is to human society and as much conflict as it sparks, surely we must make sure that the evidences of those faith activities are well and truly preserved, just as we must make sure that the records of religious persecution are available for justice measures.
Meanwhile, I am taking a good look at pigs. You never know: one might turn out to be a sailor.
June: Special courts and the archival ingredient
Quincy Wright was an early 20th century U.S. international law scholar. During World War I, as he thought about a possible League to Enforce the Peace, he told his father that such a League should have, as a slogan, “for political questions, conference rather than coup. For legal questions, court rather than correspondence” (italics in original, quoted by Daniel Gorman in “International Law and the International Thought of Quincy Wright, 1918-1945,” Diplomatic History 41:2 (2017), 336-61.)
Wright was referring to the discussions on establishing an international court for the “peaceful settlement of international disputes,” which was created in 1920 as the Permanent Court of International Justice. Nations today have taken to heart the idea of court to enforce peace within the polity and strikingly often are creating special courts to handle certain kinds of cases. In May Sri Lanka created a special court to hear corruption cases; in June Ukraine established what it termed an “anti-corruption” court. Also in June, the Central African Republic created a special criminal court to investigate war crimes and crimes against humanity, while Columbia’s Congress passed a “final” law on the courts known as the “Special Jurisdiction for Peace” (see below for citations). The new courts, like the then-new Permanent Court of International Justice, have an immediate, acute need for good archival operations. No court can legitimately judge without evidence, and the prosecutors and the defense counsel equally need good record-keeping systems to litigate cases successfully, whether in a civil or common law system or in a blend of both.
Further, when the court is closing, the judges, the registrar, the prosecutors, and the defense need to know—or establish—what will happen to the records. In June the prosecutor at the International Crimes Tribunal in Bangladesh, a special court trying cases of war crimes and crimes against humanity that occurred during the 1971 Bangladesh independence war, turned over four case files to the national archives. These records, like those produced by special courts everywhere, are highly politically sensitive and require robust security. After all, special courts are set up to handle unusually difficult cases, and it can be in the interests of parties—whether winning or losing—to have at least some of the evidence disappear. Prosecutors in these special jurisdictions acquire much more evidence than they ultimately use, choosing whom to prosecute and which charges to bring. Access to the accumulated prosecutorial records requires careful archival review and informed consideration of the consequences of the release of records not ultimately used in court, as well as the records that were sealed by the court itself. (This is also true for the temporary international tribunals, such as those that judged genocide cases in Rwanda and the Balkans, where the prosecutorial records are vast and the court records contain sealed sections.)
The creation of special courts illustrates the caboose nature of archives: archivists do not drive the establishment of establish special courts, but once established, archives must deal with the records: courtroom transcripts, evidence, audiovisual products, records of prosecutors, chambers, registry, witness protection, and the deliberations of judges (see, for example, the decision by the Supreme Court of Canada on the records of its deliberations in HRWG News 2018-05). And archivists usually have no say in whether the records are sent to the national archives, to the archives of the regular court system, or to a special body for at least a temporary period. But as the train of litigation moves forward, archivists must be along for the ride.
July: Coincidence, correlation, causation and records of courts
Coincidence, correlation, causation. Within 16 days of each other in late May and early June, Congolese warlord Jean-Pierre Bemba’s conviction was overturned on appeal by the International Criminal Court (ICC) and four former senior military officers in Guatemala were convicted of crimes against humanity. That was a coincidence. Both court decisions created political upheavals in the countries involved. Whether that is correlation or causation is more complicated.
Despite a voluminous case file and a conviction in the lower court, on June 8 the ICC appeals judges, by a 3-2 decision, overturned Bemba’s 2016 conviction for war crimes in the Central African Republic. He flew back to the Democratic Republic of Congo (DRC), on August 1, to be greeted by “throngs of people—many in T-shirts, hats and scarves bearing his likeness,” according to Reuters. Bemba quickly followed his “thunderous welcome” (as African Arguments reported) by filing to run for president in the election scheduled for December. The DRC constitution sets a limit of two terms for the president, which expired in 2016 for the current president, Joseph Kabila, but he did not step down. At Bemba’s return, his supporters chanted, “Kabila, know that Bemba is back,” and “hours before the deadline to register candidates,” Kabila’s party announced that its presidential candidate would be Emmanuel Ramazani Shadary, who is under European Union sanctions for his role in the crackdown on protests in 2016 when Kabila did not depart. In addition to Bemba, more than a dozen other men have filed to run for president. But is there a correlation—that is, a relationship between two or more things—between Bemba’s triumphant return and Kabila’s decision to step aside?
Bemba appears to be favored to win the election. African Arguments called him “a deeply flawed candidate,” but urged the public to “get behind Bemba,” because “a rough and muddy diamond is more valuable than certain despair.” Bemba has spent the last ten years at the ICC, and as Olivia Bueno pointed out in an opinion piece for the Open Society Justice Initiative, most Congolese “never believed in Bemba’s guilt.” With the court sitting far away and most of the public unable to see the hearings, understand the language of the court (physical and legal), hear the witnesses, read the transcript or review the evidence, the process lacked credibility to the Congolese voter. The record is there, but it is distant. Until international courts figure out how to share their proceedings with the affected populace (there is substantial literature on court “outreach” problems) and court archives begin providing more of the evidence on line, judging the actions of a man like Bemba and weighing his suitability to be your president will be based on serious information gaps. https://www.ijmonitor.org/2018/08/impact-of-the-bemba-acquittal-already-seen-in-the-democratic-republic-of-congo/; https://www.reuters.com/article/us-congo-politics-bemba/supporters-of-congo-opposition-leader-bemba-await-his-return-home-idUSKBN1KM42C; http://africanarguments.org/2018/08/10/drc-congo-time-opposition-get-behind-bemba/
Unlike the distant Bemba trial, the Molina Theissen case dominated Guatemala news during its three-month trial and unanimous May 23 verdict. Again, the trial record is enormous--even the court’s judgment ran to 1,075 pages. As Jo-Marie Burt and Paulo Estrada wrote in a three-part examination of the judgment, “Official military documents, international treaties, and domestic jurisprudence were fundamental to the court’s determination,” and the judges “referred to convictions handed down by Guatemalan courts for the enforced disappearance of Fernando Garcia and Edgar Enrique Saenz Calito, the Spanish Embassy massacre, the Maya Ixil genocide, and the sexual violence and sexual and domestic slavery against Maya Q’eqchi women in Sepur Zarco, among others.”
The consequences of the judgment came quickly. As gAZeta pointed out, in the Garcia and especially the Molina Theissen case, documents from Guatemala’s Historical Archives of the National Police (AHPN) were used by prosecutors to show that the victims were detained by police who handed them over to military units: “conclusive documentary evidence.” Many former members of the military and police units active during Guatemala’s long and bloody civil war are today overt or covert powers in the government. They don’t like the possibility that existing documentation could be used against them in some future public process. So, it is perhaps neither coincidence or correlation but cause that, following the Molina Theissen trial and with more cases hovering in the future, the police archives was removed from the oversight of the national archives (Archivo General de Centroamerica) and reassigned to the vice minister of culture for “Patrimonio,” and the founding executive director of the police archives, Gustavo Meoño, was informed that his contract (which expired on July 31) would not be renewed. One of the most puzzling elements of the changes is the assignment of a member of the Guatemala office of the United Nations Development Program to be the director of AHPN. Neither of these newly responsible persons is known to have archival experience. The representative of the United Nations High Commissioner for Human Rights in Colombia wrote to his social network that the changes were “a strategy to silence the archive,” a statement that was subsequently removed from the posting but had already been picked up by the press.
In the wake of these events, a group of individuals and nongovernmental organizations created a petition, asking questions about the situation and demanding a guarantee that the police archives will be preserved and continue to be open for use by institutions, organizations and individuals, and that the investigations undertaken by the archives’ staff will continue. The petition, open for signature, is an annex to this issue. The U.S. nongovernmental organization National Security Archive is collecting institutional and individual signatures to be forwarded to Archives without Borders, which will coordinate the international response and the presentation of the petition to the responsible officials.
http://www.gt.undp.org/content/guatemala/es/home/presscenter/pressreleases/2018/08/COMUNICADO/archivo-historico-de-la-policia-nacional--ahpn-/ ; https://www.ijmonitor.org/2018/08/the-molina-theissen-judgment-part-i-overview-of-the-courts-findings/; http://gazeta.gt/category/especial-ahpn/ ; https://m.eldiario.es/politica/ONU-Archivo-Historico-Policia-Guatemala_0_800020021.html; http://gazeta.gt/gustavo-meono-brenner/
August: The DNA Dilemma for Archives
Ostraka aren’t pretty, but in their day were they ever powerful! These little pieces of pottery were used by a citizen (male, free man) of Athens in the fifth century B.C.E. to vote on the person in the city that he wished to be expelled. After these ballots were counted, they were thrown away. While we think of ostraka as objects (from which the English word “ostracize” is derived), they are documents: they have a base (pottery), an impression on the base (a name scratched on it manually) and convey information (he’s the one I want out of here).
Archives usually have associated objects that don’t meet the criteria of a document: a glove in a court case file, a model in a patent application, a lock of hair among a set of personal papers. But some associated objects, like ostraka, have the characteristics of a document. Human rights investigators at sites of bombings may find pieces of weaponry with identifying numbers on them. These show maker and model: conveying information over space and time, on a metal base with an impression made by mechanical casting when the weapon was produced. These fragments alone they don’t tell us who used weapon, just as ostraka do not tell us if the person named was actually expelled, but they have evidentiary value.
Smaller and even mightier than ostraka, DNA samples amplify the power of small material. Clearly the result of the analysis of a DNA sample is a document, whether recorded in a database or on a spreadsheet or in a report. But what of the sample itself? The language of DNA analysis talks about “reading” the DNA, and the elements of the DNA are chemical bases (a different sense of the same word archivists use to describe a document). DNA certainly conveys information over space and time, but there is no “impression on the base” as the classic definition of a document requires: the information is encoded within the DNA by natural process. In other words, DNA conveys information, but in an entirely different way than a document in archival terms. If, then, the DNA sample is an “associated object” but not a document, the sample is unlikely to be covered by institutional regulations for deciding whether or not to retain it. This question is not trivial: a recent investigation using DNA in the Netherlands found a Dutch prosecutor ordering the “voluntary sampling of up to 21,500 Dutchmen based on familial profiling, and the obligatory sampling of 1,500 men of special interest to the case,” the New York Times reported. https://www.smh.com.au/world/europe/17-500-dutchmen-gave-dna-samples-for-murder-probe-now-an-arrest-20180828-p5005e.html The results of these analyses are records of the prosecution, to be disposed of in accordance with Dutch rules, but what should happen to the samples?
This is an extreme case, of course; in a more usual situation there would be one or more samples and an analytic report. If the sample is destroyed, it would be impossible to re-examine the DNA for possible use in a future review of evidence. One option is to preserve the DNA and the data that links the sample to the analysis as long as the person can be presumed alive, perhaps adding a few decades as a margin. But is that long enough for scientific researchers looking at populations for genetic characteristics (see, for example, the ALS item under United States below)? Is it long enough to satisfy the interests of people tracing their heritage, both for family history and for medical information?
If archives need to hold DNA samples for extended periods of times, along with the analysis and the metadata linking the two (for example, a table linking the number on the sample’s vial to the report and the person), are archives equipped—physically and technically—to do this? Unlike the ostraka which, like most baked pottery, are virtually indestructible, DNA samples are susceptible to all the deterioration of a body. Any archives that is the potential recipient of DNA materials needs to think now about its decisions on retention of DNA samples and its capacities for the care of this small, powerful evidence.
September: Geography and the fate of archives
We spent much of the last two decades talking about the use of archives in situations of transitional justice, focusing on the four pillars of holding accountable, ensuring no repetition, learning the truth of what happened, and providing reparations. We looked at a country’s traumatic, undemocratic past, but exhibited an often naïve faith that its future would be more democratic than its past regime permitted. Now, however, we need to face the bleak reality that some countries go in the opposite direction, that a brief experience of a less repressive regime may be succeeded by the imposition—abruptly or by incremental steps—of a new repressive form of government or new repressors with a revival of the old form of government.
In the face of this fragility, archivists need to think about the steps archives in countries sliding into neo-repression should take to protect their holdings. Obviously the type of archives makes a difference: government archives have certain constraints, while the archives in nongovernmental organizations, businesses, faith-based organizations, and private archives have different sets of issues to confront.
The working group assembled by swisspeace to discuss archives at risk has made important progress in developing a protocol for handling archives that need a security copy outside the country. (The draft “Guiding Principles for Safe Havens for Archives at Risk” will be considered by the International Council on Archives at its meeting in late November.) But seeking a safe haven is a step that often is taken only when an emergency is at hand.
What should archivists do in countries where democratic rule is shaky but an emergency is not yet at recognized? Here are a few suggestions:
*Identify the most important part of the holdings and identify which part of the holdings may be most at risk in the case of civil unrest or of a governmental confiscation. These may not be the same materials. A constitution or an ancient codex may be the most significant holding but may not be in danger, while routine lists of members of faith-based organizations may be.
*Note whether the holdings at risk are copied; if not, decide whether they should be copied and whether a copy outside the country is necessary now.
*Study the physical security of the archives building and the holding areas. Be alert to places where arson could be set easily. Think about who provides the security (the police, a private company) and its reliability. Think about who provides computer services; think about the strength of firewalls.
*Agree upon who will decide to close the building abruptly in the face of unrest.
*Agree upon who will take over the administration of the archives if the current administrator is forced to leave abruptly. Have a backup to the backup, too, as it is not unknown to have both the archivist and deputy archivist under threat.
*Decide what to tell donors, including what the archives will do if faced with a legal demand to turn over the donor’s materials.
“Geography is fate,” the Greek philosopher Herarclitis allegedly said. We know that is true for us as individuals, whether we are born to privilege or poverty, for example, how far we live from health care and good schools. And we know it is true, too, for the natural environment, as seas rise with climate change and storms grow stronger. It is also true for archives that are physical entities: the risk to their survival depends on geography, including what political system the archival institution exists within. In the face of unsettling events and tenuous times, archivists need to consider carefully whether the geography where they live will put the holdings at risk or will contribute to their safety.
October: A birthday present for the Universal Declaration of Human Rights
What do you give a 70-year-old for a birthday? If it is the Universal Declaration of Human Rights, turning 70 on December 10, the answer might be a bit of reinforcement.
The drafters of the Declaration were clear: this was a universal declaration, not a United Nations declaration, although the group worked under the aegis of the then-new UN. The Preamble of the Declaration proclaims that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Records are essential to protect these rights and to obtain recourse when these rights are violated. The nexus between human rights and archives is strong and complex.
The Declaration was a statement of aspirations, but it lacked any means of enforcement. Work on an enforcement mechanism started soon after the declaration was adopted, leading to the 1966 International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which established treaty responsibilities of the signatory States. But what about violations by non-state actors, particularly by transnational corporations and business entities? Today the damage done to health, economic stability, cultural properties, and social well-being by corporate entities is undeniable. It is easy to see the effects on workers and communities that are co-located with an industrial site, but increasingly the impact is on all of us. As readers of HRWG News know, there has been a long list of failed attempts to hold multinationals accountable for human rights violations.
The United Nations recognized this problem, and in 2011 the UN Human Rights Council endorsed the “UN Guiding Principles on Business and Human Rights,” a set of guidelines for States and companies to prevent, address and remedy human rights abuses committed in business operations. But, like the Universal Declaration, these Guiding Principles have no enforcement mechanism. There is a current proposal to adopt a legally binding instrument “to regulate, in international human rights law, the activities of transnational corporations and other business enterprises,” but its passage is far from sure.
What does all this have to do with archives? The Guiding Principles, for all their words and the extended commentary, say NOTHING about the need for good corporate records in order to monitor the operations of the business, to ensure that there is a reliable record of the actions and transactions, that there is an effective retention of records that provide evidence of corporate actions that could reasonably be assumed to impact human rights. Not a word. Yet simply reading the document shows that the Principles cannot be upheld unless a business has a robust records management and archives program, preserving the records that demonstrate the institution’s compliance with—or lack of compliance with—the guidance.
We need to assure that both transnational corporations and national companies have robust records programs. We need to support corporate archivists, whose paychecks come from the company, to insist on retention of records with a human rights component. And we need the international financial institutions to incorporate in their financing agreements both the requirement that the client consent to be bound by the Guiding Principles and that the client consent to maintain a trustworthy archives regime to ensure accountability processes.
That would be a truly useful 70th birthday present for the Universal Declaration of Human Rights.
November: Demolition by neglect, or the little house that stood
Once upon a time there was a little house. It was in the old part of the city, and old people lived in it. They had raised their family in the house, as had their parents and their grandparents. None of the families had very much money, and after all the years and all the children, the little house started to sag and lean and leak when it rained. One day a real estate developer offered to buy the house. He planned to tear it down and build a grand new apartment building; he planned to make a lot of money. The owners were happy to sell and move. The developer asked the city for a permit to tear down the little house. To his surprise, the city said no, the house was in the old city and it was part of the city’s historic fabric. The developer was angry. He decided that he would just let the rain and the wind do their work on the little house; he would neglect how it looked. Surely if the roof caved in and the porch separated from the kitchen he would be allowed to tear it down. He practiced demolition by neglect.
Archives too often are treated like the little house. They are neglected; records rot. A few examples:
*In 2016 the state archives in Jammu and Kashmir (India) said the government had not turned records over to it since 1985.
* In Guatemala the Archivo General de Centro America, officially created in 1937 and holding what it believes is “the most comprehensive collection found anywhere in the world of historical records spanning the period of Spanish rule in the Americas” (1544-1831), has only four staff members and is in a building that has not had room to accession new materials since the 1960s.
*The national archives of Nepal and Peru are being “evicted” from their building because the courts (not the archives) need more space.
*Some countries, like the Republic of the Marshall Islands, have no national archives at all.
From “incomplete” records in Indonesia to open windows where butterflies and birds can enter the archives in Sierra Leone, records are in peril. Whether the neglect by the government is unintentional, coldly dismissive, or intended to make certain records disappear, the result is same: the archives are, day by day, being destroyed.
The owner of government archives is the people of the nation, and it is the people’s government that is the neglecter. In other words, unlike the owner of the little house, we hurt ourselves not help ourselves in demolition by neglect. For everyone who wants to prove ownership of a piece of land or the birth of a child or the right to vote or the need to prove innocence of a crime, records are essential. In the case of sensitive records, such as those of the police or pertaining to indigenous people, the lack of support by the government allows critical evidence to deteriorate beyond the point of repair and outside the reach of persons whose lives are affected by access to archives. And the situation is ever more dire as governments create electronic records which neglected archives have no means to manage.
It is essential that international bodies state clearly that neglect of records violates human rights. The Office of the High Commissioner for Human Rights should issue such a statement; surely, as the current High Commissioner was a victim of state crime in Chile, she knows how important records are for protecting and protesting the violation of human rights. The Inter-American Commission on Human Rights should issue a similar finding. These statements should be officially transmitted to all national governments, putting governments on notice that they are expected to comply. And in the Universal Periodic Review, the unique process which involves a review by the UN Human Rights Council of the human rights records of all UN Member States, one of the preparatory questions should be what actions the State has taken to preserve and protect and provide access to the archives in its country in fulfilment of its human rights obligations.
And the little house? The developer sold it to a public-spirited citizen, who repaired the roof and patched the porch. And it lived happily ever after.
December: 2018 in Review
As we start a new year and look back on the tumult of the one just past, here are items from each month of HRWG News in 2018 that, taken together, illustrate the diversity of human rights issues that include archives. Best wishes for the year ahead!
January. One of the twins born of a Canadian surrogate mother from the mixed sperm of two male donors was found, through DNA testing, to be the child of the U.S. citizen donor, so the child was automatically a U.S. citizen and entitled to a U.S. passport, and the other twin, born of an Israeli donor, was not.
February. Setting an important precedent, the Inter-American Court of Human Rights issued an advisory opinion that a healthy environment is a right “fundamental to the existence of humanity” and that States must avoid causing “significant” environmental damage inside or outside their territory and provide access to information related to potential environmental harms.
March. The Commission on Human Rights in South Sudan took over 230 detailed individual witness statements and gathered over 58,000 documents, including confidential records, covering incidents in South Sudan since December 2013, but warned that “every day . . . documentary evidence is lost, concealed or destroyed.”
April. U.S. police compared DNA collected from a 1980 crime scene with DNA data on the genealogy website GEDmatch and found distant relatives of the suspect, who was arrested.
May. A study found that physicians who use stigmatizing language in their patients’ medical records may affect the care those patients get for years to come.
June. Using massive quantities of video footage of the February 2014 protests in Kiev, Ukraine, a research team reconstructed the deaths of three protesters to identify the sources of the bullets that killed them and created a composited video that was accepted as evidence by the criminal court hearing a case against five police officers.
July. Germany’s Federal Court of Justice ruled that heirs should have access to the Facebook accounts of the deceased.
August. Israel’s Justice Minister instructed the Israel State Archives to release some 300,000 files relating to the children of Yemeni immigrants, whose disappearance after their arrival in Israel over a half century ago has been at the center of a lingering controversy.
September. India’s Supreme Court upheld the constitutionality of the government’s massive biometric identification and registration project, Aadhaar, but with restrictions.
October. The Peace Research Institute Oslo, Norway, used 20 years of statistical studies on the relationship between education and political violence and found the “lack of male education appears to be the strongest predictor of conflict.”
November. A Canadian judge ruled in favor of access to records of the Truth and Reconciliation Commission, citing the ICA position on access.
December. DNA tests on ancient remains in Australia and on samples from Indigenous people living in the area where the remains were found show clear links; this may enable repatriation of Indigenous human remains when provenance documentation is lacking.