Archival commentaries 2022
January: That flying horse, the Pegasus software
“Little pitchers have big ears” was a common saying in my childhood when parents were amazed by what a child had overheard. Now big ears are everywhere, thanks to spyware like Pegasus, manufactured by the NSO Group, an Israeli company. NSO claims that it only sells its software to governments, not to individual or companies. According to the New York Times, one of its “main pillars” is that “it would cooperate with Israel’s Defense Export Controls Agency, or DECA, to license every sale.” The program allows surveillance of smartphones, viewing “every email, every photo, every text thread, every personal contact” as well as seeing the phone’s location and allowing the operator to “even take control of its camera and microphone.” http://www.kashmirtimes.com/newsdet.aspx?q=113781
But the sales! Mexico and Panama, Poland and Hungary, India and Saudi Arabia and more. And now come reports of the targets of Pegasus surveillance. A sample:
* The Guardian reported that the mobile phones of a Bahraini human rights defender and a woman who works with human rights and feminist groups in Jordan had been hacked using NSO’s Pegasus software. https://www.theguardian.com/news/2022/jan/17/two-female-activists-in-bahrain-and-jordan-hacked-with-nso-spyware
*In El Salvador, the phones of 22 team members of the media group El Faro were found to be infected with Pegasus, with “a total of 226 infections . . detected, as well as evidence of the existence of a Pegasus operator in Salvadoran territory,” and another 13 people from Salvadoran civil society organizations had their phones targeted. https://elfaro.net/en/202201/el_salvador/25936/22-Members-of-El-Faro-Bugged-with-Spyware-Pegasus.htm
*Four Kazakh activists had their phones infected. https://thediplomat.com/2021/12/kazakh-activists-phones-infected-with-pegasus-spyware/
*Phones of French ministers and those of at least nine U.S. State Department officials who were either based in Uganda or involved in matters associated with the African country were infected, too. https://www.ndtv.com/world-news/phones-of-five-french-ministers-infected-by-pegasus-malware-report-2552979; https://www.msn.com/en-us/news/technology/pegasus-spyware-on-state-department-phones-what-you-need-to-know/ar-AAMl60a
Last December the United States, Australia, Denmark and Norway announced an “Export Controls and Human Rights Initiative to help stem the tide of authoritarian government misuse of technology and promote a positive vision for technologies anchored by democratic values.” Placed on the U.S. “Entity List” of companies whose tools are used for repression is the NSO Group. https://www.whitehouse.gov/briefing-room/statements-releases/2021/12/10/fact-sheet-export-controls-and-human-rights-initiative-launched-at-the-summit-for-democracy/
At the end of January, the Inter-American Commission on Human Rights, its Office of the Special Rapporteur for Freedom of Expression, and the Regional Office of the United Nations High Commissioner for Human Rights for Central America and the Dominican Republic and the Caribbean issued a statement expressing “concern at the new findings on the use of malicious Pegasus software, used for illegal surveillance purposes against journalists and civil society organizations in El Salvador.” It said the Special Rapporteur had previously “warned about the use of such software in other countries of the Americas.” “This type of practice not only violates the right of privacy,” the group wrote, “but also has the potential to affect the rights inherent to the exercise of journalism, including confidentiality and integrity of sources.” http://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/media_center/PReleases/2022/022.asp
The human rights abuses, the invasion of privacy, the harassment of legitimate civil society organizations and journalists is despicable. But here’s a question: are the governments (or other users who obtained the spyware illegally) keeping these vast amounts of data that the use of Pegasus provides to them? Even a surveillance organization with a well-established records and information management program would have to think carefully about its retention regulations in the face of the stream of data. So as discussions of export control and due diligence of possible clients go forward, stop and think for a minute about the data already collected, who has access to it, how long is it retained, and what servers hold it all. When people demand to see the data taken from their phone, what will they see? If they ask that data taken from their phone be returned to them, what if anything will they get? If they ask that the data be destroyed, what assurances will be given? We know that when people ask security agencies for records about themselves, they usually get one of four answers: we never had it, we can’t find it, we destroyed it, or you can’t see it. What will the answers be in this time of flying horse Pegasus who, according to Greek mythology, was born of an act of violence: Perseus beheaded the Gorgon Medusa and Pegasus sprang from her blood?
February: Archives against denialism
The past five years have been a tutorial on lying. Fact-checkers in the U.S. toiled constantly to combat the untruths of President Donald Trump, from his harmless but untrue claim about the size of the crowd at his inaugural to the vicious lie that Barak Obama was born in Kenya, not the United States, and therefore could not be a legitimate President. Photographs of the crowd in the first case, the birth certificate in the second, disproved both. Vladimir Putin lies, such as saying that modern Ukraine was entirely created by Russia or that Ukraine was perpetuating genocide in the eastern regions of Donetsk and Lugansk. Again, documents contradict: archives of Ukraine are filled with evidence of the centuries-old Ukrainian culture and the mid-1800s Ukrainian nationalist movement, while Ukraine is providing evidence to the International Court of Justice that the allegations of genocide are “an absurd lie.” https://balkaninsight.com/2022/02/28/ukraine-challenges-russias-genocide-claim-at-hague-court/
It is not only leaders of major countries that have continual, public, problematic lies. “Denialism”—a refusal to admit facts—is all too common among us. After what he called an “explosion of denialism” about the mass murders of some 8,000 men and boys at Srebrenica, Bosnia, in August 1995, by the Bosnian Serb military, the UN High Representative in Bosnia last July made genocide denial illegal in Bosnia. Explaining his decision, he wrote, “Hate speech, the glorification of war criminals, and revisionism or outright denial of genocide and war crimes prevent societies form dealing with the collective past, constitute renewed humiliation of the victims and their loved ones, while also perpetuating injustice and undermining interethnic relationships. All this causes frustrations, makes the society chronically ill, and prevents the emergence of desperately needed reconciliation.” And, he added, “Everyone becomes a victim of the verbal warfare over the interpretation of the past war, and this has to stop now!” http://www.ohr.int/high-representative-valentin-inzko-introduced-today-amendment-to-the-bh-criminal-code/
Interpretations of the past vary, and historians propose and debate them rigorously. But facts matter, and so do reliable, accessible records. The 1997 United Nations Set of Principles to Combat Impunity, updated in 2005, has as Principle 3 the duty to preserve memory: “A people’s knowledge of the history of its oppression is part of its heritage and, as such, must be ensured by appropriate measures in fulfillment of the State’s duty to preserve archives and other evidence concerning human rights violations and to facilitate knowledge of those violations. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments.”
The International Council on Archives is deeply worried about the fate of the Memorial archives in Moscow and the archives throughout Ukraine. Statements on both are found on the ICA website: https://www.ica.org/en/statement-of-the-international-council-on-archives-on-the-situtation-of-the-archives-of and https://www.ica.org/en/solidarity-with-ukrainian-archives-and-records-professionals After the war in Bosnia ended, ICA with UNESCO sent a mission to examine the situation in archives and records centers in the country. After Russian troops departed Afghanistan ICA members developed a set of survey questions to be used by Afghans to survey and map the conditions of archives and active records holdings. Similar steps will be necessary when the war in Ukraine ends, because restoring archives in the aftermath of conflict creates a path for responsible, if messy, public recognition that these events truly did happen among us.
March: Ukraine’s archives in war
March’s most frequent question from archivists and advocates and activists was: do you know what is happening to archives in Ukraine? And the answer always was, “Not really.”
According to UKRINFORM on 25 March, “Russian invaders destroyed the archives of the Security Service in Chernihiv region, where documents had been stored on Soviet repression of Ukrainians. That’s according to the Ministry of Justice, referring to the head of the State Archival Service, Anatoliy Khromov.” https://www.ukrinform.net/rubric-society/3439490-in-chernihiv-region-russians-destroy-archived-documents-on-soviet-repression-against-ukrainians.html
Some archives buildings in Kharkiv are said to be damaged, but the extent of damage to the records is not reported. The Guardian said the Slovo building built to house prominent writers, scholars and artists “lost every window and part of its roof when a missile landed nearby,” and the Fine Arts Museum has been damaged, too. https://www.theguardian.com/commentisfree/2022/mar/15/ukrainian-heritage-under-threat-truth-soviet-era-russia Geneva Solutions said the Assumption Cathedral was seriously damaged. Archives within these structures may have been suffered. https://genevasolutions.news/global-news/un-agencies-geneva-heritage-fund-mobilise-to-protect-ukrainian-cultural-sites
And there is implied destruction. Euromaidan reported on 29 March, using information from the Hybrid Warfare Analytical Group, that “more than 60 Ukrainian churches and religious buildings were destroyed by the Russian army during the month of the full-scale Russo-Ukrainian war.” https://euromaidanpress.com/2022/03/29/russo-ukrainian-war-day-34-irpin-is-liberated-russia-is-trying-to-completely-destroy-the-infrastructure-and-residential-areas-of-ukrainian-cities/ The UN High Commissioner for Human Rights, in a speech on 30 March, said her staff members “verified 77 incidents in which medical facilities were damaged to various degrees,” of which 10 were completely destroyed. https://www.ohchr.org/en/statements/2022/03/update-human-rights-council-ukraine And the images of damaged and destroyed government buildings, like the churches and medical facilities, suggest major destruction of archives.
But major bodies of records are being created, too. Refugee operations, both by international bodies such as the High Commissioner for Refugees (UNHCR) and local and national programs, official and volunteer, are creating records at an enormous pace, trying to make sure the identities and locations of the refugees are known while providing assistance of every kind. Humanitarian groups, too, such as the International Committee of the Red Cross, are creating records of efforts to feed and to relocate people from danger zones such as Mariupol. Medical facilities and groups such as Médecins Sans Frontières are creating substantial bodies of records, too.
However, one set of records that almost surely will be incomplete is the registration of identities of the dead. With mass graves, hasty burials, and chaos in the streets, the recording of identities—even if known—is not likely to be complete. Getting the dead off streets and into graves is a priority; reports of mobile cremation vans raise the spector of massive future identification problems, with solutions available only through scientific methods.
The International Council on Archives has suspended Russian and Belorussian state archives bodies from participation. Many organizations are assisting archives in Ukraine, from copying extant online digital materials (for example, Saving Ukrainian Cultural Heritage Online https://www.sucho.org/) to sending in boxes and packing materials to sponsoring digitization programs. (https://www.zyri.net/2022/03/23/russo-ukrainian-war-race-against-time-to-save-the-scores-of-ukrainian-composers/). UNESCO, the International Committee of the Blue Shield, and others have emergency programs.
As Hennadi Boriak, the former national archivist of Ukraine, wrote on 5 April, “We do hope that God will preserve Ukrainian archives!” Amen, but God is going to need some help from humankind.
April: Destruction, damage and documentation in the Ukraine war
In 2010 Politorbis, the journal of the Swiss Federal Department of Foreign Affairs, published a chart illustrating a conceptual framework for dealing with the past. It identified four principal issues that must be addressed in a transitional justice period: right to know, right to justice, right to reparation, and a guarantee of non-recurrence. This formulation was so explanatory that ever since it has been used in discussions of the needs of a transitional period. (Jonathan Sisson, “A Conceptual Framework for Dealing with the Past,” Politorbis 50, https://www.ihrb.org/pdf/Politorbis_50_Dealing_with_the_Past.pdf)
And now Ukraine. To be sure, it is not yet in a post-conflict transitional period. But we can look at the news coming from that war-torn land and see how this framework might be applied. Here are some examples from April:
Civilian casualties. In an interview with PassBlue, the head of the UN’s Human Rights Monitoring Mission in Ukraine pointed out that it has been “recording civilian casualties in Ukraine since 2014” when Russia invaded Crimea. The Mission collects “information from a broad range of sources that are evaluated on credibility and reliability, including interviews with victims and witnesses, satellite imagery, official information, open-source information and reports.” It documents “civilian casualties, damage to infrastructure, torture and ill treatment and other grave human rights violations.” As of 28 April at midnight, it had recorded 6,134 civilian casualties, of which 2,899 were killed (including 210 children) and 3,235 injured (including 309 children), euromaiden reported. https://www.passblue.com/2022/04/21/the-un-human-rights-team-in-ukraine-recording-the-hardship-that-people-are-going-through/?utm_source=PassBlue+List&utm_campaign=3987795e19-RSS_PassBlue&utm_medium=email&utm_term=0_4795f55662-3987795e19-55008469; https://mailchi.mp/c2a5ab98591c/russo-ukrainian-war-day-14973773?e=6aa3678926
Missing persons. The International Commission of Missing Persons (ICMP) is building a “central database cataloguing evidence and the identities of the missing, AP reported. ICMP’s director-general said it wants to make sure the sites are properly excavated “to identify the mortal remains so that evidence can be provided in the future for criminal trial purposes, not only potentially to the ICC, but also potentially within domestic courts in Ukraine,” and “are properly documented, the proper chain of custody is obtained.” ICMP has “an online portal where people . . can anonymously report locations of bodies, and will help family members of the missing to provide DNA samples to help identify them.” Asked about claims that there have been forced evacuations to the Russian Federation, the UN Monitoring Mission said on 21 April, “So far, OHCHR has not been able to corroborate a factual basis of forced evacuations and will continue to monitor the situation, look into allegations and publish its findings.” https://apnews.com/article/russia-ukraine-kyiv-business-europe-the-hague-4a3671e63feea6a7743a4353f6bf03a4?user_email=f553fa26cd5d27697a335ab74e22a11c9b48c47784712d14145ae3c0ed4aad10&utm_source=Sailthru&utm_medium=email&utm_campaign=Russia-Ukraine&utm_term=Morning%20Wire%20Subscribers
Cyberwar on individuals. On the eve of the 24 February invasion, the electronic systems of the Ministry of Internal Affairs were breached (it oversees the police, national guard, and border patrol), and in January the “national database of automobile insurance policies was raided during a diversionary cyberattack that defaced Ukrainian websites,” AP reported. The hacks provided “extensive details on much of Ukraine’s population” which “Russia can use to identify and locate Ukrainians most likely to resist an occupation, and potentially target them for internment or worse.” Ukraine’s State Service for Special Communications and Information Protection said that just ahead of the invasion “hackers serving Russia’s military [were] increasingly targeting individual Ukrainians.” https://apnews.com/article/russia-ukraine-technology-business-border-patrols-automobiles-fa3f88e07e51bcaf81bac8a40c4da141?user_email=f553fa26cd5d27697a335ab74e22a11c9b48c47784712d14145ae3c0ed4aad10&utm_source=Sailthru&utm_medium=email&utm_campaign=April30_Weekend_Reads&utm_term=Morning%20Wire%20Subscribers
Destruction and looting of cultural property. The war has brought massive destruction and damage to housing and infrastructure of all kinds. But damage to cultural property is special because a large part of the justification for the war has been Russian President Putin’s insistence that there is a “historical unity of Russians and Ukrainians,” there is no separate Ukrainian culture, and that Ukraine must be cleansed of Nazi influences. His rhetoric exposes the cultural dimension of the invasion and fuels the resistance to it. https://en.wikisource.org/wiki/On_the_Historical_Unity_of_Russians_and_Ukrainians
In an interview, the director of UNESCO’s World Heritage Centre pointed out that in 2017 the UN Security Council “unanimously adopted resolution 2347 which for the first time made the protection of cultural heritage a security imperative and condemned the deliberate destruction of cultural property as a war crime.” Geneva Solutions said that by 20 April, “damage or destruction of nearly 100 culturally important sites in Ukraine have been verified” by UNESCO. However, on 19 April the Ministry of Culture said it had “already recorded 200 damaged cultural heritage sites,” euromaidan reported. https://genevasolutions.news/peace-humanitarian/unesco-deliberate-destruction-of-ukraine-s-cultural-heritage-could-be-considered-a-war-crime?utm_source=newsletter&utm_medium=email; https://euromaidanpress.com/
“Ukrainian military intelligence reported on March 24 that Russian occupying troops in the country were confiscating books and other materials that the Russian government has deemed ‘extremist’,” RFL/RL wrote on 10 April. The troops “have a whole list of names that cannot be mentioned” in the titles of books. RFE/RL also reported that “according to Ukrainian officials, state archive buildings in Kharkiv, Mykolayiv and Lysychanck have been targeted by Russian shelling” and “the SBU (Ukraine’s security agency) archive in Chernihiv burned down after being targeted, with the loss of some 12,000 folders of KGB documents about repressions in Ukraine.”
https://www.rferl.org/a/russia-ukraine-destroying-identiy-putin-historians/31795956.html
Writing on Twitter on 22 April, the First Deputy Minister of Foreign Affairs of Ukraine said “Russian invaders are looting archives & cultural funds of #Mariupol museums. They take everything to occupied Donetsk, and then, after evaluation, send the most valuable” onward. Thanks to Andras Riedlmayer for this information. https://twitter.com/EmineDzheppar/status/1518968365347479552?cxt=HHwWgIC9mcbrupQqAAAA
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Many efforts are being made to collect evidence for future use in transitional justice processes.
Ukraine’s Ministry of Foreign Affairs announced it has created, with partners, an “online archive of Russian war crimes in Ukraine,” reported euromaiden. “The site documents war crimes committed by the Russian army in Ukraine during the full-scale invasion on February 24, 2022. Crimes are divided into 7 categories: (1) Murder of innocents, (2) Attacks on civilians or civilian objects, (3) Destruction of settlements, (4) Hostages and torture, (5) Illegal deportation, (6) Attacks on religion and culture, and (7) Rape.” Meanwhile, investigators from the State Bureau of Investigation are documenting crimes of the Russian occupation, euromaiden also reported, including the use of munitions prohibited by the Geneva Convention, unjustified cruelty, and mass extermination of the population. https://euromaidanpress.com/
The Office of the Prosecutor of the International Criminal Court signed an agreement to become part of a joint investigation team with Eurojust, the European Union Agency for Criminal Justice Cooperation, and Lithuania, Poland and Ukraine “to facilitate investigations and international judicial cooperation” and “effectively gather evidence on core international crimes committed in Ukraine and bring those responsible to justice.” https://www.eurojust.europa.eu/news/icc-participates-joint-investigation-team-supported-eurojust-alleged-core-international-crimes
Nongovernmental groups also are actively working to preserve evidence. Mnemonic, an NGO, has software “that downloads social posts from different platforms and generates a cryptographic hash to show the material has not been altered.” This software is being used by a team of volunteers in western Ukraine “who gather online material and also contact witnesses to alleged atrocities to gather testimony,” WIRED reported. Bellingcat, the forensic NGO, is also “feeding links of posts from Ukraine that merit further investigation to Mnemonic.” https://www.wired.com/story/open-source-russia-war-crimes-ukraine/?bxid=5c48efcf2ddf9c4807adf975&cndid=53684912&esrc=sign-up-page&source=EDT_WIR_NEWSLETTER_0_DAILY_ZZ&utm_brand=wired&utm_campaign=aud-dev&utm_content=WIR_Daily_041122&utm_mailing=WIR_Daily_041122&utm_medium=email&utm_source=nl&utm_term=P6
“Hundreds of historians, librarians and IT specialists from around the world have joined forces . . to form an online army to backup everything from websites to libraries, before buildings and servers are hit,” Thomson Reuters Foundation wrote. One of the most active groups is Saving Ukrainian Cultural Heritage Online (SUCHO), which is preserving “at-risk websites and digital content, with help from about 1,200 volunteers.” SUCHO pointed out that “these digital records could be used to document potential war crimes, for example, if catalogued items were looted or destroyed.” The American Folklore Society (AFS), a U.S. NGO, is “providing individual cloud storage links” for folk culture materials held by museums, academics, and private individuals in Ukraine. AFS said “the material they receive is often littered with malware, which takes time to clear.” https://news.trust.org/item/20220425155755-jvh6k/
Finding the missing, holding perpetrators accountable, demanding reparations for damage and destruction: records on all of these are being created. Preserving the evidence collected and ensuring its validity as legal evidence is essential. This is a war about history, and the history of the war must be preserved.
May: Government archives: alike and unlike
Blood red, poppies bloom along the train tracks between Vienna and Budapest. The once heavily fortified border passes with only an announcement on the train’s public address system that you are entering Hungary. But anyone with a memory or knowledge of the second half of the 20th century will feel a prickle of unease as you move from a democracy to one that Hungarian President Viktor Orban calls an “illiberal democracy.”
In its annual Freedom in the World report for 2022, the NGO Freedom House said there have been “16 consecutive years of decline in global freedom. A total of 60 countries suffered declines over the past year, while only 25 improved. As of today, some 38 percent of the global population live in Not Free countries, the highest proportion since 1997. Only about 20 percent now live in Free countries.” Finland, Norway and Sweden stand at the top of the Freedom House list and Turkmenistan, South Sudan and Syria sit at the bottom, with North Korea and Eritrea just above them.
https://freedomhouse.org/report/freedom-world/2022/global-expansion-authoritarian-rule; https://freedomhouse.org/countries/freedom-world/scores
A look at the NGO Reporters without Borders’ World Press Freedom Index shows a similar pattern. Of the 180 countries ranked, the top five are Norway, Denmark Sweden, Estonia, and Finland, and the bottom five are Myanmar, Turkmenistan, Iran, Eritrea, and North Korea. https://rsf.org/en/index; https://rsf.org/en/rsfs-2022-world-press-freedom-index-new-era-polarisation
What is the difference in government records in a country like Finland and, say, Turkmenistan? I know of no systematic study of the similarities and differences. From the ancient world, Ernst Posner said there were six “basic types of records that may be called constants in record creation, whatever the nature of governmental, religious, and economic institutions”: laws of the land, evidence of administrative actions, financial records, land records, control of persons for purposes such as military service, and notorial records of private business transactions. (Ernst Posner, Archives in the Ancient World, p. 3). Interestingly, he did not include police or military records per se, although these surely existed, as did records of courts. But if we look at the list, we find those records in governments today, with “administrative actions” expanded to include records of social services, border control, and elections, to name a few.
If the basic records are pretty similar in all governments, what—if any--are the differences? In a police state, are police more likely to document fully their actions, knowing no outsider will ever see the records, or is it the other way around, with police in democratic states wearing body cameras and dashboard cameras on cars? Do we have better internal documentation of military violence in less democratic countries because the soldiers have no need to hide their acts (see the Syria item below)? Is there a difference in records disposal: who gets to decide what to save and what to throw away and when? Is the difference in how carefully the records are maintained, particularly the records of the head of state? Counter examples can be found for most of these suggestions.
What we do know is that public access to government records differs dramatically, and access is crucial for defending and seeking accountability for the violations of human rights. It is no surprise that of the five lowest ranked countries in the Freedom House list, only Iran has an access law, passed in 2009. All the top ranked countries have a government access law, as do the majority of countries rated as fully free (see http://www.freedominfo.org/?p=18223). To be sure, there is a gulf between having a law and administering it effectively in accordance with its provisions. But laws are a start, both access to information laws and archives laws. They are the foundation for the right to know.
June: Out of Business, the temporary international courts
Out of business. No, that is not a sign on a clothing store or a coffee shop. It is, instead, the news from the hybrid courts for Cambodia and Lebanon.
In June the Special Tribunal for Lebanon announced that it “will close after July because of a funding crisis.” https://liberties.aljazeera.com/en/special-tribunal-for-lebanon-to-close-its-doors/ Just days later, Cambodia’s Deputy Prime Minister “informed foreign diplomats representing 10 donor countries that the Extraordinary Chambers in the Courts of Cambodia (ECCC), commonly known as the Khmer Rouge Tribunal, will finish its last case by the end of this year and will focus on archiving thereafter.” https://www.phnompenhpost.com/national-kr-tribunal/eccc-closing-final-case-years-end
After the International Tribunals for the former Yugoslavia and Rwanda were in operation, with international prosecutors and judges, questions arose about the participation of the countries where the crimes occurred. Out of this concern grew the first “hybrid” court, the Special Court for Sierra Leone, with a mix of international and Sierra Leonean judges and prosecutors. Set up in 2002, it finished its cases in 2013 and a Residual Special Court was created, with its “principal seat” in Freetown, Sierra Leone, but carrying out its functions “at an interim seat in The Netherlands with a sub-office in Freetown for witness and victim protection and support.” After negotiations, a digital copy of the publicly available records was made and given to the government of Sierra Leone, while the originals of all formats were shipped to the new interim seat in The Hague.
The International Criminal Court was established on 1 July 2002 when 60 countries had ratified the Rome Statute creating the Court. And although there was now a true international criminal court, hybrid courts continued to be created:
*The Extraordinary Chambers in the Courts of Cambodia were established by agreement between the United Nations and the government of Cambodia in 2003 to try serious crimes committed during the Khmer Rouge period (1975-1979), crimes that predated the establishment of the International Criminal Court (the ICC can only try cases when the crimes were committed after 1 July 2002). It sits in Phnom Penh with both Cambodian and international judges, prosecutors and staff.
*The Kosovo Specialist Chambers and Specialist Prosecutor’s Office were established in 2016 following an agreement between Kosovo and the European Union, and Kosovo amended its national constitution to incorporate this court into the Kosovo judicial system. It tries cases arising from the conflict in Kosovo between 1 January 1998 and 31 December 2000, a period also predating the International Criminal Court. It sits in The Hague with judges and prosecutors drawn from the European Union and other financially contributing countries but not from Kosovo.
*The Special Tribunal for Lebanon was established by the United Nations Security Council in May 2007. The primary mandate of the Tribunal is to try the people accused of carrying out the attack of 14 February 2005 in Beirut which killed 22 people, including the former Lebanese Prime Minister Rafik Hariri, and injured many others. It sits in The Netherlands with both Lebanese and international judges and staff.
So where will the original, sensitive records of the Extraordinary Chambers in the Courts of Cambodia and the Special Tribunal for Lebanon go? Although a prosecutor in one of the international hybrid tribunals once argued to me that the court’s only important records were those of the official proceedings in court, the prosecutor’s records contain a wealth of information that, for reasons of proof or time, was never entered into the court record yet has great historical significance. Records of the registrar, such as those on the protection of witnesses and victims, public information activities, and operating procedures, are likewise significant, as are records of judges’ chambers and judicial conferences. Further, these courts try international crimes, and while the records are most critical to a country’s or region’s history, they have worldwide precedential and historical value. And, after the millions of dollars and Euros and yen poured into the courts, will there be money now to make digital copies, at least of public proceedings, and make those available to the public in the most affected countries?
A decade ago there was active interest in erecting in The Hague a building for the archives of international courts. This plan seems to have evaporated, and once again there will be a scramble to find a secure, yet accessible place to hold these internationally important records. All parties need to agree, and the public has to be informed. A sensible solution must be found. Now. Will the international community meet the challenge?
July: Organized threats to nongovernmental organizations
Expulsion seems to be in vogue with today’s authoritarian governments. Often cited as “foreign agents” or accused of misusing funds, nongovernmental organizations from Russia to Nicaragua, Hungary to Indonesia and the Philippines have had governments arbitrarily close or impede or expel them.
For instance, on 28 June Russia’s foreign ministry announced that two Swedish organizations must cease operations, and the next day the State Duma passed a bill expanding criteria for individuals and organizations who can be listed as “foreign agents” and susceptible to expulsion. In May, Amnesty International reported, activist Mikhail Iosilevich was sentenced “to one year and eight months in a penal colony” for “collaborating with an ‘undesirable organization’--the now defunct Otkrytaya Rossiya (Open Russia) movement founded by Kremlin critic Mikhail Khodorkovsky.” https://www.crisisgroup.org/crisiswatch; https://www.amnesty.org/en/latest/news/2022/05/russia-activist-mikhail-iosilevich-jailed-for-collaborating-with-so-called-undesirable-organization/
Or consider Nicaragua. On 19 July Human Rights Watch wrote, “Since June 6, 2022, Nicaraguan authorities have passed laws and resolutions canceling the legal registration of over 770 nongovernmental organizations and foundations, effectively forcing them to shut down their operations in the country. These include medical associations and organizations working on a range of issues from child protection to women’s rights to climate change mitigation. The government has canceled the registration of more than 950 organizations since 2018. Many of these decisions are based on abusive legislation, including a ‘foreign agents’ law.” https://www.hrw.org/news/2022/07/19/nicaragua-government-dismantles-civil-society Among the latest expulsions was that of the Missionaries of Charity, the group founded by Mother Teresa. https://www.eurasiareview.com/01072022-nicaragua-ortega-government-orders-dissolution-of-missionaries-of-charity/
Nongovernmental organizations, particularly those focused on human rights issues, often depend on foreign funds to exist. In May Cuba adopted a new penal code which, said the Washington Office on Latin America, includes “Article 143 . . in the section of the code that targets violations of state security and is punishable with sentences ranging between 4 and 10 years in prison. It targets individuals who receive foreign funding that may be acting on their own or on the behalf of ‘non-governmental organizations, international institutions, associations or any natural or legal person of the country or of a foreign state’—criminalizing both public and private funds.” https://www.wola.org/analysis/5-concerns-about-cuba-penal-code/ On the first anniversary of the 11 July 2021 mass protests in Cuba, the Inter-American Commission on Human Rights condemned “persistent State repression of individuals who took part in social demonstrations or supported participants,” identifying “six waves of State repression,” one of which was “shutdowns of democratic platforms” and another “bills aimed at monitoring and punishing dissident views and government criticism, as well as at criminalizing the actions of independent civil society organizations.” https://www.oas.org/en/IACHR/jsForm/?File=/en/iachr/media_center/PReleases/2022/153.asp
Providing social services, enhancing community cohesion, providing an alternative route to influence government behavior, allowing personal growth: these are some of the benefits of nongovernmental organizations, for individuals and for the entity as a whole. Archival organizations, whether local, national, or international, fall into this category. And while there have been no reports of a professional archival organization shut down by a government, in the past some governments have interfered with the operation of archival associations. Next month the International Council on Archives, founded in the wake of World War II, will meet in Rome. The ICA’s Forum of Professional Associations could well consider how to protect archival associations in countries where the very existence of nongovernmental organizations is threatened.
August: The August lull
Readers of SAHR News know that news from international organizations leads the four sections of items. But not this month. August is summer in the Northern Hemisphere when work generally slows, in international bodies as well as in national governments and private sector operations. International organizations did take a few broadly applicable actions in August; one was the UN Committee on the Elimination of Racial Discrimination which published its findings on the situations in Azerbaijan, Benin, Nicaragua, Slovakia, Suriname, the United States of America, and Zimbabwe, all of which make dismal reading (“deeply regretted,” “deeply concerned,” “disturbed”). https://www.ohchr.org/en/press-releases/2022/08/un-committee-elimination-racial-discrimination-publishes-findings-azerbaijan And the Organization of American States scolded the entire international community for its failures in Haiti, writing in a searing statement, “The last 20 years of the international community’s presence in Haiti has amounted to one of the worst and clearest failures implemented and executed within the framework of international cooperation.” https://www.oas.org/en/media_center/press_release.asp?sCodigo=E-045/22
However, significant reports pertaining to specific states were released by international bodies, and links to these items are found in the sections below. Perhaps the most anticipated was the UN High Commissioner for Human Rights’ report on the “human rights concerns in the Xinjiang Uyghur Autonomous Region, People’s Republic of China.” Also important are the UN report on missing people in Syria, which includes a recommendation for a new international institution, and a UN report presenting evidence that Rwanda is supporting a rebel group in the Democratic Republic of Congo. The Inter-American Commission on Human Rights reviewed its four years of monitoring Nicaragua, and the International Labour Organization published an assessment of the resilience of trade unions and civil society organizations in Myanmar, with useful suggestions on how international organizations can effectively provide support.
With the opening of the 77th United Nations General Assembly on 13 September and the appointment of Volker Turk as the new UN High Commissioner for Human Rights, the September issue of SAHR News will surely be full of reports of new initiatives and assessments of existing conditions and actions by international tribunals. Stay tuned.
September: The bottom of a deep well, speech by Judge Rosario Salvatore Aitala
[The following summary is based on notes taken during the speech of Judge Aitala. I hope ICA will make a recording of his significant discussion available on line. In her introduction to the Judge’s remarks, Giulia Barrera pointed out that 2022 marks the 20th anniversary of the entry into force of the Rome Statute of the International Criminal Court, which had been adopted at a UN Diplomatic Conference in Rome on 17 July 1998.]
“Truth lies at the bottom of a deep well,” Judge Rosario Salvatore Aitala told the plenary session opening the ICA Rome conference in September. It is a Sicilian saying, the Judge said, and it is the shared responsibility of judges and archivists “to jump into the well.”
Judge Aitala is a judge of Pre-Trial Chamber II at the International Criminal Court. He opened his remarks with a brief history of international law, noting that traditionally the fundamental unit in international law was the state, which carried the “legal fiction” that when individuals were acting on behalf of a state or organization, their acts were attributed to the entity—in other words, individuals were shielded by the state. The Nuremburg Tribunal changed that, with its insistence that crimes against international law are committed by people, not abstract entities. This “expressed a promise” to victims and “changed the shape of the international community.” However, he said, that promise has “steadily deteriorated” with the fragmentation of the international order and the decline of multilateralism. Today’s international community, he said, “tolerates violations of international criminal law.”
Turning to the International Criminal Court, Judge Aitala said that he believes archives are “one of the most important categories” of cultural heritage that must be protected. At the time the genocide convention was written, a compromise left out cultural genocide. He argued that cultural heritage represents the “deepest identity” of a people and therefore its damage or destruction should be a crime in international law. The International Criminal Court has begun to prosecute individuals responsible for the destruction of cultural heritage; he pointed to the case of the destruction of religious structures in Timbuktu, Mali, which was the first case concerning damage to cultural property that was heard at the Court.
Archives, he said, are the “means to know” and “extremely important” to the Court. To be useful in judicial proceedings, a document must satisfy two elements: the document is authentic and the content in the document is provable. Documents in a case, he said, can link atrocity crimes to high levels of state organization, shedding light on the usual situation in which leadership creates the conditions that allow persons at the lower level to conduct atrocities. “You archivists are custodians of truth,” he concluded, and judges are responsible for the “guidance” of truth. It is a shared responsibility, one that requires members of both professions to jump into the well.
October: Fuel and climate change
Fuel. Climate change is all about fuel. Well, not quite, because there are other causes of climate change, but fossil fuels--especially big oil, natural gas and coal extraction and use--are a key part of it. Combustion of these fossil fuels releases the greenhouse gases that are causal factors in global warming.
The news on climate change is dire. In a report released before the current Conference of the Parties of the United Nations Framework Convention on Climate Change, the World Meteorological Organization (WMO) said, “The three main greenhouse gases—carbon dioxide, methane and nitrous oxide--all reached new record highs in 2021.” It was the “biggest year-on-year jump in methane concentrations . . since systematic measurements began nearly 40 years ago.” There is a “need to strengthen the greenhouse gas information basis for decisions on climate mitigation efforts,” WMO argued, and confirmed it is working on developing “a framework for sustained, internationally coordinated global greenhouse gas monitoring, including observing network design and international exchange and use of the resulting observations.” https://public.wmo.int/en/greenhouse-gas-bulletin
Melting glaciers, rising sea levels leading to forced migrations of populations, increasing heat are all results of the long-term changes. The projected effect on health is drastic: The 2022 Report of The Lancet Countdown on Health and Climate Change warned that damage will include food insecurity, as crop yields are affected by the changing growing seasons; heat will aggravate chronic health conditions; and diseases like malaria and dengue will spread for more time each year. https://www.thelancet.com/journals/lancet/article/PIIS0140-6736(22)01540-9/fulltext
And we are a long way from shedding our dependence on fossil fuels, as we can see from actions by nation states. For example, in October Israel and Lebanon reached an agreement on a “permanent maritime boundary” that, wrote Al Monitor, resolves “a longstanding territorial dispute over a potentially gas-rich 330-square-mile stretch of the eastern Mediterranean Sea.” Lebanon said that French corporation Total Energies will “immediately” begin work in the declared Lebanese waters. Crisiswatch reported that on 3 October Japan “lodged a protest with China over gas sea development in the East China sea, in [an] area where Beijing and Tokyo in 2008 agreed to jointly develop resources,” but since then “China unilaterally proceeded with development and has installed 18 structures.” And to the south, in the contested South China Sea where several countries claim maritime boundaries, a Chinese oil company “claimed to find the first ‘deep-deep’ gas field in the western” part of the sea.
https://www.al-monitor.com/originals/2022/10/us-touts-historic-breakthrough-israel-lebanon-maritime-border?utm_medium=email&utm_campaign=business%20newsletter%20101222%20October%2012%202022%20118&utm_content=business%20newsletter%20101222%20October%2012%202022%20118+CID_b7cb355f19dab4cffb2b2b16acce207b&utm_source=campmgr&utm_term=reached%20an%20agreement; https://www.crisisgroup.org/crisiswatch
The pressure to reduce the use of fossil fuels has focused on governments, but alongside that are efforts to hold the fossil fuel companies responsible for climate change. An essay by Benjamin Bibas in justiceinfo.net pointed to a 2017 report by U.S. and British NGOs that said “100 fossil fuel companies . . are responsible for 71% of global emissions since 1988, with the 25 most polluting companies responsible for 51 % of the emissions . . the first four places being occupied by Saudi oil company Saudi Aramco, Chinese coal company Shenhua (which became Chinese Energy in August 2017) Russian gas company Gazprom, and the National Iranian Oil Company.” (Note the government ties of these companies.) Several NGOs have filed lawsuits against the fossil fuel companies, including Shell and Total, arguing both that the companies fail to comply with international standards for the reduction of emissions and the “serious humanitarian consequences of their pollution.” https://www.justiceinfo.net/en/108457-redefining-climate-justice.html ; https://climate-laws.org/geographies/france/litigation_cases/notre-affaire-a-tous-and-others-v-total
Determining the degree of climate change relies on historical data against which current conditions can be measured. The UN Environment Programs’ recent report acknowledged the need for and uncertainties of historical data, writing, “Historical emissions inventories and emissions projections from global integrated assessment models differ and are associated with uncertainties.” https://www.unep.org/resources/emissions-gap-report-2022 But data is what we have for understanding the recent past, and preserving that data is a responsibility archivists feel keenly. The ICA Section on Archives and Human Rights has a study in progress that seeks to locate the archives of the major fossil fuel companies and is finding it very difficult work. ICA’s Section on Business Archives has no representation from the international fossil fuel sector. It is essential that the records of those companies—not just those of governments--be preserved, managed, and made available for research. After all, the work of those companies that affects us all—existentially.
November: The hole that is Al-Hol
The tents stretch away as far as the eye can see: blue roofs, white roofs, tan roofs blending into the earthen paths between tents. Al-Hol: refugee camp, humanitarian center, internment camp, detention facility, prison?
Located in northeast Syria, as of November 2022 this place known as the Al-Hol camp houses more than 53,000 people of 60 nationalities. During the complex war in Syria in the mid-2010s, Syrian Democratic Forces (SDF), an alliance between Kurdish and Arab militias, captured Al-Hol town from ISIS, and in April 2016 the Autonomous Administration of North and East Syria (AANES) opened Al-Hol camp for refugees. As more territory was seized from ISIS, families of suspected ISIS fighters were taken to Al-Hol, and the population of the camp soared to about 73,000 people. It is now around 57,000, of whom 11,000 are foreign nationals housed separately from the Syrian population. Children are an estimated 64% of the camp’s population.
Al-Hol is administered jointly by AANES and SDF. In a lacerating report in November, Doctors without Borders (MSF) drew on the experiences and testimonials of its patients, staff, and the general Al-Hol population and concluded that Al-Hol is “a detention camp, more than a humanitarian camp setting, where movement in and out of the camp is restricted, rights and entitlements are stripped from people. They lack access to livelihoods, and continue to be held in prison-like conditions with very limited access to basic services and no way out.” https://www.msf.org/danger-and-desperation-syria%E2%80%99s-al-hol-camp-report-msf
In the future, if a researcher wants to find records relating to this inhumane camp, where would they be? First, of course, there would be records of camp administration maintained by the two operating powers, AANES and SDF. Do they, as required by the 1949 Geneva Conventions, record the personal details of persons deprived of their liberty? Do they register a baby after birth with a name and nationality, as required by the Convention on the Rights of the Child? The camp administration should have records of applications by people seeking to leave Al-Hol, a process that requires the person to be in possession of civil documents, an impossibility for many residents.
Researchers would also find information in the records of the neighboring city of Deir Ezzor, its Civil Council and civil society organizations, all of which have dealt with the impact of a large camp in the area. https://impactres.org/al-hol-camp/ The provincial and perhaps the national government would also have records.
Turning to the United Nations, at least ten of its constituent parts work in Syria, many in Al-Hol, and the United Nations-administered Syrian Humanitarian Fund allocates money for work in Syria to 21 international NGOs and 21 national NGOs, at least some of whom undoubtedly work in the camp, along with the International Committee of the Red Cross, Syrian Arab Red Crescent and Kurdish Red Crescent, and large international NGOs like MSF, Mercy Corps and the International Rescue Committee (on the dangers to aid workers at Al-Hol camp see https://syrianobserver.com/news/75252/ngos-withdraw-from-syrias-al-hol-camp-following-unidentified-attack.html). All would have relevant records.
And there are records in national governments around the globe. First, of course, are the nations that were part of the U.S.-led Global Coalition against ISIS, all of whom would have records of the camp and its occupants. Other nations are or were donors to the NGOs working in the camps as well as sponsoring their own aid agencies, such as the Norwegian Refugee Council, to work there. Nations whose citizens are among the foreign detainees in Al-Hol will have records of the decision-making on whether to repatriate them and, in some cases, the decision to strip of interned persons of citizenship (see, for example, the U.K. case https://www.theguardian.com/politics/2022/jan/26/uk-unlawfully-stripped-woman-of-citizenship-without-telling-her-court).
Syrian organizations outside the country, such as the Syrian Observatory for Human Rights, the Syrian Network for Human Rights and the Syria Justice and Accountability Centre, have records, as do university centers for the study of the Middle East. News media that cover Al-Hol and other camps in Syria have both published and unpublished material, as do journalists who were on the story. And, of course, individuals, including Al-Hol detainees, their families and their lawyers (if they have such), and aid workers have personal documentation.
In sum, we have no shortage of resources to tell the Al-Hol story. Do we also have the resources to pressure governments to put an end to the detention of people in the hole known as Al-Hol? https://syrianobserver.com/resources/80009/us-encourages-countries-to-repatriate-nationals-from-ne-syria.html
December: 2022 in review
Here are items from each month of the News in 2022 that, taken together, illustrate the diversity of human rights issues that involve archives; some may bring a smile, too. To a record 2023
January. It’s never too late: The parliament of Spain’s Catalan region “formally pardoned hundreds of women executed for witchcraft between the 15th and 18th centuries.”
February. A database of examples of rapid evolution among plants and animals as climates changed records “everything from the cranial depth of the common chaffinch to the lifespan of the Trinidadian guppy.”
March. Bravo: For the first time since it began monitoring forced labor, the Uzbek Human Rights Forum confirmed the absence of systematic forced labour in the 2021 cotton harvest season.
April. The Office of the Prosecutor of the International Criminal Court signed an agreement to become part of a joint investigation team with Eurojust, the European Union Agency for Criminal Justice Cooperation, and Lithuania, Poland and Ukraine “to facilitate investigations and international judicial cooperation” and “effectively gather evidence on core international crimes committed in Ukraine and bring those responsible to justice.”
May. A less happy first: The UN High Commissioner for Refugees said that for the first time 100 million people are forcibly displaced worldwide, representing 1% of the global population and equaling the population of the 14th most populous country in the world.
June. An armed group occupied the court in Port-au-Prince, Haiti, setting fire to the files of the courts in Port-au-Prince and Croix-des-Bouquets.
July. The Swiss cement company Holcim emitted more than seven billion tons of CO2 from 1950 to 2021, which amounts to 0.42% of all global industrial CO2 emissions since the year 1750.
August. The Office of the UN High Commissioner for Human Rights released its assessment of human rights concerns about government actions in the Xinjiang Uyghur Autonomous region of China.
September. The International Labour Organisation’s surveys estimated that 27.6 million people are in situations of forced labor and 22 million are living in forced marriages.
October. In Guatemala, two groups of Indigenous women proposed a law that would protect their weaving designs, fearing that companies owned by non-Indigenous Guatemalans would patent their traditional designs and prevent them from weaving them.
November. JBS, the world’s largest meat company, said it was the victim of a cattle laundering fraud for buying cattle from a farm operated by one of the biggest deforesters in Brazil.
December. Cheers: In advance of the 75th anniversary of the Universal Declaration of Human Rights (UDHR) on 10 December 2023, on 10 December 2022 the UN launched “a year-long campaign to showcase the UDHR by focusing on its legacy, relevance and activism.”