Archival commentaries 2023, January - April
January: Solely the nature of the crime
Perhaps it was pirates—at least, one theory is that today’s concept of universal jurisdiction originated in the threat pirates made half a millennium ago to the safety of seaborne trade and communication links between States and, therefore, all nations could punish them. Interesting as the historical roots are (see, for example, Yana Shy Kraytman’s “Universal Jurisdiction—Historical Roots and Modern Implications” in the Brussels Journal of International Studies 2005), the modern use of universal jurisdiction emerges in the wake of World War II. Today’s international legal profession is increasingly attuned to the use of universal jurisdiction.
The Princeton Principles of Universal Jurisdiction, published in 2001, define universal jurisdiction as “criminal jurisdiction based solely on the nature of the crime, without regard to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality of the victim, or any other connection to the state exercising such jurisdiction.” https://icj2.wpenginepowered.com/wp-content/uploads/2001/01/Princeton-Principles-Universal-Jurisdiction-report-2001-eng.pdf The Universal Jurisdiction Annual Review 2022 reported that in 2021 there were 125 active charges of international crimes in 16 countries, including 34 charges for war crimes, 66 for crimes against humanity, 25 for genocide. https://www.ecchr.eu/fileadmin/Publikationen/Trial_UJAR_25_03_2022_Digital.pdf
January brought a striking number of advances in universal jurisdiction cases:
Finland/Liberia/Sierra Leone. In April 2022 a Tampere, Finland, court dismissed all charges against Gibril Massaquoi, the former Lieutenant-Colonel and spokesman of the Revolutionary United Front in Sierra Leone’s civil war. The prosecution appealed, and the appeal is now underway, with the court moving to Liberia to hear witnesses, the NGO Civitas Maxima reported. For background, see SAHR News 2022-04. https://civitas-maxima.org/trial-monitoring-gibril-massaquois-appeal/
Germany/Myanmar. The NGO Fortify Rights and 16 individual complainants submitted a 215-page criminal complaint and “more than 1,000 pages of evidence to assist the Office of the Federal Prosecutor [Germany] to investigate and prosecute those responsible for the Rohingya genocide as well as atrocity crimes related to the [Myanmar] military junta’s coup d’etat launched on February 1, 2021.” In addition to “more than 1,000 interviews with survivors of international crimes in Myanmar,” the complaint draws on “leaked documents and information provided by Myanmar military and police deserters and others that shed light on the military’s operations, crimes and command structures.” https://www.fortifyrights.org/mya-inv-2023-01-24/
Germany/Syria. Justiceinfo.et interviewed Patrick Kroker of the NGO European Center for Constitutional and Human Rights that represents one of the plaintiffs in the German case against Moafak D., a former member of a Syrian militia charged with the war crime of “throwing a grenade at a crowd that had gathered to collect UN aid packages in March 2014” in Yarmouk, a refugee camp and neighborhood in Damascus, Syria. Kroker said that during the trial in Berlin “the testimonies of the nine eyewitnesses were the most important. They are supported by a fairly large amount of images, partly from social networks, recorded before the crime and after in hospitals. But there is no material from the moment just before and after the crime.” Kroker made an important point about the Assad regime’s “widespread and systematic attack against its civilian population from April 2011” and the terrible situation in Yarmouk: “The war crimes charge does not register all of this. For the efficiency of the trial, it makes sense to focus on war crimes, because the court does not have to prove the whole context. But this does not fully reflect the injustice that occurred in Yarmouk and the suffering of the victims.” https://www-justiceinfo-net.translate.goog/fr/110921-patrick-kroker-vu-blessures-personne-survivre.html?_x_tr_sl=auto&_x_tr_tl=en&_x_tr_hl=auto
Iran/Sweden. In Stockholm the appeals trial of Hamid Noury, an Iranian citizen, began, contesting his sentence to life in prison for committing war crimes and murder during the Iran-Iraq war in the 1980s, AP reported. For background, see SAHR News 2022-07. https://apnews.com/article/iran-politics-stockholm-legal-proceedings-crime-935a0486cc8c5b324c6b661c9c03ca4c
Liberia/Switzerland. In 2021 a Swiss court gave a 20-year sentence to Alieu Kosiah, a former rebel commander for fought with the United Liberation Movement of Liberia for Democracy (ULIMO) against former Liberian President Charles Taylor’s army between 1993-1995. He was convicted, said swissinfo.ch, of “22 counts of war crimes including rape, murder and an act of cannibalism.” He appealed the conviction, and the appeals trial began in January. For background, see SAHR News 2021-06. https://www.swissinfo.ch/eng/liberian-war-crimes-appeal-trial-opens-in-switzerland/48195632
These universal jurisdiction cases often rely heavily on the testimony of witnesses rather than institutional records, although the Myanmar case in Germany does include leaked documents. Satellite imagery and its forensic analyses are increasingly important, as are the records of social media. But at least as important as the documentation used in the pleadings and the courtroom are the records assembled as prosecutors define and refine cases and judges ponder the legal matters before them. The records of these universal jurisdiction cases are held in one State but are essential sources for the history of the people of another State. They may be the only records of horrifying events, and in the near future they will likely be the most easily accessible records about them. The importance and responsibility of court archivists for the records of these cases is unquestionable.
February: Citizenship is complicated
Citizenship is complicated. It can be gained by birth or naturalization, excluded by gender or race, lost by a woman’s marriage to a foreign national or by act of government, renounced as Maria Callas did with her U.S. citizenship to regain her ancestral Greek citizenship. A person might have serial citizenship without individual effort: a person born in Kiev, Ukraine, during Tsarist rule, for example, would have been a Russian citizen, then a citizen of the USSR, and now a Ukrainian citizen. Dual citizenship is also complicated. One can be simultaneously a Portuguese and U.S. citizen, for example, holding citizenship in two UN member states, or a citizen of both Canada and Cree Nation, one a UN member state and another a national Indigenous body within he state.
Citizenship implies both inclusion and exclusion: you are with us or you are not with us. Issues of citizenship arose remarkably often in February.
“More than 300 Nicaraguans were stripped of their citizenship by authorities in February, including students, journalists, literary figures and human rights defenders,” Courthouse News Service reported. On 9 February, 222 of these now stateless persons were forcibly deported to the U.S.; the same day the National Assembly reformed Article 21 of the Constitution to revoke the citizenship of the deportees and “other opposition members already in exile,” which “prevents them from returning to Nicaragua,” CrisisWatch reported. https://www.courthousenews.com/ortega-regime-accused-of-criminalizing-civil-society-in-nicaragua/; https://www.crisisgroup.org/crisiswatch
Meanwhile in Israel, the Knesset passed an amendment to the 1952 Citizenship Law, revoking the citizenship or residency of citizens or permanent residents who meet three conditions, Al Monitor reported:
1. The person must have been convicted of terror, aiding terror, harming Israeli sovereignty, inciting war or aiding an enemy during wartime.
2. He or she must have been sentenced to jail time.
3. The person or someone on their behalf receives stipends from the Palestinian Authority while in prison.
A court will rule on each pending revocation proposed by the interior minister. It is not clear how many people will be affected.
And then there is the case of Shamima Begum, a British woman who, at the age of 15, went to Syria to marry an ISIS fighter. U.K. “authorities withdrew her British citizenship on national security grounds soon after she surfaced in a Syrian refugee camp in 2019,” CBS/AP reported. With her husband and three children now all dead, she wants to return to London, but the Special Immigration Appeals Commission said “evidence was ‘insufficient’ for Begum to win the argument that the deprivation of her British citizenship failed to respect her human rights.” The U.K. also said she “could seek a Bangladeshi passport based in family ties,” but her family said she has “never held a Bangladeshi passport.” Stateless, she is stuck. https://www.cbsnews.com/news/shamima-begum-uk-ex-isis-bride-in-syria-loses-british-citizenship-appeal/
Turning to cases involving Indigenous bodies, in Finland (see item below) the Sami Indigenous people are confronting the question of citizenship, as the government proposes a new law governing Sami identity and, therefore, the right to be a part of the population governed by the Sami Parliament. And in Canada (also see item below) a man who has discovered his birthmother was Cree is seeking to have his birth registration changed to he can gain the benefits of a citizen of the Metis Nation.
Citizenship brings benefits such as social security and health care, the right to vote on governance, and the right to have a passport that allows travel across borders. Without citizenship an individual’s rights fall away and the person is left vulnerable to arbitrary actions with no legal recourse. The documents of citizenship, from birth certificates to naturalization records to registers of Indigenous groups, are vital records indeed.
March: Bias in, bias out
GIGO—garbage in, garbage out—is an acronym used since at least the early days of modern computing (see this 1957 article: https://www.newspapers.com/clip/50687334/the-times/). Perhaps now we need the acronym BIBO--bias in, bias out--as computer-generated algorithms dominate many of our daily transactions.
In Europe, the General Data Protection Regulation tried to deal with bias in automated decisions. Its Article 22 on “Automated individual decision-making, including profiling” reads:
1. The data subject shall have the right not to be subject to a decision based solely on automated processing, including profiling, which produces legal effects concerning him or her or similarly significantly affects him or her.
2. Paragraph 1 shall not apply if the decision:
(a) is necessary for entering into, or performance of, a contract between the data subject and a data controller;
(b) is authorised by Union or Member State law to which the controller is subject and which also lays down suitable measures to safeguard the data subject's rights and freedoms and legitimate interests; or
(c) is based on the data subject's explicit consent.
Outside Europe there is scant legislation, leaving the construction of algorithms for automated decision-making without regulation in markets such as the United States. But within Europe or outside it, situations like these were reported in March:
*“Lighthouse Reports and WIRED obtained Rotterdam’s [Netherlands] welfare fraud algorithm and the data used to train it, giving unprecedented insight into how such systems work. This level of access, negotiated under freedom-of-information laws, enabled us to examine the personal data fed into the algorithm, the inner workings of the data processing, and the scores it generates. By reconstructing the system and how it works, we found that it discriminates based on ethnicity and gender. It also revealed evidence of fundamental flaws that made the system both inaccurate and unfair.” https://www.wired.com/story/welfare-state-algorithms/
*A STAT investigation found artificial intelligence is now driving denials for medical treatment under U.S. government funded Medicare Advantage, the “the taxpayer-funded alternative to traditional Medicaid that covers more than 31 million people.” Insurers “are using unregulated predictive algorithms, under the guise of scientific rigor, to pinpoint the precise moment when they can plausibly cut off payment for an older patient’s treatment.” STAT researchers combed through “hundreds of pages of federal records, court filings, and confidential corporate documents, as well as interviews with physicians, insurance executives, policy experts, lawyers, patient advocates, and family members of Medicare Advantage beneficiaries.” The director of a care facility said, “They are looking at our patients in terms of their statistics. They’re not looking at the patients we see.” https://www.statnews.com/2023/03/13/medicare-advantage-plans-denial-artificial-intelligence/?utm_campaign=morning_rounds&utm_medium=email&_hsmi=249894563&_hsenc=p2ANqtz--1_WgZ1Xiv5tB5_EstY6AnbjBApuboBrtM2H1yKhA35kYVjanhIN0MnyP7GFLDl2nzuo4Qh4ovR4jfRCahrCrQsMAh2Q&utm_content=249894563&utm_source=hs_email
*In a similar study, the American Civil Liberties Union (ACLU) examined “how algorithmic design choices can function as policy decision” when used to “screen calls to a child welfare agency about alleged child neglect in Allegheny County, Pennsylvania.” The researchers used data on child-referral records from 2010 to 2014; “the data was very similar to the data used to train” the artificial intelligence algorithm, with “roughly 800 variables, including, for each family, information about prior referrals and child welfare records, jail and juvenile probation records, behavioral health information, birth record information and demographic information.” By using such historic data, the resulting tool and similar ones “give families no opportunity for recourse, perpetuate racial bias, and score people who may have disabilities as inherently ‘riskier’,” calling the use of such algorithms into question. https://www.aclu.org/the-devil-is-in-the-details-interrogating-values-embedded-in-the-allegheny-family-screening-tool?redirect=afst_audit
Archives hold records that can be used in myriad ways. Archivists insist that they make and certify true copies of documents in their possession but do not certify the truth or accuracy of the contents. Simply basing an algorithm on archival records fed into it for machine learning does not in itself make the result truthful. BIBO.
April: Thanks and farewell
After more than 13 years and 160 issues, I decided it was time to turn over SAHR News to other voices. A group of wonderful colleagues is taking it on: Kate Blalack will edit until September, and five persons will collect news (Amanda Leinberger, Aminata Kay, Joy E Rowe, Normand Charbonneau, Valentina Rojas). Andreas Nef will continue as the IT support, and the translation teams in French (Christine Martinez, Dinza Tang Irmi, Françoise Watel, and Annick Yonga) and Spanish (Paloma Beneito Arias, Blanca Bazaco Palacios, and Nilda Lopez) will continue the laborious work of language conversion.
It has been a privilege to share items, issues and commentary with readers for these many years. I not only have learned a lot about what was happening around the world, but I also gained a renewed appreciation for a free and fair press. Without robust, discerning press reports, the News would not be possible. ICA, on behalf of World Press Freedom Day on May 3, issued a press release drafted by SAHR supporting our colleagues in journalism. See:
English: https://www.ica.org/en/world-press-freedom-day-3-may-2023
French: https://www.ica.org/fr/journee-mondiale-de-la-liberte-de-la-presse-3-mai-2023
Spanish: https://www.ica.org/es/dia-mundial-de-la-libertad-de-prensa-3-de-mayo-de-2023
My sincere thanks to the many people who have provided support for the News, including translators past and present who never complained about difficult language, persons who sent in suggestions for items to be included, persons who complained about coverage, and most of all the readers. I look forward to seeing the evolution of the News. I’ll be reading each month!