Tribunals Past and Present: Temporary Courts, Permanent Records
Tribunals Past and Present:
Temporary Courts, Permanent Records
Transitional justice institutions such as truth commissions and criminal courts are by definition temporary, meant to complete a task and disappear. Yet the records these bodies create are crucial records, documenting both what happened during the period of repression and the efforts the country made to right itself thereafter. And because the bodies are temporary, the records may have no obvious archival home.
In a study of the records of truth commissions in twenty countries, I found that what happens to the records when a commission closes varies widely. In four countries the records went to the Ministry of Justice or the Ministry of the Interior, where they are available for subsequent actions, including possible prosecutions. In one country the records went to the ombudsman’s office. In three countries the President’s Office or the Cabinet Secretariat controls the records, while in two countries a successor committee or commission has them. In two countries the records are in or destined for the national archives, and in another they are in an archives established by Parliament for the purpose. Three commissions have their records with the United Nations, one commission still has its records, and I was unable to determine the location of the records in three other countries. After analyzing various factors, I concluded that the stronger the open government climate, including the enactment of laws such as freedom of information acts, the more likely that the records of a truth commission will be placed with a government entity that has, as part of its regular work, the responsibility of providing access to information.
A truth commission is a national institution and the solution to the problem of the preservation, description, and use of its archival records is a national one. The temporary international criminal tribunals are very different: in each of them the United Nations plays a key role and the solution to the records preservation and access problem is an international one. The temporary tribunals need to be understood as part of the broad historical development of international criminal law and the new role of the United Nations as an instrumentality for international justice, yet because the records of the tribunals relate to a particular country or geographic region, the interests of the people of the region must be accommodated in any decision about the permanent retention and location of the records. The tribunal records, moreover, include extremely sensitive, even dangerous information, and access to them must be managed carefully and consistently. The disposition of the records of the international war crimes prosecutions at the end of World War II is an anomaly and does not offer a persuasive precedent for the disposition of the records of the current temporary tribunals.
The United Nations must accept its responsibility to administer judicial archives for the permanently valuable records (paper, audio and video recordings, electronic databases, objects) of the temporary tribunals. The publicly available records should be copied and the copies donated to institutions in the countries affected or in regional institutions that the countries might designate. The objects and artifacts maintained by a tribunal, if not returned to a family, should be available for loan to institutions for educational exhibition purposes.