Trudy Huskamp Peterson

Certified Archivist

Commentary, 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.

Commentary, 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/

Commentary, 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 defence 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.

Commentary, 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.

Commentary, 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 Iraq 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 away? 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?

 

What are they? The Times says the materials are all IS documents. If the files are ones that IS officially used and abandoned as they retreated, the records are abandoned property. Yet if the team was indeed in bedrooms and kitchens, it seems reasonable to assume that some of the items are personal papers, not IS files. Given the haste in which the team was working, it seems likely that the personal materials were not discovered until the documents were reviewed later in New York.

 

Who had the authority to give them to the Times?  Under common law in the United States, anyone can take abandoned property. The Times journalists probably were operating under this assumption. I do not know whether Iraqi law covers abandoned property or, if it does, what it says.

 

Under the laws of war, an occupying power (in this case a power recovering its territory) can take over the records of the previous government to be used for specific purposes, particularly to keep the government services running. (For useful background, see Douglas Cox, “Archives & Records in Armed Conflict: International Law and the Current Debate over Iraqi Records and Archives,” 59 Catholic University Law Review 1001–1056 (2010)). The New York Times says that some of the documents it found are records of land seizures and property transactions, which will surely be needed to resolve claims as the Iraqi government re-establishes control over the area. These materials, valuable for the continued business of government, would be incorporated into the records of the Iraqi government and therefore the Iraqi government rules of property (including records) would control their disposal. And the security forces must have understood that these materials could be used in trials of IS participants.

 

And, under the laws of war, invading troops may not loot.

 

The security forces that accompanied the Times team should have known the laws of war and Iraq’s laws on abandoned property and government property. As officials of the Iraqi government, the security forces lacked authority to give away the materials.

 

The personal papers that persons abandoned in distress but now could return and hope to find are only temporarily abandoned (I run out of my burning house but come back later for my possessions). Not truly “abandoned,” they should not be converted to a finder’s corporate or personal property.

 

What use could be made of them?  The original Times story did not say what it plans to do with the materials, but a later version said, “The New York Times is working to make the trove of ISIS documents publicly available to researchers, scholars, Iraqi officials and anyone else looking to better understand the Islamic State.” It probably has already made copies that are in the hands of members of its translation and analysis team, at least one of whom is at a major university. So no matter what it does with the original materials it brought out of Iraq, copies will likely exist at the Times and other institutions and will be available for research.

 

The IS materials would be useful for prosecution of IS leaders. The Iraqi High Tribunal was created to try persons responsible for grave human rights violations committed in Iraq between 1968 and 2003. Its mandate could be extended to cover IS leaders. However, what is happening now in Iraq seems to be swift trials in local courts for the captured IS fighters and little justice for victims (https://www.yahoo.com/news/captured-isis-fighters-iraq-justice-swift-conviction-certain-174952840.html; https://www.nytimes.com/2018/04/17/world/middleeast/iraq-isis-trials.html; http://www.globaljusticecenter.net/press-center/gjc-in-the-news ). These 20-minute trials are reported to rely on confessions not documents. Whether a captured IS leader would be tried for more comprehensive crimes and whether documents would be used in the trial are simply unknowns. Iraq is not a party to the International Criminal Court, so unless the UN authorizes the Court to take up these cases, that is not an option. A special tribunal could be created by the UN, but that also seems unlikely, for reasons of cost if not political disagreements in the Security Council.

 

Whose history?  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 are personal history and should be returned to the person or family or business owner, not to the government.

 

What should happen next?  Access to the materials is one question. The official IS records arguably can be made public, as land records and records of civil administration usually are; however, if there are police records in the cache, they should be reviewed for the privacy of individuals other than the IS official acting in their official capacities. Any personal papers or private business records among the materials (and in the copies of them) should not be made public by the Times or by those having custody of copies. Unravelling ownership and getting informed consent to use the documents may be--will be--difficult, but a good faith effort should be made to do so.

 

Deciding when and to whom to return the materials is a second 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.

 

In summary:

            *The original materials should be moved from the Times to a safe haven repository of a neutral party.

            *The copies of the materials held by the Times should be reviewed and any personal papers or private business records separated from IS official records.

            *The Times should employ an experienced privacy reviewer to determine which if any of the IS materials have information that must be protected on grounds of individual privacy.

            *The Times should ensure that the copies held by other parties are treated in the same way.

            *The Times, working through the safe haven, should return the IS records to a repository designated by the government of Iraq.

*The Times or a designated arbiter should determine the owners of any personal papers or private business records and return them to owners.

*The owners of the private materials should be given the choice of making available the copies of their papers in the institutions holding them; having the copies destroyed; or asking that the copies be withheld from public use for a period of years or until a specific event happens (such as the completion of a trial).

Commentary, Borders and fences: Keeping in and keeping our

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.

 

Commentary, 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.

Commentary, DNA tests as records of identity

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.

Commentary, 2017 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 2017 that, taken together, illustrate the diversity of human rights issues that include archives.  Best wishes for the year ahead!

January.  Investigators are using archives at the Max Planck Institute in Germany to “find and purge it of human brain tissue removed from victims murdered” during Nazi medical and euthanasia programs.

February.  The Prosecutor General in Colombia charged around 200 local and international companies for crimes against humanity.

March.  Two Swedish nongovernmental organizations used public records of seven banks for a report on the role of banks in the crisis faced by Borneo’s indigenous peoples and their forests.

April.  In Kashmir, a video of a man tied “to the front of a jeep as a human shield” led police to file a case against the army perpetrators.

May.  The UN Office of the High Commissioner for Human Rights issued “updated guidelines for investigating unlawful killings around the world.”

June.  World second cousins “have lower test scores, lower height-for-age, and a higher likelihood of being severely stunted.”

July.  Near the Iraqi city of Mosul, ISIS allegedly burned the biggest archives of its documents and data.

August.  A campaign in Afghanistan is urging that a mother’s name be recorded on her child’s birth certificate.

September.  Some 60 persons in India have been killed after using the Right to Information Act to gain access to government documents and at least 300 “have been harassed or physically hurt.”

October.  After the International Criminal Court issued its first ever arrest warrant solely based on social media evidence, accusing Libyan army commander Werfalli of mass executions near Benghazi, Libya, bellingcat, an online investigation team, used crowdsourcing to “geolocate” four of the seven locations shown on the social media video as sites where assassinations occurred.

November.  The U.S. Food and Drug Administration approved the first pill embedded with a sensor that can alert a patient’s physician or caregiver.

December.  China’s “Population Registration Program” is collecting biometric data from all residents in Xinjiang province between the ages of 12 and 65.

Commentary, Climate Change

“Hope is the thing with feathers that perches in the soul,” wrote 19th century U.S. poet Emily Dickinson. Some dinosaurs (we now know that they had feathers) might disagree. But hope and the ability to flee from gales, hot lands and stormy seas is all that people living in nations impacted by climate change have. At the U.N. climate talks in Bonn, Germany, the vice chair of the Alliance of Small Island States said “unless emissions can be drastically and quickly curbed, efforts by small island nations to adapt to climate change may be in vain,” Thomson Reuters Foundation reported.  http://news.trust.org/item/20171107210019-qadbk/

The scientific evidence for the human contribution to climate change is substantial and increasing. “Last year’s record global heat, extreme heat over Asia, and unusually warm waters in the Bering Sea would not have been possible without human-caused climate change, according to new research in Explaining Extreme Events in 2016 from a Climate Perspective,” a special supplement to the Bulletin of the American Meteorological Society issued on 13 December. https://www.ametsoc.org/ams/index.cfm/about-ams/news/news-releases/human-influence-on-climate-led-to-several-major-weather-extremes-in-2016/  No matter where we live we are affected, but locations near the sea are especially vulnerable. Ask Dominica. Ask Barbuda.

Around the world there are “a growing number of lawsuits against governments over their failure to act swiftly to curb climate change,” Thomson Reuters Foundation also reported. A group of 21 people between 10 and 21 years old are suing the U.S. government, arguing that “through its actions that drive climate change” the government “has violated their constitutional rights to life, liberty, and property.” Two environmental groups are suing Norway for “breaching the constitutional right to a healthy, safe environment—and violating it pledges under the Paris climate agreement—by letting energy firms explore for oil and gas in the Arctic Barents Sea.” Irish citizens are challenging the Irish government, and Dutch citizens have filed a case against the government in The Netherlands.  But lawsuits are not enough. http://news.trust.org/item/20171107115139-a6kn2/

Communities, even entire populations may be forced to relocate to escape the global forces (see the U.S. story below). But as an nation like Kiribati contemplates removal to Fiji, where it has bought land (https://www.theguardian.com/environment/2014/jul/01/kiribati-climate-change-fiji-vanua-levu), it will need also to move archives—of government, business, faith-based organizations, civil society, personal papers. This requires planning and resources, now not later. While some wealthy countries may be able to solve these problems themselves, others will not. The International Council on Archives and UNESCO should convene a special meeting of the national archivists of nations in danger from countrywide climate change, with a special focus on island nations, to discuss the risks and develop strategies for preserving archives. ICA and UNESCO should help archivists, archival institutions, and their governments understand the impending changes, the threats to archives, and the options available. They should help nations find funds and partners to take such steps as the country believes are necessary. This is no less than preserving the memory of the world in the largest sense.

And, while we do that, it is essential that archivists everywhere ensure that the records documenting the scientific evidence for climate change and the actions citizens take to lessen its impact—including those lawsuits--are safely preserved. Hope may be a thing with feathers, but remember the dinosaurs. It takes planning and action to make hope molt its feathers and develop into real archival preservation.

Commentary, Release all government records created before 1946!

Old news keeps appearing. Regular readers of HRWG News will know that in the past few issues news items about World War II records are grouped under the heading of the war, simply because there have been so many of them. But we are also seeing a lot of stories about old records that are not open. “Good reads” in this issue has a complaint by a Turkish historian over lack of access to Turkey’s World War I era-records, a complaint that would be echoed by researchers trying to understand what happened during the period of the Armenian genocide. Turkey is not alone, of course. For example, in November 2014 Spain’s defense ministry refused to declassify records from the 1930s Civil War and the Francisco Franco dictatorship, saying it had “insufficient resources to analyze their contents.” A case before the European Court of Human Rights was brought by Mikhail Suprun who, along with the archivist who provided him the records, was convicted in a Russian court for violating ‘personal and family secret’ information while studying cases of ethnic Germans who were repressed and committed to special settlements in Arkhangelsk oblast during and after World War II. The records of the Japanese military during World War II are only selectively available.

Other countries and international institutions are opening early twentieth century records without problems. In 2014, for example, the United Nations opened the WWII War Crimes Commission records; the World War II era records of the French railroad, which transported victims to roundups that led to German extermination camps, were opened; the Vatican promised to open its World War II records. The personnel and related records of the NSDAP(Germany’s Nazi party) and its affiliated organizations and activities from the founding of the Party in 1920 until 1945 have been open at the U.S. National Archives for two decades.

Think of the issues that could be at least somewhat clarified by the release of all government records through World War II. Today the intellectual actors behind the wars of the first half of the 20th century are long dead, and most of the participants still alive were youths hauled into service. If we could agree that the government records through World War II would be opened without further review, consider what would be available: we could better understand the slaughter of the Spanish Civil War, the Turkish point of view during the attacks against Armenians, the Japanese Army’s organization of the “comfort women” stations throughout Asia, the purges in the Soviet Union. Although we would not have the records of the often bloody end of colonialism, we would know more about the administration of the colonies than we do now. And even if we continue to close records relating to pensions for people who are still alive, we would know far more about the people who lived during those turbulent decades.

As Melanie Altanian points out in her recent publication for swisspeace, “Archives against Genocide Denialism?” opening records does not at all guarantee that the records will be understood or believed: there are both selective use of archival material and the denial of particular evidence to contend with. But surely, surely it is better to argue about records that everyone can use than hypothesize based on partial evidence and records we can’t see. Nearly a century since the end of World War I, 72 long years since the end of World War II, it is time that governments open all their records through 1945.

Commentary, "Fake News"

Fake news seems to be everywhere. The President of the United States calls the work of the mainstream media “fake news.” Mainstream media such as the New York Times have reported extensively on the hundreds of thousands of fake Twitter accounts that flooded the public with anti-Clinton messages during the 2016 U.S. presidential campaign and posts that comment on current controversies “by simultaneously sending conflicting messages to different users segmented by political and racial characteristics.”     https://www.nytimes.com/2017/09/27/technology/twitter-russia-election.html?_r=0  Even Pope Francis is concerned, announcing this month that the 2018 World Day of Social Communications will focus on fake news, as will his January message. In making the announcement, the Vatican said it “wishes to offer a contribution” to the discussion of fake news, “proposing a reflection on the causes, the logic and the consequences of disinformation in the media, and helping to promote professional journalism, which always seeks the truth, and therefore a journalism of peace that promotes understanding between people.”  http://time.com/4963060/pope-francis-fake-news-communications/

 

Of course, fake news and fake messages, ranging from satire to propaganda to outright lies, have been with us for a very long time. The 1905 publication of “The Protocols of the Elders of Zion,” which purported to show a Jewish plan for world domination, is a hideous example that the U.S. Holocaust Memorial Museum calls “an important part in the Nazis' propaganda arsenal.” https://www.ushmm.org/wlc/en/article.php?ModuleId=10007058  But the ease with which fake news can be produced and the speed with which it can be spread today make it enormously troubling. Add to this two trends that appear to be growing and we have a particularly virulent climate.

 

First, we see efforts by a number of countries to reshape or ignore history. Here are a few:

 

*The 50th anniversary of the 1965-1966 Indonesian state-sponsored purges of those suspected of being communists or communist sympathizers not only was not commemorated solemnly, but, according to Reuters, “a mob opposed to public discussion of Indonesia's 1965 massacre of communists tried to force its way into a Jakarta building where they believed communists were meeting, injuring five policemen.” Twenty-two people were arrested.  https://www.bangkokpost.com/news/asean/1326663/anti-communist-mob-attacks-indonesia-meeting-22-arrested  “The Indonesian government and its powerful military and security forces have failed to confront the darkest chapter . . and in fact continue to actively suppress public discourse about the massacres,” the New York Times wrote in the wake of the mob attack. https://www.nytimes.com/2017/09/29/world/asia/indonesia-communist-purge.html

 

*A legal scholar who examined two Chinese digital platforms “found that two of China’s main online database for scholarly articles had removed dozens of articles” from the 1950s that “questioned the Communist party’s commitment to the rule of law at the time,” the Financial Times reported. https://www.ft.com/content/4ffac53e-8ee4-11e7-9084-d0c17942ba93

 

*A long-time student of Russia reported that the current Russian government “has selected particular events to which it has given a meaning very different” from that of the archival record. Officials in the North Caucasus recently commemorated the “460th anniversary of the voluntary inclusion of the Kabards within Russia.” A Kabard activist points out that while in the 16th century the Russian and the Kabard entities concluded a treaty, the Kabards “later joined other Circassians in fighting the Russian military conquest of their land.” Writing in Eurasia Review, the scholar says that ultimately Russian citizens “will have to unpack and reject” these conflicting interpretations “if they are to have any hope that “they can coexist [with their neighbors] in a positive way in the future.” http://www.eurasiareview.com/26092017-historical-holocaust-islamic-states-lasting-legacy-analysis/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+eurasiareview%2FVsnE+%28Eurasia+Review%29

 

*Forty years after the Vietnam War ended, the U.S. public is still arguing about whether the war was a “noble cause,” as former president Ronald Reagan said, or good for absolutely nothing and a tragic conflict for Southeast Asians and the U.S. and other non-Vietnamese who fought in it. A new television series on the war, generally praised by media critics, has drawn much sharper responses from historians of the war. (For a sample, see the “Members Forum” of the American Historical Association at http://communities.historians.org/home

 

*And in Japan many peace museums “face difficulties, including insufficient storage space and staff, in accepting” donations of materials from World War II. A professor told the Japan Times, “Japan has yet to reach a public consensus on how we should view its role in the war, so we do not have a budget set aside for collecting war-related materials for public memorial museums.”  https://www.japantimes.co.jp/news/2017/08/21/national/japanese-war-memorabilia-pile-museums-online-auctions-artifacts-remain-unregulated/#.WduWA4wXAdV

 

The second trend is even more ominous. Archives contain the records that can help counter these pernicious trends toward dissimulation and falsehoods about history. Access to archives has long been a major issue, but many people have advocated for freedom of information laws to overcome at least government barriers to archives. What is now happening—see the items on India and the United States below—is that people who seek information are attacked or forced into expensive litigation over the legitimacy of the request. 

 

While we resign ourselves to the fact that fake news will forever be with us, we must not resign ourselves to any interruption in access to the archives that provide the evidence to counter it. A 19th century U.S. president said, “Government resting upon the will and universal suffrage of the people has no anchorage except in the people’s intelligence.” Archives provide the material—the heavy iron—for the anchor for the people.

Commentary, Human rights documentation disappearing on social media

Awful August is over.  Hate-fueled killings from Turku to Barcelona to Charlottesville. Violent protests following elections in Kenya and Venezuela. Wind and water destroying communities from India and Bangladesh to Texas and Louisiana. Rohingya refugees struggling through the mud in search of safety, as violence in Yemen and the Middle East creates yet more displaced people. North Korea launching missiles. Records will document all of these, but civil unrest and furious weather also destroy existing archives. What a month.

 

Much of what we learn about unfolding events comes from social media. Almost unnoticed among the August chaos was YouTube’s use of new technology to automatically flag and remove content that breaches its content guidelines. In June Google, the owner of YouTube, “announced it would turn more to technology to identify extremist and terrorism-related video,” CNN Business News reported.

https://gantdaily.com/2017/08/24/youtube-and-syria-techs-role-as-archivist/   Since that time, according to the New York Times and to several activists I contacted, “thousands” of videos have been removed from the YouTube site.  Gone are things like Islamic State execution videos. And there is the quandary.

 

Certainly casual internet users do not want to see snuff videos. The International Organization for Migration complained that people smugglers are using Facebook to “broadcast the abuse and torture of migrants in order to extort ransom money from their families” and called on the company to “police the platform and help crack down on traffickers.” http://news.trust.org/item/20170825150851-a7mav/   Sex traffickers use social media sites to offer the services of those trafficked; jihadi recruiters post hate speech “come hithers.” In the aftermath of the Barcelona killings, a video appeared threatening, “Spanish Christians, don’t forget the Muslim blood spilt during the Spanish inquisition.” http://metro.co.uk/2017/08/25/new-isis-video-warns-theyre-coming-to-take-back-spain-6877509/#ixzz4qmpO9lZC  Surely these postings are abhorrent.

 

And yet: The International Criminal Court, as noted below, has indicted a senior Libyan commander; some of the evidence against him is video that circulated on social media. Groups who monitor the conflicts in Syria and Iraq compile social media postings as evidence for future use by justice institutions. As one person told me, small groups of activists rely on the storage capacity of the huge corporations to keep evidence they need alive.

 

Even with the best of algorithms, social media companies will not be able to eliminate all hate speech and violent videos. And if one post is taken down at one location, it is likely to pop up on another, less policed site. Perhaps a warning symbol affixed to the videos selected by the algorithms as hateful, much like a copyright mark, could at least provide a way to identify and sort but preserve the violent video streams.  Documenting violence has never been easy, but it is important that all possible tools are available for those who would assure accountability for the violation of human rights.

Commentary, Forum Shopping and Court Records

Forum shopping? That’s not buying food in old Rome. It is, rather, the practice of lawyers choosing the court to hear a case, based on the attorney’s belief that a particular court is likely to provide a favorable judgment for the client. Often the “shopping” is within the country, but at other times it involves looking at courts in two or even more nations. For example, the United Kingdom is known to have libel laws that favor the plaintiff, which is why the famous case by Holocaust denier David Irving against U.S. academic Deborah Lipstadt (now the subject of the film “Denial”) was brought in the U.K. 

Bringing a case in another country does not always mean that the judgment will be enforced at home. In 1995 victims of human rights abuses under the Ferdinand Marcos regime sued Marcos in the District Court in Hawaii, where Marcos was living after he fled Manila in 1986. The court found in favor of the roughly 10,000 plaintiffs and awarded nearly $2 billion in damages. (The Marcos family is alleged to have stolen up to $10 billion from the nation during the 21-year rule.) After the Hawaii judgment, five of the victims filed a case in the Philippines, seeking their share of the money. Two decades later, the Philippines Court of Appeals on July 7 said the Hawaii District Court was “without jurisdiction” over the claim and the judgment “did not meet the Philippines’ criteria of a valid judgment,” CNN reported. The court was particularly concerned that the complaint in Hawaii was, first, “erroneously filed as a class suit and second, therein claimants remained unidentified.” The court could have obtained the list of complainants in the Hawaii case from the district court records in the U.S. or, logically, from the attorneys that filed the original case, but clearly it chose not to do so.  http://cnnphilippines.com/news/2017/07/18/ca-junks-2-billion-dollar-reparation-for-martial-law-victims.html

A complex set of cases are those brought against international corporations, often by human rights groups on behalf of victims of environmental and physical damage. Here the lawyers for the plaintiffs can choose to bring the suit where the damage occurred or in the country where the corporation has its offices.

 

*January’s issue of HRWG News reported on a lawsuit that began in 1993 when a group of residents of the Ecuadorian rainforest sued Texaco, alleging that the company left behind an environmental and public health disaster from its oil venture in the Amazon between 1972 and 1990. The first suits were filed in the U.S., but were dismissed, so the plaintiffs refiled in Ecuador, where the Ecuadorians won a large financial judgment. Texaco had left Ecuador in 1992, and Texaco became a subsidiary of Chevron in 2001, so the plaintiffs turned to a court in the U.S. where Chevron is headquartered to enforce the payment. The U.S. court refused to force Chevron to pay. The Ecuadorians next turned to a Canadian court which ruled in January 2017 that Chevron Canada is a separate entity from the parent corporation and its Canadian assets cannot be used to pay the judgment against it.

*Also in January, a court in the United Kingdom ruled in a suit against Royal Dutch Shell for its alleged environmental destruction in the Niger Delta. The court held that “Royal Dutch Shell cannot be held responsible for the actions of its Nigeria subsidiary.” 

*Last month’s issue of HRWG News had an item about the lawsuit in Canada “brought by several Guatemalan men for injuries they suffered during the violent suppression of a peaceful protest” at Tahoe Resources Inc.’s mine in Guatemala. Tahoe is a Canadian company. Canada’s Supreme Court allowed the case to go forward, despite Tahoe’s argument that the case should be tried in Guatemala.

 

Tahoe’s argument is often made by international corporations: that the case against them in one country should be heard in another country (a forum non conveniens argument, meaning, roughly, to send the case to another jurisdiction that has a stronger link “more convenient” to the case). A judgement for the corporation can mean that the case has to be tried in a less robust legal system or even in one where bribes are routine. And this often results in cases bouncing back and forth with no resolution but draining the money of the plaintiffs. For a particularly egregious example of the use of forum non conveniens arguments, see the saga of the lawsuits brought by workers on Dole and Chiquita banana plantations in Central America for health problems linked to the use of the pesticide DBCP manufactured by chemical companies Dow and Shell, as told in the book Toxic Injustice: A Transnational History of Exposure and Struggle by Susanna Rankin Bohme.  

What does this mean for the archives of courts? Because archivists usually do not describe court records at the case level, relying instead on court-generated indexing that is accessioned with the court records, there is no regular means to link the case in one country to the related case in another. However, the International Standard for Archival Description (General) has free text fields that allow the person doing the description to note that a particular case or group of cases will have related records in another country’s archives. These mass cases for human right violations are so important that it is incumbent on archivists to make a special effort to point to them in the body of court case files in archival custody. As we know from cases arising immediately after World War II that have been revived in the last two decades, it is always possible that all the court files everywhere on a violation will ultimately be used to bring justice for victims.

Commentary, Identity Politics and Archival Action

Identity politics are rampant from the Balkan states to Bangladesh. As a professor of biology, neurology and neurosurgery at Stanford University wrote in a recent article, “Considerable evidence suggests that dividing the world into Us and Them is deeply hard-wired in our brains, with an ancient evolutionary legacy.” http://nautil.us/issue/49/the-absurd/why-your-brain-hates-other-people But carried into the national setting, where the people of a nation must agree on some things in order to live together, the drumbeat of identity can easily divide the population. Some of this division, of course, is attributed to the global media, where hateful messages can resurface again and again, passed from one device and one platform to another. And some of it, too, is because politicians have found it useful to use identity to gain votes: “Vote for me because I am one of you, I understand you, and I will protect you.”  

In the United States, the medical profession has been discussing how racism--one form of identity politics but far from the only one--affects medical treatment. Some patients shrink from treatment by doctors of another color or creed; some distrust diagnoses made by anyone other than a member of what the patient considers his group.  http://www.nejm.org/doi/full/10.1056/NEJMp1514939; https://www.statnews.com/2017/06/12/racism-bias-patients-doctors/  In a discussion with two experienced archivists, we could not think of an occasion when a researcher distrusted or even refused to accept service on an identity basis, but it is not a stretch to imagine a researcher suspecting that an archivist not of his or her identity would not provide the same fulsome service that another person would receive. And would this be more likely to happen if the records requested are related to rights and benefits or to a personal interest in genealogy?

Archives hold the records that validate personal identity. From birth certificates to voting records to records of employment to documents showing adherence to a faith, archives have them all. Archives properly make the existence of these records known and provide the access to them on an equal basis. Archives advertise their educational services and offer courses in how to find your family in the records. But is there a line that archives should not cross, when promoting the identity records it holds is complicity with the divisive identity situation in the country? 

People were stunned when a presidential archivist recently advocated via Twitter that every household maintain an automatic weapon. https://turkeypurge.com/presidential-archives-director-urges-to-arm-every-household-with-automatic-weapon-1000-bulletsBut in many ways, the records held in archives can be as dangerous as household guns, as they provide the ammunition for division and labeling. Archivists like to think of themselves as the neutral parties, moving between records and requester. In extreme situations, archivists have secreted archives that would provide information on personal identities to a repressive state, obviously an unusual circumstance. But it is necessary to think about the ways in which we advertise our services, walking the line between helping us all know who we are and what things happened among us and promoting the identity claims that roil our world.

Commentary, Facebook’s Deletion Policy

Why do people post on Facebook what they do? For instance, a man in Thailand live streamed himself killing his baby daughter and then committing suicide. http://electronicnewsnetwork.com/news/baby-murder-suicide-facebook-201032349/  A man in Memphis, Tennessee, set his phone to record as he doused himself with kerosene, lit a match and committed suicide.  http://www.stuff.co.nz/world/americas/92648925/man-commits-suicide-on-facebook-live-by-setting-himself-on-fire  Videos of rapes, “revenge porn” (attempts to use intimate images to shame, humiliate or gain revenge against a person), and ISIS beheadings mingle on line with images of family feasts and frolicking kittens. And any of these can be downloaded and saved to an institutional or personal archives. 

The Guardian published a series of articles it called “The Facebook Files,” based on “more than 100 training manuals, spreadsheets and flowcharts” leaked to The Guardian that show how Facebook is dealing with violent content on its service. The company uses algorithms and is working with artificial intelligence to address the problem of content, trying to walk the line between censorship and free speech. And Facebook has a team of 3,000 people—and growing—to monitor the postings and decide what to delete. As one man described a monitor’s job: “You’d go into work at 9am every morning, turn on your computer and watch someone have their head cut off. Every day, every minute, that’s what you see.” Several nongovernmental organizations also have teams monitoring content, particularly watching for images of child abuse. All of these organizations have “safeguard programs” to support the mental well-being of the monitors who work in these psychologically stressful jobs. (When archivists must identify and redact documents for human rights lawsuits or process records from truth commissions and criminal courts, these same stresses are apparent and the same care for the health of the staff members is essential.)  https://www.theguardian.com/news/series/facebook-files

Facebook told The Guardian it is “going to make it simpler to report problems to us, faster for our reviewers to determine which posts violate our standards and easier for them to contact law enforcement if someone needs help.” What is not clear, however, is how law enforcement will be able to act on the complaints—or even conduct investigations—if Facebook truly deletes the content. Or is Facebook only disabling public links but retains the content for use by legitimate investigators and prosecutors or defense counsel? We don’t know—or, at least, The Guardian doesn’t tell us. If Facebook does keep the information and it is available to law enforcement, archivists will eventually have to handle that evidence as part of their responsibility for police and attorney records. But if that repulsive information is not available for the use of those who protect our human rights, we will all be less secure and the posters—that is, the ones who are still alive—will be free to offend once more.

Commentary, Archives under threat in Argentina, Bolivia, Hungary, Japan and Russia.

The Human Rights Working Group of the International Council on Archives has been closely following reports of threats to archives in Argentina, Bolivia, Hungary, Japan and Russia.

In December 2016 the Government of Argentina issued Modernization decree No. 44/16, transferring the responsibility for appraisal away from the national archivist and to the directors of government agencies.  This took the crucial decision-making power out of the hands of the professional archivists who are trained to judge what documents must be preserved as constituent parts of that nation’s documentary heritage. Fortunately, after protests by many people and organizations, the government repealed the transfer of authority and reaffirmed the role of the national archives. Now the authority of the national archives should be reviewed and strengthened to ensure that it can effectively identify, appraise, and accession not only paper records but also the growing mass of Argentine government digital records.

The Centro de Documentatcion e Informacion Bolivia (CEDIB), begun in 1970, has been based at the state University Mayor de San Simon since 1993. In 2012 its document and news archive was declared “Documentary Heritage of the city of Cochabamba.” In March CEDIB was told by a notarized letter from the university’s rector that it had to leave in two days, reported the Guardian, because “a Chinese institute must be installed here immediately.” The CEDIB website says, “We are in the need to move our Archive and Library, which is 45 years old and has systematized more than 11 million news items, 60 thousand books and other documents on the recent history of Bolivia.” The CEDIB’s director said, “It’s a trove of historical evidence to which members of the general public can turn to if they need to know things involving them, particularly those concerning human rights. For example, using a CEDIB dossier, victims of the dictatorships were able to back-up their demands for reparation from the state.”https://www.theguardian.com/environment/andes-to-the-amazon/2017/apr/08/top-bolivian-ngo-faces-forced-eviction ; http://www.cedib.org/

In Hungary the Open Society Archives is part of Central European University, which is the focus of a new law that targets it for critical changes if not complete closure. On April 26, the European Commission, “on the basis of an in-depth legal assessment of the Hungarian Higher Education Law of 4 April” said “the law is not compatible with the fundamental internal market freedoms, notably the freedom to provide services and the freedom of establishment but also with the right of academic freedom, the right to education and the freedom to conduct a business as provided by the Charter of Fundamental Rights of the European Union, as well as with the Union's legal obligations under international trade law.” The Hungarian Government has one month to respond to these concerns. The Archives holds a wide variety of records and personal papers related to human rights and the rule of law; what would happen to the holdings in the event of a temporary or permanent closure is of great concern. Ironically, the Archives, now threatened, has been seen as a safe haven for important materials from the Balkans and Eastern Europe. http://www.osaarchivum.org/

Two events caused concern in Japan. In early April The Mainichi reported that the Chiba Prefectural Archives “discarded about 500 volumes of documents related to World War II, including names of the war dead and registry data of bereaved families.” After protests by “groups specializing in history” the disposal work has been halted and the archives is reconsidering the selection process. The same newspaper next reported that government ministries are said to be preparing to destroy documents designated as “special state secrets.” The Public Records and Archives Management Act covers documents that include special state secrets; they “can be disposed of after they undergo checks by the Cabinet Office once their storage term is up.” It is not clear that the Cabinet Office is checking to see that records designated as permanent are not being destroyed; the National Archives apparently has no oversight role. “However, according to implementation guidelines of the State Secrecy Law--or the Act on the Protection of Specially Designated Secrets--documents that have been around for over 30 years after the information they contain was designated special state secrets are considered highly important, and must all be transferred to the National Archives of Japan and elsewhere for storage.”  http://mainichi.jp/english/articles/20170407/p2a/00m/0na/016000c; https://mainichi.jp/english/articles/20170417/p2a/00m/0na/008000c

Finally, in Russia “a curator at the State Hermitage Museum in St. Petersburg has claimed that government authorities have seized archives and books . . related to the Soviet’s sale of art nationalized after the Bolshevik Revolution to Western collectors.” In a Facebook posting he wrote that archives have been taken not only from the Hermitage but “similar operations have taken place at the State Historical Museum and State Pushkin Museum of Fine Arts in Moscow.” The Hermitage and the Pushkin denied the allegation. http://theartnewspaper.com/news/museums/archives-and-books-documenting-soviet-era-art-sales-seized-from-hermitage/

These worrisome cases are simply the ones that have made the press in recent days. The Human Rights Working Group knows that more archives in all parts of the world are under pressure. Only constant watchfulness, as occurred in Argentina and Japan, can protect our vital archival heritage.

Commentary, DNA as Documentation

Body parts are part of archives. A court case may include a mummified finger that was part of a damage claim. Strange circumstances can lead to an archives holding cremated remains until a suitable, dignified solution can be found. To be sure, these are unusual archival situations, but not unknown.

Now, however, as DNA testing has become routine in many parts of the world, archives are starting to hold both test results and samples—the part that comes from the body. The archives of the International Committee of the Red Cross holds DNA samples from Chile and is starting to take more from Lebanon.  Major forensic anthropology organizations, such as the Guatemalan Forensic Anthropology Foundation, have large archival holdings of DNA samples and test records. For forensic purposes DNA is taken both from discovered remains and from family members of persons who have disappeared in the hope that someday remains will yield a match. For example, an area outside the city of Veracruz, Mexico, the remains of more than 250 people in 125 separate graves were discovered since excavations at the site began in the summer of 2016. According to a report in the Los Angeles Times, the killers had “routinely” removed “all traces of ID on their victims” so DNA is the best clue to their identities.  Officials are collecting DNA from relatives of the missing, and the first two sets of remains have been identified. http://www.latimes.com/world/mexico-americas/la-fg-mexico-disappeared-20170320-story.html

Forensics is perhaps the most famous use of DNA, but more DNA samples are taken and stored for medical reasons. The use of DNA and genetic testing is an issue so complex that a committee of the U.S. National Academies of Sciences, Engineering and Medicine has just completed an examination of “how evidence is generated, evaluated, and summarized” and developed a framework for the evidence needed for evaluating the “validity and utility” of genetic tests. https://www.nap.edu/read/24632/chapter/1  DNA samples are useful for a burgeoning number of medical studies, but they also provide evidence of kinship. A large industry has now sprung up to allow people to find their “roots,” whether an adoptee trying to find a birth parent or a man who simply wants to know whether he should wear lederhosen or a kilt to a family reunion.

Storing DNA test samples and results is a long-term concern. With the rapid growth of the DNA “industry,” archivists will have to become involved in the issues of preservation and access. Managing DNA archives will require straddling investigatory and medical archives techniques.

But the most astonishing news about DNA and archives is this: researchers at the New York Genome Center and Colombia University have discovered they can encode digital documents on DNA. According to Science magazine, “DNA has the potential to provide large-capacity information storage.” The researchers say: “DNA is an attractive medium to store digital information. . . a storage strategy, called DNA Fountain . . is highly robust . . . Using our approach, we stored a full computer operating system, movie, and other files .   . in DNA oligonucleotides and perfectly retrieved the information.”  http://science.sciencemag.org/content/355/6328/950  Could a future reference question be: “If I give you my cheek swab, could you store all my family photographs on my DNA?”

Commentary, Dare to Know

Grandma Chaem was listening to Buddhist talk radio when the journalists found her. The case against her had just been dismissed by the Extraordinary Chambers of the Courts of Cambodia, where she had been charged with responsibility for mass murder, enslavement and crimes against humanity.  Court observers and scholars were convinced the evidence was solid, but no matter:  Im Chaen’s neighbors in her town,  want to know none of this. The New York Times wrote, “Villagers emphasized that an important part of local culture was never to pry into other people’s pasts. ‘Everyone knows Grandma Chaem, knows that she is living in the village, but we don’t know her background, what she did,’” said a village man. https://www.nytimes.com/2017/02/24/world/asia/cambodia-khmer-rouge-im-chaem.html?_r=0  The archives of the Court, assuming they are protected and preserved, will tell the story to those who do want to know.

It is easy to dismiss the concerns of someone living in a Cambodian village where knowing too much could lead to disappearance.  But many people living in safe places don’t want to know, either.  The famous Austrian writer Peter Handke went to the 2006 funeral of Slobodan Milosevic, the Serbian president who died while on trial at the International Criminal Tribunal for the former Yugoslavia, accused of genocide and war crimes. Handke, who calls himself a hater of history, delivered a speech at the funeral, saying, “I don’t know the truth.” And yet the broadcasts from the court and the archives of the ICTY, including the massive background material that was accumulated, make knowing possible. 

And then there are the uncomfortable truths to which many of us are willfully blind:  the above ground nuclear testing by the nations with nuclear arms, which harmed people and environment from the Algerian Sahara to the Marshall Islands; the money from the U.S. slave trade that funded prestigious colleges; the extent and complexity of the Holocaust; the crimes of colonialism. 

“Sapere aude”--dare to know--was a motto for the Age of the Enlightenment in Europe in the 18th century, although its first documented use seems to have been by the Roman poet Horace in 20 BCE. With the swamp of information on social media and the internet, daring to know must include daring to know what truly happened—sorting facts from false facts. We must dare to know what is in the archives, both the information that makes us uncomfortable as well as that which supports our beliefs. A healthy society supports those who dare to know.

 

Commentary, Archives and Accusation

Archives and accusation. They go together for more reasons than the first letter of each word. Archives have been used to accuse persons and institutions for millennia: what a person or institution did or didn’t do, what he or she knew, who he or she was or is. In January an official report by Poland’s Institute of Forensic Research in Krakow said Lech Walesa, the leader of Poland’s anticommunist Solidarity movement and later the president of Poland, was a Communist paid informant in the 1970s, based on analysis of the handwriting on nearly four dozen documents. As the New York Times reported, “The accusations against Mr. Walesa have been made for more than 20 years, and he has long maintained that they are a result of a vendetta by former Communists.” http://ipn.gov.pl/en/news/899,Information-on-the-experts-opinion-on-the-secret-collaborator-Boleks-files.html  The Lustration Commission in Macedonia, which reviewed massive quantities of government archives, accused some 300 people of cooperating with the Communist-era secret police. Many of those named challenged the accusations, even when backed by documents, and eventually the government closed the controversial commission. http://www.balkaninsight.com/en/article/macedonia-scraps-lustration-keeps-sanctions-against-spies--08-26-2015  Activists use archives to name and shame corporations for causing environmental damage or for marketing unsafe products. And while archives are good, often very good, evidence, they are not always either complete or easy to use in that way.

In fact, for purposes of proving an allegation, archives are often much like the tesserae that make up a mosaic. Each document contributes its bit, and with skill a researcher can arrange the information into a persuasive picture. If the research is simply whether or not a person signed a card pledging adherence to a group of political party, the assemblage of tesserae is probably not required. But for lots of questions it is, and that’s one reason academic interpretations of events can differ so widely.

Items in archives usually are either smoke or a gun but not a smoking gun. I have, in my lifetime in archives, seen two written documents that seemed to be clear, unmistakable evidence of a crime that was committed. But I was skeptical of both documents. One looked very much as if it had been created using false information and placed in a file to get someone else into very serious trouble. The other seemed authentic, but may simply have been the writer making an evil, cynical joke about the kind of work that a unit was doing. 

This is not to say that there are no facts in archival documents; there most certainly are. The law from antiquity to the present has wrestled with how to validate evidence in court, and countries have developed elaborate rules on the issue. But archivists aren’t judges and interpreting the records is not our mandate. Our work is the trust we are given to preserve the records in our care honestly and faithfully so that others may judge their veracity. As Demosthenes (who knew rather a lot about accusation) argued in his oration On the Crown, “You stand revealed in your life and conduct, in your public performances and also in your public abstinences.” We archivists abstain from accusation, but we make it possible for others to accuse.