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.
*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).