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.