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Genocidal Archives: The AfricanContext—Genocide in RwandaTom A Adami & Martha Hunta UN—International Criminal Tribunal for Rwanda, ArushaInternational Conference Centre , P.O. Box 6016, Arusha, TanzaniaE-mail:Published online: 23 Jan 2007.

To cite this article: Tom A Adami & Martha Hunt (2005) Genocidal Archives: The AfricanContext—Genocide in Rwanda, Journal of the Society of Archivists, 26:1, 105-121, DOI:10.1080/00039810500047557

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Genocidal Archives: The AfricanContext—Genocide in RwandaTom A. Adami & Martha Hunt

When looking at international criminal justice archival theory and practice, it is difficult

to find many examples. There are the two current ad-hoc international criminaltribunals dealing with the former Yugoslavia (ICTY) and Rwanda (ICTR) in The

Hague, Netherlands and Arusha, Tanzania, respectively. Prior to 1993 one has to goback to the late 1940’s and the Nuremberg and Tokyo War Crimes Trials. This article

asks whether there is such a thing as international criminal justice archival theory anddetails several of the unique aspects of record-keeping practice in an international

organisation that deals with genocide and other crimes against humanity. Much valuableand innovative work has been carried out by the staff of the records and archives unit ofICTR since 1998 and the continuation of these approaches will be vital to future similar

organisations. In light of current developments to deal with the former Iraqi regime in ahybrid internatioinal and/or domestic Iraqi court, valuable lessons can be learnt from the

experience of the ICTY and the ICTR.

Introduction

The issue of specialisation within the information management and archivalprofession is one that continues to intrigue many of us. It appears that it wassomething of an artificial construct to propose the notion that there was in fact a

medical, architectural, legal or any other type of specialisation within the record-keeping profession. Is record-keeping not just record-keeping whether one is

dealing with military, industrial or personnel records?1 The simple answer may be‘yes’, there is overall conformity as far as theoretical principles are concerned but

that a subtle distinction can be made in the case of some specialisations such aslegal record-keeping. In a further distinction it is suggested that the record-keeping

practices at the International Criminal Tribunal for Rwanda (ICTR) are a multi-national inspired solution to the unique issues faced by this judicial institution.

Correspondence to: Tom Adami and Martha Hunt, UN—International Criminal Tribunal forRwanda, Arusha International Conference Centre, P.O. Box 6016, Arusha, Tanzania. Email:adami@un.org and hunt3@un.org

Journal of the Society of ArchivistsVol. 26, No. 1, April 2005, 105 – 121

ISSN 0037-9816 (print)/ISSN 1465-3907 (online) # 2005 Society of ArchivistsDOI: 10.1080/00039810500047557

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Given the unique aspects of the work of the ICTR, the archival legacy of our workwill be of significant interest to other criminal justice organisations as well as the

Rwandan community and other researchers. Among the factors that influence ordetermine what is included within the archival collection are the physical location

in Arusha, Tanzania, the professional skills of the staff, policies agreed with UnitedNations Archives Service (UN ARMS) in New York, the support of senior

management and of course the usual thorny issue of the financial resources at thedisposal of the archives unit of ICTR. The other fundamental issues surrounding

record-keeping in this environment are historical revisionism, the value of evidence[sic records], and melding different and varied national systems into one globalbody of jurisprudence and legal practice. On the issue of revisionism and the

concept of minimisation of evidence, it has been said that: ‘as every attorneyknows, it is often easier to create doubt and win than it is to prove what actually

took place.’2 The concept of burden of proof and the evidential value of the‘record’ should be the fundamental raison d’etre of any record-keeping programme

in this legal field:

The tragic events of 1994 in Rwanda have been well documented by the media andacademics. Suffice to say that since that time the ICTR has been working closelywith the Rwandan authorities to ensure not only justice for the victims but alsoreconciliation of the nation. Our core function is to provide a forum for all theparties to adjudicate on the issue of guilt or otherwise of individuals. As a result ofthis work the ICTR has set many precedents in its judicial decisions and judgments.As you all may be aware, precedents are of vital interest to lawyers. Even to this dayreference is made in the ICTR deliberations to the jurisprudence of the Nurembergand Tokyo war crimes trials of the 1940’s. It will also be the case that futureinternational criminal justice organisations will refer to the work of the ICTR.Hence, it is vital to permanently retain a complete record of our judicial work.3

Historical Background to the ICTR

If one looks back at where the current foundations for international criminal justice

record-keeping have come from then one finds a relatively short history. Thefollowing examples are merely indicative of what has gone before and what, apart

from the two ad-hoc Tribunals of ICTR and the International Criminal Tribunal forthe former Yugoslavia (ICTY), are the other developments in the field.

The United Nations Convention on the Prevention and Punishment of the Crimeof Genocide, adopted in December 1948, states in Article 1 that ‘the Contracting

Parties confirm that genocide, whether committed in time of peace or in time of war,is a crime under international law which they undertake to prevent and to punish’.4 It

is upon this article that the current international courts are based. The soon to beestablished permanent International Criminal Court (ICC) will also have as one of itsfounding principles this UN Convention. In the words of Boutros-Boutros Ghali

when he spoke of the events in Rwanda in 1994:

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We are all to be held accountable for this failure, all of us, the great powers, Africancountries, the NGOs, the international community. It is genocide . . . I have failed. . . It is a scandal.5

Sentiments such as these galvanized the international community to do something toprevent this from happening again. It is undeniable that the events of 1994 in Rwanda

were of the basest kind. Man’s inhumanity to man was unfortunately highlightedonce again. Estimates of between 500,000 and 1,000,000 are often given for the

number of Rwandan citizens killed during a period of 100 days. The crash of anaircraft carrying the Rwanda and Burundi presidents was the spark that ignited thefury of internecine conflict. Of course, incidents of such hostility were not new in

recent Rwandan history but what made these events more tragic was that theinternational community could have done much more to prevent things from

degenerating into such a frenzy of mass killing.Crimes such as extermination, attempted or otherwise, crimes against humanity

including rape, acts of mass atrocities, complicity to commit genocide and alsoincitement to commit genocide are all punishable in the context of international

criminal justice. The records of any organisation dealing with such crimes will bedirectly related to a specific judicial process and this judicial process, which is still

evolving, is a complex and can be, in certain circumstances, an extremely long one.The records of these proceedings are usually compound records in various formatsand on different media. Dispersion of records can easily occur due to the many

distinct phases in the process of their creation. The initial trial phase records canalready be deposited in archives when a review is called for and another phase in the

judicial process is begun. These linkages and relationships need to be established andmaintained over time. This is what is unique about the records of international

courts dealing with genocide and other crimes against humanity, the records relatedirectly to the accused person or group of people.

‘The Forgotten Genocide’: The Malta Tribunal and the Armenian Genocide

Records

The points made about dispersion and the potential fragility of these unique

international criminal justice records are highlighted by the records of theArmenian Genocide of 1915 in the Ottoman territories of present-day Turkey and

Georgia. One such document states that ‘it appears that a campaign of raceextermination is in progress under a pretext of reprisal against rebellion’.6 There is

little doubt that a violent and horrendous sequence of events occurred in 1915 thatcaused the deaths of a large proportion of the Armenian population. However, the

point here is that many documents upon which the genocide is documented are tobe found in American and British archival collections. The documentary evidenceof the genocide is very tenuous. The chronology of events is based upon a

‘manuscript in the Kazarian Collection of the Armenian National Institute. While

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the text of the chronology has been extensively edited and updated, this publicationremains true to the sequence of events and information as reconstructed by

Kazarian.’7 In this same context there is evidence of Hellenes (ethnic Greek citizensof the Ottoman and subsequent Turkish territories) and Assyrians also suffering

what is usually described as genocide:

Can human beings (it may be asked) have perpetrated such crimes on innocentwomen and children? But a recollection of previous massacres will show that suchcrimes are part of the long settled and often repeated policy.8

The documentary evidence available is contradictory and to this day a fierce battle of

words rages between all parties involved.The post-First World War Peace Treaty of Sevres required the Ottoman

government to hand over to the Allied Powers people accused of what were termed‘massacres’. One hundred and forty-four Ottoman officials were arrested and

deported for trial by the British to the island of Malta. The British appointed theArmenian scholar, Khazarian, to conduct a thorough examination of documentary

evidence. Access to Ottoman records was unfettered as the British and Frenchoccupied and controlled Istanbul at the time. The investigations revealed a lack of

evidence demonstrating that the killings of minorities were either sanctioned orencouraged. Concluding the investigation, the British Procurator General determinedthat it was ‘improbable that the charges would be capable of proof in a court of law’.

All 144 detainees were exonerated and released.9

The Turkish response to Armenian genocide claims takes a similar fervent tone. It

is agreed by both sides that the documentary evidence does exist, but interpretationof the evidence appears to a major problem. For exactly this reason and to prevent

such misinterpretation of the documentary evidence in the future, internationalcriminal tribunals need to ensure that all related records are connected. Maintaining

the original context of the records is critical. Complex compound documents will bethe norm. The entire case file of each accused will be difficult to maintain as itpotentially can be active for four to five decades from indictment, to arrest, to

sentencing and finally to detention with possible release as the last stage. A recordscontinuum model ensures that with the involvement of an archivist from the very

beginning, the resultant archives are a body of records that can be used to reconcileand not divide further already victimised communities.

Nuremberg and Tokyo 1945 – 1948

The events of 1939 – 1945 in both the European and the Asian theatres of war were at

times unprecedented; brutality was on a massive scale and the ‘total war’ was foughtto an extent that was new to humanity. Seemingly total destruction of the other sidewas the only goal and the end game was very costly to both sides. As with most armed

conflicts, atrocities were committed on all sides. The winning side was, however, in

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the position to dispense its own justice on accepting the surrender of the losingantagonists.10

The Nuremberg and Tokyo War Trials were momentous in that they were the firstattempt at a type of international criminal court. They were extremely specific, with

one aim, to prosecute those responsible for the acts of aggression that led to theSecond World War. Once that objective had been achieved, they were disbanded. In a

sense they are similar to the two current ad hoc criminal tribunals but the majordifference is that the ICTR and the ICTY are both closely aligned with the

developments surrounding the establishment of the permanent ICC. The survivingarchival records of the proceedings from Tokyo and Nuremberg are still a valuableresearch tool for many of the current practising lawyers at both the ICTR and ICTY.

This indicates that from the late 1940s to 1993 or 199511 there were no otherinstances of criminal justice on an international scale.12 Precedents are of vital

importance to legal proceedings and this is the case now at the ICTR wherejudgements and decisions refer on a regular basis to the events and judicial rulings

and decisions of Nuremberg and Tokyo.13

These records have value not only as references for the lawyers at the current ad hoc

Tribunals, but also as primary source documents for historical and legal researchers.These definitive documents, the veracity of which cannot be disputed, are helping to

ensure that the atrocities committed between 1939 and 1945 are not forgotten in theway that history has forgotten the Armenian genocide. It is imperative that theserecords remain publicly accessible for research purposes. This includes the film of the

proceedings at Nuremberg, which is frequently used in educational and documentaryproductions about the Holocaust and Second World War.

The fate of the records of Nuremberg is an interesting story in its own right. Onegroup of personal papers and records kept by General William J. ‘Wild Bill’ Donovan

during the Nuremberg trials of Nazi war criminals are now housed in the Cornell LawLibrary at Cornell University. The Avalon Project of Yale Law School has made the

bulk of the records available on the Internet. The International Court of Justice (ICJ)in The Hague and NARA in the USA, house the archival collection of records fromthe Nuremberg trials.14 Then The National Archives (TNA) in the UK holds the

records about the subsequent imprisonment of Rudolf Hess in Spandau Prison,Berlin, Germany.15

The records of the trial proceedings, any appeal, and the judgements and decisionsmade should naturally form the basis of the case files. Records of transfer and

detention should also form a part of the case file. This is particularly important if thecase was ever reheard or reopened in a future court hearing. If the person was

pardoned or released early, all these records should also form part of the case file. Inthe case of Nuremberg at least, it was not seen as one ongoing case from indictment

and arrest to eventual release or death in detention. This is the main crux of thematter as regard to the case files of international criminal justice. The ‘case file’ is anamalgam of various and varied formats and media. The challenge is to bring together

these at times incongruous elements into one homogenous whole. Researchers to this

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day find it difficult to consult both the Nuremberg and Tokyo records. It is hopedthat the trial records of both the ICTR and ICTY with all their components will be

accessible at one location and using one system of intellectual control.16 This pointshould drive the archival custody of these records and be the crux of archival access

policy once the two ad hoc tribunals have completed their mandated work.

ICTY, ICTR and the Special Court for Sierra Leone

As international criminal justice is a relatively new phenomenon there are fewprocedures and principles in place to guide the recordkeepers of these institutions.The ICTY, ICTR and the Special Court for Sierra Leone (SCSL) have Rules of

Procedure and Evidence (RPE), which have been developed over time. They are stillbeing refined and each year both Tribunals hold plenary sessions to fine-tune these

RPE. The RPE are not very detailed or specific about aspects of record-keeping. Thisis understandable since the RPE is a high-level document.17 The Directive for the

Registry of the ICTR—Judicial and Legal Services Division, Court ManagementSection is more specific when it states in Article 7, Duties of Registry Staff, that ‘all

staff are under a duty of confidentiality not to reveal any non-public informationwhich they have access to’. Article 9, the Court Management Section, states that

among other duties the Section shall be responsible for confidentiality of any non-public documents and records. Articles 10 – 33 all refer in one way or another to thehandling, storage and access to judicial documents. In particular, Article 14 deals

with the principles governing management of confidential documents and Articles 32and 33 with public access to the archives. According to Article 52, inter-sectional

management of the Tribunal’s website, public documents shall be made available viathe Internet.

There is little common ground between record-keeping practices of the ICTR andICTY. This is not necessarily a negative situation. Both tribunals have different

record-keeping requirements, which have developed in relative isolation over nineyears. It is not feasible technically, operationally or financially to integrate now ourinformation management systems. There is acknowledgement of this situation at

high levels of both tribunals and effort is being made to ensure more harmony infuture developments.18

The work of the SCSL has benefited from the ICTY and ICTR’s experience.However, the SCSL is dissimilar to the current two ad hoc Tribunals for Rwanda and

the former Yugoslavia, and record-keeping principles will have to be rethought in thelight of a national jurisdiction having input into the operations of the court. Prior to

the civil war in Sierra Leone, the country had a well-established tradition of British-based civil service record-keeping. Now there are few traditions on which to build.

Serious attempts are being made to ensure that there is a degree of co-operationbetween the ICTR, ICTY and SCSL to the extent of staff being seconded or movingfrom one body to another. There are the beginnings of an established international

criminal jurisprudence-based record-keeping regime. There are enough practitioners

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from which to build further on the already excellent work in this area. The field is stillemerging but a solid foundation has been laid.

The Cambodian Tribunal and Other International Judicial Bodies

Recently it has transpired that the UN is still involved in establishment of the

Cambodian Tribunal.19 There was concern in mid-2002, due to politically motivatedreasons on the part of the Cambodian authorities, that the proposed tribunal would

not go ahead. An earlier Cambodian Genocide Tribunal of 1979 has left researcherswith records of the Cambodian national prosecution of Khmer Rouge suspects.20

There has been some discussion about a possible Tribunal for the Democratic

Republic of Congo and even Burundi. The Lusaka Agreement of August 1999, signedby all parties to the conflict in the Democratic Republic of Congo, explicitly stated that

the ICTR should deal with ‘genocidaires’ of that conflict.21 However, given the recentstatements by the USA with regard to the proliferation of these international judicial

organs, it seems unlikely that anything will come of the discussions or agreements formore ad hoc or separate courts outside of the ICC framework. The current line of

thinking being put forward by the USA is that control of justice should be given backto the national jurisdictions involved.22 The permanent International Criminal Court

(ICC) has begun preliminary investigations into accusations of crimes againsthumanity in Northern Uganda, Eastern Democratic Republic of Congo and theCentral African Republic. However, the ICC’s mandate is only from 2002, so all pre-

2002 crimes need to be dealt with in another institution, either locally or by ad hocjudicial bodies. Readers will be aware from the recent initial appearance of Saddam

Hussein before an Iraqi tribunal that there is a wavering preference for nationaljurisdictions to take on this complex work of bringing to justice perpetrators of crimes

against humanity. The current US administration is certainly against all the ICCstands for and prefers national or regional justice as opposed to global efforts.

Ironically, several staff from both the ICTY and ICC have been involved to varyingdegrees in assisting the Iraqi authorities in their investigative and prosecutionprocesses.

The Legal Records of ICTR

The importance of legal and judicial records can never be over-emphasised. The legal

and judicial records are the bedrock on which the judicial service in any country isbuilt and constituted, and the main administrative tools through which court

decisions are determined. Compared to other kinds of records, legal and judicialrecords are more likely to have self-evident continuing primary values as evidence of

rights and obligations, which may endure long beyond the lifespan of those whocreated them.23 In this case, the key issue in legal and judicial record-keeping is notthe protection of records alone but the provision of justice and the maintenance of an

administrative environment that respects and upholds the rule of law.

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In ICTR, the Judicial Records and Archives Unit (JRAU) was established in mid-1998 with the purpose of taking an integrated ‘continuum of care’ in the

management of legal records so as to facilitate the requirement of the judicialprocess. Structurally, the JRAU is under the Court Management Section (CMS) of

the Judicial and Legal Services Division of the Registry and as such, it is charged withthe management of Court Management Section record-keeping systems

(CMSRKS).24

Like other sections of the Tribunal, the JRAU started with an ad hoc system of

record-keeping coupled with problems of a lack of qualified staff and infrastructuresin place. Over time it has managed to put in place an electronic record-keepingsystem based on core functions within an ICTR judicial setting as its long-term

records management strategy. It is worth mentioning that the JRAU has developed arecords management programme with an interface between the paper and electronic

records not only for backup purposes but also to protect the rights of the accused andfor secondary research and historical reasons.

The CMSRKS is a hybrid system, using Tower Records and InformationManagement (TRIM) software to manage its electronic component, and it has been

designed and developed with input from record-keeping professionals and otherstakeholders.25 Apart from the TRIM databases (internal and external ‘public’) there

are numerous other systems used for budgetary, research and statistical purposes,which are maintained by JRAU staff.Electronic records systems are more than simply a combination of computer

terminals, screens, printers and software. They also require a complex infrastructureconsisting of specialised staff, agreements to provide servicing and spare parts, and

above all the systems that have to protect, authenticate, migrate and make accessiblelegal records in digital format more efficiently. The digitisation of the ICTR archives

holdings using the TRIM software is but one step in the process of improved access,enhanced preservation of the records and the provision of easier research upon the

completion of the Tribunal’s mandate. In other words, the introduction of electronicrecords in Judicial Archives was one mechanism for ensuring that the accused wereprotected, tried and judged fairly for ‘delayed justice is denied justice’ just as ‘hurried

justice is buried justice’.It is a fact that no reforms can be fully effective without capable personnel to staff the

programme. The continual refinement of the work of the JRAU is a product ofteamwork by the staff under the direction of the Chief Archivist. The Unit staff come

from a variety of national working practices, thoughwith a heavyAfrican influence, andwith East African-taught paraprofessionals making up the bulk of staff.26 However,

while the manner in which the records are created, processed, stored and used differsfrom country to country and from one geographic region to the next, Commonwealth

countries in Africa share a common administrative and records management/archivalheritage. To this extent, the structures and functions of government departments aresimilar as are the registry systems, which receive, process, store and make information

available to the administrators. Most of the Archives staff are experienced and trained

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personnel from the national archives and national courts of justice in Eastern Africa.This is again an added ingredient to the Unit’s success story.

Access to legal records is a public right and needs to be provided in a timely andefficient manner. In an environment where court records cannot be made easily

accessible, or where the incidence of missing and lost files is a common occurrence,we cannot expect efficient administration of justice. Access to judicial records is

provided electronically to all ICTR stakeholders by using the TRIM system which hasthe capability to perform both keyword (thesaurus) and free text searches (titles

only). Whereas the internal staff can access all the judicial records through TRIM,remote external users can access the public judicial records via the Internet (e-Drawer) on the ICTR website and using a record-keeping metadata standard which is

based largely on the National Archives of Australia standard. In fact TRIM created yetanother bridge of communication between the ICTR and the public. In this case, the

judicial records are already widely viewed and used as a research material by manyacademics.

The issue of access is an excellent illustration of the specific concerns of legalrecord-keeping. It is a stated mandate of the ICTR to be as open and accessible as

possible, and to provide the public with access to the judicial records. However, alarge proportion of the archival records, such as certain witness testimonies, are

confidential in nature. While many organisations have confidential materials, in veryfew cases is the strict protection of these materials as crucial as it is in a legal setting.Witness testimony is the backbone of all legal proceedings, and ensuring the safety of

the witnesses is a top priority of the ICTR. The identities of a considerable number ofthe witnesses who testify before the Tribunal must remain anonymous for fear of

retribution. To ensure their safety, they testify under pseudonyms, and the transcriptsof their testimony are redacted; any potentially identifying information is censored

from the record before it can be made available to the public. The redaction of thetranscripts is part of the ongoing business of the ICTR, and both redacted and

original transcripts are managed by the JRAU. For very good reasons, the originaltranscripts cannot be made available to the general public.In addition to keeping the paper and electronic copies of the transcripts, the JRAU

is also responsible for retaining and preserving the audio-visual recordings of thecourtroom proceedings. These records serve a useful purpose in the day-to-day

business of the ICTR, but also have an unparalleled potential for outreach andeducation. Many of the survivors in Rwanda, the people for whom the work of the

ICTR is most important, are incapable of reading the French or English transcripts ofthe proceedings, and the video recordings are the only way for them to be kept up-to-

date on what is happening in Arusha. Audio-visual records can also serve as valuabletools for educational and research purposes. But, at this time, the audio-visual

materials are not available to the public because they have not been redacted. Thereare currently tens of thousands of hours of material in the backlog, and there is notyet a system in place to redact these materials in real-time. Recognising the

importance of making these materials available to the public, the staff and

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administration of the ICTR are investigating methods for implementing real-timevideo redaction in the courtrooms, and then tackling the backlog that has

accumulated over the years. Monetary constraints are the biggest stumbling block,and it is hoped that a solution to this problem will be found shortly, allowing the

audio-visual records to be made publicly accessible as soon as possible.

Legal Records Management Training

In March 2000, the former Registrar of the ICTR, Dr Okwu Okali of Nigeria,restructured the CMS, of which the Judicial Records and Archives Unit is a part. As adirect result, training was given a higher priority and work began on identifying the

training needs of the CMS. Education and training in record-keeping processes is animportant component of the sustainability of any information management

programme. No reform can be fully effective without continuous and up-to-datetraining for personnel. In ICTR we have realised that for a records management

programme to succeed, training should not be limited to record-keepers but extend toall record creators and users, including judges, lawyers, clerks, and others responsible

for legal and judicial records. The training sought to ensure that the archival staffdealing with the implementation andmaintenance of the CMSRKSwere equipped with

the appropriate skills and experience to carry out their roles and functions.A detailed plan was formulated and a training facilitator was selected. The

International Records Management Trust (IRMT)27 was an obvious choice as they

had significant previous experience in training provision in Africa. The focus of thetraining was to be on ‘legal records management’. The training was delivered in three

phases. The initial phase was begun in September 2002 with two trainers coming toArusha to undertake a one-week introduction to the programme. Twenty-seven staff

participated in the programme, which was officially opened by the Registrar. Phasetwo was designed as an on-line programme with assignments set for group and

individual work. This second phase was completed at the end of January 2003. Theprogramme concluded with phase three, a four-day summary session bringingtogether all the concepts and theories discussed over the previous five months.

The first phase of the course was developed and presented during face-to-faceseminars and workshops. It gave an overview of the principles governing record-

keeping theory, legal terminology, judicial systems, ethics in record-keeping, the‘records continuum’, electronic record-keeping, as well as other related topics. In the

second phase learning focused on building up the practical skills of staff by examiningin detail the phase one topics. The last phase included a briefing for senior managers

on the business role of information management and provided a forum to lookforward.

As a result:

. The ICTR now has a group of record-keepers who speak and understand a

common professional language.

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. There is an understanding of how the record-keeping function fits into theoverall work of the ICTR. The legislative basis of their role was clarified.

. The record-keeping staff understand the main theories involved in managinglegal records, and how they differ from other administrative records.

. The record-keeping staff know that their role is important in the context ofpassing on to future generations the fruits of the work. The archival aspects of

their work were clarified and explained in detail. Issues to do with preservationand migration over time were dealt with in assignment work.

. Due to a special briefing session presented by the trainers, senior managementwas sensitised to the concepts of information management and increasedefficiency. The theme was ‘knowledge management’ and the business role of

records management.. The overall visibility of the Judicial Records and Archives Unit was increased by

attendance of most judges of the ICTR at the closing certificate-awardingceremony.

Archival Legacy of the ICTR

It was recognised in 2001 that the ICTR was a temporary ad hoc judicial body and

thought should be given to the fate of its judicial records. It was also recognised thatthe ICTR records were the property of the United Nations. On completion of theICTR mandate in 2010 all original judicial records will be transferred to the United

Nations Archive repository. This was not an ideal situation for researchers in Africapost-2010. As a result negotiations were begun with selected organisations world-

wide but focusing on Africa about the deposit of copies of the ICTR public archivesin an effort to support future access for academics and the public. The following is a

brief outline of plans under way.

The Africa Union

On assessment of the information management needs and facilities of the Africa

Union (AU) in Addis Ababa in 2004, it was determined that the transfer of acopy of the record-keeping database was the most cost-effective and ultimately

most valuable method of deposition. Both organisations should benefittremendously. The AU will develop new skills and technology and the ICTR

will ensure wide accessibility to its judicial legacy. The AU has also decided thatthey will maintain the current web access the ICTR has on its Internet home

page. The AU will also accept the audio-visual collection and will need to build anew environmentally controlled archival repository to take these sensitive audio-

visual records.

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Senegalese and South African National Archives

On the basis of preliminary discussion with these two institutions, both were keen toaccept the ICTR jurisprudence into their collections. Senegal was in need of more

assistance than their South African counterparts but it is seen as vital to include boththese two Archives due to their location within Africa (western Francophone and

southern Africa, respectively). The plan is to deposit both the hardcopy (either inpaper form or as a database) and audio-visual records.

Malawi

If feasible, the National University of Malawi or the National Archives will depositcopies of the ICTR judicial records in their collections.

Rwanda

It is still to be determined which institution(s) in Rwanda will be approached to take

copies of the public archives. It is anticipated that the National Archives and theMinistry of Justice will be approached to determine which is best placed to maintain

the records once deposited.

Universities

Several universities have already approached the ICTR to negotiate the deposit of our

records with their libraries. Stanford University, the University of Wisconsin-Madison and the Central European University (Open Society Archives) are all keen

to take copies of the public jurisprudence.

Audio-visual materials

The Internet Archive has indicated that they are willing to digitise the audio-visual

collection of the ICTR and make it available on the Internet.It is the case that records and archival management at the ICTR are assisting

genocide victims to get justice and to aid the reconciliation process within thatcountry. A wide programme of third-party deposit of our public archives will

continue to assist the process of reducing the impunity of rogue leaders not onlyin Africa but world-wide. One can safely make this claim because compared to

just three years ago we have taken great strides in expanding the limited accessregimes previously in place. Our public judicial records are accessible to the

public through our website. The access system is now in place to provide theinformational resource for future generations of Rwandans if not the citizens oftoday. More importantly, aspects of our audio-visual collection, through the

ICTR’s Outreach Programme in Rwanda, are a vital link as a means of spreading

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the word of our work in a graphic way. Information dissemination in Rwanda isa difficult prospect given that the country has such a limited mass media

infrastructure and such a high proportion of the population are illiterate.Therefore anything that the Tribunal in general and the Judicial Records and

Archives Unit more specifically can do to ensure long-term preservation andaccess to these important documents is a positive step forward for the citizens of

Rwanda for many generations to come. These achievements have beenaccomplished largely unheralded and within the framework of the records

continuum. The continuum model demands that we meet current and futurecommunity expectations through professional record-keeping and at the sametime meet the daily operational requirements of the ICTR.

What Can Best Practice Recordkeeping do for the Rwandan Victims of 1994?

According to Professor Eric David of Universite Libre de Bruxelles, by making

publicly available the records and documents of the ICTR, one is addressing severalvery important issues.28 These issues are central to the Rwandan community or in

another sense the ‘victims’:

. Catharsis: for those who remain, for those who lived through the ultimate evil,for those who despaired of seeing the world react, the ICTR becomes atremendous place to speak. There people can give voice to their suffering,

ritualise it, objectify it, reopen the wound to better let it out, let it heal, let it scarover.

. Memory: the ICTR is a unique way of fixing in history the unbearable narrative ofbaseness of which man is capable. It has at its disposal the means, of which a

historian could only dream, by which to establish and clarify in all its horror thesordid reality of the Rwandan genocide and the indifference of what is sometimes

called the ‘international community’.. Teaching: the jurisprudence of the ICTR is and must be a ‘treatise on behaviour

for use by younger generations’ (R. Vaneigem), for use by all generations, even if

we should not get carried away with its educational potential. The Nurembergand Tokyo judgements did not prevent the massacres of millions from the four

corners of the globe.. Law: the most normal but not the least task of the Tribunal is to serve as a

touchstone for the development of international humanitarian law. Thejurisprudence of the Tribunal helps give content to terms whose meaning has

tended to be lost in the subjectivity of each person’s personal experiences, termsthat no one had ever really sought to codify or define inasmuch as it seemed

intolerable to want to codify or define notions like rape, persecution or inhuman,cruel, humiliating and degrading treatment. On a more technical level, thedecisions of the ICTR are the expression of a procedural law which, though still

strongly influenced by Anglo-Saxon procedure, is borrowing more and more

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from the Romano-Civilian system. From this meeting of the two systems a formof international criminal procedure is born.

Catharsis, memory, teaching and law: the ICTR performs these different tasks at

the same time. It is from these variations on the theme of genocide—in which thevoices of accuser and accused, of witnesses and victims, of judges last of all, meld

into one—that a judicial truth, unique but reproducible in the future, can beborn. This is the prize to be won and what justifies the Tribunal’s existence. It is

this that underpins the desire of those responsible for this collection to distributeits fruits.

Conclusion

The development of international criminal justice records management and archivalpractice is still ongoing. It probably does not even exist as such as a definable sub-set

of the larger records management or archival profession but it is developing in anenvironment of constant change. International criminal justice record-keeping

practice will have certain dimensions of its work, which will be unique. To this endone can point to certain individual and isolated developments from the past decade

or so. These include the nature of the records themselves; records of protectedwitnesses, rules on evidential qualities of records in an international framework,exhibits of horrific and graphic events (both physical and audio-visual), and the post-

sentence administrative records of the accused who may be sent to third countries toserve their sentences. The accused may remain in detention for the rest of their lives,

which may be up to 40 or more years. The separation of what theoretically is the onedistinct file into many constituent parts poses a potential dilemma. The maintenance

and possible reconstitution of compound records into one homogenous ‘case file’should be a goal of any record-keeper. It is already technically possible to establish the

distributed management of a single file but it is not something that happens in manyother contexts. Third party deposit of the ICTR records will demand that moreattention is placed on this issue in the future. Even though in the Rwandan genocide

context, forgetting is just as important as remembering, the ICTR has a firm policy ofwide dissemination of our public recorded legacy. Hopefully the permanent

International Criminal Court will have more resources to investigate further theseissues.

Notes

[1] There is a long history of material written on the distinctions that can be drawn betweenarchivists and records managers. See Brooks, ‘Current Aspects of Records Administration’;Radoff, ‘What Binds Us Together?’; Ricks, ‘Records Management as an Archival Function’. Inthis context there is also much that has been written on specialist branches of archives andrecords management work.

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[2] Totten, Parsons, and Charny, Century of Genocide, xxi – xxii.[3] Videotaped address of the Registrar of ICTR, Assistant Secretary-General Mr Adama Dieng to

delegates of the XXXVIIth International Council on Archives (ICA) CITRA meeting 2003,Cape Town, South Africa. See also Comma 2 (2004): 81 – 82.

[4] The full text of the Convention is available from http://www.hrweb.org/legal/genocide.html(accessed 7 February 2005).

[5] United Nations Secretary General Boutros-Boutros Ghali, Le Monde, 27 May 1994.[6] Extract from document RG59, 867.4016/76 of US, NARA Record Group 59, Records of the

Department of State. Decimal File 867, Internal Affairs of Turkey. Decimal File 860J, InternalAffairs of Armenia.

[7] Available from http://www.armenian-genocide.org (accessed 7 February 2005).[8] Bryce, The Treatment of Armenians in the Ottoman Empire 1915 – 16, preface.[9] Available from http://www.turkishembassy.org/governmentpolitics/issuesarmenian.htm (ac-

cessed 7 February 2005).[10] Many reasons have been put forward to explain why certain decisions were made on who was

to stand trial and who was to be set free. Political, humanitarian, even personal reasons wereprobably involved in deciding how the justice of a victorious side was to be handed down. TheAustralian government did not readily accept the exclusion of the Emperor of Japan from theproceedings.

[11] The ICTY was established by Security Council Resolution 827, which was passed on 25 May1993, and Resolution 955 of 8 November 1994 established the ICTR. The Nuremberg trials ofthe International Military Tribunal (IMT) began in November 1945 and indicted 22individuals, ending 11 months later in 1946. The Tokyo Trials of the International MilitaryTribunal for the Far East (IMTFE) began on 3 May 1946 and lasted two and half years untilNovember 1948 when all of the 28 ‘Class A’ defendants were found guilty. It should also benoted that around 5,000 Japanese defendants were prosecuted by other courts established byvarious Asian nations and up to 900 were executed, notably the Manila trials which wereresponsible for prosecuting Generals Yamashita and Homma.

[12] One of the main reasons for this was the Cold War climate of distrust among the permanentmembers of the Security Council. It was unthinkable that the USA, Great Britain or Franceand the Soviet Union or China could have agreed to establish an international criminal justiceorganisation to prosecute those responsible for crimes that were of a grave nature or crossednational jurisdictions.

[13] See The Prosecutor versus Jean-Paul Akayesu (ICTR-96-4-T) Judgement of Trial Chamber 1,2 September 1998. ‘Paragraph 486. Article 6(3) of the Statute deals with the responsibility ofthe superior, or command responsibility. This principle, which derives from the principle ofindividual criminal responsibility as applied in the Nuremberg and Tokyo trials, wassubsequently codified in Article 86 of the Additional Protocol I to the Geneva Conventions of8 June 1977.’

[14] See NARA National Archives Collection of World War II War Crimes Records (Record Group238) 1933 – 50 (bulk 1943 – 50): 238.2 Records of the Office of the US Commissioner, UnitedNations War Crimes Commission 1943 – 48. This was established in London, 1943, followingthe establishment, also in London, of the United Nations War Crimes Commission(UNWCC), by agreement of representatives various governments. The Office of the USCommissioner, and like offices of the other UNWCC members, submitted information toUNWCC on war crimes allegedly committed against their respective nationals. UNWCC, inturn, determined whether enough evidence for a case existed and periodically reported itsfindings to the member governments. The Far Eastern and Pacific Subcommission ofUNWCC was established in Chungking, China, 11 October 1944. Pursuant to inactivation of

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UNWCC, May 1948, Office of the US Commissioner officially abolished, 15 May 1948, withrecords placed in Department of State custody.

[15] See TNA record series, FCO 33/1161 1970 Imprisonment of war criminals in Spandauprison—Rudolph Hess; also FCO 33/1162 1970, FCO 33/1163 1970, FCO 33/1164 1970.

[16] The judicial records of the ICTR comprise: the first instance trail stage (public and under sealdocuments), any appeal on merits and interlocutory appeals, the audio-visual records(audiotape, CD ROM with digital sound files and videotape recordings of trial proceedingsand witness testimony), the exhibits, the transcripts of hearings, and records of transfer fordetention. The case file records should continue to include the records of administration ofthe sentence, and any subsequent release or re-opening of the case. It should also include thewitness record which are not currently part of the case files, defence lawyers records(administrative and judicial) and also the records of the Presidents’ and Registrars’ offices.Only in this manner can a comprehensive picture be drawn of the administration of justicewithin the organisation.

[17] The RPE for ICTR include rules on amongst other things: Rule 32: Solemn Declaration. Allstaff members of the Tribunal are required to solemnly declare that they will carry out theirduties and functions in all loyalty, discretion and good conscience. This would includeensuring the security of any sensitive information; Rule 36: Record Book; Rule 41:Preservation of Information (prosecutors evidence); Rule 43: Recording Questioning ofSuspects; Rule 47: Submission of the Indictment by the Prosecutor. All indictments will bekept under seal subject to Rules 52 and 53; Rule 81: Records of Proceedings and Preservationof Evidence. A full and accurate record shall be kept of all proceedings. Any closed sessionswill be kept under the application of Rule 79. See the full RPE at http://www.ictr.org (accessed7 February 2005).

[18] In 2002 the European Union funded an Inter-Tribunal Co-operation Project and one aspectof this project is to investigate the harmonisation of certain aspects of the informationmanagement practices at both Tribunals. As of January 2005 work is being begun on theimport/export of judicial records from each tribunal into the others’ recordkeeping systems.

[19] There are numerous references such as http://www.globalpolicy.org/wldcourt/tribunal/camb0800.htm on the history of negotiations between the Cambodian and UN authoritieson the establishment of a Tribunal to prosecute the Khmer Rouge leaders deemed mostresponsible. In February 2002, the UN stated that it had reached an impasse with regard tonegotiations and that it saw no scope for impartiality of any court if its suggestions onadministration and jurisdiction are not heeded. As of January 2005 the budget has beendetermined and financial contributions are being sought to start the work of the CambodianTribunal sometime in 2005.

[20] In January 1979, former Khmer Rouge functionaries overthrew the Pol Pot government, withsubstantial assistance from the army of Vietnam. In August 1979 a special court, the People’sRevolutionary Tribunal, was constituted to try two of the Khmer Rouge government’s leaders,Pol Pot and Leng Sary. The charge against them was genocide, as defined by the UN’sgenocide convention of 1948. Both men were tried in absentia as they were on the run in theCambodian jungle leading the Khmer Rouge in a struggle to regain power. The trial records ofthe Genocide Tribunal remain in the Cambodian National Archives. Access restrictions areextremely tight on these records and permission is required from the Council of Ministers toconsult them.

[21] Chapter 8.2.2 Peace Enforcement: A. Tracking down and disarming armed groups; B.Screening mass killers, perpetrators of crimes against humanity and other war criminals; C.Handing over ‘Genocidaires’ to the ICTR and Chapter 9 Disarmament of armed groups. 9.1The JMC with the assistance of the UN/OAU shall work out mechanisms for the tracking,disarming, cantoning and documenting of all armed groups in the Democratic Republic of

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Congo, including ex-FAR, ADF, lRA, UNREFIL, Interahamwe, FUNA, FDD, WNBF, UNITAand put in place measures for—A. Handing over to the UN international tribunal andnational courts, mass killers and perpetrators of crimes against humanity; http://www.congorcd.org/political/ceasefire.htm.

[22] See http://www.globalpolicy.org/intljustice/general/2002/0228.htm for Wall Street Journalarticle by Jess Bravin, 28 February 2002.

[23] Musembi, ‘Judicial Records and Protection of People’s Rights,’ 3, quoting Twining and Quick,Legal Records in the Commonwealth.

[24] See http://www.ictr.org for a detailed organigram of the JRAU within CMS.[25] Connelly-Hansen, ‘The International Criminal Tribunal for Rwanda,’ 150.[26] Adami, ‘The Development of International Criminal Justice Records Management and

Archival Practice,’ 19 – 20.[27] See http://www.irmt.org (accessed 7 February 2005) for more information on the training

provided by IRMT in Africa.[28] David and Klein, ICTR: Reports of Orders, Decisions and Judgements

References

Adami, T. ‘The Development of International Criminal Justice Records Management and ArchivalPractice.’ INFORMAA Quarterly 18, no. 3 (2002): 19 – 20.

Brooks, P. C. ‘Current Aspects of Records Administration.’ American Archivist (July 1943): 158 –164.

Bryce, Viscount. The Treatment of Armenians in the Ottoman Empire 1915 – 16. London: Hodderand Stoughton, 1916.

Connelly-Hansen, A. J. ‘The International Criminal Tribunal for Rwanda—A Case Study Verifyingthe Utility of the Australian Records Management Standard AS4390 and the DIRKS Manualin the International Arena.’ Paper presented to Annual Conference of the RecordsManagement Association of Australia (RMAA), Hobart, Australia, September 2000.

David, Eric, and Pierre Klein, eds. ICTR: Reports of Orders, Decisions and Judgements. Bruylant:Universite Libre de Bruxelles, 2000.

Musembi, M. ‘Judicial Records and Protection of People’s Rights.’ Paper presented to ESARBICAConference, Zanzibar, 1999.

Radoff, M. L. ‘What Binds Us Together?,’ American Archivist (January 1956): 3 – 10.Ricks, A. ‘Records Management as an Archival Function.’ ARMA Quarterly (April 1977): 12 – 20.Totten, Samuel, William S. Parsons, and Israel W. Charny, eds. Century of Genocide—Eyewitness

Accounts and Critical Views. New York and London: Garland Publishing, 1997.Twining, William, and Emma Varnden Quick, eds. Legal Records in the Commonwealth. Aldershot:

Dartmouth Publishing, 1994.

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