Wednesday, February 29, 2012

Archives, Hearsay, & Wartime Evidence

AP had an interesting piece over the weekend called "Researchers push to open UN archive" about the archives of the United Nations War Crimes Commission. The article summarizes:
Leading British and American researchers are campaigning to make the files — hundreds of thousands of pages in 400 boxes — public for the first time in 60 years, arguing that they are not only historically valuable but also might unearth legal precedents that could help bring some of today's war criminals to justice.
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The archive belonged to the United Nations War Crimes Commission, a body established in October 1943 by 17 allied nations to issue lists of alleged war criminals — ultimately involving approximately 37,000 individuals — examine the charges against them and try to assure their arrest and trial.
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Concerns about putting every name in the archive into public view could remain an obstacle to opening it. Plesch said some countries could also be sensitive about documents that could indicate their reluctance to pursue war crimes trials.
The UN has a finding aid for the collection, which includes the current policy on access.  The general rule is that the archives are accessible for persons "engaged in serious research" about the Commission or "related problems in international law." Carved out of that access, however, are those portions of the collection "that refer to specified individuals charged or suspected of war crimes" and "lists of war criminals, suspects and witnesses, and related indexes, and the formal charges and related papers." Access to those portions is limited to either official government research or to individual researchers approved by the government in which he or she is a "national or permanent resident." 

What I find most interesting is that the stated justification for the carve-out of records specifying "individuals charged or suspected of war crimes" is that such records "include unsubstantiated information and hearsay evidence which may not have been submitted to judicial process."  The issue, it would appear, is whether making the names and accusations public would unfairly stigmatize the accused (or perhaps their descendants) when the evidence underlying those accusations may be wanting.  In the AP piece, for example, ICC prosecutor Luis Moreno Ocampo is asked "whether names should still be blacked out after 60 years" and responds that "It has to be clear these are people who are under investigation as suspects. They are not guilty. It has to be properly managed."

While the passage of more than 60 years might ameliorate the effect, it also could make it worse if only the questionable evidence has survived while contemporaneous information and evidence that might have contradicted the accusations or tended to prove the innocence of the accused has been lost to history. A 2002 article by Boris V. Ananich called "The Historian and the Source: Problems of Reliability and Ethics" describes this problem in some depth.  Ananich discusses the difficulty of dealing with records of political trials in the U.S.S.R. from the 1920s and 30s in which individuals were "accused of belonging to a conspiracy against the Soviet regime, attempting to organize a coup d'etat, and working with foreign powers." The trials, however, "were fabricated by the secret police," included coerced confessions, and "as a rule, the accusations of the arrested had no real foundation."  Ananich describes the issues he and his colleagues went through in publishing these records, which were of "great scholarly importance," in a responsible manner that would highlight to an unwary researcher the palpable possibility of fabrications.

Finally, it is interesting that while archivists and historians are carefully trying to manage the risk of wartime accusations based on hearsay evidence creating historical misperceptions and unjustified stigma, the reliance on hearsay evidence in current cases in the D.C. Circuit Court of Appeals involving living individuals currently in stigmatizing wartime detention is heavier and broader than it has ever been. A cert petition filed just last week with the U.S. Supreme Court, for example, argues:
The habeas procedures now mandated by the court of appeals all but guarantee the government's success. And the fulcrum on which the playing field is tilted in the government's favor is the court's complete rejection of any restriction on the admissibility of the government's hearsay evidence. . . . the court of appeals requires the district court to disregard the Federal Rules of Evidence, and to consider all hearsay, including hearsay that otherwise would clearly be inadmissible, such as raw intelligence reports of interrogations by unknown interrogators of unknown subjects under circumstances that the government refuses to disclose.