TEMPORARY COURTS PERMANENT RECORDS Trudy Huskamp Peterson October

TEMPORARY COURTS, PERMANENT RECORDS Trudy Huskamp Peterson October 2007

Scope of Study • International Criminal Tribunal for the former Yugoslavia (ICTY) • International Criminal Tribunal for Rwanda (ICTR) • Special Court for Sierra Leone (SCSL) • Special Panels and Serious Crimes Unit, East Timor • Hybrid courts, Kosovo

Legal Basis of Courts and Court Records 1. ICTY and ICTR: Created by United Nations Security Council 2. SCSL: Created by agreement between Sierra Leone and United Nations 3. East Timor panels and prosecutor: Created by the United Nations administration in East Timor and subsequently transferred to the new national government 4. Kosovo: International judges and prosecutors inserted by UN into existing court system

Scope of Court Functions • ICTY and ICTR: Courts, prosecutor, investigators, registrar, victims and witness support program, detention facility management, outreach to local communities, public information, liaison to defense counsel, administration

Scope of Court Functions, Cont. SCSL: Same as ICTY and ICTR plus defense counsel, construction and management of court and detention facilities East Timor: Judges but not courts, prosecutor, investigators, public information Kosovo: Judges but not courts, prosecutors, investigators

Geographic Scope ICTY: Headquarters in The Hague, offices of prosecutors, investigators, victim and witness support, and outreach located in various cities in Croatia, Bosnia, Serbia, and Kosovo

Geographic Scope, cont. ICTR: Headquarters in Arusha, Tanzania; appeals to appellate bench in The Hague; prosecutor office in Kigali, Rwanda and formerly in The Hague SCSL: Freetown, Sierra Leone, The Hague East Timor: Dili, East Timor Kosovo: Prishtina and five judicial districts

Physical Types of Records • Paper (official record): • Electronic tracking systems: • Electronic document management systems: • Websites: • Audio and video of court sessions: • Still photographs, audio and video evidence: • Architectural records: • Objects as evidence: • All except East Timor panels • ICTY, ICTR, SCSL, prosecutor in East Timor • ICTY, ICTR, SCSL • All • SCSL • All

Some Records Issues üVolume üDuplication üQuantity of confidential information üSecurity

National and International Perspectives Court records Prosecutors’ records Investigators’ records Detention records Files of judges Records of defense counsels International experiences: International Military Tribunal – Germany International experiences: International Military Tribunal – Far East

Potential Users üVictims, surrogates, heirs üCivic activists üGovernment officials üLegal researchers; defense counsel üAcademic researchers üMedia üCourt planners

What Records Users Say They Want

Joinet Principles 1997 • Preserve archives “bearing witness to violations” of human rights • Establish categories of access (victims, relatives, persons implicated, historical researchers) • Use balancing test between access and privacy

Administering Access Policy • Clear policy statement, screening, periodic reviews • Make public existence of records and restrictions • Equal access; release to one member of public is release to all • Passage of time obviates need for restriction

Problem of Placement I • Goals – Foster Research – Provide consistent reference service – Conserve resources

Problem of Placement II • Single location or many • Competing claims • Single location – New York – Geneva – The Hague

Problem of Placement III • Service to researchers • Access through duplicate copies

Responsibilities for an international judicial archives • UN must embrace its responsibility for the records • States need to support and fund • NGOs and other concerned bodies should participate in the creation and maintenance of the archives