Archives and Human Rights

Jens Boel, Perrine Canavaggio, Antonio González Quintana

• Publisher: Routledge
• Year: 2021
• ISBN:
  9780429620140
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

Why and how can records serve as evidence of human rights violations, in particular crimes against humanity, and help the fight against impunity? Archives and Human Rights shows the close relationship between archives and human rights and discusses the emergence, at the international level, of the principles of the right to truth, justice and reparation.

Through a historical overview and topical case studies from different regions of the world the book discusses how records can concretely support these principles. The current examples also demonstrate how the perception of the role of the archivist has undergone a metamorphosis in recent decades, towards the idea that archivists can and must play an active role in defending basic human rights, first and foremost by enabling access to documentation on human rights violations.

Confronting painful memories of the past is a way to make the ghosts disappear and begin building a brighter, more serene future. The establishment of international justice mechanisms and the creation of truth commissions are important elements of this process. The healing begins with the acknowledgment that painful chapters are essential parts of history; archives then play a crucial role by providing evidence. This book is both a tool and an inspiration to use archives in defence of human rights.

The Open Access version of this book, available at http://www.taylorfrancis.com/books/e/ISBN, has been made available under a Creative Commons Attribution-Non Commercial-No Derivatives 4.0 license.

Part 1
Archives and human rights

A close relationship

Jens Boel, Perrine Canavaggio and Antonio González Quintana

1 Archives and citizens’ rights

Human rights and public archives: a parallel history

Democracy, human rights and archives have a shared history. As Michel Duchein (1983) notes in his historical analysis of the development of access to archives:

As far as is known, access to the archive repositories constituted by kings and priests in ancient times was limited strictly to the officials responsible for their preservation or to those who had received specific permission from the supreme authority. Actually, the preservation of archives has always been linked to the exercise of power, since the possession of memory is essential to governing and administering. Accessibility to archives was therefore a privilege, not a right … it seems that the idea of opening archives to non-official researchers is closely linked to the birth of the idea of democracy, that is to the Athens of the fourth century B.C. Litigants at law were permitted to seek documents in official archives to support their cases. Likewise, when elected magistrates were accused of treason or of violating the laws, the conservator of the archives was called upon to furnish the documents relating to the matter.

(p. 2)

Looking back for early precursors of the concept of human rights, two examples that immediately spring to mind are the Magna Carta (1215), a charter of rights signed by King John I of England under pressure from rebel barons, and the Bill of Rights (1689), a landmark Act that was the culmination of the “Glorious Revolution” in 17th-century England. But we have to wait until the 18th century and the American Revolution to find the first real precursors of the Universal Declaration of Human Rights that is our benchmark today. While the Magna Carta and the Bill of Rights may have successfully clipped the monarch’s wings, the rights they afforded were not general in nature and had only very limited scope. In addition, these rights were reserved for the privileged few, and bore a strong resemblance to feudal systems such as pre-Revolutionary France (Ancien Régime) with its three estates.

The idea that access to archives was part of democracy was given a new lease of life with the philosophers of the Age of Enlightenment, at the same time as the notion that justice should be “transparent”, and particularly that defendants should have access to the evidence of their accusers, as most famously stated by Cesare Beccaria in Dei delitti e delle pene (On Crimes and Punishments), 1764. This was the first departure from the principle of absolute secrecy of judicial archives that had been inherited from Roman criminal procedure.

The Virginia Declaration of Rights of 1776, which was to have a decisive influence on the U.S. Declaration of Independence of the same year, the 1789 U.S. Constitution and, to an even greater extent, the 1791 U.S. Bill of Rights, without doubt recognised some of the rights that would subsequently feature in later, more recent declarations of rights, for example the unalienable right to life, liberty, ownership of property, safety, the pursuit of happiness and freedom of speech, to which may be added the right of resistance or rebellion against injustice. While, on the surface, the words used in these documents may seem universal, in truth this was far from the case, because none of the rights listed in the Virginia Declaration, the Declaration of Independence or the U.S. Bill of Rights extended to women and slaves.¹

Perhaps the most direct predecessor of later declarations is the Declaration of the Rights of Man and of the Citizen (Déclaration des droits de l’homme et du citoyen) adopted in France in 1789 by the National Constituent Assembly, which was the first actually to include the words “rights of man” in its title. Its Article 15 also states that “The society has the right of requesting an account from any public agent of its administration”. And it was soon after this declaration, in the early days of the French Revolution, that the first law was passed establishing a new National Archives to be open to all French citizens (7 Messidor Year II, i.e. 25 June 1794). There are a number of authors who believe that it was not historical research that motivated the French revolutionaries but more the “desire to use the National Archives to preserve old records as nationalised public property” (Cunningham, 2005). Nevertheless, the proclamation that “the archives belonging to the Nation, including governmental, administrative, judiciary and ecclesiastical archives, were to be accessible freely and without cost to all ‘citizens’ requesting such services” was truly historical (Duchein, 1983).

From the time of the 19th-century liberal revolutions, Archives set about adapting their structures and regulations to cater to requests from citizens demanding application of their newfound rights, not least the right to personal identity, as a step towards acquiring the citizenship promised by the French Civil Code and documented through Civil Registration. Property rights, for their part, were guaranteed through the Land Registration system. Subsequently, the legal safeguards protecting citizens’ rights were further bolstered by the recordkeeping systems that emerged in waves on a parallel to the fledgling liberal democracies and fundamental freedoms.

The civil registration system created in 1792 was to have an even greater effect than the National Archives in consolidating the rights laid out in the 1791 French Constitution through the inclusion in its preamble of the principles outlined in the Declaration of the Rights of Man and of the Citizen. It was at this point that convergence between universal rights and archives reached its zenith. Civil registries were set up in each of the different municipalities, a principle extended under Napoleon to the rest of the Empire, for purposes of enforcing the Civil Code. The secular State supplanted the Church, which previously had a monopoly over public records: births, marriages and deaths and their respective registries. Until then, it was the parishes that kept sacramental records of births and marriages in line with the decisions of the 1563 Council of Trent. Previously and until the Revolution, it had been impossible to register the birth of anyone who was not a churchgoer or who had not been baptised:

The purpose of introducing civil as opposed to religious rites was to show that, in declaring their vital details to the municipal registrar, individuals could become members of the community of citizens in the same way as baptism signalled their entry into the community of Christ… . Babies were to be “presented” by their parents to the “secular” church, in other words the “house of the community” (town hall). These principles then formed the basis for addressing the actual issue of individual identification.²

(Noiriel, 1993)

Since civil registration came into force civil rights and public records and archives have evolved along parallel lines. Civil registration, as a secular system linked to the public authorities, may rightfully be considered the ancestor of public archives. This is the moment in history to which we can therefore trace back the earliest links between archives and individual liberties and, later, between archives and democracy.

These parallels speak for themselves in Haiti, for example, where the first Constitution, in 1801, explicitly stated that all men were equal, irrespective of their colour and that no men should be slaves. This was the first ever text to grant the same rights to blacks and whites, which was fully concordant with the terms of earlier declarations but totally at odds with the realities of the situation in the United States and, at certain moments of its history, in France. The 1801 Constitution was the brainchild of the Island’s Governor General, Toussaint Louverture, at a time when Haiti was still a French colony. The Constitution was short-lived, because it was rescinded by Napoleon the following year, after slavery, previously abolished by the National Convention in February 1794, had been restored. In this West Indian island, the scene of the first triumphant slave uprising, civil registration was of enormous importance and, for historical reasons connected with the large number of Haitians who have emigrated over the past 200 years, it has always been a vital aspect of Haitian life and a constant cause for concern. Oddly, in one of the first countries to adopt civil registration, it was here that it was to be eroded over the years. With such a huge emigrant population, many people have had to fight to secure recognition of their personal identity. The crucial moment in this highly explosive situation came when fighting broke out in the Dominican Republic in response to the decision to deregister Haitian children born there with retroactive effect (IACHR, 2015; Primera, 2013). From the time the National Archives was created in Haiti in 1860, it was linked to the civil registry, with the result that, by the last third of the 20th century, it was little more than a satellite of the registry. It is no coincidence that the oldest documentary holdings in Haiti’s National Archives are civil registers dating back to 1799 (Bertrand, 1988).

The second major source of documentary material connected with the rights laid out in the Declaration of the Rights of Man and of the Citizen and their application is the property registers held by the Land Registries which have the status of official agencies open to the public.

The making of international human rights law and the right to access archives

If we were to try to pinpoint the moment in international law when international tribunals first became able to judge crimes against humanity, we would naturally think of the International Military Tribunal (IMT) convened in Nuremberg in 1945 and, equally, of the International Military Tribunal for the Far East (IMTFE) convened in Tokyo following the capitulation of Japan, the sessions of which ran from 3 August 1946 to 12 November 1948.

While Nuremberg and Tokyo are most remembered for the sentences passed on the main leaders of the Third Reich and Japan, respectively (with the exception of Emperor Hirohito), perhaps the most remarkable development was that a number of concepts soon to become key features of international law, not least that of “crimes against humanity”, were given theoretical definitions. These concepts were also included among the so-called Nuremberg Principles and set out in the Charter of the International Military Tribunal in Nuremberg (Nuremberg Charter) on 6 October 1945. They set the foundations giving both tribunals authority to judge:

1. a Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
2. b War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
3. c Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

However, while the intention was clearly to punish these crimes, the new and emerging laws contained major loopholes which cast doubt on their legitimacy, not least the fact that they offered impunity to the authors of crimes committed by the Allies, even when these crimes fell perfectly well into the new categories defined. The most blatant examples were the bombing of civilian populations and, more especially, the dropping of atomic bombs on Hiroshima and Nagasaki (Bassiouni, 1999, p. 553). Other such examples include the Katyn Forest massacre, a crime that the Soviet judge at the International Military Tribunal tried, with staggering hypocrisy, to blame on the accused in the dock, even though the murder of Polish army officers was ordered by the Soviet Army, as was to emerge later in the course of events (Sanford, 2005). This approach to impunity was dictated by a number of political decisions made by Heads of State and political leaders in the immediate post-war context.

The horror of the extremely violent attacks on individuals in the troubled years of the first half of the 20th century, among them the extermination of civilian populations, genocide, deportation and war crimes, including the Holocaust and other unspeakable crimes perpetrated by the Nazis, culminated in the aftermath of World War II in the decision to create new international legislation based on the Nuremberg Principles to form the legal reference framework for prosecuting the war criminals of the Axis powers. This, in turn, led to the approval in 1948 by the UN General Assembly of the Universal Declaration of Human Rights and the Convention on the Prevention and Punishment of the Crime of Genocide. It was also in 1948 that, under the aegis of UNESCO, the International Council of Archives (ICA) was set up in Paris as a non-governmental organization tasked with promoting international cooperation, research and development in all archive-related fields and with contributing to the development and application of UNESCO’s archival and recordkeeping programme.

Each of us could easily draw up a detailed list of all the economic and personal aspects of our daily lives where, without documentary evidence, we would be unable to exercise our rights (Peterson, 2018). In addition, the loss or absence of official records or archives can have tragic consequences. By way of example, we need to only think of the importance of the civil registry of births for defending children’s rights. Reverting to the issue of civil registration, it is not by chance that, for the United Nations, one of the basic challenges consist...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Dedication
• Contents
• Acknowledgements
• List of authors
• Foreword
• Message from the President of the International Council on Archives
• Introduction
• Part 1 Archives and human rights: a close relationship
• Part 2 Case studies
• Africa
• Asia
• Europe
• Latin America
• Concluding remarks
• Index