Archives & Records in Armed Conflict: International Law and the Current Debate Over Iraqi Records and Archives
56 Pages Posted: 21 Dec 2019
Date Written: July 7, 2010
Controversies over the fate of the records and archives of the Iraqi Ba’ath party in the aftermath of the Second Gulf War, and debates over the role of international law in their protection, have become increasingly fierce. Such controversies have included allegations of “pillage” and demands for the “repatriation” of such records – some of which are in U.S. custody and others are on deposit at the Hoover Institution at Stanford University – to the Iraqi National Archives. Meanwhile, in March 2009 the United States became a party to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which seeks to protect cultural property – defined to include “archives” – in war subject to the demands of imperative military necessity. The current debates mark the intersection of three historically ambiguous concepts: “archives,” “cultural property,” and “military necessity.” This article seeks to clarify the legal status of records and archives in war on the basis that resolving controversies such as those surrounding Ba’ath party records requires a realistic assessment of the limitations of international law. The article concludes that although the nature of records and archives may preclude international legal standards that are both robust and enforceable, international law nevertheless has an important role to play in supporting realistic and feasible measures for their preservation.
Keywords: archives, records, documents, law of war, armed conflict, cultural property, Iraq, Ba'ath, Saddam, intelligence
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