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• All except East Timor

panels• ICTY, ICTR, SCSL

• ICTY, ICTR, SCSL, prosecutor in East Timor

• ICTY, ICTR, SCSL

• All

• SCSL• All

Some Records Issues

VolumeDuplicationQuantity of confidential

informationSecurity

National and International Perspectives

Court recordsProsecutors’ records Investigators’ recordsDetention recordsFiles of judgesRecords of defense counselsInternational experiences: International Military

Tribunal – GermanyInternational experiences: International Military

Tribunal – Far East

Potential Users

Victims, surrogates, heirsCivic activistsGovernment officialsLegal researchers; defense counselAcademic researchersMediaCourt 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