Archives and Impunity
Archives and Impunity
The formation of international legal mechanisms to struggle against impunity implemented by the United Nations dates back to the end of the Cold War. The World Conference on Human Rights held in Vienna in 1993 indicated an important beginning for the materialization of the steps taken to this end. Through the principles adopted in the conference, the United Nations started to put greater emphasis on impunity and appointed French jurist Louis Joinet as an independent specialist to report on the impunity of perpetrators of human rights violations. The aim was “to find that impossible balance between the desire of those who have been oppressive and cruel, to make these forgotten, and the quest for justice of those who have been oppressed and cruelly victimized.”
Joinet’s report following this work lists three rights that the victims should have: the right to know, the right to justice, and the right to reparations. The right to know is an essential prerequisite for the latter two, the rights to justice and reparation. This prerequisite is accompanied by four general principles. The first is the right to truth, which is both an individual right and a collective right. The second principle is the state’s duty to remember. This duty includes taking precautions ‘against the disappearance of the collective memory and especially against development of revisionist and negationist discourses’[ZZ3] . The third principle is related to the victims’ right to know. The fourth principle includes the steps to be taken to establish the right to know: the formation of commissions of truth and the preservation of archives that contain documents related to human rights violations.
In the report, the principles on archives set forth the measures to prevent the destruction of the archives, to provide public access – especially to the victims and their relatives, to ensure that courts and commissions could access the archives without any restrictions, and to guarantee personal data safety measures. When these principles were approved in 1998 by the Human Rights Council, for the first time was the United Nations organization acknowledging the relationship between archives and the struggle against impunity. By 2005, upon the request of the Commission, these principles were reviewed by Diane Orentlicher, a professor of international law. The revisions were particularly related to the scope of the duties that fall on the states in the context of international law. From then on, archives that included documents related to human rights violations functioned in accordance with the Joinet-Orentlicher principles.
The importance of the role of the archives in the special context of the right to know the truth was clearly expressed at the General Assembly of the United Nations [ZZ4] by the Human Rights Council in 2005. Joinet-Orentlicher principles were referred to in the resolution about the right to know the truth. In 2006, upon the demand of the Human Rights Council, the Office of the United Nations High Commissioner for Human Rights carried out a comprehensive study on the right to know and resulted in a report updated in 2007 with paragraphs from 58 to 70 pertaining to the preservation of and making accessible archives. The Office of the United Nations High Commissioner for Human Rights penned another 2009 report, a large part of which was constituted by the first of the two fundamental components to found the right to know – the preservation of archives and opening them to access. The report suggested witness protection programs as the second component and that these two measures would reciprocally strengthen each other. The report predicated that in the phase of transitional justice, the fulfilment of the demand of truth and justice was to a great extent related to the accessibility of the archives to those individuals who seek for their rights and confront with the truth.
In 2012, the Council appointed the human rights specialist Pablo de Greiff from Colombia as a special rapporteur for the promotion of truth, justice, reparation and guarantees of non-recurrence. De Greiff’s two reports published in 2013 and 2014 recall the necessity of archives against negationist and revisionist stances, emphasizing the importance of effective regulations on the practices of record-keeping and accessibility. Particularly for the 2015 report, de Greiff collaborated with professional archivists to develop the propositions of the report. This cooperation was a substantial turning point in the struggle against impunity regarding the specific relationship between archives and the right to know.
In 2020, in another Human Rights Commission report on memorialization, Fabian Salvioli highlighted that the memorialization process is closely related to accessing the archives. Salvioli stated that methods should have been developed to facilitate admittance to the archives of states and human rights-related civil society, emphasizing that with regards to the right to truth, the preservation of records was not enough. For the first time, was the accessibility paradigm, which has become an increasingly urgent phenomenon since 1990’s, so strongly underscored in a United Nations report.