Returning displaced archives
after the war - a legal perspective
HOOFDSTUK
Throughout history, state papers, archives and documents of all sorts have fallen
victim to armed hostilities, be it that they were simply destroyed - intentionally or by
chance - in the course of fighting, be it that they were deliberately seized during an
occupation to be exploited for military or political reasons, or even taken away by
the conquering armies. Once hostilities had ceased, the original owners often tried
to claim back the records that had been removed during the war. European peace
treaties since the 12th century frequently contained so-called archive clauses that
provided for the return of records and documents previously taken away.
In other cases special treaties on the return of records were concluded, often years
after the hostilities were terminated. Still other claims were sorted out through
practical cooperation and agreement at the level of archival authorities without a
formal treaty between the states concerned. And after the invasion of Kuwait by Iraq
it was the Security Council which ordered the return of the civil registries and other
state papers taken away by Iraqi troops in its two resolutions under Chapter VII of
the United Nations Charter.1
What looks like a fairly straightforward claim at the level of principle may
nevertheless become a complex and protracted legal issue in practice. Firstly, it is by
no means evident that all of the state papers eventually moved across borders during
a war have to be returned. Some records at least - military papers that are of direct
usefulness for the conduct of operations in the first place - may indeed be
legitimately seized and taken away by the enemy. Secondly, the end of armed
conflicts was often accompanied by the redrawing of borders, either through the
cession or break-away of parts of the territory of an existing state or the dissolution
of entire states or empires. Where parts of the territory of a state come under the
sovereignty of another state or form a new state, the question arises where to
"return" captured records if as a result of the territorial changes two or more states
now claim to be the rightful owners of all or parts of the records previously taken
away. Here the practical issues of where and how to "return" the archives previously
taken away intersect with questions of how to (re-) apportion ownership of the
entirety of the state's archives that are of interest to the authorities and people on
both sides of the new border. To make things even more complicated, strained
political relations after a war between some or all of the parties involved in an
archival dispute often prevent or delay considerably an agreement even where the
archivists on both sides could solve the practical issues.
THOMAS FITSCHEN
1 Security Council resolution 674 (1990), of 29 October 1990, and Security Council resolution 677 (1990),
of 28 November 1990.
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