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. 17

Periodiekviewer Koninklijke Vereniging van Archivarissen

Jaarboeken Stichting Archiefpublicaties | 2014 | | pagina 10