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A balancing act: The revised rules of access to the ICRC Archives reflect multiple stakes and challenges

Published online by Cambridge University Press:  11 June 2019

Valérie McKnight Hashemi
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Abstract

The International Committee of the Red Cross (ICRC) revised the access rules to its archives in 2017 for reasons that are complex, fascinating and deeply contemporary to our times. As these rules define when and to what extent the ICRC Archives are made available to the public, their contents are important for the institution as well as for wider audiences. The ICRC must ensure that it can implement its humanitarian mandate to protect and assist victims of armed conflicts and other situations of violence and preserve confidentiality, while sharing its past with the world at large. This article offers a historical overview of the ICRC Archives and the development of their access regulations until their latest revision in 2017. It shows that both today and in the past, the rules of access to the archives have resulted from choices made by the ICRC on how to balance its mandate and long-standing interests with contemporary opportunities and risks related to independent scrutiny.

Keywords

access rulesarchivesconfidentialityheritagehistorymemoryprotection
Type
Selected articles
Information
International Review of the Red Cross , Volume 100 , Issue 907-909: 150 years of humanitarian reflection , April 2018 , pp. 373 - 394
Copyright
Copyright © icrc 2019 

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Footnotes

*

The author wishes to thank the colleagues at the ICRC who showed interest in seeing this topic discussed and presented to a wider public, for their support and encouragement. The views expressed in this article are those of the author and do not necessarily reflect those of the ICRC. The author can be contacted by email at: [email protected].

References

1 For more on the aim of archives, see the International Council on Archives (ICA), Universal Declaration on Archives, adopted by the 36th Session of the General Conference of UNESCO on 10 November 2011, available at: www.ica.org/en/networking/unesco/unesco-officially-endorses-uda (all internet references were accessed in May 2019). “Archives record decisions, actions and memories. [They] are a unique and irreplaceable heritage passed on from one generation to another. … Open access to archives enriches our knowledge of human society, promotes democracy, protects citizens’ rights and enhances the quality of life. … We undertake to work together in order that … archives are made accessible to everyone, while respecting the pertinent laws and the rights of individuals, creators, owners and users.” And see ICA Code of Ethics, ICA, 1996, and Swiss Association of Archivists, 1998, available at: www.ica.org/en/ica-code-ethics. “Archivists should promote the widest possible access to archival material and provide an impartial service to all users” (Art. 6); “Archivists should respect both access and privacy, and act within the boundaries of relevant legislation” (Art. 7).

2 According to the current access rules to the ICRC Archives, documents created after 1975 cannot be cited in external publications. Some points are nevertheless paraphrased in the text in order to support the arguments made.

3 ICRC Archives (ICRCA), A PV PL (minutes of committee meeting), 17 February 1863.

4 Dunant, Henry, Un souvenir de Solférino, Geneva, 1862, re-edited by ICRC, Geneva, 1950–1990Google Scholar. Following his experience of war and suffering during the Battle of Solferino on 24 June 1859, between the Franco-Sardinian Alliance and the Austrian Army, the Swiss businessman Henry Dunant proposed the creation of “voluntary relief societies” in every country to care for the wounded in times of war in conjunction with the formulation of an international principle, sacred and conventional, to support their duties. His vision led to the creation of the ICRC and the foundation of the International Red Cross and Red Crescent Movement (the Movement) and the Geneva Conventions.

5 For more information see ICRC, “The ICRC's Mandate and Mission”, available at: www.icrc.org/en/mandate-and-mission.

6 For more on the definition of archives, see ICA, “What Are Archives?”, available at: www.ica.org/en/what-archive; Universal Declaration on Archives, above note 1.

7 Taken from Jürg Schmutz, Cantonal Archives of Lucerne, presentation at the Association Suisse des Archivistes, Bern, November 2017.

8 Archivists use common standards relating to the structure and content of archival fonds (e.g. the General International Standard Archival Description) and to other elements such as the producer, the process of archiving, and the processes of indexing and digital preservation (for an explanation of archival fonds, see note 14 below). For more on the responsibilities of archivists, see ICA, “Who Is an Archivist?”, available at: www.ica.org/en/discover-archives-and-our-profession; ICA Code of Ethics, above note 1.

9 The ICRC is guided at all times by the fundamental principles of the Movement, which are humanity, impartiality, neutrality, independence, unity, universality and voluntary service.

10 See “The International Committee of the Red Cross's Confidential Approach”, International Review of the Red Cross, Vol. 94, No. 887, 2012.

11 See “Memorandum: The ICRC's Privilege of Non-Disclosure of Confidential Information”, International Review of the Red Cross, Vol. 97, No. 897–898, 2016, available at: www.icrc.org/en/download/file/19024/irc_97_1-2-18.pdf.

12 ICRC activities, be they related to protection, assistance, cooperation, operational and public communication or humanitarian diplomacy, all require and produce information. Since the creation of the institution, different types of information have been collected, centralized, protected, shared in confidentiality, managed in accordance with their quality, quantity and the means available at the time, selected, preserved and constituted as archives. A significant portion of this information comprises personal data relating to individuals who were registered and followed individually by the ICRC such as prisoners of war and missing persons. See note 18 below.

13 ICRC Rules on Personal Data Protection, adopted by the Directorate of the ICRC on 24 February 2015, updated 10 November 2015, available at: www.icrc.org/en/publication/4261-icrc-rules-on-personal-data-protection. The term “personal data” refers to any information relating to an identified or identifiable natural person. This may include an identifier such as a name, audiovisual material, an identification number, location data, online identifiers, or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of a data subject. It also includes data identifying or capable of identifying human remains.

14 An archival fonds is a group of documents that share the same origin. The ICRC Archives are made up of seven main fonds: A/Committee (1854–ongoing); B/General Services (1917–ongoing); C/Central Tracing Agency and Protection Division (1870–ongoing); D/Delegations (1921–ongoing); O/Humanitarian Organizations (1921–ongoing); P/Private archives (1895–1991); V/Varia (1840–ongoing). Documents are managed by field delegations before being handed over to the archives. Finally, the administrative, financial, accounting, logistics and human resources files are managed by their respective units, who hand them over to the archives for evaluation and selection procedures.

15 The current ICRC general public archives cover the history of the institution since its foundation in 1863 until 1975. The periods covered include the initial creation, development and evolution of the Movement (1863–1914); the Schleswig–Holstein conflict between Prussia and Denmark (1864); the Franco-Prussian War (1870–71); the Great War (1914–18); the diverse armed confrontations during the 1920s and 1930s (such as the Greco-Turkish War, the struggle between China and Japan, the Italo-Ethiopian War and the Spanish Civil War); the Second World War (1939–45) and its aftermath; the decolonization process and the Cold War, including the French Indochina War (1946–56); the Korean War (1950–53); the Suez Crisis and the Hungarian Revolution (1956); the Algerian War of Independence (1954–62); the War of Independence of the Belgian Congo and the subsequent civil war that broke out in the country (1960–65); the civil war in Yemen (1962–64); the Middle East conflicts (1967 and 1973); the Nigeria–Biafra War (1967–70); the 1967 Greek military dictatorship; the military coup against President Allende in Chile (1973); and the end of the Portuguese colonial empire (1975). Other topics include the management and corporate transformation inside the ICRC itself; the implementation of IHL (particularly connected to the adoption and application of the Geneva Conventions ratified by the international community in 1864, 1906, 1929 and 1949); and legal and humanitarian improvements discussed during different International Red Cross and Red Crescent Conferences between 1928 and 1975.

16 The first PoW agency was the Basel Agency (1870), followed by the agencies of Trieste (1877) and of Belgrade (1912–13); the International Prisoners of War Agency was active during the First World War (1914–23), followed by the Spanish Civil War; then came the gigantic Central Prisoners of War Agency during the Second World War. This agency continued to respond to needs in the post-war period and in relation to the conflicts that followed the Second World War, such as in Palestine (1948–50). In 1960, the Central Prisoners of War Agency acquired a permanent status within the ICRC, and it has since become known as the Central Tracing Agency. For more information, see Djurović, Gradimir, L'Agence Centrale de Recherches du Comité international de la Croix-Rouge, Institut Henry Dunant, Geneva, 1981Google Scholar.

17 As a memory of events and experiences of individuals during different conflicts, the ICRC Archives also have an important value and role in countering theories of historical negationism and revisionism.

18 The Central Tracing Agency archives alone hold 36 million index cards with individual information in relation to the Second World War. Five million index cards relating to the First World War, now digitized, are available at: http://grandeguerre.icrc.org.

19 Association des Archivistes Français, Abrégé d'Archivistique, Paris, 2004, p. 11Google Scholar: “Ensemble de documents produits dans l'exercice d'une activité pour garder trace de certaines actions, les archives ne sont pas conçues à l'origine pour servir l'histoire. Ce n'est qu'au fil du temps qu'une partie d'entre elles acquiert une finalité historique, après avoir été considérées outil pour le fonctionnement des institutions. Elles deviennent dès lors un élément constitutif du patrimoine national.”

20 ICRCA, A PV, Commission des Archives, 27 May 1943: “La Commission a vérifié la mise en place … dans des casiers appropriés des archives de 1863 à 1914 mises à plat; des archives de 1914 à 1918; des rapports des missions qui ont suivi la guerre de 1914–1918. … La Commission a constaté avec satisfaction les progrès réalisés rendant possible la consultation des archives et a demandé que ce travail soit continué.”

21 See note 18 above.

22 See correspondences in ICRCA, First World War General Documents, C G1 A 06-07, 10 April 1918–30 January 1919, “Projets de dépôt des archives de l'agence de la Croix-Rouge danoise au CICR et des archives de l'AIPG à la Bibliothèque publique de la ville de Genève. Inventaire des archives de la direction de l'Agence (série 400)”, including a correspondence dated 12 April 1918 to the Danish Red Cross and a correspondence dated 17 April 1918 to the Municipality of Geneva.

23 See correspondences in ICRCA, First World War General Documents, C G1 A 06-07, 10 April 1918–30 January 1919, including a note from the Commission des Archives de la Guerre de la Bibliothèque Publique de la Ville de Genève dated 26 June 1918.

24 The filing plan is known as B AG (Services généraux – Archives générales).

25 Filing plan B AI (Services généraux – Archives institutionnelles) and since 2010, B RF (Services généraux – Archives générales des unités, Reference Files).

26 ICRCA, PV HC A, 20 September 1973.

27 Criticisms were made in relation to the protection of civilian victims of the Nazi dictatorship. It must be noted that Geneva Convention IV of 1949, protecting civilians in armed conflict, had not yet been adopted, despite efforts by the ICRC to make that happen after the First World War. See also “Press Conference given by the President of the ICRC”, Geneva, 30 May 1995, available at: https://blogs.icrc.org/ilot/2018/04/03/press-conference-given-president-icrc-geneva-30-may-1995/; “Remembering the Shoah: The ICRC and the International Community's Efforts in Responding to Genocide”, speech given by ICRC President Peter Maurer, 28 April 2015, available at: www.icrc.org/en/document/remembering-shoah-icrc-and-international-communitys-efforts-responding-genocide-and.

28 Starting in 1945, the ICRC was put under pressure regarding its actions during the Second World War, namely its failure to obtain access to many concentration camps. The Jewish community in Europe and in the United States voiced most criticisms. See, for example, ICRCA, Tartakower Case, B G59/7-329. See also Farré, Sébastien, “The ICRC and the Detainees in Nazi Concentration Camps (1942–1945)”, International Review of the Red Cross, Vol. 94, No. 888, 2012CrossRefGoogle Scholar.

29 Favez, Jean-Claude, Une mission impossible? Le CICR, les déportations et les camps de concentration nazis, Editions Payot, Lausanne, 1988Google Scholar.

30 E.g., the Yad Vashem Institute in Jerusalem and the United States Holocaust Museum in Washington. See also Ben-Tov, Arieh, Facing the Holocaust in Budapest: The International Committee of the Red Cross and the Jews in Hungary, 1943–1945, Kluwer Academic Publishers, Dordrecht, 1988CrossRefGoogle Scholar.

31 The ICRC's archives relating to the International Prisoners of War Agency during the First World War were granted UNESCO World Heritage status in 2007. See UNESCO, “Archives of the International Prisoners of War Agency, 1924–1923”, available at: https://tinyurl.com/yy7h58x3.

32 ICRC, Rules Governing Access to the Archives of the International Committee of the Red Cross, adopted by the ICRC Assembly on 17 January 1996 and revised by the ICRC Assembly on 29 April 2004 (1996–2004 Access Rules), Art. 6.

33 Ibid., Art. 6.

34 Ibid., Art. 7. Information from individual files could, however, be shared after fifty years for autobiographical or biographical purposes via the services of an archivist.

35 Pitteloud, Jean-François, “Un nouveau Règlement d'accès ouvre les archives du Comité international de la Croix-Rouge à la recherché historique et au public”, International Review of the Red Cross, Vol. 78, No. 821, 1996, p. 595Google Scholar. The protection delays for consulting personal data in cantonal archives in Switzerland vary between fifty years or ten years after the death of the person concerned (e.g., canton of Lucerne, Archivgesetz, 16 June 2003) to 100 years or ten years after the death of the person concerned (e.g., canton of Vaud, Loi sur l'Archivage, 14 June 2011).

36 ICA, “ICA: 70 Years of International Influence – Timeline”, 9 June 2018, available at: www.ica.org/en/international-council-archives-0/ica-70-years-of-international-influence-timeline. From 1993 onwards, the ICA developed strong cooperation with the Council of Europe “to promote the modernisation of archives in Europe”. The ICA also promoted more extensively the importance of access to archives. In 1994, the ICA published its first standard, the International Standard on Archival Description (General), which was rapidly adopted by archivists around the world, including at the ICRC. In 1996, the ICA adopted its Code of Ethics for archive professionals across the world.

37 National legislations and policies of international organizations relating to archives generally evolved in the 1990s towards a trend of decreasing retention periods. The Swiss Federal Archives followed the principle of a thirty-year general retention period and fifty years for personal data, while the United Nations adopted a twenty-year general protection period.

38 Commission Indépendante d'Experts Suisse – Mondiale, Seconde Guerre (ed.), La Suisse et les transactions sur l'or pendant la Seconde Guerre Mondiale, Berne, 1998Google Scholar, and La Suisse et les réfugiés à l’époque du national-socialisme, Berne, 1999.

39 See, for example, a recent study by the Dutch Red Cross on its actions during the Second World War: Grüter, Regina, Kwesties van leven en dood: Het Nederlandse Rede Kruis in de tweede wereldoorlog, Uitgeverij Balans, Amsterdam, 2017Google Scholar.

40 For example, the Archiwum Poslki Podziemnej and Commonwealth Ex-Services Association of Pakistan.

41 See 1996–2004 Access Rules, above note 32, cited in Pitteloud, Jean-François, “The International Committee of the Red Cross Reduces the Protective Embargo on Access to Its Archives”, International Review of the Red Cross, Vol. 86, No. 856, 2004, pp. 959–962Google Scholar. These rules later included audiovisual material, most of which was and is created with a view to becoming public.

42 J.-F. Pitteloud, above note 41, p. 958.

43 1996–2004 Access Rules, above note 32, Art. 6: “The general public has access to archives classified as ‘public’ after a set period of time, to ensure that such access will in no way be detrimental to the ICRC, to the victims that it is its duty to protect, or to any other private or public interests requiring protection.”

44 “Global social networking audiences surpassed 2 billion users in 2016. The most popular social network worldwide is Facebook; with 1.86 billion monthly active users by the end of 2016.” Statista, “Daily Social Media Usage Worldwide 2012–2018”, available at: www.statista.com/statistics/433871/daily-social-media-usage-worldwide/.

45 By contrast, the individual archives of the Central Tracing Agency and Protection Division have instead a yearly opening time, based on the applicable protection period. See the document “Consultation of Agency Archives”, a procedure relating to the Central Tracing Agency archives as defined in the 2017 access rules, available at: www.icrc.org/sites/default/files/wysiwyg/About/history/access_to_the_icrcs_agency_archives_2017.pdf.

46 This was done taking into account the ICRC Rules on Personal Data Protection, above note 13, which were adopted in 2015.

47 See above note 15. Today, the ICRC receives up to 250 external researchers per year at its headquarters in Geneva who work on the general public archives during an average of 600 days of consultation. Archivists respond annually to some 3,000 written requests from families of ex-PoWs and the public regarding both general and individual archives, which reflects only part of the total demand. The great majority of individual requests relate to the Second World War, though genealogical research relating to the First World War continues to be an important field of interest. Among the requests received yearly by the ICRC's individual archives, approximately 65% concern the Second World War, 25% concern the First World War and 10% concern conflicts since 1948. The majority of requests about the Second World War concern French PoWs, followed by British/Commonwealth, German and Italian PoWs. In 2018, the ICRC's website containing the individual records of prisoners of war during the First World War received more than 145,000 visits (see above note 18). Finally, the unique audiovisual archives of the ICRC also reveal many gems: see ICRC Audiovisual Archives, available at: https://avarchives.icrc.org/.

48 See “Message from the President of the ICRC”, in ICRC, Annual Report 2017, Geneva, 2018, pp. 8–9 (ICRC 2017 Annual Report), available at: www.icrc.org/en/document/annual-report-2017.

49 ICRC, Protracted Conflict and Humanitarian Action: Some Recent ICRC Experiences, Geneva, 2016Google Scholar.

50 “Protracted armed conflicts are characterized by their longevity, intractability and mutability. This is not a new phenomenon, but some particular trends seen in today's protracted conflicts, such as emerging technologies, pervasive media coverage, and so on, are specific to our times. The lack of respect for international humanitarian law is a major source of suffering in protracted conflict. Due to the prolonged nature of these conflicts, they may fuel a cycle of revenge, undermining respect for the law. … The needs of affected people are wide-ranging and extend over many years, sometimes even generations. As a result, humanitarian agencies need to adapt their programming to respond both to urgent and long-term needs. Effective operations in protracted conflicts are an institutional priority for the ICRC.” ICRC, “Protracted Armed Conflict”, 27 June 2017, available at: www.icrc.org/en/international-review/article/protracted-armed-conflict.

51 Colombia has experienced violence for more than fifty-four years; the ICRC has been working there since 1980. Iraq has experienced violence for more than fifty years; the ICRC has been working in that context since 1980. Afghanistan has experienced violence for more than forty years; the ICRC has been working there since 1978. For more details, see the exhibition “Stretched” at the Humanitarium, ICRC Headquarters, Geneva.

52 The ICRC promotes the right to justice and the right to know of victims of conflicts through transitional justice mechanisms and tribunals. It will act, for example, as a neutral intermediary and promote the issue of clarifying the fate of missing persons. It will not, however, share information in legal proceedings, in line with its confidential approach and privilege of non-disclosure, except in particular cases where the ICRC decides to waive its testimonial immunity. See “Memorandum”, above note 11; Elem Khairullin, “5 Things that Make ICRC Confidential Information Unsuitable for Legal Proceedings”, Humanitarian Law and Policy Blog, 31 January 2019, available at: https://blogs.icrc.org/law-and-policy/2019/01/31/5-things-make-icrc-confidential-information-unsuitable-legal-proceedings/.

53 For more information, see “Memorandum”, above note 11.

54 See, for example, “Switzerland Unveils New Measures to Fight Cyber Attacks”, The Local, 28 August 2018, available at: www.thelocal.ch/20180828/switzerland-unveils-new-measures-to-fight-cyberattacks. As we know, new technologies also allow for the widespread sharing of confidential data, through platforms such as Wikileaks. The ICRC is confronted with this risk and has experienced such incidents in recent years. While the past is less of a concern, it is recent or ongoing operations which could be put at risk if confidential information becomes public.

55 For example, EU data protection law: see Directive 95/46/EC, 1995, Art. 2(a), according to which “personal data” means “any information relating to an identified or identifiable natural person (‘data subject’); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity”; and Art. 8(1), according to which “sensitive personal data” are “personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership, and data concerning health or sex life”. Sensitive personal data are special categories of personal data that are subject to additional protections. See Detlev Gabel and Tim Hickman, “Chapter 5: Key Definitions – Unlocking the EU General Data Protection Regulation”, White & Case, 5 April 2019, available at: www.whitecase.com/publications/article/chapter-5-key-definitions-unlocking-eu-general-data-protection-regulation. See also, for example, the national Swiss law in this regard: Loi fédérale sur la protection des données (LPD), 19 June 1992, available at: www.admin.ch/opc/fr/classified-compilation/19920153/index.html.

56 ICRC Rules on Personal Data Protection, above note 13.

57 Christopher Kuner and Massimo Marelli (eds), Handbook on Data Protection in Humanitarian Action, ICRC and Brussels Privacy Hub, Geneva, July 2017.

58 See, for example, Valérie Junod, “Droit à l'oubli, archives numériques et respect de la vie privée”, Le Temps, 29 August 2018, available at: www.letemps.ch/opinions/droit-loubli-archives-numeriques-respect-vie-privee; Paul Chadwick, “Should We Forget about the ‘Right to Be Forgotten’?”, The Guardian, 5 March 2018, available at: www.theguardian.com/commentisfree/2018/mar/05/right-to-be-forgotten-google-europe-ecj-data-spain.

59 See, for example, Owen Bowcott, “‘Right to Be Forgotten’ Could Threaten Global Free Speech, Say NGOs”, The Guardian, 9 September 2018, available at: www.theguardian.com/technology/2018/sep/09/right-to-be-forgotten-could-threaten-global-free-speech-say-ngos.

60 See General Data Protection Regulation (GDPR), EU 2016/679, 2016, “Right to Be Forgotten”, available at: https://gdpr-info.eu/issues/right-to-be-forgotten/. A definition of this concept by Oxford Research Encyclopedias is available at: https://tinyurl.com/y4vcolkp.

61 Ibid., Art. 16, “Right to Rectification”, available at: https://gdpr-info.eu/art-16-gdpr/.

62 “The scope and practical application of the right to be forgotten and the right to erasure … have been the subject of heated debate, and these rights are not absolute. Obligations on data controllers to erase personal data and inform third parties do not apply ‘to the extent that processing is necessary’ for various reasons, including: Exercising freedom of expression and freedom of information; Complying with Union or member state law; Performing a task for the ‘public interest … in the area of public health’ or ‘for archiving purposes [or] scientific or historical research purposes,’ or ‘in the exercise of official authority vested in the controller’; [and] Establishing, exercising, or defending legal claims.” Müge Fazlioglu, “Top 10 Operational Responses to the GDPR – Part 7: Accommodating Data Subjects’ Rights”, 8 March 2018, available at: https://iapp.org/news/a/top-10-operational-responses-to-the-gdpr-part-7-accommodating-data-subjects-rights/.

63 See ICRC 2017 Annual Report, above note 48. Also see, however, the IHL in Action database on instances of respect for IHL by parties to conflict, available at: https://ihl-in-action.icrc.org/.

64 Among others in recent times, “[s]even ICRC staff members were killed in two incidents in northern Afghanistan [in 2017]. Six died in an attack on an ICRC aid convoy in February; two others travelling with the convoy were abducted and released seven months later. The seventh staff member was shot and killed at an ICRC-run physical rehabilitation centre in September.” ICRC 2017 Annual Report, above note 48.

65 ICRC, Rules Governing Access to the Archives of the International Committee of the Red Cross, adopted by the ICRC Assembly on 2 March 2017, in force since 1 April 2017, available at: www.icrc.org/sites/default/files/wysiwyg/About/history/rules_access_icrc_archives.pdf.

66 Ibid., Art. 1.

67 This possibility existed in the past rules but is not as explicit as in the new ones.

68 Ibid., Art. 5.

69 Ibid., Art. 12.

70 Ibid., Art. 8.

71 Ibid., Art. 6.

72 Ibid., Art. 7.

73 Ibid., Art. 11.

74 See “Consultation of Agency Archives”, above note 45.

75 For example, the archives of the United Nations (UN) are in principle opened to the public after a period of twenty years. See the UN Archives and Records Management website, available at: https://archives.un.org/content/public-reference-services-0.