What has prompted me to write this paper is the continuing refusal of the U.S. to pay serious attention to Iraqi calls for the repatriation of the Iraqi records illegally seized by its military and intelligence agencies. Most recently, the Pentagon has issued an announcement, calling upon U.S. universities, research centers and scholars to submit research proposals to its Minerva Research Initiative (MRI).1http://www.arl.army.mil/www/DownloadedInternetPages/CurrentPages/DoingBusinesswithARL/research/08-R-0007.pdf
Under the Iraqi Perspectives Project, one of the five topic areas under the Minerva Research Initiative, the Pentagon will allow access to its collections of seized Iraqi records for the lucky ones who are interested in exploring “the political, social, and cultural workings and changes within Iraq during the years Saddam Hussein was in power”. The collection of seized records “offers a unique opportunity for multidisciplinary scholarship combined with research in methods and technologies for assisting scholarship in automated analysis, organization, retrieval, translation, and collaboration”.
This latest Pentagon initiative is not only a continuation of its previous negative attitudes, but it also constitutes an escalation in its violation of international conventions on the safeguarding of cultural heritage of occupied territories, and goes against the principles of rule of law, self-determination, and human rights that are supposed to govern the so-called Free World.
This essay approaches the issue of the use and abuse of the seized Iraqi records from legal, academic, moral, and social-political perspectives. It will be argued that the seized Iraqi records are of academic and practical significance for the Iraqis in dealing with the issue of the Saddam regime’s destructive legacy and in implementing the project of constructing a democratic Iraq, founded on the rule of law and freedom of information.
Records are fundamental for the construction of any nation’s collective historical memory. This is why the protection of documentary heritage has been enshrined in international legislation, notably the 1954 Hague Convention.
For modern societies, the accumulation, preservation, and provision of access to records are of great importance for social stability and political progress. The issue of safeguarding records is vital, particularly for the development of newly-emerged democracies, such as Iraq. Transitional regimes can sustain their political legitimacy, consolidate national unity, and create general consensus by facilitating unimpeded access to all types of information in a responsible way.
Rational and well-considered access to the records of the Saddam regime’s repressive organizations is vital for the future of the Iraqi people, as they currently suffer from severe ethnic, religious and regional divisions. From a political, legal and human rights points of view, the declassification of these records will not only help with the identification of the perpetrators of crimes and the rehabilitation of the victims, but also with the implementation of a true national reconciliation.
Those who closely follow news about Iraq will be aware that the ‘New Iraq’ needs urgently to put an immediate end to the current abuses of the seized records for political and financial gains. Without recovering the missing and the seized records, this noble goal cannot be attained.
US civilian and military officials in Washington and in Baghdad are fully aware of the fact that the archives of the Saddam Regime’s repressive organizations and other civilian institutions were extensively looted during and immediately after the 2003 invasion. The Americans were themselves involved in the lootings. We all know that tens of millions of the seized Iraq records were shipped to the U.S., while the remnants are kept inside Iraq under tight American control. The seized materials include government records, non-governmental records, the Ba’ath party records and personal papers of high-ranking officials of the former regime.
During the CPA‘s2Coalition Provisional Authority (CPA), established as a transitional government following the invasion of Iraq by the United States and the other members of the coalition. reign and the subsequent period of Iraq’s sovereignty, U.S. military and U.S. State Department officials encouraged and even helped others to loot and then to ship abroad Iraqi records, notably the Iraqi Memory Foundation (IMF). The latter is essentially a private American initiative, whose activities unequivocally violate current Iraqi archival legislations (No. 111 of 1969 and No. 70 of 1983). The IMF does not recognize Iraq’s national government or its sovereignty. And this is ironic, given the fact that the ‘New Iraq’ is considered to be a close ally of America!
The U.S. has been the hungriest scavenger of other nation’s records in the world; a position that reflects the numerous conflicts in which the U.S. has been involved, since the Second World War. U.S. seizures include records from:Germany, Russia, Poland, North Korea, North Vietnam, Grenada and Afghanistan.
While itself seizing tens of millions of current records of the former Iraqi state, during and immediately after the 2003 invasion, U.S. military and intelligence agencies tolerated the looting of what remained of Iraqi records by local political parties, organizations, citizens and even foreign reporters. In some cases, the U.S. government purchased records from a few well-known Iraqi looters of records, notably the president of the Political Prisoners Association, who fled the country after a warrant was issued for his arrest by the Iraqi authorities. He now lives in America!
The American seizures of current Iraqi records were not of an indiscriminate nature, in contrast to some other examples in Germany, Korea and Vietnam. If one divides the looted and destroyed Iraqi records into different categories – e.g. political, military-security, administrative, and cultural – one will find that the Americans were not interested in cultural records whatsoever. (By cultural records I mean the ones that are stored in national archives or libraries). The Americans were however extremely interested in seizing current records of a political and security-military nature. And they paid special attention to the files of the Ministry of Oil. The archive of the ruling Ba’ath party, which the Americans considered to be of lesser value, was handed over to Kanan Makiya’s IMF.
Moreover, the Americans allowed and tolerated the lootings and even the destruction of non-current historical records and rare books in Iraq. The lootings and the destruction of the Iraq National Library and Archive and other cultural institutions are notable examples. Foreign and local eyewitnesses are in agreement that American soldiers and their field commanders took an indifferent stance when most of the destruction and the lootings were taking place in Baghdad and elsewhere.
Interestingly, the Americans have adopted discriminate attitudes towards the non-current historical records of Iraq. Whilst allowing the destruction and the lootings of these records, they showed considerable concern about the Iraqi Jewish records. The latter were rescued as soon as the War ended and were shipped immediately to America where they have been receiving restoration treatment from LARA experts!
There is no doubt in my mind that the Americans violated the international law of war in tolerating the destruction and the looting of non-current records and other records they considered to be of no importance to them. However their indifferent attitudes to the lootings and the destructions went against the U.S.’s own interests in many respects. First, they damaged enormously the U.S.’s international reputation and credibility. Second, they created a very negative impression among Iraqi citizens and particularly the educated classes. The latter viewed the Americans as mere ruthless imperialists, soon after the invasion. Third, the Americans needed information contained in the looted and destroyed records for the purposes of the day-to-day administration and reconstruction of Iraq.
American military and intelligence authorities have continued to make more serious mistakes. By introducing the Minerva Research Initiative, the Pentagon is practically and overtly usurping our duty of collecting, preserving and facilitating access to Iraqi records for all people, who may and should use them for research and other legitimate purposes.
Providing access to sanctioned US universities, US research centers and US scholars is gross discrimination against the undeniable owners of the seized records, the Iraqi People, who are the main subject of the records. By taking this ill-conceived action, the Pentagon and the U.S. intelligence agencies have disregarded important considerations, including the right to privacy, the appreciation of cultural distinctions, respect for the social sensitivities of another nation, and respect for the rights of the victims.
The international conventions provide for the use of seized records for the purpose of administering the occupied territory. But, they certainly do not provide for the shipment of the seized records to the occupiers’ Capital or for making all or parts of these records accessible for propaganda and politically-motivated research purposes.
What the Iraqis want is that the U.S. Government should follow previous precedent, when for example it returned the records of other countries, such as Korea, German, Vietnam and Grenada. After signing the 1954 Hague Convention recently, the U.S. now has clear obligations to protect and to return all current and non-current records of the occupied Iraq, including the archive of the Ba’ath party seized by the IMF.
The decision of the Pentagon to make the seized Iraqi records accessible for research purposes comes after the failure of the so-called Iraqi Survey Group to find evidence of weapons of mass destruction or concrete links between the Saddam regime and Bin-Laden among the seized Iraqi records. The question is why now the Pentagon is allowing the seized Iraqi records to be used for seemingly academic purposes. Is this shift of emphasis from political to academic genuine? Is the ultimate aim of the Pentagon to know nothing but the truth?
If the Pentagon and U.S. intelligence agencies are sincere, why do not they allow us, the true owners of the records, too to use the seized records for ‘academic’ purposes? Why do not they deliberate with the Iraqis about their ‘academic’ project? Why do they keep the original Iraq records in their storage rooms, after they digitalized them?
We will argue that the Pentagon and U.S. intelligence agencies will likely not let scholars study all the records they seized, especially those which contradict the views and policies of the U.S. administration or the alleged national interests of the U.S. What surely will be available for scholars to study are those records which, at least, do not harm the reputation or the interests of the influential political, military and intelligence establishments.
In terms of expertise, specialism, commitment and impartiality, there is a huge difference between a foreign organization whose function is primarily of a military and intelligence nature and an independent national archive that collects, preserved and facilitates access to records of a nation for academic uses and for other legitimate, non-military and non-intelligence purposes. We do not know what code of ethics or criteria the Pentagon and U.S. intelligence agencies might have been using in treating, processing or selecting the seized records. We do not know to what extent the Pentagon and U.S. intelligence agencies might have changed, manipulated or destroyed data or records to distort evidence or to hide undesirable facts.
There is also the issue of the gaps in the records seized by the Americans. We are all (including U.S. military and intelligence agencies) aware that tens of millions of important records are still missing or under the control of several Iraqi and non-Iraqi groups. How can one draw a complete and objective picture while there are considerable gaps in the records seized by the Americans?
We all, Iraqis and Americans, should be really concerned about the prospect that the U.S. and other powers may use the manner in which Iraqi records were seized, shipped and declassified as an example to be followed in future conflicts.
We hope that our American colleagues will not follow the example of the Hoover Institute in avoiding its academic responsibility. A true academic institute will not give shelter to the illegitimately-seized and illegally-shipped records of the Ba’ath party.
American universities, research centers and independent scholars should reflect on what has happened in Iraq, since the 2003 Invasion, before applying to the Pentagon’s Minerva Research Initiative. We believe that they should be interested in supporting our efforts to make all the records of the former regime accessible to all of us in a responsible manner, without violating the sovereignty of Iraq and the dignity of its people.
The moral argument
The issue of seized records of other nations has a clear ethical dimension for both sides: the occupier and the occupied. There is hope that U.S. universities, research centers and independent scholars will acknowledge the moral dimension of the issue of seized Iraqi records, and react to it accordingly in a positive and a constructive manner. From an Iraqi point of view, moral values are especially relevant to those who are thinking of using such records in their researches.
There is a shortage of studies on the ethical issues surrounding the use of records of conquered nations by the institutions and the people of the conquering nations. But one can distinguish two general types of ethics in this respect: first, pragmatic and second, academic. U.S. political, military and intelligence institutions resort to pragmatic morality to justify their monopolized use of seized records of other nations. For the Iraqis, this is an undeniable cultural imperialism, which is not really different from the colonists’ looting and smuggling of ancient artifacts of colonized peoples during the last two centuries.
Moreover, there is no real difference between the actions of the arsonists loyal to Saddam Hussein, who destroyed millions of records, including those of Iraq National Archive, and the actions of the U.S. army and intelligence agencies that seized, shipped and abused tens of millions of other Iraqi records. The actions of the arsonists and those in the U.S. army and intelligence agencies are identical insofar as they impinge considerably upon the true interests of Iraq’s citizens.
The monopolized use of the records of the conquered nations by the conquerors for questionable research purposes should not be interpreted as mere misconduct. By their very nature, such researches will involve premeditated abuses. They will definitely benefit the political and military establishments of the conquerors, and will be detriment to the newly-established political regime and especially to the people of the conquered territories.
The main concern of the Iraqis is not that their seized records have been used to assist the Americans with conducting their military campaigns against al-Qaeda and the Ba’athists or with the implementation of their policies in the occupied Iraq. Such actions are allowed or at least tolerated by the international laws of war. The real concern is that the Pentagon and U.S. intelligence agencies have hid or even destroyed certain undesirable Iraqi records. Are not these awful actions morally wrong? The Pentagon and U.S. intelligence agencies have been abusing the information contained in the seized records for tightly controlling the life and the destiny of Iraqi people. So far, evidence shows that the records have been used to blackmail or recruit many of those who were part of, or cooperated with, the former regime. By keeping anonymous the identity of all those who are the opponents of the new regime, the Americans have been intentionally obstructing the course of justice and undermining the construction process of a new Iraq. The Iraqis do not know the names of many politically dangerous and often corrupt elements that have occupied, or continue to occupy, sensitive positions in the state and in the government.
If one deeply examines the post-WWII experiences, one will discover that there is an urgent need to replace the prevailing pragmatic morality with a new academic one; one that gives priority to the interests of the conquered nations, and respects unconditionally the principles of national self-determination and the rule of law at international level.
It is a matter of urgency that, in the foreseeable future, international experts on archives and related archival problems will be able to set definite rules for the use of and accessibility to seized records of conquered nations.
Social and political argument
During his 35 years in power, Saddam built several oppressive organizations and enlarged the military for the purpose of waging wars of aggression and suppressing internal opposition. These agencies and the Ba’ath party made hundreds of millions of records that well-documented the daily lives, the deaths, the reactions, and the activities of millions of Iraqis.
In the post-Saddam era, these records have continued, and will continue, to have far-reaching effects on Iraqis’ lives and destinies, due to the fact that the Saddam regime bequeathed a massive legacy, especially in the fields of inter-communal relations, politics and culture. For this very reason, the Iraqis, not the Americans or any other foreign people, should first deal with or come to terms with their bitter past through responsible and legitimate use of the records. Iraqi people have every right to discover the truth by themselves about the forces and the events that left terrible effects on them for many years, especially those who suffered enormously during Saddam’s brutal dictatorship. This is common sense.
In the post-Saddam era, the Iraqis have been encountering many and enormous challenges from every direction. True scholars, who are experts on Iraqi’s modern history and politics, recognize that overcoming internal divisions, defeating terrorism, and containing blind religious fanaticism will require a deep understanding and an objective representation of the recent past.
The Iraqi side has made its position as clear as possible. The access to, and the use of, the Iraqi records must be governed by special Iraqi legislation that will be enacted by an elected Iraqi legislative body. The legislation must objectively take into consideration the priorities and the reality of the situation in the post-Saddam Iraq, which are as follow:
- granting the victims a genuine opportunity to rehabilitate and restore their human dignity and to be compensated accordingly and adequately;
- offering all Iraqis who were party to the events or cases mentioned in the records a true chance to rehabilitate themselves under rule of law;
- contributing to the ongoing efforts to unearth the fate or the whereabouts of missing and deceased persons;
- facilitating the efforts to bring to justice all those who committed crimes against Iraqi people, particularly those who were involved in the genocide against the Kurdish people;
- facilitating the process of a genuine national reconciliation among the Iraqis in order to overcome deep internal divisions, to create social stability and to promote tolerance and peaceful coexistence;
- establishing an as objective and as comprehensive picture as possible of what happened, how it happened, and why it happened, in the hope that it will assist with the formation of a genuine national memory;
- making the Iraqi people aware of the truth regarding all the gross violations of human rights and horrific crimes committed against certain communities so that they can prevent their reoccurrence in the future;
- rebuilding a modern administration structure;
- attaining genuine national sovereignty; and
- consolidating national security.
The Iraq National Library and Archives (INLA) has been demanding the repatriation of all the seized Iraqi records. Its staff is aware that no archival legislation can be enacted without first studying the content of these records. The INLA has been working on several fronts, notably the amendment of current archival legislation so that they can deal extensively with the highly sensitive records of the former regime, the adoption of legal methods to recover all the looted records, and inhibition of the misuse of these records by Iraqis and non-Iraqis, inside and outside the country. The proposed legislation will differentiate sensitive records from non-sensitive ones in terms of access and use. The INLA has already obtained a large portion of the archival collections of the Ministry of Interior of the former regime.
The INLA favors the idea of setting up a special entity for the records of the former regime within its existing structure. It is the only institution that has credibility among the public and scholars alike. Moreover, it can guarantee neutrality and objectivity as well as adherence to an enlightened code of ethics, when dealing with highly sensitive records.
Unlike during the pre-2003 period, the INLA is no longer the ideological tool of a repressive regime. It has transformed beyond recognition so that it can function as the archive of all Iraq and for all Iraqis, regardless of their ethnic and religious backgrounds or political orientations. The INLA is a secular, liberal, and democratic institution. The policy of decision-making, and the way in which the targets and strategies are being set, are democratized. There is no longer any restriction on accessing records or acquiring new publications. The INLA has been busy declassifying hundreds of historical records, access to which the former regime prohibited.
Public records are the inalienable property of people, especially those who are their subjects. Constructing Iraq’s documentary heritage and ensuring the legitimate use of sensitive records, are the duties of all genuine archivists, true scholars, and honest human right activists, regardless of their nationality, race and religion. The Iraqis hope that the Americans will follow their own example in 2003, when they returned thousands of sensitive records of the agents of the former East German secret service to the German authorities. These records have been used for legitimate purposes ever since their return to Germany.