“The following summary is based on notes taken during the speech of Judge Aitala. I hope ICA will make a recording of his significant discussion available on line. In her introduction to the Judge’s remarks, Giulia Barrera pointed out that 2022 marks the 20th anniversary of the entry into force of the Rome Statute of the International Criminal Court, which had been adopted at a UN Diplomatic Conference in Rome on 17 July 1998.”
Trudy Huskamp Peterson
“Truth lies at the bottom of a deep well,” Judge Rosario Salvatore Aitala told the plenary session opening the ICA Rome conference in September. It is a Sicilian saying, the Judge said, and it is the shared responsibility of judges and archivists “to jump into the well.”
Judge Aitala is a judge of Pre-Trial Chamber II at the International Criminal Court. He opened his remarks with a brief history of international law, noting that traditionally the fundamental unit in international law was the state, which carried the “legal fiction” that when individuals were acting on behalf of a state or organization, their acts were attributed to the entity—in other words, individuals were shielded by the state. The Nuremburg Tribunal changed that, with its insistence that crimes against international law are committed by people, not abstract entities. This “expressed a promise” to victims and “changed the shape of the international community.” However, he said, that promise has “steadily deteriorated” with the fragmentation of the international order and the decline of multilateralism. Today’s international community, he said, “tolerates violations of international criminal law.”
Turning to the International Criminal Court, Judge Aitala said that he believes archives are “one of the most important categories” of cultural heritage that must be protected. At the time the genocide convention was written, a compromise left out cultural genocide. He argued that cultural heritage represents the “deepest identity” of a people and therefore its damage or destruction should be a crime in international law. The International Criminal Court has begun to prosecute individuals responsible for the destruction of cultural heritage; he pointed to the case of the destruction of religious structures in Timbuktu, Mali, which was the first case concerning damage to cultural property that was heard at the Court.
Archives, he said, are the “means to know” and “extremely important” to the Court. To be useful in judicial proceedings, a document must satisfy two elements: the document is authentic and the content in the document is provable. Documents in a case, he said, can link atrocity crimes to high levels of state organization, shedding light on the usual situation in which leadership creates the conditions that allow persons at the lower level to conduct atrocities. “You archivists are custodians of truth,” he concluded, and judges are responsible for the “guidance” of truth. It is a shared responsibility, one that requires members of both professions to jump into the well.
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