Releasing captured documents.

Author:Tashbook, Linda
Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law
 
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ABSTRACT

As military forces make their way through opposition territory, they seize enemy records that are likely to serve their military objectives. These records might be in government files, military installations, or opposing soldiers' packs and pockets. Known as "captured documents," the records are legally designated as booty under international law; upon capture they become the legitimate property of the capturing military. Some of the captured documents may serve as evidence in international criminal tribunals relevant to the hostilities.

Beyond that use, there is no international law associated with the application, retention, or dissemination of either the documents or the information contained within them. The documents might be destroyed, donated, archived, or stored. If they are archived, researchers have the best chance of implementing their content. However, the lack of international regulations about access to these archives enables incomplete research. Additional and contrary access concerns arise as new technologies expand the methods and extent of document capture and exposure. Clearly, the past century's document capture has benefited individuals and institutions far beyond the scope of military objectives and criminal prosecutions.

International law should balance the interests at stake as documents make their way from the battle zone to foreign society. My research examines the provenance of captured documents and considers their usage and the attendant legal and social interests to which they apply as they pass among possessors. Building on my research observations, I suggest potential international legal interventions that could assure more just transmission or repatriation.

CAPTURE

Upon capture, documents are logged, sorted, translated, and otherwise processed for military interpretation and application to military objectives. Treaties about conduct of war and war crimes set forth the existing law approving military document seizure. The Rome Statute of the International Criminal Court Article 8(2)b(xiii), for example, declares that "Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war," is a war crime. National military manuals set forth the procedures for seizure and handling.

As technology has evolved to enable remote, faster, and more thorough information capture, the phrase "information waffle" has come to represent the use of...

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