JURIST Guest Columnist Douglas Cox of the City University of New York School of Law says that the Kuwaiti national archives, which were taken by Iraqi forces in 1990, have still not been returned and keep the post-Saddam Iraq under a UN Security Council resolution aimed at having the documents returned…

As the final US military convoy left Iraqi territory last month, the US, along with other members of the UN Security Council, criticized Iraq’s lack of progress in locating Kuwaiti national archives — the historical records of the nation — that disappeared during Saddam Hussein’s 1990 invasion. The issue of the missing Kuwaiti archives is crucial because it remains a central factor keeping the new Iraqi government under the thumb of Security Council Resolution 686, now more than two decades old, that was focused on Saddam’s regime. Yet the most promising place to find new leads in the cold case of the missing archives is clear — the records of Saddam’s government. Why hasn’t Iraq yet reviewed these documents? Because the US still has them and continues to withhold them from Iraq.

In his report to the Security Council last month, UN Secretary General Ban Ki-moon lamented that Iraq had made “no substantial progress” on the search for Kuwait’s missing archives and claimed that there was “no credible information” about their whereabouts. The focus on Iraq’s responsibility, however, ignores the substantial intervening effects of the 2003 war and the subsequent, Security Council-endorsed occupation of Iraq.

In particular, Security Council Resolution 1483 [PDF] in May 2003 recognized the US and the UK as joint occupiers and expressly called upon them to “locate, identify, and repatriate” the “Kuwaiti archives, that the previous regime failed to undertake.” This was a crucial period in the search given that detained officials from Saddam’s government may have had fresh information about the missing archives. Whether the US interrogated officials from Saddam’s regime about them is unclear, although later cables released by Wikileaks feature a UN official repeatedly urging the US to do so.

More importantly, the US utilized its unfettered access throughout Iraq as an occupying power to seize and sequester “miles” of records from offices of Saddam’s government. The document seizures were particularly intense due to the search for records of weapons of mass destruction. In total, the US seized some 48,000 boxes of documents in Iraq and transferred them to the Combined Media Processing Center (CMPC) in Qatar. Detailed analysis of the documents, however, was inexplicably slow. As of 2006, for example, less than 15 percent of the seized documents had been fully translated, a backlog that led to the ill-advised, but mercifully short-lived, experiment of uploading thousands of untranslated documents to the Internet.

Given the meticulous record keeping of Saddam’s regime, the seized documents in US custody constitute a crucial body of evidence that could still provide either new clues on the fate of the archives or credible confirmation that the trail of Kuwait’s missing archives is irretrievably lost. An exhaustive review could disclose, for example, indications that Saddam intentionally destroyed some of the seized Kuwaiti archives or concealed them in government buildings later destroyed in allied bombing runs. A Wikileaks cable notes, for example, that a UN official trying to locate the missing archives, noted that if they had been stored at the Iraqi Ministry of Foreign Affairs, they were “probably lost to fire.”

The relevance of the captured documents from Iraq to the search is far from speculative. Another Wikileaks cable released last year entitled “Repatriating Kuwaiti Documents to the GOK” reveals that not only did the US seize documents potentially about the missing Kuwaiti archives, it actually swept up portions of the Kuwaiti documents themselves. In the cable, the US Embassy in Kuwait reports that it had “received permission” to repatriate to Kuwait two boxes of documents — including “top secret” Kuwaiti records — found among the documents at the CMPC that were seized by US forces during Operation Iraqi Freedom.

Despite the formal end of the US occupation in 2004, the recent withdrawal of US forces, and the undeniable potential of the seized documents to clarify the fate of Kuwait’s national archives, the documents remain in exclusive US custody. When I asked about the legal status of these seized records last year, a defense official replied that the “US government will consider requests from the Government of Iraq to return captured Iraqi governmental documents,” and that “the needs of the Iraqi government” for the documents “will be considered.” Attempts by Iraq to negotiate with the US for the return of the documents, however, have thus far been unsuccessful. Late last year, one of the Iraqi officials involved in the stalled negotiations even threatened to take the US to court over its failure to return the seized documents.

Moreover, the Operation Iraqi Freedom documents are not the only cache of potentially relevant records. The US also has an additional 300 cubic feet worth of documents it seized during Operation Desert Storm in 1991. The potential relevance of these documents, captured as Iraqi forces fled Kuwait, is even more compelling given they were almost contemporaneous with Iraq’s seizure of Kuwait’s archives. According to a review by the National Archives and Records Administration, the documents include Iraqi military inventories of certain confiscated Kuwaiti property and other records that could potentially shed light on the fate of Kuwait’s archives. Interestingly, the seized documents also include records of the Gulf Cooperation Council (GCC). It is difficult to understand why Iraqi forces fleeing Kuwait would have GCC records, especially given that Iraq was not a member, unless these too were seized from Kuwait, which was. Neither Iraq nor Kuwait, however, will ever recover the originals of these records, which the US destroyed in 2002 due to mold contamination, but the US could still provide electronic copies.

While the importance the Security Council attaches to the tragedy of Kuwait’s missing archives is laudable, its use of the issue to continue enforcement of Saddam-era Security Council resolutions against the new Iraq is not. It is a final, and unfortunate, irony that Iraq’s ability to comply at last with Security Council demands to restore the “historical memory” of Kuwait, is hamstrung by its inability to access its own. It is time for the US and the Security Council to reexamine responsibility for the search for Kuwait’s archives anew and refrain from making the new Iraq, like Kuwait, a continuing victim of Saddam’s legacy.

Douglas Cox is an attorney and Associate Law Library Professor at the City University of New York School of Law. He blogs about captured documents, archives, armed conflict and international law at Document Exploitation.

Suggested citation: Douglas Cox, Finding Kuwait’s Missing National Archives, JURIST – Forum, Jan. 23, 2012, http://jurist.org/forum/2012/01/douglas-cox-kuwait-archives.php.