| The Second Episode
In the first article of this series, we reviewed Kanan Makiya’s part of the story pertaining to the Regional Command archive. To explore the other side of the coin, we had to reach Saad Eskander, former director general of Iraq National Library and Archives (INLA).
The Regional Command Archive in Saad Eskander’s Story
I emailed Eskander expressing my interest in hearing his side of the story about the Regional Command archive, only to receive an incredibly laconic response: “The root of the conflict between the Iraqi Memory Foundation and the INLA, from my point of view as a national archiver, is that I am obliged to keep these official and semi-official papers dating back to the pre-2003 era in Iraq, as they are public property; that is they belong to the country and it’s society.” He then added, “That is why I believed that no other non-governmental party should have the right to transfer them outside the country or to use them in a way that violates national and international conventions.”
Eskander continues, “Makiya believed that Iraq’s security and political situation was worrying; that is why he decided to transfer the archive to America, in order to protect it, and make use of it for scientific research purposes. He did not trust Iraqi politicians (which I do not blame him for), nor the state institutions (which I disagree with him on)” indicating by his remarks that INLA personnel were capable and efficient enough to do the job. “The disagreement between the two institutions,” Eskander went on to say, “was not personal nor intellectual, but rather was about how to deal with these archives to make the best use of them socially, academically, and legally.”
“In my opinion, I believed a new national law for these critical documents was necessary, for three reasons: first, to prevent misusing them by this national party or that foreign party. Second, to make use of these documents to achieve transitional justice. Third, to benefit from them responsibly, by the Iraqi researchers in academic studies,” Eskander concludes.
This was the entirety of the content of Eskander’s email, which gave me the impression that he no longer wanted to discuss this long-forgotten topic in any more detail than that. His brief response was not enough for the story of the dispute over the archives to have its required balance; it would only leave it deficient and full of gaps, especially since my interview with Kanan Makiya was much longer during which he had answered and raised numerous other questions. Therefore, this necessitated my referring back to my own archive, to complete the account of the conflict between them.
In an interview with Stuart Jeffries, published in the Guardian on June 8, 2008, a part of Eskander’s life was revealed to the public. He was born in Baghdad to a Kurdish family that had fought against Saddam’s regime, and sided with the Kurdish resistance in Northern Iraq during the Halabja massacre. In the prime of his youth, Eskander himself fought in the ranks of Peshmerga for about seven years. During these events, he fortified himself, along with his family, in Kurdistan’s mountains, and moved around between Iran and Syria. In 1990, he sought political asylum in Britain, and completed his studies in British schools and academies. Before the toppling of Saddam Hussein’s regime in April 2003, he got a PhD in history from the London School of Economics (LSE) entitled, “Britain’s Policy Towards the Kurdish Question, 1915-1923.”
After the demise of the Ba’ath regime, Eskander came back to Iraq to work as the director general of INLA. His decision to stay out of the limelight was in part due to his resignation in 2015 after being transferred to another directorate in which he didn’t really enjoy his work. He decided to live with his family in Sulaymaniyah, amid news suggesting that he would soon embark on a new role as an advisor to the authorities of the Kurdistan region, as they prepared to establish the Kurdish archive. This all means that his years of fame were solely between the years 2004 and 2015.
“That is why I believed that no other non-governmental party should have the right to transfer them outside the country or to use them in a way that violates national and international conventions.”
Eskander’s success was remarkable, not only in reviving the INLA and breathing life into it as an institution, but also in his building of a professional team capable of keeping, archiving, and maintaining the archive intact following its success in reclaiming a good amount of lost documents. This achievement happened against the backdrop of a country whose every corner was plagued by chaos, and as part of a paralyzed government with extremely limited resources that was not capable of allocating more than small amounts to the budget to the Ministry of Culture. Furthermore, Eskander managed to weave together a wide network of public relations that aided him in his work and supported him in his frequent media appearances, both in Iraq and abroad.
From 10 to 20 October 2004, the “Internet librarians” conference was held in London, where Eskander delivered a speech entitled “The Story of the ‘Books Cemetery’ in Iraq.” This speech projected him into the limelight and it eventually became one of the most quoted speeches in articles or research that discussed Iraqi archives in general, or the INLA in particular. Indeed, his constant media presence became frequent in 2004, illustrating his success story in managing the INLA, defending the retrieval of Iraqi documents, and files to Baghdad, and attacking those who would attempt to transfer Iraqi archives in any form outside Iraq.
In this context, it was very striking that he would never miss an opportunity to attack the efforts of Iraqi Memory Foundation, even if the discussion revolved around other archives. In fact, he never mentioned any other parties involved in transferring such archives by name other than the Memory Foundation and its founder, Kanan Makiya. To add insult to injury, he would use disgraceful to describe the Foundation, with names such as Saddam loyalists, thieves, smugglers, and the like.
This perception continued to be reinforced through the constant negative references to the Iraq Memory Foundation, until the matter escalated to the point that Eskander demanded to apply a maximum penalty on Makiya, referring to Iraqi laws issued under the Ba’athist rule. On June 21st, 2008, Eskander sent an open letter to Richard Sousa, Director of the Hoover Institute, in which he remarked: “I would like to draw your attention to the Iraqi law no.111 of 1969. This law imposes strict penalties on the people who damage, hide, steal, forge, publish or outplace Iraqi official documents. The law also applies strict penalties (up to 10 years of imprisonment) on those who cooperate with foreign countries and supply them with Iraqi documents”. Clearly, Eskander was pointing to article no.182 of the Iraqi penal code, which stipulates the following: 1. Any person who publishes or broadcasts in any way or form or by any means intelligence, information, correspondence, documents, maps, sketches, pictures or anything relating to government departments or agencies or general establishments, the publication or broadcast of which is prohibited by the competent authority, is punishable by detention plus a fine not exceeding 500 dinars or by one of those penalties. 2. Any person who hands over to a foreign country or to a person working on its behalf in any way or form or by any means any of the things referred to in the previous Sub-Paragraph is punishable by a term of imprisonment not exceeding 10 years.
The Analysis of Eskander’s Texts
Even if we agree with Eskander that drafting a law aimed at preserving the Iraqi Archive represents a high priority, a matter that Makiya had also previously called for and worked towards since 2003, we cannot help but notice that Eskander is still insisting, to this day, that the government approvals obtained by the Iraq Memory Foundation, which we detailed in the first episode of this series, are illegal.
Assuming that article 182 remains in force, discussing its contents puts us in the face of two possibilities: First, the government had violated the law by agreeing to transfer the Regional Command archive to the Hoover Institution, so what are the steps that should have been taken to deal with this situation? It would have been more productive to address this issue in the Parliament, and for the Culture and Information Committee to request an interrogation of the government for violating the law, and then to vote on the approval or invalidation of the transfer of documents. Approving the transfer would end the controversy, while invalidation means working on retrieving the archive from the Hoover Institution, and then closing the case. In accordance with article 182 of the Penal Code, a lawsuit could have been filed, if they were convinced that it was still in force. Unfortunately, this has not happened, and the Iraqi and foreign media have remained at the front line of this battle over the Baathi archive, at a time when words had the power of gunshots.
The other possibility assumes that Makiya was the one who breached the law, as Eskander has repeatedly been saying. If this was true, it would have been better if the Iraqi penal code was applied to Jala Talabani, Massoud Barzani, Barham Saleh and Hoshiar Zibari, because they were the ones who had previously sent the Kurdish archive to the United States in 1994.Why didn’t Eskander ever name the others who were responsible for transferring the Kurdish archive to the US? Why weren’t the political parties and civil society organizations that seized large parts of the Baath archives, (tackled in the first episode) ever named? Why did he use unspecified wording in both cases, like “Those who possess part of the Baath archive, inside or outside Iraq”, while the Iraq Memory Foundation and the people who work for it are always mentioned by name? The other possibility assumes that Makiya was the one who breached the law, as Eskander has repeatedly been saying. If this was true, it would have been better if the Iraqi penal code was applied to Jala Talabani, Massoud Barzani, Barham Saleh and Hoshiar Zibari, because they were the ones who had previously sent the Kurdish archive to the United States in 1994.Why didn’t Eskander ever name the others who were responsible for transferring the Kurdish archive to the US? Why weren’t the political parties and civil society organizations that seized large parts of the Baath archives, (tackled in the first episode) ever named? Why did he use unspecified wording in both cases, like “Those who possess part of the Baath archive, inside or outside Iraq”, while the Iraq Memory Foundation and the people who work for it are always mentioned by name?
I would like to point out that I am raising these questions pertaining to the Kurdish archive for the purposes of the argument, because I am not convinced of Eskander’s argument, not in terms of the origins of the act (moving the Kurdish archive to USA), nor in terms of the results that eventually ended the debate (the archives were returned to the Iraqi government in 2005). The agreement between the Kurdish parties and the US (as we will see in the next part) was very similar to the agreement between the Iraq Memory Foundation and the Hoover Institution; as a temporary deposit agreement. In both cases, there was American recognition that the archives belonged to the people of Iraq and that they would be returned to them, and that is in fact what really happened.
Did Makiya violate the law?
Eskander distinguished in the email I received from him between the governmental authorities and the non-governmental organizations, hinting that the right to deal with the Iraqi archive was confined to the government. What is the difference between government and non-governmental organizations who have already obtained permission from the government? Despite our objection to the calls to enforce article 182 of the Penal Code, it doesn’t really make a distinction between the two. If we read the last part of the first paragraph of the said article, we would find that it provides for “what has been prohibited by the relevant authority to publish or broadcast,” which is an exception. In other words, this means that the penalty excludes those who publish or broadcast the archives mentioned in the first paragraph, if they have the permission from the responsible authority for publishing and broadcasting, and there is no presumption that they are not covered by the exclusion of those who deliver documents to a foreign party with the permission of the government, because the cause of both acts is the same (permission of the holder of the right to act).
Eskander has pointed out elsewhere that the Iraq Memory Foundation has violated not only the Iraqi Penal Code, but also the document preservation Act No. 70 of 1983. But the law is an argument against Eskander, not in his favor. Article 12.6 of the Act provided that “documents may not be transferred from Iraqi to non-Iraqi possession except with the approval of the Center”, in reference to the National Documentation Center, a governmental body.This means that transfer abroad is permissible, provided that government permission is granted. Remember that on July 23, 2009, Mustafa al-Kadhimi, executive director of the Iraq Memory Foundation in Baghdad, sent an email to Tariq Najm, the prime minister’s office manager at that time, urging him to intervene with the Ministry of Culture, in order to clarify the legal position of his institution. Al-Kadhimi indicated in his message that he presented his official letters and correspondence to chief justice Medhat Al-Mahmoud, who confirmed the correctness of the legal position of the Iraq Memory Foundation. We also mentioned in the first episode that the legal advisers in Prime Minister Nouri al-Maliki’s office reviewed the Memory-Hoover Agreement, and found that it did not violate the law. It is clear, then, that the highest judicial authority in Iraq did not believe that the Iraq Memory Foundation had violated the law.
International conventions also compatible with the actions of the Memory Foundation, and its agreement with Hoover, particularly as regards two UNESCO Conventions. The first is the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954) and its two additional Protocols (1945 and 1999). The other is the Paris Convention on the means to prohibit and prevent the illegal import, export and transfer of ownership of cultural property (1970).Bruce Montgomery, a researcher at the University of Colorado Boulder, discussed these two agreements, and others, in detail in a 2011 specialized study entitled “Security files: The Iraq Memory Foundation and the Baath Party Archive”, and concluded that these international conventions address confiscation, theft, looting, and sale on the black market. But the Memory-Hoover agreement is a temporary deposit deal, that never took away the people of Iraq’s right to own the archive, and has always confirmed that it will return to Iraq once security conditions have stabilized and the technical work has been concluded. The final proof lies in the signing of the Memorandum of Understanding between the Iraqi government and the Hoover Institution in 2012, which approved the continuation of the deposit of the Regional Command archive at the mentioned institute. Then there is the most important last step of the return of the complete archive to Baghdad today. This means that the international tribunals were not relevant in this dispute, because their jurisdiction does not include cases of temporary deposit, and we may return to this topic in some detail in the future.
The Origins of The Conflict
Eskander said in his email that the origins of the conflict between the Iraq Memory Foundation and the National Library and Archive were not personal nor ideological. The email he sent clarifies that there is no conflict between the two parties about the necessity of storing the archive, scanning it electronically and making it available for researchers and others who are interested. So, the conflict is about where the archive should be safeguarded, inside or outside Iraq. Eskander thought he, his team and his foundation could get this job done perfectly well, while Makiya had doubts. Those doubts were not specifically about the National Library and Archive, but about the whole Iraqi situation. In my opinion, this issue boils down to a fundamental disagreement between two visions; a romantic one and a realistic one.
I, too, used to adopt Eskander’s point of view which assumed that we Iraqis are exemplary human beings who can achieve the impossible. However, institutions create countries, not persons. No matter how talented and honorable those persons are. What can a single individual accomplish in a group of institutions “under construction” when surrounded by an army that suffers from masked unemployment, and besieged by dependency, laziness, despair, and isolation from the world? How could a team of talented individuals succeed in a troubled, hostile, doubtful, and ignorant environment plagued with multiple-loyalties?
The Guardian stated that Eskander was a “fighter in the Peshmerga ranks” and maybe he summoned the spirit of that fighter while he was fighting on several fronts in order to pay homage to the National Library and Archive. This is excellent except that he fought alone, and the proof is that only his name was present in the press, in studies and in books that tackled the Iraqi archive issue while the names of Akram al-Hakim, Minister of Culture, and Taher al-Haj Hamoud, the Deputy Minister, are only mentioned a few times. Eskander was always present as the institution-individual.
Eskander said to the Guardian: “I can assure you that there are secure and confidential buildings in Baghdad where we can store all these documents. Storing them in California (where Stanford University and Hoover Institution are located) instead of Iraq is ridiculous. Our policies refuse any kind of censorship over those documents once they are returned. The Iraqi people will be able to come to the library, read all those documents and learn from them.”But aren’t these words inconsistent?
If Eskander was referring to the building of the National Library and Archive as “secure and confidential”, for the reasons mentioned by him, then how was the archive to be transferred to this building in the light of those volatile in such a way as “the Iraqi people could be able to come to the library, read all those documents and learn from them”? Did the precarious situation change to a secure situation between 2004 and 2008?
Regarding the contents stored in the National Library and Archive that Eskander supervised, the enormous effort done by him to enliven it was indeed, undeniable. However, the promise to create a professional website where one could virtually visit the National Library and Archive to surf its contents has remained but a dream.
Today, when we visit the aforementioned website, we find nothing but material of even poorer quality than that of any other modest Iraqi newspaper’s website. Where are the scanned versions of the original books, maps, documents and manuscripts that we are supposed to be able to view over the internet? I am not questioning the desire to create such a website, but rather the obvious inability to implement this desire due to the lack of technical and human capabilities, and the absence of the objective conditions that would ensure the conversion of these fantasies into a reality.
Eventually Eskander resigned his job as head of the National Library and Archive in 2015. From the day he began his employment at his office to the day of his resignation, three archives had already returned to Iraq. These are the Kurdish archive, returned in 2005; the US military archive, which constitutes about 85% of all the archives we have been writing about, returned in 2013; part of the Regional Command archive that was handed over by the Iraq Memory Foundation to the Iraqi government in 2009 after completing its project of archiving, classifying and scanning. This part never even left Iraq.
I think that Eskander has all along fought the wrong battle with Makiya. The real fight should have taken place with the Iraqi authorities that received the three archives, that is, the government and the ministry of culture which Eskander was part of. I wish Eskander had allied with the Iraq Memory Foundation instead of combating it, based on the fact that both parties share the same goals and concerns. Especially since this dispute has involved multiple misunderstandings that would have disappeared if Eskander had signed the memorandum of understanding with the Memory Foundation in 2008 as he had hoped.I think that Eskander has all along fought the wrong battle with Makiya. The real fight should have taken place with the Iraqi authorities that received the three archives, that is, the government and the ministry of culture which Eskander was part of. I wish Eskander had allied with the Iraq Memory Foundation instead of combating it, based on the fact that both parties share the same goals and concerns. Especially since this dispute has involved multiple misunderstandings that would have disappeared if Eskander had signed the memorandum of understanding with the Memory Foundation in 2008 as he had hoped.
Baath Party reports documenting cases of torture and executions of Iraqi detainees found in Baghdad during April – April 2003
Finally, we cannot ignore the fact that the Qatari leadership archive, which was preserved by the Iraqi Memory Foundation, which constitutes no more than 2 percent of Saddam’s discovered archive, is the only vocal history of the Baath that returned to Baghdad completely and undiminished. We know everything about him, while we do not know the fate of 98 percent of the archives mentioned. Does Makiya deserve to be stoned this sin?
People may ask, what is the point of this extended discussion about an issue that was solved anyway now that the full Hoover archive was returned to Baghdad? The answer sits within two goals: The first concerns the historical record, and the second resides in the lessons we Iraqis choose to learn from that history, which call on us not to use the media to settle our quarrels, and not to fuel unnecessary conflict but to confront the disputing parties instead, with a view to solving unresolved problems.