The Archives of the International Criminal Tribunal for the Former Yugoslavia and their Relevance for Memory

BY IVA VUKUSIC

Introduction

In May 1993, as war was raging in the former Yugoslavia, the United Nations Security Council found itself grappling with an intractable conflict. While the U.N. response at the time was perhaps unconvincing, it ultimately resulted in a significant change to international criminal law; specifically, the establishment of the International Criminal Tribunal for the former Yugoslavia or ICTY.1

The establishment of this ad hoc institution came as a result of public pressure to take action as footage and images of ethnic cleansing from attacks on Dubrovnik, Vukovar and Sarajevo were presented to viewers around the globe on a nightly basis. While the idea of establishing a court echoed the post-1945 judicial efforts in Europe and Japan, the different context meant that the ICTY was staking out uncharted territory. Thus, as it progressed, the ICTY would need to devise novel solutions to complex problems.

Victims, legal and academic experts, and the international public, held exceptionally high expectations that the Tribunal would act as an essential tool in the fight against impunity. Some of these unrealistically high expectations persist today, leaving many disappointed with the results. Even the drafters of the mandate and goal-setters for the new UN court expected that the ICTY would be able to achieve its most problematic aim – reconciliation between the people in the region.2 Given the intractability of ethnic relations in the former Yugoslavia, the ICTY effectively condemned itself to permanent failure at least in that one respect. In fact, since its establishment, the ICTY has been running up against nationalistic forces including, political parties, non-governmental groups and individuals that considered it an instrument of imperialism and an illegal institution.

Yet, the ICTY has indicted 161 individuals with no fugitive indictees remaining at large. However, while all of the ICTY’s indictees were put on trial, not all trials ended with a verdict.3 Former Serbian president Slobodan Milosevic4, for example, died before his trial was concluded. Nevertheless, the fact that the ICTY was able to apprehend all of its indictees was something even optimists would not dare dream of a few years beforehand. Currently, the Tribunal has nine cases on trial and five on appeal and by the end of the year (2012), some of them will be concluded. The trial of general Ratko Mladic5 is underway and Goran Hadzic6 started recently.

For several years now a ‘completion strategy’7 has been a topic of discussion in light of pressure to complete the trials and close the Tribunal as soon as possible, primarily due to its cost. While the initial plans and projections have been extended several times, it appears that the Tribunal’s proceedings will be completed by 2014, with only the trials of Mladic and, possibly, Hadzic running past that date. As the legacy of the Tribunal became an important issue, discussions have turned to the establishment of a successor institution, the so-called Residual Mechanism,8 which will inherit some of the work of the court, including the maintenance of the ICTY’s archives. The archives are of incredible importance for the future of the former Yugoslavia as they will be a valuable resource for researchers; journalists and students who want to explore the violent break up of the country. The archives will also assist regional attempts at fact-finding, such as the RECOM initiative9 that has been working hard to build bridges of understanding and cooperation in a region where ethnicity is still a divisive force and where governments overwhelmingly support simplified versions of the past.

 

Why are the archives relevant for memory?

Contested pasts are omnipresent in the region. The media and the government generally offer simplified, one-sided versions of events that are considered to be true by large segments of society. During election cycles, one observes exploitation of nationalistic emotions, resulting in the worsening of ethnic relations. Educational systems also play a powerful role in perpetuating and reinforcing these simplified versions of history. Moreover, most people do not have the resources, interest, or access to explore all the documents and evidence that might shed light on the recent history of the former Yugoslavia. It is much easier to construct a view in which ‘our side’ was the victim and theirs the perpetrator, a story in which ‘we’ are heroic. Even when that is actually the case and one side was indeed attacked by another, one can hardly explain the entire period of the war in those simplified terms. The ICTY archives can play an important role in challenging these narratives by providing public access to information, facts, and evidence.

The problem of contested pasts is even more problematic in Bosnia and Herzegovina (BiH) because the former warring parties, divided mostly along ethnic lines, have been expected to live together and share one political space that is BiH. For a large segment of the society, mostly in the Republika Srpska, that is a difficult prospect as many fought against the very existance of that state. This greatly influences political life 20 years after the beginning of the war as decisions are difficult to reach and consensus almost non-existent on many serious political questions facing the country. Establishing facts beyond a resonable doubt should assist the public in the former Yugoslavia in its understanding of the complexities of the war. The ICTY’s assistance with local prosecutions might also help to achieve a more stable future in the region as narratives become more inclusive and where memorials are not used for political purposes as is the case in many towns today.10

The ICTY archives and their contents

The archives came to be what they are today as a result of countless days of investigation, thousands of witness testimonies (including statements from approximately four thousand witnesses), direct examinations and cross-examinations, and deliberations. As the wars in the former Yugoslavia were coming to an end, teams of investigators were sweeping the region for documents, searching for witnesses and chasing video footage that insiders claimed existed. Even before the ICTY investigators, NGOs, international organizations, and journalists were on the ground, collecting information and interviewing survivors and refugees. Orders and reports, survivors’ accounts, and mass graves were beginning to emerge and war crimes investigations became increasingly complex, tapping into military and state archives, exhuming graves, obtaining expert reports and DNA analysis. With new trials, the amount of evidence being presented at the court also swelled and, as a result, there is currently a giant repository in The Hague of Yugoslavia’s violent breakup – a record of how thousands and thousands of destinies were forever changed by the war.

This of course does not provide any conclusive, “ready to use” narrative about the war. However, it does provide material evidence and sources that can shed light on this violence as well as help us understand what transpired. Out of approximately four thousand individuals who testified at the ICTY, there were survivors and family members of victims, journalists, observers and UN staff, as well as military commanders, soliders and eyewitnesses. Within the archives, there are expert reports, guilty plea statements and testimonies, satellite images, stills, intercepts, maps and daily military reports, Mladic’s journals, military and police orders, minutes from meetings, forensic reports on mass graves, journalistic accounts, reports by demographers, and lists of missing persons and prisoners. Much of the material can still be researched online in the ICTY Court Records Database.

According to a report by Trudy Huskamp Peterson from the United States Institute of Peace, as of May 2005, the archive contained “…45 000 videotapes of proceedings and another 5 500 videotapes of evidence, nearly 6 million items of paper and still photographic evidence and more than 13 000 artefacts obtained as evidence…”11 By the end of 2010, the ICTY records consumed 3,704 shelf meters. All of this material, clearly, is in various formats – primarily paper, electronic and audio-visual formats as well as in the form of artifacts (objects like bullets, weapons and fragments of ammunition as well as clothing and other items found in mass graves). All of these documents were translated into three, sometimes four, languages (Bosnian/Croatian/Serbian, English, French, Macedonian and Albanian). All of these records exist, along with transcripts of thousands of hours of court-sessions.

 

Challenges

There are numerous issues to consider in relation to the archives. First of all, there is an extraordinary amount of material; some of it is classified, some of it is a potential health hazard; and videos and images deteriorate with time. Additionally, there are the issues of what to keep, what not to keep, what to copy, and where and how to distribute copies. The material needs to be stored in rooms with the right conditions, with their security uncompromised. All of these requirements, however, come with a very high price tag. We cannot address all the issues here, but we can highlight some of them.

Transparency of the declassifying process
There are hundreds of hours of closed or private sessions held at the Tribunal. There are also many witnesses that testified under protective measures. Also, there are thousands of classified documents. Very little is known of the content of these proceedings and documents and it will be a challenge to manage their declassification in the future as well as respect court orders and existing agreements while allowing some material to be accessible for families of the victims, researchers, or documentary filmmakers. The declassification of these records remains, possibly, one of the biggest challenges for the future. Many experts argue for the archives to be as accessible as possible without jeopardizing the security of witnesses. This is a difficult balance to strike.

Access to the archives
Parts of that material are available today. The ICTY has a useful website with access to transcripts in English, French and, increasingly, Bosnian/Croatian/Serbian. The ICTY site hosts the Court Records database online and also provides video and audio on demand. But, not all of the evidence is available, even if it is open to the public. For example, one must have a certain degree of familiarity with a case in order to locate the pertinent material. The ICTY’s databases are not designed for use by the general public – and the general public seldom reads the judgments or searches for evidence (several surveys have already shown this, including the recent OSCE survey in Serbia).12

 

The future of the archives

Furthermore, numerous debates have been held about the future of the archives after the courtrooms go silent: Where to store it (the originals and the copies), how to manage it, and what to do with the artifacts. The Residual Mechanism will continue managing the originals in The Hague as it has been decided that their integrity is paramount and that the materials should not be separated. The city of Sarajevo had previously expressed interest in managing the archives. The State of BiH did not have a unified position on the issue of the location and was not participating in Sarajevo’s effort to have at least parts of the archive. This is because the three communities in the country as well as the office of the Presidency and the government could not agree. Clearly, this is an extremely politicized matter which also has to do with public support for the ICTY in Bosnia and Herzegovina. On the other hand, Serbia and Croatia seem to agree that no one in the region should have the originals and that copies could be made available. Therefore, keeping the originals in The Hague seems like a reasonable solution.

Associations of victims have approached the Tribunal asking for management over a part of the material, including objects found in mass graves or other artifacts that might be used in memorials. This idea has been voiced on numerous occasions and is yet to be decided upon. What is less difficult to handle are copies, including copies of photographs, transcripts, and videos of statements of guilt from the courtroom – all material that can be used in commemorating the victims. There have even been open conflicts between some victim’s associations and the ICTY over management of artifacts originating from mass graves in eastern Bosnia, resulting in the initiation of lawsuits.13 This relates to a particular case of destruction of material found in mass graves connected to Srebrenica that has since become a very controversial issue for the Court, especially the Prosecution.

Ethical issues surrounding the use of the material also arise as much of the contents of the archive deal with sensitive and painful matters – and extreme human suffering. The need to protect sources is also an important consideration, with the personal safety of ‘insider witnesses’ being at risk if their identities were to be revealed. There are also medical records in the archive, which of course raises additional privacy concerns. Finally, many of these documents are also evidence in other trials that are being conducted in the region and thus need to be treated with care.

 

Conclusion

Together with punishing the guilty and providing some sense of justice for victims, fact-finding is one of the purposes of judicial proceedings after mass human rights violations. The ICTY archives represent a significant step forward in this field. More importantly, it represents a crucial part of the region’s history and a testimony of human suffering. Images such as those from Vukovar, Sarajevo, Srebrenica, and Omarska remain etched in our minds and, as such, we have a duty to safeguard that material.

We need to argue for openness and accessibility (including a transparent declassification process), as well as strive not to jeopardize sensitive material. These sources should be available in the region, in local languages and accompanied by educated staff that can assist in the dissemination of relevant information. There is risk of political manipulation so caution is required.

 

Iva Vukušić works as a researcher, archivist and analyst for the SENSE News Agency (South East News Service Europe) in The Hague, which specializes in covering trials at the International Criminal Tribunal for the former Yugoslavia (ICTY). IIva worked as an analyst and researcher at the Special War Crimes Department of the Prosecutor’s Office in Sarajevo, Bosnia-Herzegovina during 2008 and 2009 and before that as a project manager at the Research and Documentation Center in Sarajevo.

 

 

ENDNOTES

  1. UN SC Resolution 827 (May 25, 1993): http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N93/306/28/IMG/N9330628.pdf?OpenElement []
  2. Statute of the ICTY:http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf []
  3. Key Figures: http://www.icty.org/sections/TheCases/KeyFigures []
  4. Slobodan Milosevic case information: http://www.icty.org/cases/party/738/4 []
  5. Ratko Mladic case information: http://www.icty.org/cases/party/704/4 []
  6. Goran Hadzic case information: http://www.icty.org/cases/party/694/4 []
  7. Completion Strategy: http://www.icty.org/sid/10016 []
  8. Residual Mechanism: http://www.icty.org/sid/10874 []
  9. Coalition for RECOM: http://www.zarekom.org/The-Coalition-for-RECOM.en.html []
  10. The town of Prijedor in BiH is a good example of how problematic memorials can be:http://ictj.org/news/shadow-london-%E2%80%9Corbit%E2%80%9D-bosnia-steel-blood-and-suppression-memory, Refik Hodzic, 23 April 2012 []
  11. Trudy Huskamp Peterson, Report for USIP, 2006http://www.usip.org/publications/temporary-courts-permanent-records []
  12. The unofficial report on findings on file with the author. []
  13. http://www.rnw.nl/international-justice/article/mothers-srebrenica-sue-carla-del-ponte, 23 August 2010 []
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