July 15, 2021
By Dr. Iva Vukušić
Dr. Vukušić is a historian and genocide scholar at the Centre for Conflict Studies at Utrecht University, the Netherlands and a visiting research fellow at the Department of War Studies, King’s College London.
In June 2021, an international court reached its final decision to uphold the conviction of General Ratko Mladic for committing numerous international crimes during the wars in the Balkans. Among his many crimes, Mladic oversaw the murder of more than 7,000 Bosniak Muslim men and boys over the course of one week in what is now known as the Srebrenica genocide. In light of the court’s decision, Mladic must serve his sentence to life imprisonment. This decision sends the strong message that it is possible to hold perpetrators of genocide to account, to deliver some form of justice to victims, and to counter narratives that often dominante societies that have experienced atrocities and which seek to deny them.
To mark this historic decision, the Simon-Skjodt Center for the Prevention of Genocide at the US Holocaust Memorial Museum is publishing a blog post series with three guest contributors. The assertions, opinions, and conclusions in this blog are those of the author. They do not necessarily reflect those of the US Holocaust Memorial Museum.
The trial of the Bosnian Serb general Ratko Mladić concluded in The Hague in June 2021 at the International Residual Mechanisms for Criminal Tribunals (IRMCT), which is a daughter institution of the International Criminal Tribunal for the former Yugoslavia (ICTY). What remains when the courtrooms go silent are the hundreds of thousands of pages of evidence, containing important insights about perpetrators and patterns of violence. The IRMCT should be applauded for making parts of this archive open to the public: the archives of most international criminal courts and tribunals are largely inaccessible or at the very least, exceptionally difficult to access. But even the IRMCT could do more to make this archive more accessible.
Inaccessibility to archives of international tribunals and courts is a serious problem. If we are to understand and remember genocides, crimes against humanity and war crimes, as we should, we must take the time to study what happened. If we are to honor victims, we need to know about their experiences. If we are to engage more fruitfully in atrocity prevention and mitigation, members of the international community need to deepen their understanding of violent actors and atrocity crimes. To do all that, the public and scholars need access to court archives.
Although Mladić was indicted in 1995, he was not captured and transferred to the ICTY until 2011. During his fugitive years, the Tribunal prosecuted others, many of them his associates, by investigating, finding bodies of missing persons, and testing evidence and legal arguments in court. Mladić’s trial started in 2012 and lasted five years. It was one of the Tribunal’s largest cases: the judges heard 377 witnesses in court (and admitted a number of additional written statements), during 530 trial days, and examined almost 10,000 exhibits.
These witness statements and other forms of evidence represent a small portion of a much larger historical archive that the ICTY and IRMCT produced. This archive—which consists of 2,400 linear meters of physical records and 1.5 petabytes of digital records—is a treasure trove of information about the wars in the former Yugoslavia, the crimes committed, and their impact on victims. But the potential value of these archives was not front of mind for the court’s creators, so they did not plan to make these records publicly accessible.
The additional value of these archives cannot be overstated. They reveal what happened after the Bosnian Serb forces captured Srebrenica on July 11, 1995 almost hour-per-hour. They reveal who was there, which units, what was said at important meetings, which groups of men who were seeking shelter moved where, when and where they were captured, which buses took them to which gym or school to be detained, and how they were then executed and buried in clandestine graves in the days that followed. In short, they can help establish an historical record, combat a culture of denial, and allow society to heal and reconcile in ways that criminal convictions alone cannot.
Moreover, making the archives fully public could be meaningful for the almost 5,000 witnesses who came to testify through the years, who often did so time-and-time again, paying the price for sharing their stories with sleepless nights and significant stress. Through witness testimonies, the archives expose who participated in re-digging mass graves, often in the dead of night, to hide them further away so that investigators looking for the missing would never find them. Expert witnesses described the process by which the remains were ripped by heavy machinery, so that a head from a body was often found 20 miles away from the legs or arms.
Around 70 percent of all of the judicial records of the ICTY and IRMCT are public. That is an enormous wealth, but accessing this information is challenging because many researchers and citizens do not know how to navigate the archives. For many, the collection, which is an online database, is simply daunting.
Confidentiality is a challenge, especially in some trials. For example, the IRMCT is currently concluding the case against Jovica Stanišić and Franko Simatović, former Serbian state security officials who were charged with crimes committed by various paramilitary units in Croatia and Bosnia and Herzegovina. There was a judgment in that trial in June 2021, and the case is likely heading to an appeal. Much of those proceedings were conducted behind closed doors for reasons that are not always disclosed but which may include protecting witnesses, national security or the rights of the accused. It remains unclear when, if ever, many of the records will become available. This severely limits what researchers and the public can read.
Even when it comes to confidential information, there is still a strong case for making some of these records publicly accessible. Thirty years will soon have passed since many of the documents were created, which is often a point at which other jurisdictions re-examine archives to determine whether they can be released to the public. At the ICTY and IRMCT, there is no equivalent mechanism. At the very least, there should be a transparent process involving the interested public to determine whether any or all of these records should be made public, and when. After all, these trials are of significant public interest.
Rich and valuable research has been produced using these records. My own work is based on ICTY archives, which I have used to examine patterns of paramilitary violence. Those insights about how different kinds of units perpetrated different kinds of violence cannot be gained elsewhere. As a researcher and a former Yugoslav, I consider it of paramount importance for this material to be made public in such a way that safeguards the privacy of witnesses, observes the rights of the accused, and respects legitimate national security concerns. However, the public interest in accessing these archives should be equally important when deciding whether to make the records public. The public does not seem to factor in sufficiently as a stakeholder now.
The IRMCT is mandated to preserve the records of the ICTY and the International Criminal Tribunal for Rwanda (ICTR), a similar tribunal established in the aftermath of the 1994 Rwanda genocide. Laudably, the IRMCT makes many of the transcripts and exhibits public online. As a rule, other international courts and tribunals do not—at least not in exhaustive ways. The International Criminal Court (ICC), also based in The Hague, does not provide extensive access to exhibits. Lack of access is the default. For international courts to maximize their positive impact on affected communities and beyond, that must change.
These courts already hold these records—they are digitized, translated, and sorted. It is time to make them accessible. Transparency and access should be the rule. Now, as the first ad hoc Tribunal is ending its work, and others like the ICC are seeing more cases, it is the right time to make access to transcripts and exhibits a central aspect of the work of international justice.