Balkans Consulted Over Future of ICTY Archive

A widespread consultation process is under way to decide where the archives of the Hague-based International Criminal Tribunal for former Yugoslavia, ICTY should be kept when the court closes in 2010.



The United Nations Development Programme has issued questionnaires to people in former Yugoslavia, canvassing their views on a home for the documentation and how equal access to regional countries can be guaranteed.



According to Bosnian daily Avaz, the questionnaire was sent out recently to government institutions, as well as the NGO sector, historians and media figures throughout the Balkans.



An IWPR straw poll of local and international ICTY watchers has revealed that many would like to see the archive housed in one of the countries involved in the Balkans conflicts in the early Nineties, but there is disagreement over which one should be chosen.



The results of the UNDP survey - which also asks about possible future uses of the material - will be used as preparation for a later study by the tribunal’s registrar’s office which will then draw up a list of options that will eventually be passed to the United Nations Security Council for a final decision.



In addition to the Balkans, other options are also being considered, including using existing facilities at the UN headquarters in New York or Geneva and retaining it in The Hague.



Professor Johannes Houwink ten Cate, a historian at the Netherlands War Documentation Centre, said that the archive would prove to be a very rich source for historical research.



He stressed that wherever the archive ends up, it is important to keep it in one piece, “The only way historians will be able to evaluate how the ICTY operated is if the archive remains as it is. This is the only way to guarantee the archive will be valuable source for history.”



Lawyer Igor Olujic, former secretary of the Yugoslav National Committee for cooperation with the tribunal, agreed that when the court closes, the archive must be kept together.



This way, it can be used as a historical resource to explain events in the former Yugoslavia and also be made available to prosecutors and judges in war crimes trials under national jurisdictions, he said.



Mirsad Tokaca director of the Sarajevo-based Research and Documentation Centre, RDC, said there have been calls from the Bosnian-Serb entity Republika Srpska for parts of the archive related to crimes allegedly committed against Serbs to be stored there, but he dismissed this idea as “nonsense” and said it should not be split.



On September 17, the RDC held a round table discussion in the Bosnian capital on the future of the archive. The main conclusion of the discussion was that the Bosnian state presidency, or some other state institution, should now send an official request to the UN Secretary General Ban Ki-moon for the archive to be transferred to Sarajevo in 2010.



Tokaca said he would ask the Bosnian parliament to discuss this as soon as possible.

"These documents should be transferred to Bosnia, because storing them somewhere far away from the place where the actual crimes were committed won't help anyone. About 80 per cent of this archive is related to the events in Bosnia, and only 20 per cent to other places in the region. Therefore, it would only be fair to have it here,” he said.



He said basing the documentation in Sarajevo would mean it was accessible to those who need it most, “Bosnian prosecutors desperate need to have free access to these documents, so that they can do their job efficiently. On the other hand, academics, victims and even persons suspected of war crimes could all benefit from having easy access to this archive.”



Milan Antonijevic, executive director of Belgrade-based NGO Lawyers Committee for Human Rights, YUCOM, said for him there was only one viable location for the archive once the court closes – and that is “in the countries where the war was”.



The archive could be divided between the countries involved in the conflicts or a regional central archive could be established, he suggested.



Ivo Josipovic, professor of law at Zagreb University, who has filled out the UNDP questionnaire, said that while he said he preferred the archive to go to Zagreb “for personal reasons”, he acknowledged that Sarajevo was not a bad option either.



“I think the archive should be available to people from this region,” he said.



Vesna Terselic, of the Croatian NGO Documenta, who has also filled in the questionnaire, suggested Bosnia as the ideal location to house the archives as the country bore the brunt of suffering during the war and so “maybe it deserves it the most”.



Of all the possible places in Bosnia, she thinks Sarajevo would be the obvious choice for practical reasons. “Srebrenica suffered a lot. Sarajevo did as well, but Sarajevo has infrastructure like an airport, for example, so it would be more accessible,” said Terselic.



Documenta believes it would be good for the archive to be placed somewhere it is accessible for all victims of the conflicts, as well as for the broader public, said Terselic.



Zarko Puhovski, professor of philosophy at Zagreb University and member of human rights group Croatian Helsinki Committee, agrees that Sarajevo is a suitable future location for the documentation.



But he stressed the importance of retaining international jurisdiction over it “for as long as necessary”.



Boris Grubesic, the spokesman for Bosnia's state prosecutor, is keen to transfer the ICTY archive to Bosnia, but says there are logistical factors to consider.



“One of the problems is where the tonnes and tonnes of highly sensitive materials would be stored, and for that we would need a special facility,” he said, adding that “having those materials in Bosnia would certainly make prosecution of war crimes easier for the local judiciary".



But not everyone would like to send the archive to Bosnia.



In an interview with Avaz on September 9, Damir Arnaut, legal adviser to Bosniak member of the Bosnian state presidency Haris Silajdzic, said that while an initiative to move the documentation to Bosnia was supported by Bosniak and Croat members of the tripartite presidency, Silajdzic and Zeljko Komsic, Serb member Nebojsa Radmanovic didn't give his consent.



Olga Kavran, spokesperson for the Office of the Prosecutor at the Hague tribunal, refused to speculate about the ultimate destination of the archive but pointed out that Chief Prosecutor Carla Del Ponte had already taken a stand on the issue.



“The chief prosecutor said that only two things matter. First, that the archive will be available to people of the former Yugoslavia - to journalists, researchers, law practitioners and experts - and, second, that no part of that archive is destroyed,” said Kavran.



Eric Ketelaar, Professor of Archival Science at the University of Amsterdam, is currently being commissioned by the ICTY to take part in a study which will involve talking to people in the region about where the archives should be housed.



Ketelaar, whose ICTY-commissioned report on the legacy of the tribunal has been used as a basis for the UNDP study, said that, ideally, the archive should be sited in the region where the conflicts took place, thought he admits that there’s little consensus on this.



“I have had talks with different people who have always said that [before a permanent home for the archives is found] the former Yugoslavia must first solve other problems. They are still struggling over the custody of and access to the archives of the former [Yugoslav] federation,” he said.



Ketelaar recommended introducing a “successor agency” appointed by Security Council to fulfil some ICTY functions after the disbandment of the court. This could be the International Criminal Court - the world’s first permanent international war crimes tribunal - which is also based in The Hague, he suggested.



Ketelaar believes it would make sense for the archive to remain in the Netherlands, under the jurisdiction of a Security Council-approved body, and provide a number of institutions in Zagreb, Sarajevo and Belgrade with copies of material in digital form, he said.



According to him, an early suggestion that all records should be kept in New York, the location of the UN’s headquarters, was now the least favoured possibility.



Houwink ten Cate also suggested retaining original archive documentation in The Hague.



He thinks digitalising the archive could solve the problem of where the archive should go. “It could be digitalised, and copies given to all interested parties,” he said.



A digital copy, he said, has many advantages over originals, “In some cases, it’s good to work from the digital copy. It gives the possibility of full text retrieval. If you are interested in person A, you can ask for all documents relating to that person.”



Although he acknowledges that “there is a matter of prestige and expediency in having the original archive” and adds that, in some circumstances, people may need access to original documents.



“If [an alleged victim of war crimes] seeks compensation in the US, they don’t accept copies of documents there. The person would have to provide the originals,” he said.



Ljubica Gojgic, a reporter with the Belgrade-based radio station B92, also thought a logical solution would be to make copies of the archive and send it to the states of the former Yugoslavia to be used as a historical resource.



Terselic, who feels placing the archive in a US institution would be misguided, said her second choice of location after the region would be The Hague.



Many of those interviewed spoke of the need to ensure equal access to the archive for all of those affected by the war, as well as continuing security for confidential documents.



In the Avaz interview of September 9, Arnaut said the most important criteria for making a final decision on the fate of the documentation is "an easy access to the documents and their adequate protection".



“Wherever it is placed, the most important thing is that archive is guarded because it contains valuable information. There is also a responsibility to protect confidential testimonies,” said Terselic.



Puhovski thinks it’s possible to do the latter by employing a practice currently used by the court.



“Two lists of documents should be drawn up – one public and other secret – and everything should be done to protect the restricted data,” said Puhovski, adding that any data not restricted should be public and open for everybody.



Antonijevic said it was imperative that the archive be accessible for people to use in the future, “The main purpose of the archive in the future is to be open for investigations, research and for future justice, because history will be written based on the documents from the archive.”



Ketelaar agreed that accessibility and security are important factors to be considered, “What must be solved and is a huge problem before 2010 is how access should be regulated.

I think it’s essential that all parties in region have access to same material. Reconciliation can only start if there is a possibility of a shared past.”