ICTY Archive Must be Open to All

As the tribunal moves closer to its mandated closure in 2010, a public debate has erupted over the final disposition of the institution’s rich archival collections.



In recent weeks, the three members of the Bosnian presidency have been deadlocked over a chorus of popular demands to house the tribunal’s archive in Sarajevo after the court completes its work.



They have been debating the wrong issue.



In preparing to render its final decision, the United Nations Security Council has asked an advisory commission, headed by former tribunal prosecutor Richard Goldstone, to provide recommendations by the end of this year on the final physical location and terms for use of the tribunal’s archive after 2010.



The commission, and almost all commentators on the issue, have addressed and debated extensively the ultimate ownership and location of the archive. We believe that, contrary to widespread popular understanding, locating the archive in Bosnia, or in another former Yugoslav republic, will do little or nothing to facilitate investigations of the region’s history or events during the wars of the 1990s.



On the other hand, lifting the veil of secrecy from various document collections within the archive would be a major contribution to fostering understanding of the region’s recent past.



The archive of the ICTY is a vast and invaluable collection, and its holdings will be indispensible for anyone researching or investigating events of the 1990s, in any former Yugoslav republic.



But most importantly, it is a digitised archive. Over the past 15 years, ICTY employees have scanned virtually every document and made many of them searchable, so that anyone with appropriate access to the tribunal’s computers can find references to a person, place, word, or topic among the millions of documents gathered by tribunal investigators.



But most documents, though readily findable and easily called up by identifying number, are not currently accessible to the public. Large portions of the collection have been acquired by tribunal investigators under conditions that eliminate or restrict their access. The many benefits of the ICTY thoroughly modern system of searching documents are largely nullified by complex, wide-ranging restrictions on their use.



THE COST OF SECRECY



The excessive secrecy surrounding the tribunal’s documents has kept victims, advocates, scholars, and journalists in the dark about many events during the recent wars.



This was illustrated by the genocide case Bosnia brought against Serbia at the International Court of Justice, in which the UN's highest court cleared Serbia of direct responsibility for genocide during the Bosnian war of the early Nineties.



The Bosnian legal team was prevented by tribunal secrecy policies from seeing the full, unredacted minutes of Yugoslavia’s Supreme Defense Council, documents which were used in secret and in unredacted form in late Yugoslav president Slobodan Milosevic’s trial at the ICTY.



Those documents no doubt contributed to the ICTY trial chamber’s preliminary ruling that the prosecution’s evidence warranted retaining the charge of genocide. But the critical portions of these documents, redacted by officials from Serbia, are still inaccessible to the public.



The case of the SDC minutes illustrates that the key question is not the physical location, nor the ultimate ownership of the tribunal’s archive, but rather universal access to its documents. The collection’s gatekeepers at the UN are unlikely to provide universal unrestricted access, but at the very least, the UN should establish a mechanism for declassifying documents upon appeal from a potential user or a sovereign state. Every potential user should have the benefit both of the archive’s advanced digital search capabilities and access to all relevant documents.



Potential users currently have no advocate for their interests, nor even a rudimentary knowledge of how the tribunal’s vast collections are organised.



THE OPPORTUNITIES OF ACCESS



Over the past decade, we have both worked with small selections of the ICTY documentary base. We have had the opportunity to glimpse the organising systems that are used every day by investigators, attorneys, and judges to access the tribunal’s vast documentary resources.



Information is accessed principally by computer, available internally to anyone with a password and a rudimentary knowledge of how the various kinds of documents are catalogued.



Based on our knowledge of documents and practices, we expect that in the future, these resources will most commonly be used like this: an investigator with a computer linked to the internet, sitting anywhere in the world, will access a tribunal website. The user will initiate a computer search, typing in the topic on which he or she desires information, by defendant, date, name, place, topic, or evidence registry number – an eight-digit number assigned by the ICTY to each page of documentation it processes.



The user will then be directed to some number of documents which contain the search terms submitted. Such a website already exists. It contains transcripts of every word spoken in every trial held so far, but unfortunately these trial transcripts are not yet digitally searchable. They could be so within weeks if the appropriate technology were applied.



Only in rare circumstances will a user need to see the original document - to verify a stamp or signature, to evaluate the typewriter with which a given document was prepared - whereas an army of users will be able to search through millions of documents and identify each occurrence of a given word.



Indeed, a large number of documents in the tribunal archive are not originals. For example, tribunal researchers have withdrawn hundreds of thousands of documents from archives in the Bosnian federation, but only for a limited period of time in order to give them an evidence registry number and scan them.



Then, in most instances, researchers returned the documents to their archive of origin, with the exception of document seizures conducted by the NATO-led Stabilisation Force in Bosnia, SFOR, and other forced acquisitions.



The tribunal archive is left holding a “verified copy” of the original, plus a conveniently searchable digital image of the document. To verify its authenticity further, an investigator will need to go to the regional archive holding the original.



Here, as in most instances, the scanned, electronic copy is as good as it gets in the tribunal archive, and the digital image has the great advantage of being searchable, identifiable, and called up in seconds for the investigator’s review.



But here enters the true barrier to widespread use of the tribunal’s resources. The investigator may be told that the document being sought is sealed, for 10, 15, 25 years, or forever - and therefore inaccessible. Even worse, many documents may be withdrawn from the searchable database in the UN’s zeal to protect its member states from embarrassing revelations.



THE COSTS OF MAINTENANCE



The huge physical bulk of the tribunal’s archives will become an enormous, unwieldy burden on the city or state where it ends up.



Users seated in front of computers in New York, Vienna, Zagreb, Belgrade, Prijedor, and even in their homes in Sarajevo, will not want to discard the enormous advantages of the digital search and plow through the vast, unwieldy physical archives.



Meanwhile, the storage, preservation, and maintenance of this vast trove will impose enormous expenses on custodians of the physical holdings. A new, large structure must be constructed to house such a collection, complete with climate control and physical security required for a collection physically larger than any archive in Sarajevo today.



Many observers have concluded that the two most serious candidates for the final physical disposition of the archive are in Budapest and The Hague. Although the future location is not of much value to the city or state where the archive will ultimately reside, the interests of the institution itself would best be served by keeping its archive in The Hague. That city is the global centre of international institutions of jurisprudence, including the International Criminal Court, ICC, and the ICJ.



Furthermore, the new tribunal prosecutor has argued for extending the tribunal’s existence, in some skeletal form, to retain the capacity to try Karadzic and Mladic should they be turned over after 2010. The worst conceivable option would be to divide this extensively interwoven collection of documents so that no single collection would be an authoritative repository, a situation fraught with possibilities for falsification and the destruction of documents.



THE CENTRAL ISSUE



At present, the tribunal makes documents public only as they are accepted into evidence at trial or by decision of chambers or the office of the registry. Tribunal officials have favoured secrecy over disclosure - often with good reason - during the institution’s active life. That must change after the institution closes, but it will not change without considerable pressure from UN member states and potential archive users.



We hope that the political leaders of Bosnia and others concerned with the tribunal archive will shift their debate to become advocates of open access, rather than wasting their time on determining the graveyard in which the physical archive will ultimately rest.



Edina Becirevic is a senior lecturer at the University of Sarajevo’s Faculty of Criminal Justice Sciences. Robert Donia is a professor of history at the University of Michigan and was an expert witness at a number of trials held at the International Criminal Tribunal for the former Yugoslavia.