[00:00:00] Dr. Miranda Melcher: Hello and welcome to Just Access. In this podcast series, we talk to some fascinating people, legal experts, academics and human rights advocates. We explore ideas about the future of human rights and improving access to justice for all. I’m Dr. Miranda Melcher, a Senior Legal Fellow at Just Access and over the next two episodes, I talk to Dr. Iva Vukušić about her work. She’s a lecturer at the Center for Conflict Studies at Utrecht University in the Netherlands and a visiting research fellow at the Department of War Studies at Kings College London. In this first episode, we focus on some of the main findings of her book titled “Serbian Paramilitaries and the Breakup of Yugoslavia – State Connections and Patterns of Violence”, published in 2022.

[00:00:51] In the second episode, we’ll focus on the politics of archives and access to information and how it could be access to justice.

[00:01:19] Dr. Miranda Melcher: So this is obviously a really interesting book. What made you decide to write it?

[00:01:28] Dr. Iva Vukušić: That’s a good question and I’m often ask that, I guess because people wonder why would one decide to spend years of their life researching things that could be quite grim and difficult to work on. I guess there’s a pre-story to writing this book in my PhD in History at Utrecht University. I started following the trials in the Hague from a distance as a young journalist from Zagreb, from Croatia, where I’m originally from. So this is a conflict that has affected me in some ways. I’m not, a survivor or a victim, I was lucky enough not to be directly impacted, but I have a story of working as a journalist following these trials from afar.

[00:02:03] I also did a Master’s degree where I wrote about the Tribunal and its trials. Then I worked as a researcher and an analyst at the special war crimes department of the prosecutor’s office in Sarajevo, which means that I assisted and I worked on cases that related to war crimes, crimes against humanity and genocide in the context of the Bosnian war in the early 1990s.

[00:02:24] And then I came here to The Hague, where again, I’ve spent a number of years working on research, on evidence, at the International Criminal Tribunal for the former Yugoslavia, the ICTY is the acronym that I’m going to be using. So when I began my PhD, I guess one of the motivations was the fact that paramilitaries more generally, but also Serbian para militaries, appear, I think in literally every single book on the war in the former Yugoslavia. But I thought, and I wasn’t alone in that, I thought they were relatively poorly understood. They tended to be treated in bulk, there wasn’t really an in-depth understanding about the different ways in which they harm civilians.

[00:03:00] So my idea was really, having spent so much time observing and participating in these war crimes trials, to try to see what we can learn from analyzing the primary sources, the statements, the documents, the intelligence reports, the military orders that concerned the war in the former Yugoslavia.

[00:03:19] And I really used mostly war crimes trials records, and this is something that other historians have done before me, to try to shed some light basically into who these guys were and they were almost exclusively guys, and what they did. That was sort of the beginning of the story, I suppose.

[00:03:34] Dr. Miranda Melcher: So I think in a lot of ways that answers what are we talking about and why, how do you come to this and those documents that you mentioned are very much what I’m going to ask you more about. But as a little bit of additional context before we get there, paramilitaries and militias are obviously not something just in the past. This is not something that ended with the wars in your book, but are still very much present today, for example in Libya, Syria, Lebanon, Yemen. And one of the things that we see in those current conflicts is support by states of para militaries and militias that maybe as the conflict progresses, the states are no longer super happy about providing that support, but it becomes very difficult for them to withdraw it in any sort of meaningful way. Can we see any sort of parallels or similarities with the Serbian para militaries and militias that you looked at?

[00:04:26] Dr. Iva Vukušić: Yeah, that’s absolutely right. I mentioned in my book from a couple of years ago, there was research coming out of the ICRC, but also various agencies of the United Nations saying that these kinds of units, irregular armed groups, or sometimes we call them non-state actors, there’s a number of these terms that different people in different context use, you know, researchers, academics, journalists.

[00:04:48] So there’s a number of different terms that sometimes overlap or are sort of adjacent or close to one another. So these groups are really not something that was unique to the former Yugoslavia, and definitely it’s not something in the past. I’m sure many people who have followed other conflicts in the last decade, for example, in Syria or more recently in Ukraine, have seen examples of something that.

[00:05:10] Could be in some way similar, for example, in the Syrian context, the Shabiha or Wagner group, for example, in the context of Ukraine. So the numbers of these units and various actors seems to actually be growing. I remember an example from Libya from the city of Misrata. I think they had several hundred groups, not necessarily all state sponsored, but just to say that these are really numerous actors and what they do and their nature and functions vary from place to place. And it’s also a dynamic relationship that these kinds of units tend to have with the state. So it’s not a relationship where it’s a static sort of a thing. It’s very much transactional. So it’s changes depending on what the actors quote unquote, “get out of it”. 

[00:05:52] For the state, of course, it’s always an interesting option and this is why states continue using it, because this idea of outsourcing violence to seemingly independent actors creates a sort of a plausible deniability by which a state tries to achieve its goals, territorial, demographic, or political in some other way, through the use of these kinds of actors to commit violence that is illegal or illegitimate and just kind of unsavory. So the state achieves its goals and tries to limit the risk of further sanctions and potentially criminal accountability for individuals from that same state down the line, or paying reparations to victims and things like that. And just finally on this note, I think states are smart in continuing to do that because as we have seen here in the Hague and elsewhere, It is often really difficult to prove these ties between the state leadership and the para militaries in the field.

[00:06:48] So this plausible deniability seems to work quite well in court and protects individuals who operate, direct, finance these kinds of units. So it’s a good tool, you know, it’s a good tool to pursue goals and try to limit damage internationally and potentially personally, if you’re a leader in one such context. So I think paramilitaries are something that has existed for a long time and I think will remain with us as long as that remains the case.

[00:07:15] Dr. Miranda Melcher: One thing that you mentioned in your first answer and that I really appreciate about your work is that you don’t lump all the paramilitaries and militias together. So I don’t want to ask this question, asking you to then do that. Given what you’ve just described of kind of these changing relationships and the plausible deniability, could you maybe give us one example of a particular paramilitary or militia that sort of demonstrates this tension and balance between the state and the group that they say they’re not related to?

[00:07:45] Dr. Iva Vukušić: Right. I think one way in which people can try to imagine it is the way, for example, objects can orbit around something, so certain units can be closer to the center and certain units can be further away. They’re all orbiting them, but they have their own pathway. Some are closer at times and more distant at some other times. So that’s how I, kind of, thought about it myself. One example from the former Yugoslavia and something that may be known to listeners, even if they’re not necessarily experts on the former Yugoslavia, are the so-called Arkan’s Tigars.

[00:08:18] They are one of those units that I called quote unquote “more professionalized” sort of units with closer ties to the Milosević regime in Belgrade. So these are units that were more directly trained and deployed and paid by the state, even though it was covert, while some other units, for example, some of them affiliated with political parties, were still serving kind of the same goal and still using the state’s weapons or the state’s gasoline and were freely moving around, but were not as closely tied. One example, I think, where those volunteers that were affiliated with a radical party of Voislav Šešelj, an individual who was prosecuted here in The Hague as well.

[00:09:00] So I think that is something that other researchers can find in other places as well, where the dynamic is such that the unit’s relationship changes through time with the state, but also the different units have different dynamics with the state. So I think this is a really important finding to keep in mind, to try to see the distinctions between these units. Sometimes things change depending on who leads them at a certain moment, who heads the government and what all kinds of other circumstances may be that influence these relationships.

[00:09:31] Dr. Miranda Melcher: Thank you for that example. You talk about seeing these things and tracing them out, which makes it sound, and certainly you’re the expert, you make it sound very easy. But it’s obviously not, it’s really hard to figure out what these patterns are, which is why those of us who are not experts read your book. And this goes into what you’ve mentioned before, right? The records and the documents, especially from things like the ICTY. I was really surprised to learn just how inaccessible a lot of the documents are, just how many things are confidential. So given that you have been the one wrangling with these rules and trying to learn things from them, are these criteria for what you can and cannot see fair, are they effective? What’s going on with these rules?

[00:10:16] Dr. Iva Vukušić: Right. Again, a very good question and something that I try to talk about really as much as I can. So thank you very much for asking that. Before I say anything else, I should say that the ICTY and now the international residual mechanism, that is kind of the daughter institution of sorts that has inherited the work of the ICTY to a large extent, is more open with its transcripts and the evidence, pretty much more than any other court that I know, be it international or domestic. What I would really, really love is for other courts, international, hybrid, domestic, to try to open up as much. Their trove of exhibits and transcripts and core documents to the extent that that is possible. It is not reasonable to expect that everything is going to be accessible, and that’s fine.

[00:11:02] However, it becomes challenging for research if documents are difficult to access. For example, many other courts here in the Hague simply do not provide access to their exhibits. They think of trials really narrowly to be about person X, behavior Y and a place Z. So it’s a very narrow sort of understanding of what the purpose of the trial is and that is shared by many in this sort of space. But what I wanna argue is that the documentation that is collected and created through the trial process has really, really extreme value for research independently of the outcome of the trial. No matter if the person is acquitted or convicted, this trove of documents remains, and that should be open to the extent possible to researchers, historians, but also anyone else who wants to do research on this.

[00:11:55] It’s also, I think, really important to study these documents as an act of remembrance, because in many ways, the victims who perished, who were murdered, who were beaten, who were raped, one of the reasons why that was done is because the perpetrators wanted them expelled. They wanted them forgotten. They wanted them gone. So the act of research in excavating these stories is also in some way an act of remembrance I think. So I think there’s different purposes to these documents that are not only about, person X and if person X is guilty or not. Having said that, there are certain trials with the ICTY, for example, one big trial, the Stanišić and Simatović case, which I analyzed in depth, is a trial about basically state security and if the state security or the two individuals in the case are responsible for basically organizing, funding, directing and kind of managing a number of units through several years of the war in Croatia and Bosnia.

[00:12:53] So, of course, the number of documents Serbia gave to the court, but said, listen, these are really sensitive, we don’t really want them out. And Serbia, again, is not unique in this. States do this all the time. Now the judges are in a tricky position because they need to navigate both security consideration, which sometimes we, as observers, we may deem legitimate and sometimes not, but also the idea that trials should be open, and transparent and that the public should be able to see what is going on in court. So this is a delicate situation, and I don’t envy the judges that need to make these kinds of findings.

[00:13:29] However, my issue, I guess here is that, first, it seems to me that there should be kind of an expiration date, right? It’s almost 30 years now since many of these documents that remain confidential, that are really important about the state’s role. It’s almost 30 years since they’ve been created and there’s no visible way out of this confidentiality. There’s no Freedom of Information Act where I can say, dear residual mechanism, I would please like to see this and this and this, something that you could do in a state setting in a lot of places, right? So what I would really like to do is to get people that work in courts who quote unquote “own” this material is to think about these records beyond the individual person in the individual trial, to think of their significance historically and to try to really limit the confidentiality to the very, very, very narrow, you know, situations where it must be held confidential. And even when it is confidential, that there is a time when this confidentiality automatically expires for some records and can be challenged because like this, you seal them and you seal them forever. And I mean, in 200 years, really, we still can’t see the documents from the Stanišić trial? I think that’s pretty ridiculous. 

[00:14:50] So what I would really like to see is kind of an added effort to think about these records beyond the outcome and to think about, okay, when does it stop being confidential? Because we have, of course, in many other situations around the world, after 30, 50 years, very secret documents, very problematic things come out in other states as well. So why would international trials be any different?

[00:15:13] Dr. Miranda Melcher: Yeah, exactly. It’s a problem that we’ve already solved in a lot of different places, so there’s plenty of examples to choose from. I agree that that seems like it’s something that could be improved. And in a lot of ways, some of the things you just mentioned raise some interesting questions because often we think about these documents kind of as judges do, right? As the court does, as – they are for a trial. That is what they are for. But obviously you’ve talked about doing this research as remembrance, as excavation, thinking about what we’re gonna want to know in 200 years, right? You’re looking at a much wider scope of this material. And so when you analyze these sources practically or behind the scenes of your work, you’re a historian, you’re not a lawyer, I assume you’re not trying to retry the cases per se, so can you tell us a bit about how you analyze and use these materials?

[00:16:05] Dr. Iva Vukušić: Yes, absolutely. I also want to say that, you know, not everyone of course agrees with how we should approach these things, and I’ve had conversations with colleagues of mine that are lawyers and criminologists and all these kinds of different disciplines and different people. Individuals will of course have different takes. My take also now, and this has changed through time for me as well, but now after almost 20 years of doing this work, I want to say that I really don’t see my role to judge the guilt or quote unquote” innocence” of anyone. It’s not something that I’m trained for. It’s a little bit like asking a surgeon to be a chef, you know? It’s just, it’s a different job. 

[00:16:43] I also try to approach it, and this is something that I say to my students, and there’s also a lot of disagreement here, but that’s how I do it, I try not to be particularly emotionally invested in any outcome. I try to feel less about if person X should be in jail or not. I think that kind of stuff clouds my analytical abilities and clouds my judgment, right? So I try to feel less and then sort of think and read and keep a certain distance from all of these things. 

[00:17:15] What I think is really also important for my book, but also for other people doing research in these kinds of records is that my book is not based on quote, unquote, “enemy records”. I analyze Serbian units, but I don’t use Croatian intelligence sources. I don’t use Bosnian government documents. I use to a large extent documents that are created by people on the same side. I use documents by the Yugoslav Army, by the Bosnia Serb Army. I use statements by Yugoslav army officers, people that worked in the police, insiders, people that are within these same structures where the perpetrators are as well. So I think that’s also important to think about, you know, this is not the Croatian saying this, this is not the Albanian saying this, this is quote unquote “your own guys” who are saying Arkan’s Tigers are committing these and these crimes in these and these places, they should be stopped. So I think that’s an important consideration. 

[00:18:11] For anyone who’s interested. I recently published a piece that’s called “Archives of Mass Violence about using the ICTY trial records. This is really a very practical article. It’s open access, so you don’t even need access to any university libraries. But my goal was really to try to sort of make these records less intimidating because the archives are huge. They’re really, really, really, really huge. And the database is not created for casual browsing by like kind of a citizen that just wanna sort of snoop around. It’s really difficult to find your way in there.

[00:18:44] So I wrote this piece that, you know, the aim is to try to get people to see what’s in there and to just get started, uh, because I think it’s such a treasure trove and it’s awful to say that about an archive of mass violence. But as a former Yugoslav, I also feel these records are mine because they talk about what happened to the country where I was born, when it went up in flames. So I think it’s also important for the former Yugoslavs, but also really for anyone else to use these documents and by using them also to try to show to the international criminal court to any future institution that will be dealing with the crimes in Ukraine, you know, these records are important no matter what happens in the outcome of the trial. I would like that to be the standard and I would like that to really provide the opportunity for research. So it’s difficult to do this kind of work, it’s massive. I spent five, six years working on this book, you know, through my PhD and all of that and I still feel in a lot of ways that I just scratched the surface. So that I think says something about just the volume that we’re talking about.

[00:19:45] Dr. Miranda Melcher: I’m glad you mentioned your article about using the archives cuz that’s something the Just Access team is one of the reasons we wanted to talk to you. We’ve all found it very valuable, both in terms of like, ooh, that’s useful to know, but also in, isn’t it great that this exists, that this guide is there. So we’ll definitely be linking that in the show notes of this episode.

[00:20:03] Dr. Miranda Melcher: Thank you, Iva, for exploring your research practice and some of the findings of your book, again titled: “Serbian Paramilitaries and the Breakup of Yugoslavia -State Connections and Patterns of Violence, published in 2022. In our next episode continue the conversation with Iva, thinking about access to archives, access to justice, and how we can improve.

[00:20:32] Stay tuned.