[00:00:00] Dr. Miranda Melcher: Hello and welcome to Just Access. Too many individuals and groups around the world today are denied access to justice. This access is vital for making human rights effective and securing human dignity, especially for those who might be especially vulnerable. In this podcast, we speak to academics, international legal experts and human rights advocates about hot topics in international law.

[00:00:31] Our goal is to expose and highlight situations of structural injustice and explore possible solutions to these issues aiming to protect and enforce the rights contained in international treaties. My name is Dr. Miranda Melcher, and I’m a Senior legal Fellow at Just Access. In this episode, I continue my conversation with Dr. Iva Vukušić about her work. She is 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. Our discussion in this episode builds on our conversation in the last episode when we discussed her work and 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.

[00:01:15] In this episode, we go further into our discussion about the politics of archives, access to memories, and access to justice.

[00:01:26] Dr. Miranda Melcher: You may think you’ve scratched the surface, but you’ve certainly gone much further than probably most listeners, myself included. So thinking about those five or six years, looking at all of these different records, we’ve talked a bit about what you found lacking in the archival processes themselves, right? That there isn’t a process, that there isn’t so many other things. But especially given that you are looking at this from a different lens than the lawyers are, did you come across anything or did it lead you to any sort of conclusions about where you saw gaps in the current system of international criminal law?

[00:02:06] Dr. Iva Vukušić: Right. Well, I think I have a lot of thoughts both through working on the PhD, but also just watching all these trials pretty much constantly. I spend the morning watching the start of the trial at the specialist chambers for Kosovo in the Hashim Thaci and all case, so one of the things that is really always interesting for me, and this is also something that I’ve been thinking about intensely, following all the conversations that are going on about justice options for Ukraine, is the selection process- the selection process of which municipalities or which crimes to focus on or where to start.

[00:02:40] Because if I may use the example from Ukraine now because it’s really an extreme one, there’s to the best of my knowledge from the last couple of weeks, 72,000 alleged war crimes or other international crimes that have taken place since the invasion. 72,000. So there is no way anyone ever anywhere would be able to investigate, you know, 20% of that.

[00:03:08] It’s an enormous number. In the former Yugoslavia we had something similar, maybe not 72,000, but in any case, when I was working at the prosecutor’s office in Bosnia, we had a good 5-10,000 potential suspects. This doesn’t mean that they’re all, you know, guilty. The 72,000 potential cases in Ukraine don’t mean that they’re all cases of war crimes, crimes against humanity, or potentially genocide, but that there’s a criminal complaint. Someone said this should be investigated. 

[00:03:36] So these choices about what to pursue and what not to pursue, where to spend your resources because again, there’s no country in the world, there’s no system in the world, even if it functions at its best, even if it’s amazingly funded and staffed, even if everything is amazing, there’s no way that we have enough courtrooms and lawyers and investigators and translators and all of that, to deal with all of that. So that was very much the case at the ICTY as well. Especially if you look at the early years, some of the people that landed there, it’s a little bit of a random choice, and I think that was a consequence of just the early years.

[00:04:16] This was our first international tribunal. I think they were pretty much like, oh, we’ll just take whoever kind of falls in our net. So this issue of selection and in any kind of case, or for example in the cases of Ratko Mladić and Radovan Karadžić, the Bosnian-Serb military and civilian leader, you know, they were leaders for the entirety of the Bosnian war. One could charge them, you know, with many, many, many, many incidents.

[00:04:40] So you have to, because the violence was so widespread, you have to make a choice. This is what we’re going to pursue, attacks in these three villages, not attacks in these 10 villages, these two rapes, not these 50 rapes, these, you know, 17 cases of sniping, innocent civilians or mortar attacks, and not these 50.

[00:05:00] And this has large consequences for the victims. Because if your village is not in the indictment, they’re not going to be talking about your village very much. And then you might feel yourself very much excluded. From the narration of what happened in the war, and this was very much the problem in the form of Yugoslavia, and it’s going to be very much the problem in Ukraine as well.

[00:05:18] If it doesn’t appear in the indictment, if it’s not part of the case, it’s going to be marginal or non-existent in the judicial sources because the judges aware of time are going to be like, chop, chop, let’s move on. This is not part of our case. And, I mean, it might be cruel and I’m of course simplifying, but like they’re there to discuss the indictment not to tell a story about what happened in the war, and I think sometimes that people have some misconceptions about, you know, the victims come there and then they tell their story. No, they get asked to really, you know, narrow questions about did that guy wear a blue uniform or a green uniform?

[00:05:54] Sometimes some judges are more open to being a little bit, you know, they allow some space for more reflections about the broader story, but they are very well aware that they’re spending money and time and that the trial needs to progress. So these choices are enormous because they also leave then this traces in the archives and then that also turns into what research can be done. For example, just to kind of close with this, the tribunal was not dealing with what happened to the paramilitary members after the war. This is not part of the criminal case, the court doesn’t care. So the court doesn’t collect anything in any systematic way.

[00:06:27] So I can say very little about what happened to these guys after the war. Because there’s no records at the court and of course Serbia wanting to denounce them from the beginning formally, of course, doesn’t have any records that I can go and access. So there’s real, really big gaps about what we can say, but again, this is the best collection that we have in the world about what happened to the former Yugoslavia. And I really wish, victims and survivors and just, you know, members of society like I am in other conflicts, would have this one place where a lot of this unfortunate, awful, tragic, evidence is collected for posterity.

[00:07:07] Dr. Miranda Melcher: So there’s obviously some clear ways and you’ve in fact articulated a number of them where what you found looking at this particular set of cases and events is directly applicable to other instances. Um, and obviously future instances, right? We’re very much at the beginning of this process with Ukraine, for example.

[00:07:27] Were there any other aspects of the findings of your book or your research process or your obviously extensive knowledge observing all of this that you think would also be generalizable to other contexts?

[00:07:40] Dr. Iva Vukušić: What I would really curious to see if other researchers could, for example, take further or maybe make some comparison to other conflicts in the world, in other contexts, because in my book I discussed what I call, I think, the mechanics of plausible deniability. So how does plausible deniability actually work?

[00:07:56] In the case in the former Yugoslavia in the units that I looked at, for example, one way was obviously to remove any patches before deploying into a certain operation. To pay individuals in ways that are off the books, in cash, in envelopes, documents were signed with nicknames instead of full names. Units often change names and formal affiliation.

[00:08:16] They were affiliated, you know, with this kind of government office and this place, but then they were part of some other unit somewhere else, to kind of what I call muddy the water. So the way these actors create and perpetuate ambiguity about who these units ” belong to”.

[00:08:33] I would be really curious to see if other researchers in other conflicts can try to approach it in a similar way. Because we talk about plausible deniability like, you know, Wagner for example, has been reported on probably more than any unit in the history of the world. Because I follow it a lot, I see like 5 – 10 features a week. It’s really, really, really something else. So, of course, now in the last year, Pregosin Wagner became much more public, much more prominent. He’s not denying it anymore, but in the past years before the full on invasion in February last year, there was also kind of a plausible deniability at play there.

[00:09:10] And of course there’s many other contexts in the world where one could investigate it, try to see, okay, how does it work in other context? And what I found, and this is something that I kind of close my book with pretty much, is that I had a sense when, for example, Crimea was taken over at the beginning of the war in Ukraine. I had a sense that a lot of it really looked like some of the stuff that was going on in the former Yugoslavia. And then I thought to myself: do states learn from one one another? Do regimes have someone who follows trials in the Hague and then they like try to figure out, oh, they did it like this, let me do it like this again. 

[00:09:44] Or, this seems to be working in courts in the Hague. How about we do it like this? So is there some kind of a learning process? Because some of it was really, really quite similar from what I can tell and what these learning processes are like? What these connections about knowledge transfer would be like. So these are some of the things, and I’m sure there’s many more that one could think about, you know, looking ahead and kind of seeing where other people could take research that I would, and I’m sure other people would also be more than happy to know more about.

[00:10:15] Dr. Miranda Melcher: Thinking of future research ideas is always fascinating. So thank you for sharing that with us. We’ve talked about archives and the problems of the current policies and some kind of obvious fixes, right? The idea of they automatically are released after a certain period of time, that there’s a challenging process if you want access for them. But perhaps thinking bigger picture, cause those are kind of normal policies that a lot of places have for their archives, given the nastiness of these events, that these things are documenting, given the massive impact they have on such large communities, are there things we should be thinking about more broadly about moral ownership, legal ownership? You talked about in your example that to some extent you feel these archives are yours, as a citizen who is impacted by this. So given that we think in the ICC context quite often about victim’s rights and victim groups, is there a way we can think about them being involved in deciding things like access to archives or confidentiality?

[00:11:17] Dr. Iva Vukušić: That’s a very good question, and I’ve thought about things that are connected to it. Not quite articulated like this, but it’s a very good thing to think about. We had a lot of debates in the former Yugoslavia some years ago, probably longer than it seems to me because Covid messed up my sense of time. I wanna say like it was five years ago, it was probably like 12 years ago. But, there was a discussion and a serious discussion that touched upon several of these questions. About what should happen to the ICTY archive. Certain victim communities through their associations, wanted the original documents shipped to them and, you know, cities came forward saying we want the documents that relate to us. There was a question of should they be split up, how they should be split up and all of this.

[00:12:01] I may be in the minority of this and I was at the time as well when I said, and I am sad to say I still believe that I don’t trust any of the governments in the form Yugoslavia with this stuff. I absolutely do not. I also don’t think that originals should be given to anyone. Copies, yes. To whoever in the universe wants to use it. So for example, the city of Vukovar in east Croatia was, you know, pulverized, pulverized by artillery in 1991. Very much like many of the cities, unfortunately in Ukraine.

[00:12:38] Does that mean that I think the city of Vukovar should now get all the original documents that refer to the cases that related to Vukovar? I don’t think so, for several reasons. One reason is politics. These are really sensitive, politically sensitive things. States generally want to emphasize the harms of others and not their own behavior as it may be. Victim associations, as much as, of course, they have every right to be an important voice in these debates, I don’t think they by themselves are museum – archival kinds of institutions, you know, so the fact that you survived the war doesn’t magically give you archival, and museum kind of expertise, right? So I think various stakeholders and victims more than others should be involved in conversations about how this material is used, potentially, how it is released, things like that.

[00:13:40] But I don’t think anyone should be given. So I’m very happy that the archives, the originals, remain where they are because presumably the UN has the money and has the expertise to keep them long term. The copies, again, I think should be broadly available, and these records are available through the database that we mentioned already.

[00:14:00] A number of really, really excellent initiatives have been done in the past years. For example, the Sense News Agency at that covered all of the trials in The Hague, but also the Humanitarian Law Center in Belgrade and other NGOs have taken a lot of this, uh, uh, documentation that is publicly available, the Humanitarian Law Center just days ago published Dosier on Arkan’s Tigers that is publicly available and digested. Hundreds of documents, hundreds of documents, sometimes thousands – the Rolling Stone had recently a piece also some months back about some of this stuff. So, these ways of using the archives to “digest” them to say, instead of putting 5,000 files on the internet with no way, no guidance about what to do with them, here’s our interpretation and we are some either NGO or it’s me of someone with a PhD in history and someone who could curate it in a way that it’s more digestible. Because most citizens are not going to look at a trial every day. Most citizens are never going to go through 5,000 pieces of PDF, you know, and of why would they, they wanna move on with their lives, right?

[00:15:06] And that’s fine. So I think it’s important that these opportunities are given through documentaries, through websites, through things where people can read maybe 20 PDFs. Maybe seven statements, four orders by the military, maybe one intelligence report. And maybe if it’s 20 documents, maybe there’s going to be more people who want to use it.

[00:15:24] So, you know, just having said that, I think it’s also important in the context of Ukraine and in many other places, especially now because digital evidence exists in a way that has not existed in the former Yugoslavia. The volume is incredible and no one can keep track of everything that is being recorded, is to think about these archives. 

[00:15:42] Not a little bit like an afterthought, like it was in the former Yugoslavia, but really put it as a central point in every discussion about accountability, in every discussion about victims’ rights, in every discussion to think also about the archives and to say, let’s include victim communities and let’s try to find a way to collect them and digest them and present them to the public in a way that is useful and that is generative of kind of positive discussions in terms of what we can learn from them, but also at the end of the day, I think it’s important to also mention ethics because these are records of extreme suffering.

[00:16:14] These are records of things that are, you know, these are records about someone’s worst day in their life. These are records about someone’s last day of their life. This is documents about, statements about the last time that a wife hugged husband the last time that a mother saw her child. So that also must be, I think, really central for all of us who are dealing with these records to never forget that.

[00:16:35] And to not treat them just as piles of paper, but to remember that they’re all symbolizing something that’s awful and that changed someone’s life for the worst forever.

[00:16:47] Dr. Miranda Melcher: So that idea of keeping these stories, available to people, but also keeping kind of the import of those stories in our minds, whether or not we know the people personally, whether or not we’re part of victims groups, all of that, we haven’t quite used the word yet, but listening to what you’re saying, I keep coming back to this idea of justice.

[00:17:09] And we think of courts as delivering justice. We think of verdicts as delivering justice. But a lot of what I’m hearing from you is that access to archives is also something we can think about in terms of access to justice. So that’s the first part of my question. And the second part is, adding an extra layer to it with Ukraine, for example, now that that’s currently happening, we don’t have a question yet of what future generations will think, but with Yugoslavia, we do, right?

[00:17:38] We do have essentially an entire generation that is indelibly impacted by these events, but doesn’t remember it. So if we’re thinking about access to justice, if we’re thinking about people being able to see what happened, maybe what happened to them or what happened to their country. Is there also maybe an intergenerational aspect of the people who were not there but still maybe can get justice from it?

[00:18:05] Dr. Iva Vukušić: Very interesting question, especially the intergenerational aspect, I guess access to archives as justice is again a really compelling thought. I think this is such an intimate question as to what is justice to anyone? Not only in war crimes cases, but just more generally.

[00:18:22] You know, what is justice? What is justice to you? For something that you’ve been through, maybe a major or even a kind of “smaller” sort of incident. It’s so difficult to speak about justice in any overarching: this is what it is for and this is what it is then for everyone.

[00:18:38] So I really do feel that it’s deeply kind of a personal question and that many researchers and analysts and policy people and of course survivors and survivors will vary in this greatly as well: what they want, what they expect, what they are frustrated with. So I think it’s really such an individual sort of an approach.

[00:18:59] I tend to think of these archives really as an important part of the process. So, it’s something that is really mixed into the story of accountability and someone going to jail is a part of that story if they’re guilty, of course. And after a fair trial, which I think also needs to be emphasized.

[00:19:18] We don’t want to be running lynching operations. We want these trials to be fair and efficient. This is also something that I used to talk about in relation to, for example, the trial of Ratko Mladić and people like that. I want them to have the best defense that money can buy. I want them to be well represented.

[00:19:35] I want them to have all the rights guaranteed, because that is the only way that the judgment has any weight and that the only way that the judgment has any meaning. So, you know, if it takes five years, okay, that’s fine, but let’s make sure that the process is such that it stands the test of time.

[00:19:51] And then I think also we can think about access to these records as well as justice in the sense that I really think that for any future in a community that is coming out of conflict, coming out of the war of dictatorship, knowing what happened is the first to any normalization, any progress.

[00:20:14] I try to refrain from speaking about reconciliation, and we can get into that if you’re interested a little bit later, but if we talk about some normalization, if we talk about just a peaceful, secure life in a certain territory with different communities that may have been at war before, just knowing facts about what happened, I think is incredibly important and as time goes by is also a way to fight denial. For example, I want to be very concrete here. Srebrenica is a place where more than 8,000 people were murdered after the fall of the enclave in July, 1995.

[00:20:51] Even the most hardcore Serbian nationalists will not now say nothing happened in Srebrenica. It’s a little bit like the Holocaust. Only people at the very margins of this course say nothing happened. And people generally laugh at them and they’re like, you’re being ridiculous. Shut up. So even the nationalists say something happened.

[00:21:11] But they questioned the number of people that were killed, the circumstances of the killing, their identity. Then they claim that these were soldiers, that they were armed and killed in battle. Why is that? Because the evidence from the war crimes trials were so much present, because the ICTY held a number of very detailed Srebrenica trials where we know almost hour per hour what happened, which bus was where, with which victims, and who was shooting at Whom, and who was driving the diggers, and who was driving the buses, and who was found in which grave.

[00:21:43] And there’s DNA analysis to back it up. So it’s really difficult to say nothing happened in Srebrenica. It’s almost like you’re wearing a tin hat, you know? It’s just completely, completely unreasonable. So this kind of an approach where facts are the basis of any future that we can build and the sense of acknowledgement of harm that survivors often want just a public forum where someone in an official setting will just hear yeah, they took my family away. They burned my house, they put me in a camp. There’s something to be said about this kind of a broader approach and archives are a part of this where it’s not only about some guy going to jail. I mean that’s, you know, if the guy deserves it and it was a fair trial, absolutely let’s do it, but there’s so much more to it and I think archives are very much a part of that.

[00:22:33] Dr. Miranda Melcher: I do want to ask about reconciliation, because I think that, from the outside it’s very easy to kind of group all these things together and go, oh, they all obviously part of a package and that has to happen. But as with sort of everything else you’re telling us, you’re very helpfully complicating those assumptions and adding nuance to those assumptions and I think that’s really important when we think about the fact that people are still alive and these are records of the worst days in people’s lives, so why don’t you talk about reconciliation, I suppose is the confrontational way to phrase it, but tell us a bit about that term.

[00:23:08] Dr. Iva Vukušić: I used to talk about reconciliation when I was younger and more naive. And maybe I’m now a cynical old person. But why, why? Because I would invite your listeners, our listeners, to consider if someone came to your house one night in the middle of the night, dragged your father away, raped your mother, took all of your jewelry and set your house on fire, and then put you on a bus somewhere and then basically ruined your life, scarred you forever, and then 15 years later in a town, 1500 kilometers away is a trial of some guy and the guy is convicted and he goes to jail, partially also for the attack on your village. How does that do something revolutionary to you that you’re like, oh, well now it’s fine. Or, I mean, of course I’m, you know, making it a caricature, but I feel it’s extremely patronizing and inappropriate, especially for people coming from outside of the context of the conflict.

[00:24:18] We had the former Yugoslavia was filled with, you know, all well-meaning people, but I find it a little bit difficult to be like, someone ruined your life, killed half of your family, but now what you should really do is reconcile. I find that really problematic. And, I don’t think it’s appropriate and I think if people after those experience decide never to reconcile, that’s their right. You know, that’s their right.

[00:24:44] In domestic murder trials. After the, you know, potentially a conviction is in and someone goes to jail for murder, does the judge say to the victim’s family and to the murderer, okay, now hug. You know, we come to expect ridiculous, unrealistic things from war crimes trials.

[00:25:01] We pin on them all our hopes and desires as if it’s some magical thing, which it is not. What I would really like us to do is to lower our expectations. Also, looking at Ukraine, you see all the time statements about all of the war criminals are going to face justice. No, they won’t. They absolutely will not.

[00:25:21] If you manage to get 10% of them, in fair proceedings, you will have done a miracle of success, right? So I think we should lower our expectations and then really try to do the best that we can there. Reconciliation, if it happens, is an individual thing that everyone has the right for themselves to decide yes or no with their neighbors, with people you know.

[00:25:46] If they go back to the towns and villages that they were expelled from to talk to their neighbors who were there at the time and who maybe didn’t do anything to protect them, you know, and, and talk about these things and do it at a very individual level. And one final thing that I want to say on this is also, you know, when it comes to reconciliation, I remember when I lived in Bosnia, people said something along the lines of like, you reconcile after there is a fight.

[00:26:10] If the two of us now had a fight and you know, then one can reconcile with the other, and there’s normally an apology involved and there is some real efforts to make things better. This is not the case! 99.9% of perpetrators deny what they’ve done. I know of one single case when a perpetrator asked for forgiveness. One! Out of hundreds that have been prosecuted in the Hague and in the former Yugoslavia and people would say like, what? Reconcile with what? Some dude came to my house in the middle of the night with a gun. You know, are you out of your mind? I didn’t fight anyone. Who am I supposed to reconcile with?

[00:26:51] So I think I would really invite, especially we go to places as external characters, NGO workers, journalists, policy makers, embassy people, investigators, prosecutors, defense, whatever, to always have in mind what are we actually asking these people to do when we suggest reconciliation?

[00:27:10] And to just lower our expectations and lower our demands and let just people deal with their own suffering the way that they best can, and then we can support them and hopefully build maybe a more peaceful, a more stable future. But I absolutely don’t think reconciliation is something that’s reasonable to expect in these kinds of cases.

[00:27:33] Dr. Miranda Melcher: Speaking of reasonable expectations, my last question of pretty much everyone we talk to is along these lines, because it’s in a lot of ways very easy and in fact quite common to talk about kind of in an ideal world, we would do X or Y or the single biggest change to improve things would be this, but those are not super realistic and if we just hold out for those, then we’re probably not gonna see a lot happen. And you’ve obviously given us some very, I think, very clear and very realistic goals for, in one sense improving access to archives, right? Having a minimum expiry date for confidentiality and having a challenge process.

[00:28:12] To me, those are very clear and those are actually pretty reasonable expectations. Are there any other things like that maybe, I guess the phrase, low hanging fruits comes to mind, things that are actually reasonable and achievable that could help with access to justice in this sense?

[00:28:31] Dr. Iva Vukušić: I think there is a growing realization that much of the future of this kind of justice has to be domestic because the trials in the Hague are always, you know, a drop in the bucket. And I think in the context of Ukraine as well, it’s really important to think about how can we improve the overall standards and the overall participation of states around the world in these rules and norms and institutions. So, you know, I don’t think it’s necessarily a kind of a low hanging fruit, but it would be something that I think a lot of our efforts should focus on. There’s so much discussion about what is the ICC doing?

[00:29:12] The ICC for example, in the case of Ukraine, if they end up doing two or three trials for 10 people, that’s going to be a lot and it’s probably going to take place in like seven years time. So I think we should reorient ourselves to talk more about domestic capacity. What can we do for institutions across the world to be more able to investigate these kinds of things. I think we should also spend way more time what some experts call upstream so that maybe situations don’t escalate to these levels and try to focus on prevention. Because it seems like, and I’ve spoken to some policy people that say like, the world is on fire it seems more and more, there’s little capacity to think and fund things before it blows up because there’s, you know, 30 places in the world where things are really kind of trying to extinguish fire and then that kind of captures all the attention. 

[00:30:07] Other experts have also called on, we’ve seen so much engagement and so much attention on what is going on in Ukraine. What I would like to see is the same level of engagement and the same level of, you know, effort when it comes to other places in the world. So I don’t think any of them are actually low hanging fruit, so I apologize for that, but I think it’s somewhere where we should think about going. 

[00:30:29] And just finally on this point as well, I think ultimately where we want to be going, and this is definitely not low hanging fruit, is for international justice to be universal. So we should be constantly talking about when, for example, we hear the United States representatives talking about supporting Ukraine and talking about international justice what we have to be yelling back is join the Rome statute. Every single state has to, this is the way to be credible. I mean, a part from that you just, you are not a credible actor, so you need to submit yourself to the justice that you say that you support. So these are things that I think long term we all need to be working for because this is the only way we’re going to strengthen this system that is being born, that is going to protect people equally and right now it’s really not universal and it doesn’t protect people equally.

[00:31:18] Dr. Miranda Melcher: Thank you Iva, for speaking with us on these episodes. Stay tuned for future just access interviews and do get in touch with us if you have any suggestions for people or topics we should cover.