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[INTRO MUSIC]

Janet: 00:08  Hi Steph, 

Stephanie:  Hi Janet. 

Janet: So a big week. We’ve just been through, former President on trial. The world’s press is paying attention. You know, these passionate supporters out on the street complaining about the unfairness of targeting a former president. Coverage across all the networks. Yes, the trial of the former president of Kosovo. Hashim Thaci and others at the Kosovo Specialist Chambers here in The Hague. So tell us, what’s the backstory? Steph, what do we need to know? 

Stephanie: 00:34  Well, before we get into that, I wanted to do an acronyms primer, because I think we’ll be using a lot of them. The KLA is the former guerrilla organization in Kosovo, known as the Kosovo Liberation Army – Hence, KLA. You’re going to hear about the SPO, the Special Prosecutor’s Office. That is the prosecutor of the special Kosovo war crimes tribunal based in The Hague, which we’ll talk more about after. You need to know JCE, joint criminal enterprise, which is an acronym we’ll hear in this trial, and ICTY, the International Criminal Tribunal for the Former Yugoslavia, which was, in a way, the predecessor of the Kosovo tribunal, but a lot of the, some of what is happening here was also dealt with at the ICTY, and we’ll see a lot of similar people. So why we have a special tribunal for Kosovo in The Hague, and why this is not dealt with by the ICTY is twofold. Mainly, at some point the ICTY had to close down, and the UN was restricting money for it, and there were some cases that then were not opened. And after, after the ICTY finished, one of the former prosecutors said, Oh, I would have liked to have more Kosovo cases, and here is some evidence that I would have liked to bring. That prompted an investigation by the Council of Europe. At the time, it was like a sensational report by Council of Europe politician, Dick Marty, a Swiss senator who basically said that there were allegations that the KLA under Thaci had been involved, possibly in organ trading, but that there were allegations of war crimes, everybody tittered in all of Europe. We can’t let this stand. And so lots of international pressure then built on Kosovo to accept a kind of hybrid tribunal and to look at KLA war crimes, because Kosovo had also tried to try war crimes in Kosovo itself by European law missions and other courts. But the problem is, Kosovo is very small, everybody knows everybody. The former rulers of the KLA are now the political leaders of the country in large part, and so it was very hard to get people to come forward. There were a lot of cases of witness intimidation. So with the pressure of the international community, Kosovo agreed, and actually Hashim Thaci himself signed the law to get a special war crimes court embedded in Kosovan law, but it would be staffed by internationals and seated in the Hague to solve this problem of witness intimidation. I don’t think when he signed the agreement that Thaci thought that he would end up himself before court, but here we are. 

Janet: 03:13  So he’s one of the people on trial. So tell us more. 

Stephanie: 03:17  Hashim Thaci is the quintessential guerrilla leader turned politician. He used to be the spokesman for the KLA during the Serbia Kosovo conflict in ‘98 / ’99. He is very political. He’s well spoken. He’s basically built his career out of being a principal leader of the KLA and then parlayed that into a very big political career, and for many people in Kosovo, he embodies kind of the struggle for independence of Kosovo. He is the one that took up arms to get Kosovo where it is. 

Janet: 03:52  And he’s on trial with a couple of former colleagues also from the KLA but obviously he’s the star attraction with this. But what are the four men charged with? 

Stephanie: 04:00  They are all essentially charged with being principal leaders of the KLA at the time of the armed struggle, and they all turned politician after that, and they are accused of basically hatching a criminal plan to get control over all of Kosovo, including political life of Kosovo by targeting people that they saw as collaborators with the Serbs, but also very much political opponents. So the the office of the prosecutor is very much focusing on the fact that they are looking at crimes committed against mainly other Kosovo Albanians and a lot of other Kosovo Albanian opposition politicians who they say were kept in detention centers, beaten, tortured, and sometimes murdered, just to get, like their rivals, out of the way. 

Janet: 04:46  So what actually happened in court during this week, start of the trial? How was it?

Stephanie: 04:43  Well, for me, I was following it from a distance, but the people who were there said it was like an ICTY reunion. There is a lot of faces who covered the trials at The Hague were there from the Serbian media, but also from the Kosovar media, and also the court itself is kind of stacked with ex-ICTY people. The acting prosecutor at the Kosovo court is Alex Whiting, who used to work at the ICTY. There is Alan Tieger who used to do the Srebrenica trials at the ICTY, in the prosecution’s office. But also on the defense side, Thaci’s lawyers, Gregory Kehoe, who the man who for who famously, at the ICTY got Croatian General Ante Gotovina acquitted of war crimes. There is Luka Misetic, another lawyer at the ICTY. So it was a kind of, everybody you’ve seen at the ICTY was kind of hanging around there? In a way, it’s fun to see, but you also kind of see that the these tribunals get staffed by the same, the same people who know the story, I guess. 

Janet: 05:49  And I know we can’t go in detail to absolutely everything, because we got hours worth of material that you’d have to get through to explain what prosecution, defense, and Thaci himself said, but why don’t you run through for us any of the elements that you think might be of interest to our audience? How did the prosecution kick off? 

Stephanie: 06:11  The prosecution kicked off by mainly outlining this joint criminal enterprise, which they said, the fact that there were these camps, the fact that people were intimidated and mainly stressing, again, as they do with almost any Kosovo trial here in this court, that they’re not trying to put the armed struggle for Kosovo and independence on trial, but that there are individuals who committed bad deeds and they have to be punished. And mostly that the victims of what they’re talking about were mainly Kosovo Albanians because they don’t want to be seen as biased and looking at only crimes against Serbs, for example, while the Serb forces also did horrendous things in Kosovo itself, which is something, of course, that the defense is going to harp on. What I felt was interesting is that Alex Whiting specifically also warned of the dangers of witness intimidation, which is, as I said before, big theme in Kosovo trials. 

Alex Whiting: 07:02  A challenge that will run throughout this case, is the climate of witness intimidation that exists in Kosovo. It is real and it is pervasive. It is part of the reason why this Court was set up in The Hague and this Court has repeatedly found in its judgments and decisions that the intimidation continues to this day, including through the labeling of persons who cooperate with this court as collaborators and traders. There is no doubt that this climate will be very much a part of this trial, and it will enter this courtroom again and again. It will take courage for witnesses to testify here, and without question, we will see witnesses summoned here to this courtroom who will not want to tell this court what they know and at times, what they have stated before, because of fear or because of some misplaced loyalty to the accused. 

Janet: 08:12  And we also had some opening statements from the defense itself. 

Stephanie: 08:17  Yeah, on the second day of the trial, the defense, as I said, also an ICTY reunion situation for me, they held a really scathing opening statement where they essentially said the KLA was decimated by Serb attacks. It was in disarray. Thaci was not in charge at all. He had no control. But local commanders did whatever they wanted. But they also said that they didn’t dispute that some crimes may have occurred.

Thaci Defence: 08:32  President Thaci does not deny that crimes were committed by some Albanian, excuse me, individuals during and after the conflict. He informed the UN Security Council of such in a public hearing on the 17th of December, 2018. But he rejects and the facts militate against the SPO’s claim that the crimes were committed at a matter of policy of the leadership of the KLA. He also rejects the SPO’s claims that crimes were committed in a widespread and systematic manner on a scale alleged by the SPO. 

Janet: 09:19  So we have the outline there from both sides of some of the elements of how they’re going to present their cases. But did we also hear from the defendants themselves? Did Thaci himself speak? 

Stephanie: 09:30 Thaci himself spoke. He was the consummate statesman. He told the judges that they would embark on a journey of truth and justice together. He was stressing that Kosovo was on the right side of history, basically stressing the legitimacy of the armed struggle against the Serbs. But he also apologized in a very roundabout kind of way. 

Hashim Thaci: 09:53  Let me make myself aware of this occasion to say that I feel sorrow and pain for all the victims of this terrible war, regardless of their ethnicity, religion or political use. Victims do not obtain justice when the innocent are pursued.One injustice cannot be cured and corrected by another injustice, I am innocent of all these allegations.

Stephanie: 10:26  So this is a classic politician. He kind of apologizes, but not really. On the other hand, he also said he would be vindicated that he was wrongly targeted, and that, you know, the fact that injustice has happened on one side doesn’t mean that you should carry out injustices on the other side. 

Janet: 10:43  I’m not sure whether I’m going to cover this intensively myself, but I was aware that this is going to be something that’s going to run and run. I had a look at some of the documents and saw that the prosecution has more than 300 witnesses that they’re planning to bring and they have a, really, a very, very large crime base. So that takes you through probably a couple of years. Then you’ve got the defense again after that. I also found myself thinking about one of your acronyms, the joint criminal enterprise, and where I’d heard that before, and how exactly that’s being argued. 

Stephanie: 11:23  It’s a very big deal in ICTY case law, everything was joint criminal enterprise. There’s even the joke in ICTY circles that JCE stands for just convict everyone. And it kind of fell out of favor with the ICC, for example, they don’t have that mode of liability, so they have to look for other things. But this is all joint criminal enterprise all over again. 

Janet: 11:42  Yeah, I felt I was in a bit of a time warp trying to understand this, and felt like I had to transport myself back to the 1990s and the 2000s to get my head around it. Put together a preview piece, and I had a chat to Lachezar Yanev from the Vrije Universiteit in Amsterdam for me to understand a couple of these legal terms. And the first one that he mentioned was JCE, obviously, but JCE three, so this is your extended, full play version the EP of joint criminal enterprise. It’s not just the plan, but it’s quote unquote, this is from the the ICTY’s case law, the natural and foreseeable consequence of of a criminal enterprise. So the prosecution has to prove that each member of the JCE had quote unquote, sufficient knowledge of these natural and foreseeable consequences in order to be able to found criminally responsible. So needed to be able to to see ahead. 

Stephanie: 12:48  Yeah, I think that it’s always been controversial, got more controversial at the at the ICTY towards the end as well. We’re going to have to see how much the judges lean on this case law. If the defense starts leaning, veering towards other case law, I think the defense is super well prepared. They had some quite good arguments. I felt in the opening statement. Thaci was in peace talks for the KLA and they had like video from Madeleine Albright saying like Thaci was ready to sign, but he had to call, you know, call home and they said no, and so he couldn’t sign. And so then they’re like, well, if he’s the, if he’s the leader of the KLA you know, he should have been able to sign, which is, I think, you know, we’ll have to see how they play that out in court, specifically. And also, the prosecution say there are instances where Thaci himself would show up at detention centers and with other KLA members and take prisoners who were not seen again after that. We also have to see how the prosecution will prove that in court, but so that is the kind of problem of how in a guerrilla organization, also which doesn’t have a clear command structure, there’s not, you know, there’s no tickets for fuel, there’s no administration so much around it, as you would see within an army, that’s going to be a problem, to link these things to the to the leaders, I think.

Janet: 14:11 Sorry to play the legal nerd card, which I think is normally your, your role with this. But the other interconnected legal issue that I was looking out for was that some of the crimes which the prosecutor has listed, like persecution, have to have something called, quote, unquote, special intent that the prosecutor has to prove, and again, I’m just quoting from ICTY case law, “an intent to discriminate on political, racial or religious grounds” if whoever it is is one of the JCE co-perpetrators. So we’re used to intent coming in with crimes such as genocide, and we know that it’s a high bar for a prosecution to actually manage to prove. What might happen is that the court might decide that maybe some of the people in the alleged joint criminal enterprise actually weren’t, didn’t have that special intent, that they were just aiding and abetting so they weren’t actually co-perpetrators. So yeah, thank you to Professor Lachezar for spending some time talking this through with me. He was looking back at ICTY case law, one case also about Kosovo from the other side, Milutinovic et al. where the prosecutor defined certain crimes. I mean, if you look at the way that that indictment was put together, certain crimes were part of the main JCE, and others were specifically the natural and foreseeable consequences. And so they kind of, you know, the prosecutor mapped it out for the judges. Whereas at the Kosovo tribunal, when they had the pre-trial hearings, the judge there looked at what the prosecution was putting together and said, yeah, really, you’re just wrapping it all together, and what about these special intent crimes? the persecution parts? Do you really have the case law to support what you’re arguing, that you’re saying that all of this, these special intent crimes, can be part of a JCE three case. And Lachezar said to me that, you know, if you look back at what other international tribunals have said on joint criminal enterprise three, this extended play version, they don’t say that you can add special intent crimes in there. So long clip just coming up from him, but he starts off by saying what he sees as the prosecution lack of clarity on what exactly they’re arguing, and then goes on into what international tribunals have had to say. 

Lachezar Yanev: 16:55  I’m wondering, at some point during the trial, this would have to be specified, it would have to be proven that there was a common plan to commit at least one crime that they agreed and intended this is the one crime that we are going to commit, and then maybe all the other crimes were a natural and foreseeable consequence. But that would have to be specified at trial, because currently, the way it’s in the indictment is not sufficient to reach a conviction the way, the way it is right now. And I imagine once they then move to what are those extended crimes. Then the question would be, well, torture and persecution, were they specifically agreed upon ? and so they had the common shared intent, including also the special intent required for these crimes to commit them? Or were they JCE three crimes? And that’s where the question will pop up, wait, can you have JCE three responsibility for special intent crimes? Because Judge seemed to believe that you can’t have that for the final reasons it’s not sound. Something that the Tribunal of Lebanon also said, you can’t have JCE three for special intent crimes. That was Judge Cassese, by the way, the grandfather of JCE. And the special court for Sierra Leone in the Charles Taylor case also said the same thing. You can’t have JCE three for special intent crimes. So this is something that I think would be, I in particular, would be looking forward to see how the judges would address this and how the prosecution would address this as it goes through its case in trial. 

Stephanie: 18:24  So there was a lot of legal theory in there, but maybe we can broaden this out, just to finish. Legal scholars will be looking at those arguments and picking them apart. But in the region, this trial is mostly going to be looked out, I think, by its effect on local politics in Kosovo. 

Janet: 18:40  Yeah. I mean, you’ve already mentioned the way that the defense is situating this in kind of specific historical context of how Kosovo was fighting and how the KLA was fighting for independence. They’ll kind of point to the crimes committed by Serbian forces during that time. But I was wondering, with your sort of covering this for a long time, hat on, you covered the trial of the former President of Serbia, Slobodan Milošević, and did you see when you were covering that trial that, I mean, I’m wondering, was it difficult to kind of concentrate on the legal stuff? Did you always find yourself kind of drawn into understanding the local politics as well? Because these trials do have that kind of big effect locally?

Stephanie: 19:33  I think it’s a mixture of things. I think especially the reactions from the region are very much fed into the political situation there. I think what happened with Thachi is that when he was indicted in 2020 he stepped down himself and kind of offered himself up to the tribunal, and basically gave a very long speech where he said that he is kind of offering himself up for the freedom of Kosovo and to clear Kosovo’s name, this and that and so.

Janet: 20:00  So that kind of took the sting out of the potential sort of effects on local politics. I mean, he said, Let’s treat this separately?

Stephanie: 20:09  I don’t think so. I think it, in a way, his his influence on Kosovo politics was waning a little. There was the new party Vetëvendosje, the Populist Party of a former student leader, Albin Kurti, who, who is now in power. Thaci himself was already kind of maybe a little less important on the political scene. His party was no longer running everything in Kosovo. I think this is an opportunity for Thaci to kind of cast himself again in the glory of being the liberator of Kosovo, the elder statesman, and this and that, in the same way that Milošević got a kind of bump of popularity by portraying himself as the man who tried to save Serbia and who would fight for Serbia. I think that Thaci, you know, has a platform if this trial is in the same way being shown on television and being discussed on television in Kosovo, as the Milošević trial was in Serbia, to kind of cement his role as the big liberator of Kosovo and show that side of him, the side that he wants to see, that wants people to see, and maybe they’ll forget a bit about all the rumors and rumblings about corruption in politics and things that he might have done wrong there in Kosovo politics. 

Janet: 21:25  How much would you think you’ll be covering this, putting on your Reuters hat as news agency? Will they just dip in? I mean, with Milošević, it was almost daily, wasn’t it ? when you were working for a different news agency.

Stephanie: 21:38  In the beginning, with Milošević, it was almost daily. I even learned some Albanian because the Milošević case started with the Kosovo case, and they had lots and lots of Albanian witnesses. And I sat there every day, and the Albanian witnesses always said three things, ‘po’, ‘jo’ and ‘nuk e di’ –  yes, no, and I don’t know. And those were long time until I went to Kosovo, the only words in Albanian that I knew. And yes, we did cover that every day. This is not the kind of trial we would cover every day. We do, indeed, more dip in and dip out when we know there’s big names coming, we would probably dip in, I think also, just because the world’s attention is now so much on whatever is happening in Ukraine, and who’s looking at that that, that’s where Reuters wants my attention to be. But I, I think I’m nostalgic a bit for ICTY and JCE, so I’ll probably dip in a little more than, than most in this trial. 

Janet: 22:33  Okay, well, keep us informed. I won’t be likely dipping in so often. I’ve, I’ve had done with JCE. I’m now on indirect co-perpetration and the ICC, if I need to get my head around it. But look forward to hearing to whatever you want to tell us about it as the years go on. 

Stephanie: 22:50  Oh, yeah. And I wanted to remind listeners that we have a podcast with Elies van Sliedregt, which is all about JCE, the different modes of liability for command responsibility. If you want to delve deeper into that, that’s the one where we go completely law nerd about the different types of JCE and all that. So look for that. 

Janet: 23:11  And we also have another one with Una Hajdari, who explains how the Kosovo tribunal is seen by Kosovans. And I think if you want to understand more generally how the world works, then I think both of those podcasts help our audience get their heads around the combinations of the legal side and also the political side. 

Stephaphanie: 23:31  And we’ll put links to those on in the show notes for now. Thank you for listening. 

Janet: Bye, 

Stephanie: Bye.

[OUTRO MUSIC]

This was asymmetrical haircuts, your international justice podcast, created and presented by Janet Anderson and Stephanie van den Berg. You can find show notes and everything about the podcast on asymmetricalhaircuts.com. This show is available on every major podcast service, so please subscribe, give us a rating and spread the word.