asymmetrical haircuts

Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

[INTRO TUNE]

Janet 00:53 All rise. Hi, Steph.

Steph 00:56 Hi, Janet.

Janet 00:58 Well, yay. I’m so pleased to have you back, Steph. As you know, the world went to shit when you went off the pod for a while. I mean, the US and Israel attacked Iran, and the ICC’s state backers have got themselves into a bit of bother because there’s a problem over how they’re investigating the alleged sexual harassment allegations against the prosecutor, allegations that he denies. And I can mention a ton more things that went wrong while you were away.

Steph 01:26 Yeah, my office has already told me that I’m not allowed to drop off the face of the earth for such a long time anymore, because there’s a lot going on that they would like my opinion on. But out of the variety of messes that happened in my absence, what have you decided to focus on today?

Janet 01:48 I am trying very hard not to be too cynical about our world, but I do find it very hard when we have a few particular states that we think of as the kind of states that are able to provide a kind of counterweight to the authoritarians. They’re a counterweight to what’s going on, this madness of this attack by the US and Israel and by Trump’s constant social media stuff. But those kind of states, they seem to profess international law rules really matter one day, and then they claim the moral high ground, and then the next day they go all realist. And they say, well, no, on that particular issue, considering our national interest, this isn’t our problem.

Steph 02:30 You couldn’t possibly be talking about my own home nation now, could you?

Janet 02:36 There’s a lot of those that do that, but especially the Netherlands, who likes to profess itself as the home of international law, and The Hague as the city of peace and justice, has done some remarkable mealy mouthedness around international law. And it is even written into its constitution that it respects international law. Yeah, and to discuss the Netherlands and what it’s been up to, we have Otto Spijkers, an assistant professor at Leiden. Hi, Otto.

Otto Spijkers 03:03 Hi, how do you do? Thanks for having me on this show. Looking forward to talking to you.

Janet 03:10 And we have a similar state, which often operates in the international law space together with the Netherlands. Not too big, not too small. Well, I mean, quite big compared to the Netherlands, but apparently quite honest and rational and has the anti Trump way of doing stuff. And that is Canada.

Steph 03:28 Yep, you got it right. That’s the other one. It’s kind of elbows up. We embody middle powers and the future, as Mr. Mark Carney said. And to discuss what Ottawa is up to in this field, we have Mark Kersten, Assistant Professor of Law at Fraser Valley and friend of the pod. Hi, Mark.

Mark Kersten 03:44 Hi, thanks for having me again. It’s wonderful to be back on the podcast.

Steph 03:49 So where should we start? Mark, what was Canada’s response to what I’m going to describe as the unlawful aggression against Iran? What did Canada have to say?

Mark Kersten 04:00 Well, it’s in some ways, I think, still figuring out what it has said and where it’s going with what it’s going to ultimately decide it views this conflict as in terms of international law. Very quickly, within hours, maybe even less, of the beginning of the war, the government, Prime Minister Mark Carney in particular, released a statement saying that Canada supported the aims of the war. And this was met with great consternation and great concern by those who want Canada to respect international law, who viewed his famous Davos speech as suggesting that Canada would support respect for international law when it comes to state sovereignty and territorial integrity and the United Nations Charter. And so there was a bit of an uproar. What do you mean you support the aims of the war? There was absolutely no mention whatsoever of the words international law or any reference to the relevance in the case of the use of force in this kind of context.

Mark Kersten 04:59 That was also quite juxtaposed, in some respects at least, to the response that the Canadian government had in relation to the kidnapping of Venezuelan President Nicolás Maduro, where international law did feature in our statement. And there was concern and there was a call, as I recall it, to respect the United Nations Charter. In the context of Iran, that has been absent. And he ultimately, a couple of days later, clarified that, prima facie, this looked like it could have violated international law, but that Canada basically wouldn’t revise its view that it supports the people of Iran and presumably still, as Australia and other countries have, the aims of the war, which of course Carney believes to be the denuclearization of Iran and the threat of the regime to its people.

Mark Kersten 05:49 Again, what’s so frustrating in some ways for those of us who care about international law, but also more importantly care about the people of Iran and the safety of the world, is that we know from day one that that was clearly not the aim of the United States government. They had said just months prior that the nuclear threat from Iran no longer existed. So how is it possible that it was so imminent now? Clearly, there were other intentions. The United States government and its officials said one thing one day and the next thing the next day. The regime is still in place. It’s very clear that this was more of a kind of decapitation effort like in Venezuela than it was a kind of regime change effort that would lead to any state building effort. Of course, it’s not something that I’m necessarily suggesting should happen. I’m just saying that it was difficult to kind of swallow for those of us who respect human rights and international law and want the best for the people of Iran, that we supported the goals of the Trump administration in Israel and Iran when those goals were shifting. And what I think a lot of people wanted to see was a clear statement condemning violations of international law and supporting the United Nations Charter.

Steph 06:56 That kind of clear statement did come, if you compare it, for example, to the Russian invasion of Ukraine at the time, right? There was a fairly clear condemnation.

Mark Kersten 07:07 Absolutely. And that one, we’re going to be talking and in some ways dancing around geopolitics this entire conversation, right? We’re talking about the Trump administration. I’m sitting less than probably 100 kilometers away from the border. The Canadian Armed Forces are literally sharing with the public that they are gaming a potential invasion of the United States of Canada and that Canada’s approach to a US invasion of the country would be literally, and this is reported in the news because they want Canadians to consume this information, Canadians would have to take the approach of the mujahideen in Afghanistan. It’s a real threat to Canadians, the existence of the Trump administration. And so I think if ultimately you wanted to boil this down into something very simple, why is there a hypocritical approach or a partial approach or an inconsistent approach? Well, we don’t face that threat whatsoever from Russia. We are very close allies with Ukraine. We are not close allies with Iran for obvious reasons. And we are in many respects putting every single decision we take through the prism of how will Washington respond to it. And so that ultimately determines the fact that we have been mealy mouthed and inconsistent in our responses and in our approach to the illegal war on Iran.

Steph 08:24 Let’s bring in Otto, who from the Netherlands is a lot farther away from a potential US invasion. The new foreign minister, now talking about diplomatic dancing around the issue, has said that they had understanding for the American and Israeli attacks in Iran and also said that you have to be, quote, realistic, and spoke about, quote, sailing through the fog of the new world order. So Otto, do you want to explain to us what the Dutch stance is and how the current Dutch government kind of sees this, international law in what they’ve said so far?

Otto Spijkers 09:09 I will try, of course. But I think the government is just as confused as we are. So it’s very hard to provide clarity. But I will try. Prime Minister Rob Jetten, he gave a speech in March, so last month, explaining the Dutch position on the war. So he did insist that the Iranian regime has murdered thousands of its own citizens, recently even. It is responsible for the liquidation of two people in the Netherlands. That’s a while ago, but Iran was held responsible. The Iranian regime supports Russia in the war against Ukraine by providing drones and other assistance. It is developing a nuclear weapon, or a nuclear program, a nuclear weapons program. It has a ballistic missile program, and it supports numerous terrorist groups in the region, Hamas and Hezbollah.

Otto Spijkers 10:12 So all this together makes it that the Netherlands government has begrip, that’s a Dutch word, understanding, for the fact that the US and Israel felt compelled to proceed to action and to start the war at the end of February. So we are all puzzled as to what this exactly means, to have begrip, to have understanding. Does that mean the Netherlands regards the war as lawful? Well, if you ask the government this question directly, they will say that the military campaign falls outside the framework of international law. That’s the phrase that we constantly hear. It falls outside the framework of international law.

Janet 11:02 Just to say that you can’t see this if you’re listening to the podcast, but Otto has these wonderful inverted comma signs that he’s going on around. So “outside” comes as part of inverted commas. Keep going.

Otto Spijkers 11:13 Yes, yes. I should be aware that you can only hear me and not see me. So that’s the official Dutch position. It’s still the official Dutch position. That’s the attack against Iran, but also Iran’s response. It falls outside the framework of international law. And there was a motion tabled in parliament to basically force the Dutch government to either say yes or no to the question, do you mean it was in breach of international law? And that motion only got very few votes. So it’s pretty clear that something that falls outside the framework of international law is not the same as saying that something is in breach of international law. It’s like there is a whole world out there to which international law seems to be inapplicable. And that is a very strange conclusion to draw. So it’s probably the wrong one.

Otto Spijkers 12:09 And I think one explanation for all this fuzziness might be that there is a disagreement within the current Dutch government. And maybe to finish, Tom Berendsen, our current Minister of Foreign Affairs, has said from the beginning something very similar to what Rob Jetten has said in Parliament, that international law is not the only framework that we can apply to the war in Iran, that we have to be realistic. We’re dealing with a murderous regime, so we need to be realistic and find a way to navigate the fog of this new world order. But of course, if we no longer see international law as our compass, I don’t really see how we are supposed to navigate in this foggy world order. I hope we don’t have to look for an alternative, but I hope we can sort of return to being champion of international law and to promoters of it.

Janet 12:56 Well, before we move on to another question, you briefly hinted at something that I think our listeners would probably pick up. So I’m going to Stephapedia them about it, because you talked about these assassinations in the Netherlands. And what Otto was talking about is there have been two kind of high profile assassinations of Iranian dissidents in the Netherlands, in 2015 and in 2017. One that I covered quite extensively for Reuters, a dissident called Mola Nissi in The Hague. And then there was, in 2015, an assassination of a man from Almere, somewhere in the middle of the Netherlands, who I think apparently was also linked to the Mujahideen e Khalq or some Iranian opposition figure, allegedly, and he was killed in Iran. And the Dutch intelligence services have established that they probably were killed by Iranian intelligence operatives or agents in the Netherlands. And that’s part of a kind of a string of European assassinations of Iranian dissidents.

Janet 14:08 Otto, can I pick up the point that you made about kind of the Dutch role as the, I don’t know, defender, let’s say, of international law? I mean, I’ve always been taught that it’s in the constitution. The Netherlands government is obliged to, quote, promote the development of the international legal order, unquote. So I’ve always interpreted that as this is why we’ve got the courts and tribunals here. This is why the Netherlands kind of stands up for various things. I mean, that is right, isn’t it? It’s actually fundamental to the Dutch state.

Otto Spijkers 14:48 Yeah, I think it’s very important to put emphasis on this fact. Article 90 of the Netherlands Constitution, indeed, it says what you have just quoted and nothing more. So the Netherlands government has this obligation to promote the development of the international legal order. It is very interesting. So in the 1980s, there was a proposal to get rid of this provision, to remove it from the Netherlands Constitution. But then the VVD, the more right wing, liberal conservative party, was very vocal about keeping it because the VVD at the time felt that the Netherlands would benefit a lot from a more open global community and not so much insisting on sovereign independence and so on, but rather focusing on jointly realizing certain globally shared values and so on. So that we should definitely keep this provision because it aligns very well with the Dutch tradition, which was then traced back all the way to Hugo Grotius, a colleague of mine. He studied at the same university where I’m currently working.

Otto Spijkers 15:55 But now it seems that we have forgotten all this history and that we are now turning to a more realpolitik approach to world politics and with much less attention paid to this Article 90 and this constitutional duty. And nowadays you see a lot of people, high profile people in the Netherlands, that are relativizing or even belittling the importance of international law. So, for example, we had Jaap de Hoop Scheffer. He’s the former Secretary General of NATO, but also a former Minister of Foreign Affairs of the Netherlands. And he was saying that currently, in relation to what’s happening in Iran, there are compelling reasons of international policy that might lead governments to conclude, yes, the war is illegal, but we cannot sit on our hands and do nothing. So we are going to participate in this military campaign against Iran. So there are these compelling reasons of international policy that may sort of go above international law and that are more imperative at the moment.

Otto Spijkers 17:14 And I find this really concerning. It’s like saying international lawyers, they are out of touch with reality. They have all these interesting ideas that they have worked out in their ivory towers at the universities, but they have no idea what’s going on in the real world. I find that really offensive, that this is how international law is now looked upon. Because international law is not just based on utopian ideas, but it’s also learning from past experiences and past mistakes. And that’s why I find it particularly interesting that Jaap de Hoop Scheffer, who’s actually a colleague of mine, he’s also a professor here at Leiden University now, that he has made these remarks because it was during his time as Minister of Foreign Affairs that we, the Netherlands, lent political support to the Iraq War in 2003, which I think now we all agree was a big mistake. So maybe past failures, we should learn from them and accept that all these experiences, they have now become part of international law. That’s why we have agreed on certain rules and not others.

Janet 18:27 I see that Mark wants to jump in. Let’s see if you can jump in on this. If you look at what Otto said, the kind of counter suggestion to international law is, should we really expect this big analysis from politicians immediately after these world events? International law is super complicated, so maybe they should take their time. How would you both respond to that? We heard a little bit from Otto what he thinks about that. But Mark, you probably want to give your view on that as well.

Mark Kersten 18:55 I always think that when somebody in particular, a politician or someone invested in a particular viewpoint already or a particular approach to an international conflict says it’s complicated, they’re trying to reduce the space of alternative viewpoints and opinions. They don’t actually mean it’s complicated. And for what it’s worth, international law can be complicated, but the United Nations Charter and the prohibitions on the use of force are not that complicated. I can’t emphasize enough how uncomplicated the determination that the war in Iran is illegal is. When journalists and others ask, you know, I say the bombing of a school or a hospital, that can get complicated because you have to have the factual evidence. You have to put it through various tests that develop in international humanitarian law. If you think it’s a crime against humanity, you have to really assess whether a particular attack is part of a widespread or systematic attack. You have to go through these tests.

Mark Kersten 19:58 These illegal invasions aren’t that complicated. They don’t satisfy any of the criteria. And to Otto’s point, I never want to shut out opinion, but I do think if, and we have these people here in Canada too, for those people who supported the war in Iraq publicly and openly and who haven’t reversed their position on international law, they should kind of be disqualified from saying that the war in Iran is okay or the war in Iran is justified or legal, right? Because they haven’t learned not only from international law and the massive consensus that the war in Iraq was illegal, but they also haven’t learned from the horrific consequences that flowed from that. And so I think, I’m not a huge fan of canceling people, but on this topic they should be disregarded because they’re not good faith commentators anymore.

Janet 20:42 But Mark, he’s the only commentator we have who was Dutch head of NATO until Mark Rutte. So it’s the only person that we can trot out on Dutch television when these things happen. You know, we need to have a person to ask these things.

Mark Kersten 20:56 Right, and fair enough. But I think then perhaps the media should say, we have now presenting someone who continues to believe that the war in Iraq was legal, when by consensus of the international community and international law scholars it was not. What is your view now on this latest invasion? Give people context, because their intellectual trajectory matters. I have one more thing to say, but I want to hear what Otto has to say on this because it’s a slightly different perspective.

Otto Spijkers 21:32 No, I just wanted to make a small point here. I do think that the majority of the Dutch population actually does not share our view, but the other view, that international law, it’s all very interesting, but we’re dealing with a murderous, terrible regime, which is developing nuclear weapons, which is supporting terrorism all over the world. So how can they benefit from international law? That is, I would say, the majority view. Our view is not the majority view, at least not in the Netherlands.

Mark Kersten 21:58 Well, I think that’s such an important point because I see similar arguments being made here. I think the good faith ones, the ones that don’t want to inherently dismiss international law immediately, are somewhat similar to the late 1990s Kosovo arguments around, you know, the invasion is illegal, but it’s legitimate, right? So it may not satisfy international law, but this is the end of international law’s ability to protect people and therefore violating international law in order to protect the Iranian people is a legitimate goal, and we can figure out the law stuff later. Again, I think what’s wrong about that is that there’s no evidence that this war is about protecting the people of Iran or helping the people of Iran. And that’s not based on thoughts that we’re dreaming outside of what people are saying. That’s based on what the White House has repeatedly told us. That’s not what it’s about. It’s very clearly not what it’s about to the United States.

Mark Kersten 23:20 So I think that’s a very important part of the conversation where I think that a state like Canada in particular, and I can’t speak for others, but where a state like Canada is failing to, in a sense, articulate or perhaps even educate its citizenry, is that we as a state have a direct interest in upholding the prohibitions on the use of force. And we have a direct interest in upholding international laws regarding territorial integrity and preventing aggression. Because for the last year plus, we have received direct threats regarding our own sovereign territorial integrity. And when you’re a middle power and you don’t have as much military might and you don’t have as much diplomatic might, perhaps, as other states or other kinds of powers, international law becomes a critical tool to defend yourself and defend your country, your friends around the world, your allies around the world from these types of attacks. And I don’t think people are connecting those dots. And it’s in part because the Canadian government presumably doesn’t want Canadians to connect those dots, to make it clear that defending international law everywhere means actually defending international law for us ourselves here in Canada.

Mark Kersten 24:36 But this goes to the point that I wanted to make that Otto put so epitheti- well, so well, which is: the government is just as confused as we are. I think there’s something so important. I don’t think states know what world we’re in, what currently exists, let alone the one that’s going to exist tomorrow or in a year. And you can see them struggling to navigate that. And I think there’s a way to read the famous Davos speech of Mark Carney as being like, I’m going to try and promise everything to everyone a little bit here. I’m going to talk about values based realism, but also defending human rights and international relations and territorial integrity. And so right now, when people talk about the Davos speech in Canada and Canada’s approach, you can read it any way you want. It’s like that rabbit duck. If you see a rabbit in the image, you’re right. If you see a duck in the image, you’re right. If you see both, oh my God, you’re brilliant, but you’re also right. But I think it’s indicative of a place or a time where states actually don’t necessarily know what they’re doing.

Mark Kersten 25:40 And I don’t think that lets them off the hook, but it helps us understand that the broader context of this is seismic shifts in international relations and geopolitics. And states basically don’t have tools, I don’t think, to really properly understand from one day to the next how they’re supposed to come out the end of that, because they don’t know what the end of that is going to look like. I join those who think that, as Otto so well put it, that in that state of unknowing, uncertainty, and confusion, international law is an incredibly useful tool. But I don’t think states are necessarily sure. And that helps explain that they can say one thing one day and the next thing the next day. And it frustrates us. But I think it actually comes down to the fact that they don’t really entirely know what they’re doing. They’re flying by the seat of their pants in some respect.

Janet 26:29 The reason for doing this podcast is obviously what’s going on with Iran. But it is also this sense of the middle powers-ness that I wanted to explore with you. And while I appreciate your kind of broad sweep, Mark, to explain where everybody’s making it up as they go along, at the end of the day, what these middle powers are doing and saying seems to involve having double standards on specific issues and actual hypocrisy in the end. And it just means that we don’t have a leg to stand on ourselves as to know who is actually going to bear what, I don’t know, human rights values, let’s say, for the future. So I’m finding that very difficult, that because the world is shifting, they don’t seem to be able to stand by what they actually mean. Otto, maybe you can respond to that, or whatever you want to respond to in what Mark had to say as well.

Otto Spijkers 27:46 No, no, the question is well timed because that’s exactly what I wanted to pursue. So Mark was saying we do one thing one way and then we do the other thing the next day. And I agree, if you want to promote international law, you have to do it consistently and not call upon Russia to comply with international law, but not do the same with Israel and now the US. So this issue of double standards. In the Netherlands, we are already sort of advised on this from 2024 onwards. We had an advice letter written by the Advisory Council on International Affairs, the Adviesraad Internationale Vraagstukken. It’s a council that advises the government. They wrote an advisory letter to then Minister of Foreign Affairs Kaspar Veldkamp, urging the Netherlands to be more active in promoting international law in the Israeli Palestinian conflict.

Otto Spijkers 28:45 And in that letter, the Council explicitly advised against using double standards in our efforts to promote international law. Being even more explicit, more concrete, the Council compared our efforts with regard to Russia, compared them with our efforts, or lack thereof rather, with respect to Israel. And then they drew the conclusion that rules are applied only when they align with our geopolitical interest. And that is damaging. And I fully agree. If you look at Ukraine, following the Russian aggression of Ukraine in February 2022, Zelensky immediately asked the Netherlands to play a leading role in efforts to restore justice for Ukraine.

Otto Spijkers 30:00 To help create a compensation commission to award compensation for damages resulting from Russia’s aggression against Ukraine. And the government explained its enthusiasm to cooperate by referring to Article 90 of the Dutch Constitution and the profile of the city of The Hague, where I’m currently residing, as the international city of peace and justice and as the seat of a wide range of international courts, the International Court of Justice, International Criminal Court, various other courts and tribunals, basically suggesting of course this compensation commission for Ukraine should be based in The Hague. But why is there no compensation commission for Gaza? Why be so selective? I think that is extremely problematic.

Mark Kersten 30:48 Can I just jump in for one quick point on this, which is that I think what Otto is pointing to, and I think we cannot forget, is that there is no golden era of consistency of middle powers on international law that we can look back to. One of the things that I think the Davos speech said that was helpful was nostalgia is not appropriate. We shouldn’t be looking back and harkening back to some great past. It doesn’t exist. Canada, the Netherlands, and other middle powers have always been inconsistent on international law. And I think the most obvious is that for the last number of decades, at least Canada has been very inconsistent in relation to situations like Ukraine or Syria versus the situation in Palestine. That has always been our primary double standard. And so I don’t think you can look back and say, oh, well, we were once not hypocritical, but now we are hypocritical. Or we didn’t have double standards, now we do. We always have. The reasons for them may have changed, but we continue to have them.

Otto Spijkers 31:49 Can I ask Mark a question?

Janet 31:52 Okay, but then I want to talk about the ICJ and the Gaza case.

Otto Spijkers 31:58 Just a very brief question to Mark, because I get this question a lot. So if you have a constitutional obligation to promote the development of the international legal order, do you think you need to do this consistently? Or can you be selective in this effort to promote international law?

Mark Kersten 32:13 It’s a great question. I would ask the Dutch constitutional law scholars. And it’s such a good point. And I mean, we’re in this muck of the politics of international law and the politics of law. And this kind of goes back, at least, I’m not going to properly answer the question, unfortunately, but it goes back to something that you said, which I think is so important, which is there is a lot of people, perhaps even the majority of people, who are okay with international law being violated if it means that the Iranian regime is displaced. And so politicians are going to listen to that. Politicians are going to be attentive to that. Politicians are going to be attentive to their diaspora communities. In Canada, the Iranian diaspora community is phenomenal. It’s very large. It’s very powerful in terms of its advocacy. It’s very impressive. And now it’s also got to listen to the Lebanese diaspora, which is similar, which is a different kettle of fish. And I’m sure we won’t get to that. But I think that’s very interesting for Canada going forward, what’s happening in Lebanon.

Mark Kersten 33:20 But so I think they take this information and they think, well, my goal is to promote and defend international law. But my goal is also to be elected next election. And to do that, I have to navigate diaspora politics and what’s going to get me elected. And also to a certain degree, what can I get away with? And to me, we can have these talks about international law forever, for sure, and I think they’re critically important. And at the same time, at least in Canada and the Dutch and Europeans as well, I don’t envy the position of the governments, which have to say, well, do I take a strong stance on international law if it means that I get another 10 percent tariff and my people have less of an affordable life? How do you make that decision? Be strong on international law or weak on international law? To me, I think, again, the missing ingredient is that international law protects us as middle powers and smaller states. And that part of the conversation is missing and should be part of the political conversation as much as the legal one.

Mark Kersten 34:22 But at the same time, I think this again goes back to your point, which is I don’t know if states know the answers to these questions, because if they don’t defend international law, tomorrow might bring 20 percent tariffs. If they do defend international law, tomorrow the tariffs may be withdrawn or vice versa, right? We’re dancing around these questions. And I think states, they no longer seem to behave in a way where they believe that an input will predictably lead to an output because the United States in particular is so incoherent and chaotic.

Janet 34:48 If we pivot for a moment to the International Court of Justice, the allegations of genocide in Gaza posed by South Africa in the case of South Africa against Israel, and what we recently saw from the Dutch government is that they announced that they would intervene in the case and essentially say, at their point of view, which is going to be, as I understand it, largely similar to the intervention they did in the Gambia Myanmar case, which is that attacks on, I think, women and children and starvation and things can be underlying crimes for genocide. Is this, Otto, a kind of change of the Dutch new government? Because the previous government was very, very, very kind of pro Israel and supporting a lot of what Israel was doing in Gaza, or at least not condemning it, or just saying that they should keep to international law, but seemingly not wanting to say that they potentially broke international law in what they were doing in Gaza.

Otto Spijkers 35:57 So just before the deadline, that’s already interesting, the Netherlands filed this declaration, a request to intervene in the case initiated by South Africa against Israel about alleged genocide in the Gaza Strip. And the Netherlands had earlier done so, requested to intervene in the case between Gambia and Myanmar about alleged genocide against the Rohingya minority in Myanmar. And of course, they requested to intervene in a genocide case between Ukraine and Russia. So one of the reasons would be, I think, to avoid being accused of double standards, because why intervene in those two cases and not in the other one? And also a reason to intervene was exactly to comply with Article 90 of the Constitution, this duty to promote international law. That’s not my opinion, but that’s one of the official reasons why the government chose to intervene.

Otto Spijkers 36:41 What I find really interesting is that Tom Berendsen, the current Minister of Foreign Affairs, announced this as a highly sensitive step, fully realizing how difficult this is among certain political groups and also amongst the population. And he also constantly insisted that the intervention is to further international law and not to support either party. So not to support South Africa, not to support Israel. He’s constantly stressing this. And you are very right. The earlier government was asked all the time to intervene. Why are you not intervening? Why do you intervene in the other two? Why not this one? Constantly. And Kaspar Veldkamp, then Minister of Foreign Affairs, he always said, no, no, we’re not going to intervene in this case, and was a bit fuzzy about the reasons why not. So this is really a change of policy when you compare the old with the new government.

Otto Spijkers 38:02 What exactly is it that the Netherlands wants to get out of this intervention? So for me, they just have some questions about how to properly interpret and apply the Genocide Convention. So they’re not addressing any factual issues at all. And one is indeed that forced displacement may constitute genocide or may lead up to acts of genocide that are prohibited under the Genocide Convention. I find that interesting. And also that the treatment of children may be particularly relevant when you want to establish a genocidal intent. That is, of course, interesting because a lot of children have died in Gaza. So how relevant is that? And also what I think is very relevant to the genocide in Gaza is the Netherlands is asking the Court to determine whether famine or withholding humanitarian assistance, whether that may amount to an act of genocide, murder, for example.

Otto Spijkers 39:14 And then finally, what maybe is the most interesting from the Netherlands perspective, is that the Netherlands wants the Court to say something about responsibilities of third states to prevent a genocide when there is a risk of genocide occurring. And of course one such third state is the Netherlands. And I find this super interesting because up to now, the Netherlands’ position has always been that only third state responsibility is triggered when an international court or tribunal or some high authority has determined that genocide is taking place. So the ICJ may reach this decision two years from now. So I always felt that was a very ridiculous position to take. And now they’re asking of the ICJ, were we right? And probably the answer will be, no, you were not right. There is already an obligation to prevent much earlier on when there is a risk of genocide and when no international court or tribunal has pronounced on it.

Janet 40:08 Mark, do you want to join in on that? Any Canadian contribution on the genocide cases at the ICJ and what this tells us about Canada’s position more generally? Yeah, why didn’t you intervene?

Mark Kersten 40:18 I don’t think Canada will intervene. Again, I think because they’re trying to navigate, the Canadian government is trying to navigate the Trump administration and its relationship, to a certain extent, with Canadians who feel strongly about this conflict, but also with the Israeli government. So one thing to keep in mind in terms of what I find very interesting in terms of third party states’ contributions to this is that Canada stopped directly selling military weapons and ammunitions to Israel, which was excellent. But Canada sells weapons and ammunitions to the United States, which then are redirected to Israel. And there was an effort just over the last couple of weeks in Parliament to pass a bill to close this loophole because Canada’s own export data was showing that Canadian weapons were still ending up in Israel for use potentially in Gaza or the West Bank. And the Canadian government voted that down and they said we would not close that loophole. And so that’ll be very interesting to see if there’s any kind of conversation about the indirect, but kind of almost negligent support, or indirect support in the sense that you know that your weapons are going to end up in Israel, but you sell them to a third party first.

Mark Kersten 41:44 And I just wanted to note too that I’m fascinated by this question on the relationship between forceful displacement and genocide. I’m writing a longer paper trying to understand this in history, including here in Canada, and the ways in which displacement and genocide interact. And I totally get what Otto’s saying. The Dutch government’s saying, we’re not doing this on behalf of one side or the other. But of course, it’s the Palestinian population that’s displaced. It’s the Palestinian children that are being killed. So perhaps as a rhetorical effort to say, there’s nothing to see here in terms of political sides. But of course, this will contribute to our understanding of particular forms of violence directed at the Palestinians and not generally. And I think, I really hope that we have a greater understanding of some of these dynamics, third parties, and also displacement and genocide and how those things interact. That’s also going to be a big deal that we’re looking at now with the, and I’m going to quote unquote, buffer zone, in Lebanon and destroying villages. That’s another forced displacement issue. But let’s not get into that. I got a lot of questions from editors about that this week.

Janet 42:57 But Mark, from one ICJ case that Canada is not intervening in, I want to move to an ICJ case where Canada was very much at the forefront together with the Netherlands. And that is the case against the former Assad regime in Syria via the Torture Convention. There, Canada really took the forefront together with the Netherlands to have this kind of intervention type of case. How do you square that with Canada’s position? And now we also have the new government in Syria, which is trying to also look at the crimes of the Assad regime. But the case is going forward at the ICJ.

Steph 43:30 Lots of angles to pick from. I’m going to let Mark pick from them first, and then we’re going to move to Otto to see the Dutch side of this.

Mark Kersten 43:40 It’s interesting. I think as a middle power, and I think the Dutch are somewhat similar, and many middle powers are similar, they don’t want to abandon international institutions. They don’t want to abandon international law. They want to pick and choose when it’s most relevant to them, right? And they also have resource limitations, right? And what’s interesting to me about Canada’s approach with the Dutch to the ICJ case is it happened at a time when Canada, and it’s no longer quite as opposed, but it was very much opposed to any ICJ cases around the question of Palestine. And so while that was happening, I think there was some risk that Canada would have been seen as a state that was in some ways undermining the ICJ and international law through the ICJ. And then they come up with this critically important case in relation to Syria. And I think, one, aside from the merits and the substance of the case, one of the important things that signaled is that Canada actually would still go to the ICJ and use the ICJ where it thought it was appropriate to do so in order to achieve a degree of justice and accountability or whatever ends up flowing from this case.

Mark Kersten 44:50 I do think it’s very interesting that the government in Syria has changed. And I understand that there is at least some reason to think of the possibility of Syria simply accepting, you know, not kind of trying to go through the proceedings and fight back, but to accept the proceedings. And logically that makes sense, right? The new government, it’s in the new government’s interest in some ways to say, yeah, the former government violated international conventions and the Convention against Torture in particular. It’s a critical moment for them to invoke international law at the ICJ in a way to even further delegitimize the previous regime. Now, I’m not an expert on the ICJ by any stretch, but I don’t know if that’s ever happened. But I do hope that if it does happen, it is this kind of line drawn that demarcates this new government and potentially its commitment to not only the case, which is obviously about state responsibility, but perhaps to something even more meaningful for the people of Syria, which is reparations and transitional justice mechanisms, whatever they may look like, because they have to be appropriate to the people, and a degree of compensation or some form of concrete remedy for the people who experienced torture in Syria on such a massive scale for the better part of 15 years.

Otto Spijkers 46:09 It is my understanding that Canada and the Netherlands have no intention to remove the case from the docket. But of course, it would be very strange if the current regime would deny that the Assad regime was engaged in torture. That would be very strange. So then the case may be about indeed reparations or guarantees of non repetition. Or maybe the Netherlands and Canada just want to make this point that after a regime change, responsibility is not swiped away. What was once Syria is still Syria. It’s a bit like Iraq. Iraq is still paying reparations for what was done under the regime of Saddam Hussein.

Otto Spijkers 47:01 But then I want to say something about Canada and the Netherlands initiating this case. It’s very interesting. So you might think, yes, of course, the Netherlands does so, because we have this obligation under Article 90 to constantly promote the development of the international order, et cetera, et cetera. But then you would have expected the Netherlands to do this all the time. But this is actually the first time in the Netherlands’ history that it has initiated a case in the general interest or as a party to a particular convention, the Torture Convention. This is not a sort of tradition or habit that the Netherlands regularly engages in. But they do refer to Article 90 as one of the reasons why they took this initiative. And there is also a rumor that the Netherlands is preparing another case against Afghanistan for breaches of the Convention on the Elimination of Discrimination Against Women. But they first have to negotiate. It’s one of the procedural hurdles you have to jump through.

Steph 48:07 Yeah, they took the procedural step to warn Afghanistan that they might bring the case, I think, so that then they have this note verbale exchange, you know, the thing that always happens, and then you negotiate under the treaty.

Otto Spijkers 48:20 Yeah, you have to do this under the convention. So it is very rare. It is unique here.

[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.

Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

[INTRO TUNE]

 Asymmetrical haircuts Justice. Update with Janet Anderson and Stephanie Vandenberg in partnership with Justice info.net. 

Janet Anderson 00:00:00  Asymmetrical Haircuts, Justice Update, with Janet Anderson and Stephanie van den Berg. Hi everyone, this is Janet. A shout-out to Steph, who would usually be here, but she can’t be with us today. Instead, we have our producer, Margherita Capacci. Hi, Margherita.

Margherita Capacci 00:00:19  Hi everyone. Hi, Janet. Nice to be here.

Janet Anderson 00:00:22  Margherita has been covering the Kosovo Specialist Chambers for the last few years. Because it doesn’t get all the attention it could, or maybe should, we thought we would focus on a couple of major developments there that will have a big impact back home in Kosovo, and are also really important for anyone following international criminal justice developments.

Janet Anderson 00:00:47  I’m now going to force you into the basic Stefapedia stuff. You’ve got to give us a summary. Over to you.

Margherita Capacci 00:00:56  The Kosovo Specialist Chambers was set up in 2015. It is formally part of the Kosovo judicial system, but it is located in the Netherlands, in The Hague, and it is fully staffed by internationals. That was done outside Kosovo because of worries about witness protection in the Balkan country. So far, we’ve had six cases at the Specialist Chambers: three for war crimes and three for obstruction of the administration of justice, or, as we know it, alleged witness interference. And so far, we’ve had two final judgments, in the Salih Mustafa and Pjetër Shala cases, and both were convicted for war crimes.

Janet Anderson 00:01:35  The biggest case, the one that has had the most international attention, is about war crimes and crimes against humanity. What’s been going on there?

Margherita Capacci 00:01:49  You’re talking about the case against Hashim Thaçi and three co-defendants. That trial started in April 2023, and it’s been huge. It had more than 130 witnesses testifying over more than 220 hearing days, plus written statements by other witnesses. So it’s been very long and very rich.

Janet Anderson 00:02:17  I know it’s impossible to summarize that trial in one little podcast, especially as we’re going to shoehorn in quite a few other issues too. But let’s at least name who’s who. I’ve written them down as I meant to say them, but I think you’re the person who should say who they are, Margherita, because they’re Kosovo names and you’ve been practicing, haven’t you? Go ahead.

Margherita Capacci 00:02:44  “Practicing” is a strong word, but yes, we’ve been hearing them a lot. The four men on trial are Hashim Thaçi, Kadri Veseli, Rexhep Selimi and Jakup Krasniqi. They are charged with war crimes and crimes against humanity, including persecution, illegal detention, torture and murder. 

Janet Anderson 00:03:03  All four were high-ranking figures in the KLA, the Kosovo Liberation Army, and they all went on to become prominent Kosovo politicians. Thaçi is the best-known name, of course, because he was prime minister, foreign minister and then president in the newly independent Kosovo between 2008 and 2020. He was president when he resigned and came to The Hague to defend himself before the court, and he has essentially been staying in Scheveningen, in the detention unit, since then. Margherita, give us a quick summary of what the prosecution has been arguing in this huge case.

Margherita Capacci 00:03:56  The prosecution argued that the Kosovo Liberation Army had a chain of command and that all of the accused bear individual and command responsibility for the charges. The charges cover the murders of more than 100 people and the abuse of hundreds more in around 50 detention sites in Kosovo and northern Albania.

Janet Anderson 00:04:20  And when are we talking about? When was all this meant to have happened? It was decades ago.

Margherita Capacci 00:04:24  Yes, over 25 years ago now. The charged period runs from March 1998 through September 1999. All of this happened in the context of the 1998–1999 ethnic Albanian war of independence from Serbia, when Milošević was ruling over Kosovo. The war ended with a 78-day campaign of NATO airstrikes against Serbia.

Janet Anderson 00:04:55  That helped bring the fighting to an end and set the path toward Kosovo’s independence. I’m finding more and more that war crimes trials are about periods most people, even people listening to this podcast, might not actually have been alive for. I was alive then, because I’m ancient. What about you, Margherita? Were you around and conscious of Kosovo while it was happening?

Margherita Capacci 00:05:21  I was about one or two years old.

Janet Anderson 00:05:25  Then I don’t think you were paying much attention. So let’s dive into the specific case. So, The way we’re going to do this podcast is that we’ll play a few clips from the prosecution and from the defence, just to give a flavour of the final arguments. Then we’ll move on to another case, the witness interference case, which also started recently. And then we’ll pull back and take a helicopter view, including views from Kosovans themselves about the court. As you can imagine, it’s a court in The Hague, about Kosovo, with no Kosovans on the staff. It’s a really interesting example of justice. So kick us off, Margherita.

Margherita Capacci 00:06:22  There’s a lot to cover. Let’s start with the Specialist Prosecutor, Kimberly West. The war crimes trial came to closing statements in February, and she gave this summary when addressing the judges at the start of the closing statements on February 9.

Kimberly West 00:06:38  This case is about the four accused’s goal to gain and exercise control over all of Kosovo. This determination for power had something standing in the way: people who were deemed to be opponents, those who were or were perceived to be collaborating with Serbian forces or officials or state institutions, or those not supporting the aims or means of the KLA and later the PDK. This often included people associated with the LDK and persons of Serb and Roma ethnicity. In order to achieve their goal, the accused committed crimes against their perceived opponents to take control over Kosovo.

Kimberly West 00:07:30  Your Honours, the prosecution witnesses in this case included many KLA witnesses, other Kosovars from all different walks of life, numerous victims of varying ethnicities and their family members, and some internationals who were present in Kosovo in 1998 and 1999. The evidence of all these witnesses, as well as the documentary, video and forensic evidence presented, reveals that these crimes were committed and that the accused bear legal responsibility for them.

Janet Anderson 00:08:06  The prosecutor also made it clear that she felt she was speaking on behalf of victims. She said that bringing and maintaining the case, and keeping witnesses protected, had been a massive uphill struggle.

Kimberly West 00:08:29  I save my eternal gratitude for those who deserve it most: those who have personally taken upon their own shoulders to ensure that the rule of law is delivered to the people of Kosovo. That is, those victims and witnesses who have come to this court to give their testimony. Despite fears, threats and stigma being forced upon witnesses and their families by a limited but vocal group in Kosovo, these witnesses yearned so much for the truth to come out that they nonetheless chose to cooperate with my office and give evidence to this court.

Margherita Capacci 00:09:16  In this trial, prosecutor Kimberly West also made a direct link to alleged witness interference, and that’s a trial we’ll come back to in just a moment.

Kimberly West 00:09:28  Unfortunately, this trial did not escape the longstanding and pervasive climate of intimidation that had been forecast from the start. To the extent that the court must consider it in order to make a fair assessment of witness reliability, it should. Indeed, the evidence before you suggests that at least some of these efforts took place right here in The Hague. Still, the court has before it overwhelming evidence that, for example, the accused were key members of the KLA General Staff well before November 1998, and evidence that the zone commanders took orders from the accused, and not the other way around. Clear efforts made to change, dilute or otherwise influence certain testimony, in particular to the benefit of accused Hashim Thaçi, have been uncovered.

Janet Anderson 00:10:25  We’ve heard some of what the prosecution wanted to say. What about the defence? Can you summarize their arguments, Margherita?

Margherita Capacci 00:10:31  During the closing statements, all four defence teams presented their cases. On the very last day, the accused themselves also took the stand and got their chance to speak to the judges and to the public. I wrote about both the prosecution and defence arguments for Justice Info, and we’ll put links to those articles in the show notes.

Janet Anderson 00:11:02  Let’s be clear: basically, the defence denied all the charges. I think a lot of it comes down to what I would call command responsibility, whether these individuals can really be held responsible for the actions of people on the ground. What would you say if you had to summarize it?

Margherita Capacci 00:11:36  I think that’s exactly the key point. All defence lawyers denied any criminal conduct. They also said that the prosecution failed to bring enough evidence to show that the accused were responsible for the criminal conduct. Most of all, they argued that the KLA was not structured enough for them to have control over subordinates. They also argued that other people had more of a decision-making role. The prosecution says one of the key points is that they were part of a joint criminal enterprise. The defence says there was no criminal enterprise. They were not trying to take control over Kosovo for themselves. They were fighting against Milošević for the freedom of Kosovo. Here is Thaçi’s lawyer, Luka Mišetić, during the closing statements.

Luka Mišetić 00:12:44  There are too many holes in the prosecution case, too many internal inconsistencies, too many illogical arguments, too many unanswered questions, too many international witnesses telling you that Hashim Thaçi is not guilty, too many insider witnesses telling you the same thing, too many documents that are missing, such as illegal orders from Mr Thaçi or proof that he authored communiqués, if the prosecution’s theory were true. There is no connection between Hashim Thaçi and any criminal conduct. This nearly three-year trial was a test of the prosecution, and the prosecution has failed. Mr Thaçi’s presumption of innocence remains. It is time for Hashim Thaçi to go home. We ask that you enter a judgment of acquittal.

Janet Anderson 00:13:36  You were there, Margherita, for some of the key moments when the prosecution and defence were wrapping up. What was it like behind the scenes?

Margherita Capacci 00:13:46  It was really interesting. The closing statements ran from February 9 to 18, and I was there for three of those days: for the prosecution, for the defence, and for the day the accused spoke. It was much busier than usual.

Janet Anderson 00:14:04  I mean, it’s usually empty. The times I’ve been there, it’s just me and whoever I’ve dragged along. So it was full?

Margherita Capacci 00:14:12  It was full. On the very last day, when the accused were due to speak, I got the very last free seat in the public gallery.

Janet Anderson 00:14:24  You’re always on time, Margherita.

Margherita Capacci 00:14:27  Well, they weren’t going to speak until the afternoon, so I took it a bit easier that morning. But yes, it was packed. There were more people outside trying to enter. One of them had a T-shirt with the KLA symbol. There were also lots of media from Kosovo doing live shows for TV and newspapers the whole time, so there clearly seemed to be a lot of attention in Kosovo. There were representatives from embassies in The Hague, including the Albanian and Kosovo embassies, plus other observers and lots of family members of the four accused.

Margherita Capacci 00:15:16  I do have to say, you could feel the tension, especially when the time came for Thaçi and the other three to take the word. When they entered the courtroom, everyone stood up and pressed forward to wave at them. And when they started speaking, it was dead quiet. You could see people wiping their eyes, shedding a tear, and becoming quite tense and emotional. That was the feeling I got.

Janet Anderson 00:15:44  They were obviously addressing the court, because that’s what they were there for. But this was also people back home hearing from these men, people they haven’t heard from directly for such a long time. They were speaking to Kosovo too, saying, “This is my position. This is what I have to say.”

Margherita Capacci 00:16:07  Yes, and that hearing came the day after Kosovo Independence Day. Kosovo celebrated its independence on 17 February, so it was charged in that sense too. The court even took a one-day break because of that. You could hear that they are politicians. They were very secure in what they were saying. They were looking at the judges, but it felt like they were speaking to all Kosovars. That’s how it felt. 

Janet Anderson 00:16:45  When should we expect a verdict in this mammoth case?

Margherita Capacci 00:16:56  The closing arguments ended on February 18. From then, the judges have 90 days to issue a verdict, though they could ask for an extension.

Janet Anderson 00:17:08   So the earliest would be sometime in June, unless there is an extension. We’re going to put that trial to one side for a moment and now look at witness interference. You said there were three such cases going on, but there’s one major one we’re going to focus on. It’s incredible that half of the cases at the Kosovo Specialist Chambers are about witness interference. And what strikes me is that this goes to the heart of why the Chambers were created in the first place: to avoid witness interference, especially after what allegedly happened in the Yugoslav Tribunal and in EULEX. That is why we have the Specialist Chambers and Specialist Prosecutor’s Office in The Hague, fully staffed by non-Kosovars. So it’s really the heart of the matter. So give us a quick summary of the intimidation, interference and obstruction cases as a whole.

Margherita Capacci 00:18:35  There have been three obstruction of justice cases at the court. Two of them have already ended. One was several years ago, so the men convicted in that case have already served their sentences. In fact, I’ve seen one of them more than once in the public gallery of the main war crimes trial.

Janet Anderson 00:18:57  I don’t understand that. You mean that somebody who served their sentence is now attending court?

Margherita Capacci 00:19:13  Yes, he’s free now, so he’s following the case from the public gallery.

Janet Anderson 00:19:18  Have you asked him what he thinks about what’s going on?

Margherita Capacci 00:19:21  I haven’t. I think I missed my chance there.

Janet Anderson 00:19:25  That is an interesting set of circumstances. I don’t know what to make of it. So that’s one case. What about the others?

Margherita Capacci 00:19:33  There was another case in 2024 in which three men pleaded guilty. Two of them are still serving their sentences and one is already out. So there is only one administration-of-justice case still ongoing.

Janet Anderson 00:19:53  This is the relatively larger one, I think. Tell us more. Who has been indicted here, and for what?

Margherita Capacci 00:20:06  The remaining case involves Hashim Thaçi again. In November 2024, the pre-trial chamber confirmed the indictment against Thaçi for criminal offences against the administration of justice. He is charged along with former Kosovo Intelligence Agency chief Bashkim Smakaj, former Malisheva mayor Isni Kilaj, former KLA member Fadil Fazliu, and former minister of justice Hajredin Kuçi.

Janet Anderson 00:20:47  What exactly are these five men accused of doing?

Margherita Capacci 00:21:03  According to the indictment, between April and November 2023, during separate unprivileged visits to the detention unit, Hashim Thaçi provided Smakaj, Kilaj, Fazliu and Kuçi with confidential information about prosecution witnesses and instructed them to influence the testimonies of those witnesses. He is also accused of providing details about how to do so. The indictment also alleges that Thaçi coordinated three groups, consisting of the other four accused and additional uncharged individuals, with the aim of interfering with the testimony of prosecution witnesses in the main war crimes trial. One of the most notable examples is that the prosecution says Thaçi provided details on how former KLA chief of staff Bislim Zyrapi should testify. Zyrapi was an important prosecution witness and also key in the defence case and arguments, we have heard his name many times.

Janet Anderson 00:22:23  That cuts right back to what we were saying about the core arguments in the main case: chain of command, who was responsible, who said what to whom, and who can be held responsible for these acts. Zyrapi is a key figure in all of that. I understand the additional interference trial opened at the end of February, with opening statements between February 27 and March 5. Were you there for that one too?

Margherita Capacci 00:23:06  I was not there, I have to admit. But I did do my due diligence. I did my research.

Janet Anderson 00:23:12  That’s okay. We can’t always be in court all the time. What’s your summary of what has happened so far?

Margherita Capacci 00:23:31  All five accused pleaded not guilty again. They had already done so earlier, of course, but this was the actual opening of the trial. As we are recording now, the defence teams still have a few more days. We are recording on March 20. They have until Monday the 23rd to say whether they want to seek a dismissal of charges. If they do, they have until March 25 to file the relevant motions. Then they can decide whether to present a case, and if that happens it will be in April.

Janet Anderson 00:24:08  Let’s hear another snapshot from the start of that trial. Here is Specialist Prosecutor Kimberly West again.

Kimberly West 00:24:18  Hashim Thaçi is charged with repeatedly and systematically attempting to interfere with witness testimony and with violating multiple court orders aimed at protecting confidential witness information. His co-accused are charged with unlawfully participating in these crimes. The conduct of the accused strikes at the very heart of the rule of law and this court itself, which exists within the Kosovo judicial system to ensure independent, fair and secure proceedings. That is why we are here. Whether the accused were successful in their efforts to influence witnesses does not matter. The reason we committed resources to this case is to protect the integrity of the proceedings in case six and to ensure that the world and the Kosovo public understand that anyone who attempts to interfere with the truthful testimony of any witness before this court will be held to account.

Janet Anderson 00:25:24  We also caught up with Ardit Kika, a journalist at Koha Vision TV, who has been following the court very closely. It was nice to speak to him again. I’ve met him before in the Balkans and seen him in The Hague over the last few years. He explained what he thinks of all this, and specifically why the prosecution says it doesn’t really matter whether the attempt to influence witnesses actually succeeded. 

Margherita Capacci 00:26:12  Ardit works for Koha Media, and they published a long piece on the opening of this trial.

Ardit Kika 00:26:21  One interesting thing is that I also read Thaçi’s defence trial brief, and there was a strong argument there that the prosecution did not go where it wanted to go. This is also the biggest case for meddling with the administration of justice. The prosecution probably wanted to prosecute intimidation, but it did not end up doing that. Instead, it charged attempted interference with witnesses. The prosecution did not find evidence that Thaçi ordered the intimidation of witnesses. It found evidence only that he tried to influence witnesses. But only the attempt is charged. There are no charges that he tried to scare them, pay them, or anything like that, while in other cases people were convicted for frightening witnesses or promising them money. Some of those people even admitted guilt.

Ardit Kika 00:27:51  For now, from what we see in the trial briefs, what they did have was legal wiretapping over many months. It seems they got some material from that. You can hear what was whispered there, and thoughts such as telling a witness to emerge as a hero after his hearing, or to improve certain parts of his testimony before coming to court, because the KSC has a system where prosecution witnesses can meet the prosecutor before their testimony and make adjustments or corrections to earlier statements.

Janet Anderson 00:28:50  We also asked Ardit what else caught his eye in the new interference trial. As with similar proceedings at the ICC, these kinds of trials can reveal details about life inside the detention unit and we get to understand how defendants prepare their defence. They also tell us something about how the prosecutor’s office operates, because it is the office investigating the allegations, specifically we get information about whose telephones they were allowed to tap, which is always interesting.

Ardit Kika 00:29:30  What I didn’t know is that Thaçi had a printer in his detention centre. The prosecution alleges that he gave confidential documents to his visitors, and that those documents were later found in the car of, for example, the former director of the intelligence agency. The defence says that evidence was planted in his car, which is interesting too. In other words, it seems possible, but there has to be evidence elsewhere too, except from judicial wiretapping.

Janet Anderson 00:30:23  We also asked Ardit how this trial is seen in Kosovo itself, and what people on the ground thought about it.

Ardit Kika 00:30:31  This court is really special, and we call it Gjykata Speciale, which means “special court,” partly because of the witness cases. Up to now, we have had 10 accused brought before the court on accusations of meddling with justice, and six accused for war crimes and crimes against humanity. So it is a very special court in that sense.

Ardit Kika 00:31:02  Reactions in Kosovo were different. Some people were very surprised. Even some of my colleagues asked me, “How is it possible that Thaçi could be such an amateur as to give instructions to visitors in prison?” That is one kind of reaction. But others were not surprised, because Thaçi is still a political factor in Kosovo. Leaders of the PDK, the party he once led, still go to him in detention for advice. I also met people who said prosecutors were just finding creative ways to launder their failure in the big case. Their argument is that the main case was not so strong, so they had to hit the accused twice.

Janet Anderson 00:32:26  Ardit also explained that to understand these issues, you have to have to understand the reality on the ground in Kosovo. The context there is that It is a small country of about 1.6 million people. Everybody knows everybody else. It is a warm, close-knit society. People live close to one another. And, crucially, those accused in these cases were people with very significant political stature and broader power in society.

Janet Anderson 00:33:09  So who else did we speak to, apart from Ardit, Margherita?

Margherita Capacci 00:33:14  We also spoke to Amer Alija.

Janet Anderson 00:33:16  Who is that?

Margherita Capacci 00:33:18  Amer is a criminal law attorney specializing in war crimes, transitional justice and international criminal law. Since 2012 he has contributed to the Humanitarian Law Center Kosovo. He has worked on high-profile war crimes cases in both local and international courts. I started by asking him how pervasive witness interference is in Kosovo more generally.

Amer Alija 00:33:47  We have three cases before the Kosovo Specialist Chambers, but we have dozens of cases before Kosovo courts. The main evidence in these cases is witness testimony. During these 25 or 26 years after the war, there have sometimes been cases where pressure was put publicly on people to testify or not to testify, but in general witnesses testify without pressure in most Kosovo cases. We have open trials. We do not have many protective measures in those cases, and the closed sessions are not closed to the public in the same way, so we can see what is happening. But of course, in Kosovo, Serbia or elsewhere, there will always be people who try to put pressure on witnesses. The institutions then have to try to protect their truthful testimony.

Janet Anderson 00:35:05  Amer also spoke about the issue that you and I have both encountered, Margherita: there were a lot of closed sessions in the main Thaçi trial. That has been a major point of discussion at the Kosovo Specialist Chambers. We understand why there are closed sessions, to protect witnesses, but it also affects how people perceive the court. If they cannot follow testimony, they may question whether the process is transparent or trustworthy. Here is Amer on that.

Amer Alija 00:35:45  I have monitored maybe more than 1,000 court sessions for war crimes in UNMIK, EULEX and the ICTY. The difference with the Kosovo Specialist Chambers is that in these war crimes cases we have a big reduction in open witness testimony and a huge number of protective measures. For about 50 percent of prosecution witnesses, we as the public, journalists, lawyers and monitors did not have a chance to listen to their testimony. So it is not professional to give any conclusions about what kind of judgment this trial will produce, because we have limited access to witness testimony and limited access to the material evidence presented during trial.

Amer Alija 00:36:43  So this is one element that’s different. In previous courts in Kosovo, under EULEX and UNMIK, which also dealt with KLA members and other parties involved in the war, we did not have this level of closed session for so many protected witnesses or injured parties. A huge number of these protected witnesses did testify in previous proceedings. If you read the charges against Thaçi and others, you will see many detention centres and injured parties mentioned, and many of those detention centres were already part of previous proceedings in Kosovo.

Janet Anderson 00:37:47 Amer reminds us, as I skimmed over earlier, that the Kosovo Specialist Chambers is only the latest acronym in a long list of international justice mechanisms dealing to tackle with the alleged war crimes in Kosovo.

Amer Alija 00:38:22 First of all, we had the ICTY, established in 1993 and finishing its mandate in 2017. At the same time, we had international missions investigating and judging war crimes in Kosovo. We had the United Nations Mission in Kosovo, UNMIK, from 1999 to 2008, and later the European mission EULEX continuing that work. Of course, these cases are connected with other institutions because they deal with the same topics and the same crimes. In the indictments against Thaçi and others, you can see that some charges are connected with previous trials before the ICTY, before courts in Kosovo, and perhaps also with the influence of Serbian courts. We also have local courts dealing with trials, investigations and witness protection.

Margherita Capacci 00:39:35  What else, in his view, has been different about the Kosovo Specialist Chambers compared with previous set-ups?

Amer Alija 00:39:41  In this court we also have a victims’ office, or victims’ lawyers, who protect the interests of injured parties. We did not have this in the ICTY, and not in most Kosovo cases either. In Kosovo it is legally possible for injured parties to be active during trial, but often they were not represented. In the Kosovo Specialist Chambers, representation of victims’ interests is effectively built into the system.

Amer Alija 00:40:04  A third element that is different from previous courts is that in the Kosovo Specialist Chambers we have, let’s say, a one-sided indictment practice. Only one side is being prosecuted. In previous courts we had cases against both KLA members and Serbian forces. But this court deals only with the Dick Marty report, and so now we see only one side before the court.

Janet Anderson 00:40:54  When discussing Kosovo, sooner or later someone is going to mention the Dick Marty report, and Amer just did. Just to remind listeners, that was the Council of Europe report led by Swiss politician Dick Marty. It was really the trigger that established the perceived need for the Kosovo Specialist Chambers.

Janet Anderson 00:41:27  Margherita, are we nearing the beginning of the end?

Margherita Capacci 00:41:30  The end is in sight. We’re not quite there yet, but because this is a podcast about the Kosovo Specialist Chambers, we do have to ask whether it has done what it was set up to do, and whether it has brought Kosovo any closer to justice and accountability.

Janet Anderson 00:41:48  That is a question we should ask about all courts and tribunals, but it feels especially alive here. And even though we are asking it now, I am sure this will not be the last time we ask it. Still, it is interesting to assess it for now, when the main trials seem to be coming to a close and there is no obvious prospect of new major ones. You asked Ardit whether the Kosovo Specialist Chambers is really managing to deliver justice.

Ardit Kika 00:42:43  One important point is that the court has justified its existence because of these witness cases. But it is a completely different question whether it brings justice and accountability. One important aspect of the Kosovo context is that most of the crimes committed in Kosovo during the conflict were committed by Serbian forces, while most of the people convicted for war crimes in Kosovo are Albanians. That is a big contrast.

Ardit Kika 00:43:23  That is mostly because the international community, through the UN and EULEX, was competent for trials until around 2016. So this feels like injustice to many people. My impression at the end of the big trial is that the prosecution has left the “how” and the “who” of the crimes unanswered, while placing the burden of those crimes on the leading KLA figures. But you have to bear in mind that the KLA was a guerrilla force. It is not the same as the Yugoslav Army or the MUP forces that were prosecuted in former Yugoslavia trials.

Ardit Kika 00:44:05  These things are interconnected. The number of convicted Serbs is about 30 and the number of convicted Albanians is about 40. That is one reason Kosovo has not prosecuted many former KLA members, although there have been some convictions in Kosovo itself. Without addressing this, and without Serbia recognizing Kosovo and cooperating on international crimes, crimes against humanity and war crimes cases, there cannot really be justice for war crimes in Kosovo. That is how I see Kosovo’s future. This court is counting its days. It does not have longevity, especially after it finishes the big case.

Janet Anderson 00:45:30  And what about Amer? Whether he thinks the KSC has actually done anything for justice in Kosovo more broadly. Whether he thinks this kind of counting of numbers between Serbian and Kosovan convictions is really the best measure of justice served. I’m not sure it is, but it is clearly an important metric in Kosovo. We asked him too.

Amer Alija 00:45:58  Can this court contribute to justice generally? I think this is only a small contribution to justice for the victims. If we look at the number of victims in these indictments, there are about 100 and some more participating in the cases. But overall we have more than 10,000 civilian victims from the war in Kosovo. Criminal justice is always limited, and it will remain limited. We do not have a perfect system that can find all guilty people or all superiors involved in crimes in any war, whether in Yugoslavia or elsewhere.

Amer Alija 00:46:50 In this process, political will plays a crucial role. For example, we do not have good political cooperation between Kosovo institutions and Serbian institutions. Many suspected people live freely in Serbia and are not extradited to Kosovo for trial. For that reason, Kosovo recently changed its law and started conducting trials in absentia. These are not perfect trials, and they are challenging for institutions, but without political will and diplomatic pressure, no institution will succeed.

Janet Anderson 00:47:46  Amer speaks of 10,000 victims, and just to clarify, those are civilian victims of the war in Kosovo, regardless of ethnicity. I also asked him, because he was very clear that criminal justice is not the only thing, and maybe not even the main thing, in transitional justice: what else is needed in Kosovo? What would real transitional justice require?

Amer Alija 00:48:17  Societies and countries in the region have to work in all fields of transitional justice, not only criminal justice. First of all, they need regional cooperation. They need to accept the victims, share information, find the missing persons, and exchange information that helps indict all the people involved in crimes. It is not enough that only 74 people have been convicted for thousands of victims killed during the war. We also need to cooperate in education, to work more with youth so that what happened is not forgotten, and to change school curricula so that young people do not learn the wrong information but learn what really happened. People with blood on their hands should not be seen as heroes. We need a louder voice for justice for victims.

Janet Anderson 00:49:29  And what about the idea of history-making? When we’ve dropped into court together, often with young journalists learning how to cover war crimes trials, we’ve heard again and again that the Thaçi and others trial is about writing history from both sides.

Margherita Capacci 00:49:58  Yes, history and rewriting history came up many times in the closing statements. The prosecution mentioned it, the defence mentioned it, obviously in opposite ways, and I think most of the accused mentioned it too when they addressed the court. Others I interviewed said it was a point raised over and over again in the closings.

Janet Anderson 00:50:25  It’s fascinating that this becomes one of the major recurring themes. It shows how important this court is to how Kosovo sees itself and the kind of country it wants to be. But is a court really the best method for doing that? Can this court truly contribute to understanding history? Here’s Amer again.

Amer Alija 00:50:54  Court judgments are good sources for history, or at least one of the main sources for writing history. But history cannot be changed because it is not written only through a few judgments delivered by some court. There are many crimes and wars that never even reach investigation or trial, but history still exists. The narrative in Kosovo about what happened during the war is documented very well, even by NGOs and other institutions working on documentation. Trials can contribute to that history and those narratives. But verdicts cannot change the narrative or the history, because verdicts deal only with individual criminal responsibility.

Janet Anderson 00:51:58 That feels true of so many trials I’ve covered. They absorb huge chunks of history, often with historians testifying, and they do write up parts of history in their judgments. But it can never be the full picture because the whole thing is refracted through the trial of a specific person, through the lens of individual criminal responsibility.

Janet Anderson 00:52:34  So, Margherita, this is a gargantuan podcast to match a gigantic trial. Is there anything more we need to say?

Margherita Capacci 00:52:41  I just want to add one thing. I asked Amer, because he raised many issues about this court, as every court has its own issues, whether there was also anything more positive to say.

Amer Alija 00:53:12  The judges involved in these cases are doing their job. They will decide based on the evidence they have. Even if one or two facts are proven by the court, I think that is positive. But it is not positive to have a one-sided court, because that is not good for jurisprudence or for history. Still, we know these courts are ad hoc and they work only for a limited time. Any judgment supported by credible witnesses, testimony and evidence is a positive.

Janet Anderson 00:53:56  Great. I’m sure we’ll be back to do a broader assessment of the KSC, probably without all the pesky details of exactly what happened in the trials. But we’ve managed to shoehorn a lot into this episode, and I think it helps people understand that, as journalists, we are trying both to cover the details of the trials and to understand the bigger picture. So thank you so much, Margherita, for putting this all together. And of course, get well soon to Steph, if you’re listening, wherever you are. We can’t wait to have you back on the podcast.

Margherita Capacci 00:54:40  Thank you, Janet, for having me.

Janet Anderson 00:54:47 And thanks everyone for listening. If you’re enjoying this podcast and would like to give us a bit of extra support, you can head over to our supporters page and leave a tip, or follow us on Patreon, or download our newsletter. We really appreciate everyone who gives us a bit of extra support there.

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This was Asymmetrical Haircuts, your international justice podcast, created and presented by Janet Anderson and Stephanie van den Berg, in partnership with the Hague Humanity Hub. Music is by Audionautix.com. 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.