A tribunal that has gone astray

I spent my allotted 40 minutes yesterday with Kosovo’s former President Hashim Thaci at the international section of the Dutch penitentiary in The Hague yesterday. I wanted to renew an old friendship. It is well-known in Kosovo that he and I had a falling out shortly before he voluntarily went to The Hague to stand trial. I also wanted to get a better sense of the reality behind the Kosovo Special Chambers tribunal that is conducting his trial. So I met as well with the tribunal’s spokesman, Michael Doyle. I know Michael from his excellent service with HiRep Inzko in Bosnia.

Caveat emptor. If you are looking for a juicy tidbit of what Hashim said to me, read no further. Our conversations were always private in the past, and this one will be too. Except for the prison official who sat in to listen in accordance with the rules. I will respect the confidentiality of what Hashim said. But he always respected my right to say what I want in public. I’m sure he still will.

The prehistory

Hashim and I used to meet whenever I got to Kosovo or he visited the US. That habit started in 1999 when he was among the Kosovo Albanian leadership the United States Institute of Peace brought to a resort in Lansdowne, Virginia. We did that because violence among Albanians was increasing in the aftermath of the NATO/Yugoslavia war. We were concerned it might lead to civil war. Crimes definitely did occur after the war.

Hashim has always attributed the Kosovo Liberation Army’s turn toward politics to that Lansdowne meeting. It included almost all of the main political, civil society, and journalist leaders of post-war Kosovo. The declaration it produced became a guidepost for subsequent political, civil society, and economic efforts. It also led to a meeting two years later with the Kosovo Serb leadership at Airlie House. And to a major non-violence campaign, in which Hashim played a prominent part.

Relations with the United States

Hashim was certainly an American favorite at the failed Rambouillet peace talks in late 1998. There as political spokesman for the KLA he eventually convinced its disparate commanders to sign the proposed agreement. The Serb rejection precipitated the NATO bombing of Yugoslavia.

But he neither rose quickly nor had unalloyed American support after the war. The Americans were unhappy with Hashim when he appointed new mayors in Kosovo’s municipalities. He claimed this authority as “prime minister” of a “provisional government” created some months earlier. The mayors he appointed replaced those Kosovo “President” Rugova had installed during the decade of Serbian repression. We warned Hashim at Lansdowne that they would be unable to deliver expected benefits and would be held accountable at the first municipal elections.

Those were held a year after the war. The Americans wanted to avoid the mistake made in Bosnia, where national elections were held only a year after the war. That Bosnian national election was a disaster, as it reconfirmed all the leaders of the warring parties in power. The Kosovo municipal elections displaced many of the KLA mayors, as the Americans had predicted. It was years before Hashim’s Democratic Party of Kosovo recovered. He played important roles under the UN protectorate, but his first real taste of executive power was in 2008, when he presided over Kosovo at independence and became prime minister thereafter.

The tribunal

Thaci rose to the presidency in 2016. By that time the Americans and Europeans were agitating for a tribunal to try allegations of war crimes and crimes against humanity that occurred principally after the war was over in 1999. Most sensational of the allegations were claims that the KLA kidnapped Serbs, smuggled them into northern Albania, removed vital organs, and killed them. I had known about these allegations since shortly after the war, but the journalist who told me about them said he could not meet journalistic standards sufficient to publish them. The 2011 Council of Europe report that made them public was no better.

But after American prosecutor Clint Williamson reported in 2014 that there was sufficient grounds for indictment of KLA members, the diplomatic pressure became overwhelming. As President, Hashim used his influence in the parliament to get it to pass a constitutional amendment creating a Kosovo court that would convene in The Hague, entirely staffed by internationals. I also spoke out in favor of this new court, believing it would investigate principally the organ trafficking allegations. The Kosovo Specialist Chambers became operational in 2017, in a Hague facility Norway paid to renovate. The European Union foots the bill.

I never imagined the “Specialist Chambers” would do what it has done. In 2020, it indicted Hashim and three of his KLA colleagues for constituting a “joint criminal enterprise” that committed war crimes and crimes against humanity, not including the organ trafficking allegations. He resigned the presidency and went to The Hague, where he has been imprisoned since. He was held in pretrial detention for 2.5 years and now another 2.5 during the trial.

What’s wrong with this picture?

There is a lot wrong with this picture, or more accurately my view of this picture.

First is the bait and switch. The Kosovo parliament believed, as I did, that the main focus of the tribunal would be the organ-trafficking allegations. The defense team has argued this point in court and lost, because there are some other allegations in the Marty report. But to a layman–that’s me–if you want your customer to be happy you don’t sell one thing and deliver another. Of course the tribunal has no reason to care much about me as a customer, but I am one. Tribunals of this sort are supposed to deliver justice, not retribution based on deception. No future liberation struggle will ever agree to a tribunal of this sort.

Second is the nature of the charges brought. The “joint criminal enterprise” charge based on their command responsibility against the entire KLA leadership, military and political, has the appearance of criminalizing the revolt against Serbian oppression. Of course the KLA and what it did were illegal under Serbian law, as the American revolution was under British law. But the United States and NATO supported the KLA because they thought the cause was just. The tribunal says this view of the indictments is wrong because the individuals were charged with specific crimes, not rebellion. But try convincing anyone in Kosovo (or Serbia) of that.

Third, the court’s jurisdiction does not include Serbia, where crimes also occurred after the war. The three American Bytyqi brothers were murdered there after the war, as were others. Had the diplomats insisted that the tribunal act against those crimes, I imagine we would either have no tribunal at all or one that was viewed more favorably in Kosovo. I blame myself for not having raised this issue at the time.

Most important

Fourth, and my main complaint today, is the ridiculous time Hashim and his comrades have been kept in pre-trial, and now during trial, detention. Innocent until proven guilty should not be an empty slogan. These people all resigned and went to The Hague voluntarily, something their opponents in Serbia did not do. How do you justify 5 years of prison (pretty high security prison from my personal observations) before finding out whether someone is guilty?

The answer is concern about witness intimidation or manipulation, which has been a problem according to the tribunal. I don’t buy that as an adequate explanation. The tribunal should long ago have freed these men. None of them are running away to hide. All of them could have been monitored without detention in The Hague.

Guilty or innocent

I don’t know if these KLA leaders are guilty or innocent of the charges. I haven’t read all the trial transcripts. Even if I had, the responsibility is the tribunal’s to decide, not mine. I just hope the verdict can be kept isolated from the European governments’ expectations that they should get some convictions for the hundreds of millions of euros they’ve put into the effort.

One more story about Hashim, a story old enough that the US government would already have declassified it. I found myself 26 years ago at Lansdowne with him and one of the KLA commanders at breakfast. I tried to make conversation by remarking that it must be strange for them to be in this fancy resort in Virginia when just a few weeks earlier they had been fighting in the mountains of Kosovo. Hashim looked at the KLA commander with him, who scowled, and turned back to me and said, “I never really was a fighter. I was the political spokesman.” I think Hashim in that moment was under a lot of pressure to tell me the truth.