By David Schwendiman.
In July 2014, I was just rounding the corner on my fourth year in Kabul, Afghanistan. When I checked my personal e-mails one evening, I found one from a friend and colleague I first met in Bosnia and Herzegovina in 2006 when I took over as the International Registrar of the War Crimes and Organized Crime Departments in the State Prosecutor’s Office in Sarajevo.
Kwai Hong Ip – Kip – and I got to know each other well over the almost four years we spent investigating and prosecuting atrocity crime together in Bosnia and Herzegovina. As the Head of the Special Department for War Crimes and the Deputy Chief Prosecutor during most of those four years, I grew to respect and admire Kip for the work he took on – work that involved the most difficult, most demanding and highest profile prosecutions in the office. I had not heard from Kip in some time and was keen to know why he had tracked me down in Kabul. In his e-mail he asked me to call him.
I called the next day. Kip told me that Ambassador Clint Williamson, a mutual friend of ours, was finishing his three-year stint as Lead Prosecutor of the European Union Special Investigative Task Force which had been set up by Clint and Kip. “Would I consider taking over for Clint when he left the post at the end of July?”
Not one to ever say no to anything, especially when someone like Kip or Clint is asking, I told Kip I was interested – who wouldn’t be? But I also told him I was already engaged in work I thought was important and worthwhile as the Director of Forward Operations in Kabul for the Special Inspector General for Afghanistan Reconstruction (SIGAR). I had serious commitments in Kabul and obligations to family that I needed to consider before getting back to him.
At the time, I was working for someone I greatly admire – the Special Inspector General, John Sopko – and I was loyal to the mission and the people for whom I was responsible in Afghanistan. I told Kip I would have to talk to my wife Bobbi and to John before I could give him an answer. If they were good with it, I would call him back as quickly as I could and let him know. He asked me to talk to Clint as soon as he could arrange a call.
I talked to Clint the next day. Clint and I discussed the work of the Special Investigative Task Force, its origins, and some of the challenges he and Kip and the staff had faced since the Task Force was formed in 2011. We talked about the challenges his successor would face in the next three years or more. He was frank about the demands of the job and about the less than certain future of the Task Force.
He talked with genuine conviction about the need to do what was possible to hold people accountable for what they did during the conflict years in Kosovo to help restore the dignity of those who suffered and were affected by crimes committed during that period.
We did not talk about the substance of the investigation or the prospects for charges. As we spoke he sensed I was getting more interested.
Once he knew he’d set the hook, he told me there was a hitch; no court yet existed before which to try any criminal case that might come out of the work the task force was doing. I would be taking over an investigation, he said, that didn’t have a court to work with, no prosecutor’s office, and no certainty there would be a court or proper prosecutor’s office any time soon. There wasn’t even a law yet that would create and empower the court and prosecutor’s office, let alone rules to guide them.
The opportunity was irresistible.
He reeled me in before we finished our conversation, but I told him, as I told Kip, that I had to get the support and approval of my wife, Bobbi, and the Special Inspector General. I needed to talk to them first because they were the people who would be asked to make the sacrifices necessary for me to do the job if I said yes and was selected.
In Bobbi’s case it would be another in a long line of sacrifices she and the family have made for four plus decades; sacrifices that have made it possible for me to do some pretty extraordinary things in some pretty extraordinary places under some pretty extraordinary circumstances. After I explained it to John Sopko, he asked if he could come, too.
Bobbi asked me if I thought I had the energy and could do what I was being asked to do and whether I thought it was worth doing. If I could contribute to something worthwhile, she said, she would support me, as she always has.
I called Kip back and said yes. And here we are.
Change
These are the last formal remarks I will make as the Specialist Prosecutor.
I am indebted to Carsten Stahn and Leiden University’s Grotius Centre for honouring me with the chance to make them in this distinguished forum. I can’t think of company I’d rather be in to do this. Carsten is teaching and mentoring all of you who are the future of this kind of work. It is not cliché to say that the enforcement of international criminal norms is now the norm.
Many of us in the room tonight, myself, Judge Trendafilova, my colleagues in the Prosecutor’s Office, in Chambers and in the Registry, James Stewart, Kathryne Bomberger, my friends from the MICT, the STL and the ICC – our learned friends in the defence bar who are here – are living proof of that.
Because of what has been done here in The Hague, in the City of Peace and Justice, a place I will miss very much, and because of what will be done here for years to come, the prospects of holding people accountable for atrocity and conduct that violates universally accepted criminal norms in fair, universally respected proceedings are as good as they have ever been.
There is a future for many of you in this room who are committed to entering the practice, not just the study, of international criminal law. It will be difficult for me to say goodbye to it all. For me, this has all been quite a ride. I will miss you all.
My time has come to an end, but the work of the Specialist Prosecutor’s Office and the work of Chambers has not.
The firm is not closing. It will simply be under new management on 01 April. As all of you know, I did not choose for this to happen. I did not resign – I was just told by my government that my time was up.
I also want to make sure you know that for me and for the Specialist Prosecutor’s Office my leaving is nothing more than a personnel change, not a change in focus or commitment, not a change in US policy or commitment, not a time or event that signals anything.
It is just a momentary stop along the continuum of what the Task Force and the Prosecutor’s Office have done since this started in 2011 and what the Specialist Prosecutor’s Office will do in future.
I have been privileged and honored to work with people for whom I will always have immense admiration and respect – and I confess great affection – Joe, Kip, Chris, Alan, Dan, Nadia, Sean, Daggi, Rupert, Ras, Nathalie, Iva, Luigi, Silvia, Matteo, everyone else who has played a part in the work of the Specialist Prosecutor’s Office and given me encouragement in my time as the Specialist Prosecutor.
I am flattered that they were a little disappointed when I announced that it would not be possible for me to stay beyond 31 March.
What I admire most about them is their dedication to the work of the Prosecutor’s Office and its mandate and their commitment to international criminal justice. They may have been disappointed, but they have never been discouraged. I’ve never known any of them to be discouraged even at times when that would have been normal behaviour – even expected under the circumstances.
As I said, this is just change. It will mean little insofar as the work of the Prosecutor’s Office is concerned. That is particularly true because, in the interim, the Office will be led by my Deputy, the person who got me into this in the first place, Kwai Hong Ip.
Kip will be Acting, seized of full authority as the Specialist Prosecutor, until a new Specialist Prosecutor is installed. I couldn’t be leaving the Office in better hands – or in better shape. We aren’t where we want it to be just yet. But we are where we need to be.
Tonight’s themes
I am going to assume that many of you are wondering what the Specialist Prosecutor’s Office is and who we are, what we do – some of you, no doubt, came hoping to learn how to get a job with us.
Some of you came believing, perhaps, that you were attending the “big reveal”– thinking I would offer something new about the investigation and where it is headed – who might be charged, whether anyone will be charged, what they might be charged with, how the Prosecutor’s Office plans to meet its burden of proof or deal with the legal challenges that will undoubtedly be brought in future.
That, as I’m sure you know, is not something I am going to talk about.
Prosecutors let their actions speak for themselves.
As far as the specifics of our investigation are concerned, that, I’m afraid, will just have to be the standard tonight.
That said, I don’t think what I say will disappoint you.
In the brief time I have I want first to set the Specialist Prosecutor’s Office in its historical and institutional context– how it came to be so you can get an idea, your own idea, of what this says about how this experiment in the enforcement of international criminal norms might influence or affect future efforts to hold people accountable for atrocity crimes.
This is, in many respects, a unique twist on the notion of complementarity. Kosovo has demonstrated it is willing, but recognized it is not able. The EU has made it possible.
And a bespoke set of institutions and procedures in the style of the Kosovo judiciary but situated outside Kosovo and staffed solely by internationals has been created by Kosovo with the help of the EU and member states to give it life.
I also want to share with you some of the policy guidance I have given that has affected the work of the Specialist Prosecutor’s Office during my time as the Specialist Prosecutor.
This isn’t new, but it will be the first time I’ve talked about it in public.
The new Specialist Prosecutor will, of course, give his or her own policy guidance, perhaps on the same matters, but I want to open a window on how I tried to do my job for those of you who might not know how a prosecutor, especially an executive prosecutor, works.
It will help you understand better what we are doing to achieve our goal of producing legitimate outcomes that are perceived as legitimate by those they affect.
I also intend to highlight a few of the challenges that had to be dealt with, issues that had to be addressed, and problems that had to be overcome on the road that got us to where we are today.
As I will explain, not all of these challenges are historically unique.
This will be neither a comprehensive inventory nor an in depth discussion of everything we’ve had to deal with.
There isn’t time and I am certain you don’t have the patience for anything like that tonight.
Many of the challenges the Prosecutor’s Office has faced, is facing and will face are challenges for the Specialist Chambers as well.
I will leave you to discuss that in future with my successor and the Registrar, Dr. Fidelma Donlon, my close and valued friend and colleague, and Her Honor, my distinguished colleague and dear friend President Ekaterina Trendafilova, the President of the Specialist Court.
Finally, if you will permit me, I want to end what I have to say by reflecting briefly in a personal way on a decade of doing this kind of work.
I hope I can inspire you to get involved if you aren’t already and to stay involved if you are – to leave with more energy than you brought with you this evening. As you will hear me say at the end of my remarks, this work – all of this – is much more than a way to make a living. I am convinced it is a wonderful way to spend a life – next to being paid to play baseball, maybe the best way.
Origins
Now, how did we get here?
Michael Montgomery – In early 2000, a team of journalists led by Michael Montgomery, an investigative reporter with long experience in South Eastern Europe, began looking into troubling information he’d received about camps in Albania, including stories of prisoner executions and organ harvesting.
He travelled with a colleague to Albania in 2002 and early 2003 to collect information on detention facilities in Albania and on the abduction from Kosovo and transfer to Albania of Serbian men and others after June 1999.
Among the claims Montgomery and his colleagues looked into were allegations that organs were harvested at the detention centres; organs that were subsequently trafficked beyond Albania.
UNMIK – In 2003, Montgomery summarized these allegations and sent them to the Office of Missing Persons and Forensics of the recently established UN Interim Administration Mission in Kosovo (UNMIK).
Based on the information Montgomery supplied, UNMIK and the ICTY participated in a joint investigative and forensic visit to Albania in February 2004. For a variety of reasons, however, the investigation came to a halt. It was another five years before the information reached the public.
ICTY- The ICTY eventually mounted prosecutions of Kosovar leaders, but none dealt with the organ-trafficking claims. The two best known prosecutions – those of Ramush Haradinaj and Fatmir Limaj – ultimately ended in acquittals.
Carla Del Ponte – In one of the chapters of the memoir she published in 2008, Carla Del Ponte, the former Chief Prosecutor of the International Criminal Tribunal for the Former Yugoslavia or ICTY, claimed that senior leaders in the Kosovo independence movement bore responsibility for the organ trafficking alleged by Michael Montgomery to have involved a Kosovo Liberation Army (KLA) detention center allowed to operate for a time in 1999 in Northern Albania.
Marty Report – Carla Del Ponte’s allegations so shocked the Council of Europe that it tasked Dick Marty, a Swiss Senator, member of the Parliamentary Assembly of the Council of Europe, and a former Swiss prosecutor, with conducting an inquiry that eventually led to a report he produced in 2010 for the Council of Europe Parliamentary Assembly’s Committee on Legal Affairs and Human Rights.
Senator Marty’s report was made public on January 7, 2011.
The “Marty Report,” as it has come to be known, concluded that serious crimes, including war crimes and crimes against humanity, were committed between the beginning of 1998 and the end of 2000 by senior leaders of the KLA, some of whom now hold positions at the highest levels of government in Kosovo.
The inquiry conducted by Senator Marty focused primarily on organ trafficking, but covered other activity as well.
PSC and EULEX – Not long after the Marty Report was published, the EU Rule of Law Mission in Kosovo (EULEX) was directed by the Council of the European Union’s Political and Security Committee (PSC) to conduct a criminal investigation starting with the report’s findings.
EULEX was created in 2008 to help Kosovo institutions acquire sustainable competence that would eventually make it possible for Kosovo to take over the judicial and law enforcement functions the UN Mission in Kosovo (UNMIK) assumed in June 1999 under UN Security Council Resolution 1244.
Under the authorities that established the Kosovo mission, EULEX enjoyed executive authority to conduct criminal investigations and try cases involving war crimes, ethnically motivated crimes, organized crime and crimes deemed too sensitive to be dealt with by local authorities.
The investigation, based on the claims made in the Marty Report, was covered by the EULEX mandate.
Special Investigative Task Force (SITF) – In 2011, a Special Investigative Task Force (SITF) was created within the framework of EULEX for the purpose of carrying out an independent criminal investigation of the conduct Senator Marty addressed in his report.
In setting up the SITF, the EU and EULEX took significant organizational and administrative measures to ensure that its work would be insulated against outside influence and interference; that it would not be politicized.
It has been a key feature of everything that has been done since, a guiding principle for everyone who has been involved since the SITF was created, that the work of the SITF and now the work of the Specialist Chambers and the Specialist Prosecutor’s Office be safeguarded from such influence and interference.
The US seconded former Ambassador-at-Large for War Crimes Issues, Clint Williamson, to lead the Task Force.
April 2014 exchange of letters. In April 2014, Catherine Ashton, High Representative of the European Union for Foreign Affairs and Security Policy, and Atifete Jahjaga, President of the Republic of Kosovo, entered into an exchange of letters, subsequently ratified by the Kosovo Assembly as an international agreement [treaty], whereby Kosovo invited the EU to provide support – political, financial, administrative, and logistic – for a “specialist court within the Kosovo court system and a specialist prosecutor’s office” for “trial and appellate proceedings arising from the SITF investigation.”
In view of the nature of the allegations and the people under investigation, Kosovo agreed that “sensitive proceedings, including hearing of witnesses, would take place outside of the country.” In addition, “filings and sensitive records would be introduced and maintained exclusively outside the country.”
To accomplish all of this, Kosovo promised the EU it would set up a “dedicated separate judicial chambers, which would be relocated to a third State pursuant to an Agreement with that State and which would include all levels of the court system, including the Constitutional Court, for any criminal proceedings, that arise out of the SITF’s work.”
Kosovo agreed that such “structures” would be staffed with and operated by international staff only. Kosovo agreed to “adopt appropriate legislation” and “constitutional amendments as needed” to provide for the relocated chambers, prosecutor’s office and proceedings and to negotiate and ratify an agreement with another state to host it all.
The High Representative, Baroness Ashton, noting that “close co-operation” between the EU and Kosovo contributes to “strengthened stability and prosperity in the region,” accepted President Jahjaga’s invitation to provide support for the Specialist Chambers and Prosecutor’s Office.
With respect to continued EULEX support to the SITF and beyond, Baroness Ashton confirmed what President Jahjaga had committed Kosovo to; that is that EULEX would support the work of the SITF and proceedings that derived from it until the work and the proceedings concluded.
The High Representative noted in her reply that the work of the Special Investigative Task Force (“SITF”) and “any judicial proceedings deriving from it” would continue until such time as the Council of the European Union notified Kosovo that the investigation and subsequent proceedings were concluded.
Law on Specialist Chambers and Specialist Prosecutor’s Office (“Special Law”). In August 2015, the Kosovo National Assembly passed a constitutional amendment and the Law on Specialist Chambers and Specialist Prosecutor’s Office (“Special Law”), in keeping with the commitment Kosovo made to the EU in 2014.
The constitutional amendment and the Special Law went into effect in September 2015 after the Constitutional Court of Kosovo determined there were no constitutional defects in either.
The stage was set for the EU to make good on the commitment the High Representative made to Kosovo in April 2014.
The European Union – In late 2015 and early 2016, the European External Action Service (EEAS) began the technical work necessary to create the practical and legal bases for meeting its commitment to fund the new Specialist Chambers and Specialist Prosecutor’s Office and to manage the forthcoming financial, personnel, and logistical challenges the new institutions posed for the EU as donor.
The entire enterprise was a new and unique experience for the EU, one it bravely embarked upon with only limited understanding of what it takes to investigate and prosecute crimes against humanity and war crimes, especially under circumstances like those that exist in Kosovo and in relation to conduct that occurred almost two decades earlier.
Host State Agreement. In early 2016, the Republic of Kosovo and the Kingdom of the Netherlands reached an agreement for the Netherlands to host the institutions and proceedings provided for in the Special Law.
Privileges and immunities and other concessions were granted under an interim arrangement allowing the institutions created by the Special Law to relocate to The Hague and to function throughout the better part of 2016.
The bilateral agreement became fully effective on January 1, 2017.
EU funding – In June 2016, the PSC gave instructions for establishing and funding the Specialist Prosecutor’s Office and the Specialist Chambers created by the Special Law and for funding and supporting the “relocated proceedings” contemplated by the Special Law for an initial period of five years beginning June 15, 2016.
Specialist Prosecutor’s Office – On September 1, 2016, the SITF formally became the Specialist Prosecutor’s Office as provided by the Special Law. The same day I accepted appointment to a statutory four-year term as Specialist or Chief Prosecutor of the Specialist Prosecutor’s Office.
I had every reason to think I would be able to finish my term.
For reasons that have nothing to do with the Office, the work of the Office, or the commitment anyone has to seeing all of this through to the end, that is no longer possible. I am hopeful that a new Specialist Prosecutor will be selected and that he or she will be appointed soon, but as I mentioned earlier, the work and the Office are in the best hands regardless.
On September 1, 2016, the Office entered a new phase. We assumed all of the authorities, the obligations, the responsibilities and tasks the Task Force had undertaken. The Specialist Prosecutor’s Office simply picked up where the Task Force left off – a seamless handover as provided for in the Special Law. But as of September 1, 2016, the burden on the Specialist Prosecutor and the Office changed.
The Specialist Prosecutor became responsible for the decisions that have to be made regarding prosecution and those working in the Office took on the daunting task of assessing and evaluating all that had been done with an eye to preparing the Specialist Prosecutor to make the very lonely decisions only a prosecutor can make regarding who to charge and what to charge them with if evidence existed to justify it.
We were not longer simply making reports or issuing statements regarding the subject matter.
Indeed, when I spoke with Ambassador Williamson in July 2014, the Special Law was a year from being passed and even that was uncertain; there was no court; there was no prosecutor’s office; there were no rules of procedure, no budget yet for the next phase if there was going to be one. As I have noted already, that is no longer the case. The legal bases, the institutions, the rules, the financial support exist.
The Specialist Prosecutor must now prove beyond a reasonable doubt, whatever he or she accuses someone of – beyond a reasonable doubt as to each person and each charge put forward and confirmed.
Mandate and Some Fundamental Policy Guidance
So what can the Specialist Prosecutor and the Specialist Prosecutor’s Office do? The mandate – As set out in the Special Law, the mandate of the Specialist Prosecutor’s Office is to investigate and prosecute:
• “grave transboundary and international crimes” as defined by the Special Law – primarily war crimes and crimes against humanity as defined by customary international law;
• that are related to the conduct covered by the Council of Europe Parliamentary Assembly report produced by Senator Dick Marty – the Marty Report – as investigated by the SITF and its successor, the Specialist Prosecutor’s Office;
• that were committed during the period covered by the Special Law – 1998, 1999, and 2000;
• that were committed by people over whom the Specialist Court has personal jurisdiction; and
• that were committed in the places over which the Specialist Court has jurisdiction; or
• crimes that involve conduct that interferes with or jeopardizes the integrity of investigation or of proceedings before the Specialist Court.
Well-grounded suspicion. Under Article 86 of the Rules of Procedure and Evidence (RoPE) promulgated by the Specialist Chambers, before an indictment can be filed the Specialist Prosecutor must be satisfied that “there is well-grounded suspicion that a suspect committed or participated in the commission of a crime within the jurisdiction of the Specialist Chambers.”
Though not “expressly incorporated and applied” by the Special Law, the requirement in Article 19 of the Special Law that the Specialist Chambers be guided by the existing Kosovo Criminal Procedure Code in the creation of the Rules of Procedure and Evidence, together with the absence of any independent or contrary definition of the term “well-grounded suspicion” in the Special Law or in the rules adopted by the Specialist Chambers suggests that the term as used by Chambers in Rule 86 of the Rules of Procedure and Evidence should be interpreted in light of the current Kosovo Criminal Procedure Code definition of “well-grounded suspicion” found in Article 19 (1.12) of the Code; that is,
. . . Possession of admissible evidence that would satisfy an objective observer that a criminal offence has occurred and the defendant has committed the offence.
This, then, is the basic test for deciding who and what to charge.
Additional criteria. Based on best professional practice, I have directed that we make a further assessment to determine whether charges ought to be filed; that is, whether a proposed charge is supported by:
• evidence that will be available to present at trial; and
• evidence that after it is tested by a well-informed, responsible and vigorous defense will likely be sufficient in quantity and quality to result in verdicts of guilty that can be sustained on appeal as to each accused and each charge proposed for confirmation.
Human rights obligations – Under the Kosovo Constitution and the Special Law the Specialist Prosecutor and Specialist Chambers are bound, along with other international human rights instruments, by the European Convention on Human Rights.
Thus, together with the responsibility to help ensure an accused receives the benefit of the right to liberty and security, and the fair trial and due process rights guaranteed by the Kosovo Constitution, the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the European Convention on Human Rights, the Specialist Prosecutor is also responsible for helping victims achieve the benefit of the rights guaranteed to them by the same instruments.
Principal among them is the obligation to reasonably investigate the death and disappearance of victims of the crimes within the mandate of the Specialist Prosecutor, and to locate, exhume and identify those still missing so they can be given back their identity and returned to those who survived them.
My policy has been to give this our best effort consistent with our mandate and to the extent our resources permit.
This is a personal commitment and one about which we all feel strongly.
Challenges
National Military Tribunals. It is helpful and somewhat comforting to see things from a historical perspective.
When that is done, some of the challenges the Specialist Prosecutor’s Office faces are remarkably similar to ones encountered and overcome in connection with the establishment and operation of the National Military Tribunals (NMT) before which the United States conducted thirteen trials in Nuremberg under Control Council Law No. 10, following the close of the International Military Tribunal (IMT) in October 1946.
Brigadier General Telford Taylor, the US Chief of Counsel for War Crimes in 1946, describes what some of these challenges were and how the National Military Tribunals handled them in the report he made to the Secretary of the Army at the conclusion of the trials which were conducted between 1946 and 1949.
Among others, the challenges the general dealt with setting up the Tribunal included:
• finding competent staff to serve as prosecutors;
• recruitment and organization of staff to support the prosecution and the tribunal;
• “actual procurement and evaluation of evidence, documentary and oral;”
• “screening the mass of documents that existed in the captured document centers and other repositories in Germany, the United States and elsewhere;”
• the evaluation of the results of interrogations conducted by intelligence teams and others shortly after the war and interrogations conducted in connection with the International Military Tribunal.
“As the documentary and oral evidence grew in volume and was ‘sorted out’ by the lawyers and research analysts,” the general noted, “it became possible . . . to embark on the next task: the determination of what individuals should be accused, and of what they should be accused.”
Only after that had been accomplished and charges prepared, could preparations for holding trials be started. The qualifications judges would have to meet were settled. Judges were recruited. Qualifications for defense counsel were fixed.
A Central Secretariat with an Administrative Branch was created to support the Tribunals, including the obtaining of defense counsel and the “provision of facilities for use in their work, and the creation and management of a Defense Center that provided a wide range of services to defense counsel. Physical arrangements for the Tribunals and staff also had to be made.
There are, of course, significant differences between what was and could be done in 1946 and the tasks facing the Specialist Prosecutor’s Office in 2018, but as you can see much was the same.
Dealing with the mass of material that must be assessed.What was learned doing the main trial in Nuremberg, taking advantage of what was left in place when it concluded in 1946, coupled with the vast resources at the general’s disposal – by the end of October 1946 he had 400 people, most of them on the prosecution side, working for him and the number was growing – made meeting the logistical challenges and the assessment of evidence, selection of accused, and charging decisions happen relatively quickly.
The great caches of material and documentation that had evidentiary value, though posing their own problems for analysts and prosecutors, nonetheless were immediately available to review.
In the case of the Specialist Prosecutor’s Office and the Task Force before it, a good deal of the evidentiary material is held by a variety of states and organizations, some of which are reluctant for various reasons to allow access.
Gathering documentation, locating witnesses, finding other material that may have evidentiary value is more fraught in our case, requiring patience and perseverance as well as diplomacy.
The Specialist Prosecutor’s Office is now assessing and evaluating approximately 700,000 pages of documentation, comprising around 70,000 documents, along with some 6000 related items – videos, photographs, transcripts and other items collected during the investigation to date. The number is growing as our investigation continues.
We are also assessing and evaluating hundreds of witness interviews and conducting more interviews as we continue to work to discharge our responsibilities under the mandate.
It takes time and expertise to do all of that and do it well. We have fewer resources to work with than the general had in 1946. But we make up for it in organization, expertise, and the dedication and commitment of the people working in the Specialist Prosecutor’s Office. They are fully engaged and well led and directed in their efforts by the leaders of the trial and legal teams. The tasks I’ve mentioned must be completed before the criteria I described earlier can be met. It will take more time to do it all and do it well.
We must do it right and do it well to ensure that we meet the standard I spoke of earlier and avoid significant delays and problems later on.
It is also essential if we are to meet our goal of producing outcomes that are legitimate and are perceived as legitimate by those they affect.
Accountability.Once a post-conflict state commits itself to a criminal justice approach for dealing with conduct committed during or in connection with conflict, as it must under a variety of international conventions and treaties as to which it is almost certainly bound, as is Kosovo, accountability becomes the paramount goal.
The business of the prosecutor is accountability; individual accountability for crimes proven beyond a reasonable doubt by evidence acquired through means accepted as fair and reliable not only according to international standards but also in the domestic systems involved.
Accountability must be for individual acts not group liability for any of the conduct covered by the Special Law.
The work of the Specialist Prosecutor and Specialist Chambers is not an attack on a historical narrative such as the Kosovo independence narrative or the Kosovo Liberation Army veterans’ narrative.
The EU is not investing as much as it is, the US did not send me here to do this, none of us are involved in what we are doing to change history, or to attack a narrative, or an organization, or a group, or ethnicity. Our sole objective is to do what the law and the evidence allow us to do to put people to proof for their own acts. The genius of modern international criminal law is that it focuses on individual accountability for the violation of international criminal norms.
Individuals in groups, of course, can be liable for their roles in action they take together in pursuit of criminal purposes, but the liability is still personal; personal liability for acts committed with criminal intent.
If an organization to which an accused belongs, or which he or she controls or directs, or uses for criminal purposes is discredited by what the accused is accountable for, it is the crimes of the accused that are to blame, not those who investigate or prosecute the accused.
Sensitive and vulnerable witnesses. Establishing the “crime base” in cases involving atrocity will almost always involve evidence given by victims of the crimes alleged and documentary or other evidence, including physical evidence and the evidence of observers, that corroborate the victims’ accounts.
Proving responsibility for the crimes will invariably involve evidence given by those who participated in them, people who have criminal exposure themselves in many cases, people close to those who committed crimes and can testify first hand regarding their acts and intentions, and others who have direct knowledge of things that must be proven to establish culpability. These people are likely to be the most vulnerable to intimidation, threat and interference.
Donors and contributing states must be committed to undertaking responsibility for helping protect those witnesses and help us ensure they will be available when the time comes for them to give evidence.
Treatment of this sort must not be considered a benefit to the witness or an inducement and measures must be taken to manage this in the most effective, most professional and ethical way.
Managing expectations.Recognizing and understanding the expectations people who are affected by our work have of us is a recurring challenge.
It is one that must be met in order to help educate and inform those affected by what we do in ways that promote confidence in those we need to involve in order to do our work.
In this regard, we must never promise more than we can deliver nor more than our mandate and resources permit. We must never deliver less than we promise. We must remain independent in fact. To the extent we can control it or influence it, we must do all we can to be perceived as independent by those affected by what we do. We must also be transparent within the limits – legal, professional and ethical – that apply to prosecutors. Well-meaning donors must avoid making institutions like the Prosecutor’s Office more vulnerable by failing to grasp the nature of criminal investigations and prosecutions of atrocity crimes and expecting too much of them.
Without experience to guide them, donors may fail to see atrocity crime as anything other than a kind of complex crime routinely dealt with by their own domestic prosecutors and established courts.
They may expect investigations and prosecutions to be done in a relatively short period of time with the kind of resources that might be adequate when an established judicial system is available. Seeing things this way fails to take into account the unique features and attendant demands of atrocity crime investigation and prosecution. This inevitably has an adverse impact on planning, budgeting and staffing. Atrocity crime investigations and prosecution are not only complex.
They deal with conduct committed in the midst of chaos on a scale that is usually so large, both with regard to territory and damage – personal and property – and so dramatic and wide spread in terms of its impact that it makes the identification, collection and preservation of evidence uniquely challenging and protracted, calling for skills and expertise that are uncommon.
The conduct under investigation often involves the dislocation of vast numbers of people making finding and collecting evidence from survivors and displaced persons difficult and tedious. Many times the investigation and prosecution of atrocity comes only after the conditions evolve to make them possible, often years or even decades after the conduct occurred. This, too, makes these kinds of investigations unique, time-consuming and resource intensive.
Donors who sign on to support these kinds of investigations and prosecutions must re-orient their thinking to ensure that political will does not wain and a loss of interest does not interfere in the short or long-term with the institutions created to do the work. The same goes for political expediency.
This doesn’t mean, of course, that the donors and contributing states should not insist that the work of the institutions be done as expeditiously and efficiently as possible, building on what can be learned and adapted from the work of other experiments in the enforcement of international criminal norms. Haste is no friend of justice, but neither is unreasonable delay.
The further things get from when crimes were committed, the less credible efforts to address them are going to seem and the weaker the perception of their efforts as legitimate is going to be.
This expectation must be managed within the constraints of the legal, professional, and ethical limits that a prosecutor must respect and the resources available to him or her to use.
Conclusion
I promised you when I began that I would give you something to think about. I also promised you that I would tell you who we are and how we came to be. You now have an idea of our mandate and what we are doing to discharge it.
Hopefully, you also have a better idea how we see ourselves as prosecutors in this new institution and you have a sense of what the Specialist Prosecutor’s role is.
I’ve given you a taste of some of the challenges we have worked with to date; what we are dealing with now; and what we will have to deal with in future.
I hope I have succeeded in getting you to think how what can be learned from this experiment may be applied in other situations that will require attention in future – situations that may not fit under the umbrella of the International Criminal Court; situations that are better dealt with domestically, but where domestic institutions are willing, or can be made to be willing, but simply aren’t capable of delivering legitimate outcomes that are likely to be perceived as legitimate by those they affect.
As I said in the beginning, I would like to be able to see this through, but I leave it in very capable hands.
I will follow this closely now – but as a spectator.
About David Schwendiman David Schwendimanserved as Specialist Prosecutor at Kosovo Specialist Chambers between 1 September 2016, when the Special Investigative Task Force (SITF) transitioned into the Specialist Prosecutor’s Office (SPO), and 31 March 2018, having been Lead Prosecutor of the SITF from May 2015.
President of Ghana, Nana Addo Dankwa Akufo-Addo and Premier Armin Laschet – Foto, Land NRW, U. Wagner.
Tuesday, 27 February 2018, Düsseldorf, NRW: The President of Ghana, Nana Addo Dankwa Akufo-Addo and his high-level delegation, which included the Ghanaian Foreign Minister H.E. Shirley Ayorkor Botchwey, the Minister for Environment, Science and Technology, Dr. Kwabena Frimpong-Boateng and H.E. Ambassador Gina Ama Blay were received at Government House.
Premier Armin Laschet hailed Ghana’s development and solid democratic institutions as well as the special partnership between Ghana and NRW. The state government has Ghana as a focus of development aid and cooperation in collaboration through the “Deutschen Gesellschaft für Internationale Zusammenarbeit (GIZ)”.
Both governments are now seeking to expand on the economic factors and mutual investments to enhance the cooperation. For the latter goal, President Akufo-Addo was a keynote speaker in Dormund at the German-African Economic Forum supported by NRW.
For further information:https://www.land.nrw/de/pressemitteilung/ministerpraesident-laschet-empfaengt-den-staatspraesidenten-der-republik-ghana
Embassy of Ghana to Germany, H.E. Ambassador Gina Ama Blay: http://www.ghanaemberlin.de/en/home/index.html
H.E. Ambassador Ahmet Üzümcü, Director-General of the OPCW and the President of the French Republic, H.E. Mr Emmanuel Macron.
The Hague, Netherlands — 22 March 2018 — The President of the French Republic, H.E. Mr Emmanuel Macron, visited yesterday the Headquarters of the Organisation for the Prohibition of Chemical Weapons (OPCW) in The Hague.
President Macron met with the Director-General of the OPCW, H.E. Ambassador Ahmet Üzümcü, who briefed him on the achievements and challenges in the implementation of the Chemical Weapons Convention (CWC), including OPCW’s activities in the Syrian Arab Republic, as well as on current challenges and future priorities of the Organisation. The Director-General thanked France for its continued support to the Organisation.
President Macron stated: “The OPCW holds an essential place and plays a fundamental role in our fight against the use of chemical weapons. France will strongly and clearly always support the OPCW’s work so that these unacceptable actions stop and so that impunity does not exist. You can count on our resolute commitment.”
The Director-General expressed: “Today, we have reiterated our support to uphold the international norm against the use of chemical weapons, as well as our readiness for sustained vigilance to prevent the re-emergence of such weapons.”
President Macron was accompanied by the Permanent Representative to the OPCW and Ambassador of France to the Netherlands, H.E. Mr Philippe Lalliot; the Diplomatic Advisor to the President of the French Republic, Mr Philippe Etienne; and other members of the delegation.
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Photography by OPCW Public Affairs.
Minister Johan Frisell, Deputy Head of Mission, Swedish Embassy to Germany.
8 March 2018, International Women Day, Berlin, Germany: At the “Felleshus” of the Nordic embassies complex, the missions of Sweden and Canada in collaboration with German authorities organised a discussion evening with focus on women’s participation in foreign policy-making.
Female participation in peace processed are still understimated, and women are barely represented at high-level negotiations. Political scientists, politicians and diplomats from Sweden, Canada and Germany agree that foreign policy must become more feminist. Thus the weight of the discussion went for establishing strategic policies for the inclusion of more women into policy-making.
The panel of speakers included the deputy heads of the embassies of Sweden and Canada, respectively Johan Frisell and Jennifer May, the Director of the Department on Human Rights and Gender Issues, Karin Goebel, the Centre for Feminist Foreign Policy, Kristina Lunz as well as Dr. Moira Feil, Director for G7/G8/G20 from the Federal Ministry of Economic Cooperation and Development.
On the picture, Minister Jennifer May, Deputy Head of Mission, Canadian Embassy to Germany.
Jennifer May highlighted the Canadian Government’s commitment to fostering women participation at international functions such as the G7 Summit held recently in Canada. Germany on its side is pushing for more female participation and visibility as she candidates for a non-permanent seat
For further information:
Swedish Embassy to Germany, H.E. Ambassador Per Thöresson: https://www.swedenabroad.se/de/botschaften/deutschland-berlin/
Canadian Embassy to Germany, H.E. Ambassador Stéphane Dion: http://www.canadainternational.gc.ca/germany-allemagne/index.aspx?lang=deu
On Friday March 23rd, H.E. Mr. Shujjat Ali Rathore and the Embassy of Pakistan to the Netherlands celebrated “Pakistan Day” with the diplomatic community of The Hague.On March 23rd, 1940, the All-India Muslim League adopted the Lahore Resolution and the first constitution of Pakistan, thus setting the stage for the foundation of Pakistan. Sixteen years later, on March 23rd, 1956, the Islamic Republic of Pakistan was established as the word’s first Islamic republic. The relevance of these two events can well explain the importance that March 23rd has for the Pakistani government and, especially, for the Pakistani people. Celebrations for this day, however, are not limited to Pakistan. On Tuesday, H.E. Shujjat Ali Rathore, Ambassador of Pakistan to the Netherlands and the staff of the Pakistani Embassy decided to celebrate this anniversary with the whole diplomatic community of The Hague. A number of guests, including several diplomats and Ambassadors, gathered in the reception room of Hilton Hotel The Hague, and were warmly welcomed by H.E. Shujjat Ali Rathore, his spouse Uzma, and the staff of the Embassy. Then, in a crowded hall, the Ambassador officially welcomed all the participants and delivered his speech. He reminded the pivotal role played by the Lahore Declaration in the foundation of the Pakistani nation, “a homeland for the Muslims in the region.”He then praised the vivacity of Pakistan’s political environment, allowed by Pakistan’s strong commitment to its active, “noisy” democracy. The Ambassador also highlighted the significant economic role that Pakistan is increasingly playing in South Asia, especially in the light of its economic development and its collaborations with surrounding countries. He then thanked all the guests for their participation, and he invited them to enjoy the buffet kindly provided by the Embassy.Pakistan National Day. Photograhy by Guido Lanfranchi.The guests remained for a long time in the room, entertaining conversations in the midst of drinks and wonderful, spicy Pakistani specialties. In the reception hall, they could also admire an array of typical carpets, books, and decorative objects brought by the Embassy staff. When the guests started to gradually leave the Hilton, they warmly thanked His Excellency the Ambassador and the whole staff for this really pleasant reception.
By Guido Lanfranchi.
On Tuesday March 20th, H.M. King Abdullah II of Jordan delivered a speech to the students of World Class The Hague. At the Theater Diligentia, the audience have enjoyed also the presence of H.M Queen Rania, H.M. King Willem-Alexander of the Netherlands and H.M. Queen Máxima.
The Hague, City of Peace and Justice, recently hosted H.M. King Abdullah II of Jordan and his wife H.M. Queen Rania, during their visit to the Kingdom of the Netherlands. In spite of his busy schedule, H.M. King Abdullah decided to dedicate some time to “One of the most satisfying parts” of his work: talking with students.“… is always meeting and talking with your generation, a major part of Jordan’s young population, and a truly global force today. I see your energy; I see your concern for the world; and I see a generation with tremendous talent.”
Thanks to the precious job of the Municipality of The Hague, on Tuesday some hundreds of students gathered at the Theater Diligentia, in the city center, in order to attend H.M. King Abdullah’s speech.
Mr. Mark Singleton, former diplomat at the Dutch Foreign Ministry, warmly welcomed the audience, made of not only students, but also of diplomats and a number of citizens of The Hague. Shortly after, the keynote guests entered the theater: H.M. King Abdullah of Jordan with H.M. Queen Rania, and H.M. King Willem-Alexander of the Netherlands and H.M. Queen Máxima, walked in a crowded theater that promptly stood up at their presence.
Mr. Singleton officially started the event, giving the floor to Ms. Pauline Krikke, Mayor of The Hague, who warmly welcomed all the guests. The Mayor praised the special relationship between Jordan and the Netherlands, and especially The Hague, before giving the floor to H.M. King Abdullah.
In his engaging speech, H.M. the King decided to focus on “the deeply urgent need to help the world’s people live together in mutual respect.” His Majesty stressed the importance of understanding that “humanity is one,” and he pointed out that our values should inform out thoughts, our actions, and our lives. He then praised the students for their efforts to understand our complex world, and urged them to continue to do so. He also encouraged the students to pursue the way of dialogue, of love, and of inclusion, in order to “help us all walk away from disrespect and ignorance. Take the world in a better direction, and help shape the better future you all truly deserve.”
After the speech, Mr. Singleton introduced the Q&A. Some students from the International Institute of Social Studies, The Haagse Hogeschool, and Leiden University had thus the possibility to ask questions to His Majesty. The discussion dealt with a variety of topics, such as the conflict in Syria, the growth of the Jordanian ICT sector, the Jordanian security model in countering extremism, and the measures to counter hate-speech and violence. At the end of the meeting, Mr. Singleton warmly thanked H.M. King Abdullah, who rejoined his spouse and the Dutch royal couple and left the theater under the audience’s applause.
Many of the attendees remained then in the Diligentia’s reception room, to enjoy lively conversations, among the drinks and snacks kindly provided by the organizers. A special gratitude for this event should be reserved to the Municipality of The Hague, organizer of the masterclass series of World Class The Hague and of this beautiful event. It is also because of initiatives such as this that The Hague was, is, and will be the International City of Peace and Justice.
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For the whole speech of H.M. King Abdullah:
https://kingabdullah.jo/en/news/king-delivers-speech-world-class-hague-programmehttps://rhc.jo/en/media/news/speech-hm-king-abdullah-world-class-hague-students
For more on the “World Class The Hague” programme: https://www.studyinthehague.com/studying/world-class
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Photography: Guido Lanfranchi
Thursday, 15 March 2018, Leipzig, Free State of Saxony, Germany: H.E. Ambassador João Mira Gomes delivered a short speech to mark the official invitation of Portugal to be the “guest country” at the 2021 Leipzig Book Fair. After the book fair in Frankfurt, the one in Leipzig is the second largest in Germany yet one of the main ones in all of Europe.
In attendance during the ceremony was also Cabo Verde’s Ambassador to Germany, H.E. Jaqueline Rodrigues Pires.
https://vimeo.com/261108640
Picture Michal Kosinski. Courtesy of Kosinski.
The following article was published by Diplomat Magazine a year ago, due to the actual development of the case, we decided to post it again.By Hannes Grassegger and Mikael Krogerus.
Aegean theatre of the Antique Greece was the place of astonishing revelations and intellectual excellence – a remarkable density and proximity, not surpassed up to our age.
All we know about science, philosophy, sports, arts, culture and entertainment, stars and earth has been postulated, explored and examined then and there. Simply, it was a time and place of triumph of human consciousness, pure reasoning and sparkling thought.
However, neither Euclid, Anaximander, Heraclites, Hippocrates (both of Chios, and of Cos), Socrates, Archimedes, Ptolemy, Democritus, Plato, Pythagoras, Diogenes, Aristotle, Empedocles, Conon, Eratosthenes nor any of dozens of other brilliant ancient Greek minds did ever refer by a word, by a single sentence to something which was their everyday life, something they saw literally on every corner along their entire lives.
It was an immoral, unjust, notoriously brutal and oppressive slavery system that powered the Antique state. (Slaves have not been even attributed as humans, but rather as the ‘phonic tools/tools able to speak’.) This myopia, this absence of critical reference on the obvious and omnipresent is a historic message – highly disturbing, self-telling and quite a warning.” – notes Prof.Anis H. Bajrektarevic in his luminary book of 2013, ‘Is there like after Facebook? – Geopolitics of Technology’.
Indeed, why do we constantly ignore massive and sustain harvesting of our personal data from the social networks, medical records, pay-cards, internet and smart phones as well as its commercialization and monetization for dubious ends and disturbing futures.
Professor Bajrektarevic predicts and warns: “If humans hardly ever question fetishisation of their own McFB way of life, or oppose the (self-) trivialization, why then is the subsequent brutalization a surprise to them?”
Thus, should we be really surprise with the Brexit vote, with the results of the US elections, and with the for coming massive wins of the right-wing parties all over Europe? Putin is behind it !! – how easy, and how misleading a self-denial.
Here is a story based on facts, if we are only interested to really grasp the Matrix world. The Iron Cage we constructed ourselves.
On November 9 at around 8.30 AM., Michal Kosinski woke up in the Hotel Sunnehus in Zurich. The 34-year-old researcher had come to give a lecture at the Swiss Federal Institute of Technology (ETH) about the dangers of Big Data and the digital revolution. Kosinski gives regular lectures on this topic all over the world. He is a leading expert in psychometrics, a data-driven sub-branch of psychology.
When he turned on the TV that morning, he saw that the bombshell had exploded: contrary to forecasts by all leading statisticians, Donald J. Trump had been elected president of the United States.
For a long time, Kosinski watched the Trump victory celebrations and the results coming in from each state. He had a hunch that the outcome of the election might have something to do with his research. Finally, he took a deep breath and turned off the TV.
On the same day, a then little-known British company based in London sent out a press release: “We are thrilled that our revolutionary approach to data-driven communication has played such an integral part in President-elect Trump’s extraordinary win,”Alexander James Ashburner Nix was quoted as saying.
Nix is British, 41 years old, and CEO of Cambridge Analytica. He is always immaculately turned out in tailor-made suits and designer glasses, with his wavy blonde hair combed back from his forehead. His company wasn’t just integral to Trump’s online campaign, but to the UK’s Brexit campaign as well.
Of these three players—reflective Kosinski, carefully groomed Nix and grinning Trump—one of them enabled the digital revolution, one of them executed it and one of them benefited from it.
How dangerous is big data?
Anyone who has not spent the last five years living on another planet will be familiar with the term Big Data. Big Data means, in essence, that everything we do, both on and offline, leaves digital traces. Every purchase we make with our cards, every search we type into Google, every movement we make when our mobile phone is in our pocket, every “like” is stored. Especially every “like.”
For a long time, it was not entirely clear what use this data could have—except, perhaps, that we might find ads for high blood pressure remedies just after we’ve Googled “reduce blood pressure.” On November 9, it became clear that maybe much more is possible.
The company behind Trump’s online campaign—the same company that had worked for Leave EU in the very early stages of its “Brexit” campaign—was a Big Data company: Cambridge Analytica.
To understand the outcome of the election—and how political communication might work in the future—we need to begin with a strange incident at Cambridge University in 2014, at Kosinski’s Psychometrics Center.
Psychometrics, sometimes also called psychographics, focuses on measuring psychological traits, such as personality. In the 1980s, two teams of psychologists developed a model that sought to assess human beings based on five personality traits, known as the “Big Five.”
These are: openness (how open you are to new experiences?), conscientiousness (how much of a perfectionist are you?), extroversion (how sociable are you?), agreeableness (how considerate and cooperative you are?) and neuroticism (are you easily upset?). Based on these dimensions—they are also known as OCEAN, an acronym for openness, conscientiousness, extroversion, agreeableness, neuroticism—we can make a relatively accurate assessment of the kind of person in front of us. This includes their needs and fears, and how they are likely to behave.
The “Big Five” has become the standard technique of psychometrics. But for a long time, the problem with this approach was data collection, because it involved filling out a complicated, highly personal questionnaire. Then came the Internet. And Facebook. And Kosinski.
Michal Kosinski was a student in Warsaw when his life took a new direction in 2008. He was accepted by Cambridge University to do his PhD at the Psychometrics Centre, one of the oldest institutions of this kind worldwide. Kosinski joined fellow student David Stillwell (now a lecturer at Judge Business School at the University of Cambridge) about a year after Stillwell had launched a little Facebook application in the days when the platform had not yet become the behemoth it is today.
Their MyPersonality app enabled users to fill out different psychometric questionnaires, including a handful of psychological questions from the Big Five personality questionnaire (“I panic easily,” “I contradict others”). Based on the evaluation, users received a “personality profile”—individual Big Five values—and could opt-in to share their Facebook profile data with the researchers.
Kosinski had expected a few dozen college friends to fill in the questionnaire, but before long, hundreds, thousands, then millions of people had revealed their innermost convictions. Suddenly, the two doctoral candidates owned the largest dataset combining psychometric scores with Facebook profiles ever to be collected.
The approach that Kosinski and his colleagues developed over the next few years was actually quite simple. First, they provided test subjects with a questionnaire in the form of an online quiz. From their responses, the psychologists calculated the personal Big Five values of respondents.
Kosinski’s team then compared the results with all sorts of other online data from the subjects: what they “liked,” shared or posted on Facebook, or what gender, age, place of residence they specified, for example. This enabled the researchers to connect the dots and make correlations.
Remarkably reliable deductions could be drawn from simple online actions. For example, men who “liked” the cosmetics brand MAC were slightly more likely to be gay; one of the best indicators for heterosexuality was “liking” Wu-Tang Clan.
Followers of Lady Gaga were most probably extroverts, while those who “liked” philosophy tended to be introverts. While each piece of such information is too weak to produce a reliable prediction, when tens, hundreds, or thousands of individual data points are combined, the resulting predictions become really accurate.
Kosinski and his team tirelessly refined their models. In 2012, Kosinski proved that on the basis of an average of 68 Facebook “likes” by a user, it was possible to predict their skin color (with 95 percent accuracy), their sexual orientation (88 percent accuracy), and their affiliation to the Democratic or Republican party (85 percent). But it didn’t stop there. Intelligence, religious affiliation, as well as alcohol, cigarette and drug use, could all be determined. From the data it was even possible to deduce whether someone’s parents were divorced.
The strength of their modeling was illustrated by how well it could predict a subject’s answers. Kosinski continued to work on the models incessantly: before long, he was able to evaluate a person better than the average work colleague, merely on the basis of ten Facebook “likes.”
Seventy “likes” were enough to outdo what a person’s friends knew, 150 what their parents knew, and 300 “likes” what their partner knew. More “likes” could even surpass what a person thought they knew about themselves. On the day that Kosinski published these findings, he received two phone calls. The threat of a lawsuit and a job offer. Both from Facebook.
Only weeks later Facebook “likes” became private by default. Before that, the default setting was that anyone on the internet could see your “likes.” But this was no obstacle to data collectors: while Kosinski always asked for the consent of Facebook users, many apps and online quizzes today require access to private data as a precondition for taking personality tests. (Anybody who wants to evaluate themselves based on their Facebook “likes” can do so on Kosinski’s website, and then compare their results to those of a classic Ocean questionnaire, like that of the Cambridge Psychometrics Center.)
But it was not just about “likes” or even Facebook: Kosinski and his team could now ascribe Big Five values based purely on how many profile pictures a person has on Facebook, or how many contacts they have (a good indicator of extraversion). But we also reveal something about ourselves even when we’re not online. For example, the motion sensor on our phone reveals how quickly we move and how far we travel (this correlates with emotional instability). Our smartphone, Kosinski concluded, is a vast psychological questionnaire that we are constantly filling out, both consciously and unconsciously.
Above all, however—and this is key—it also works in reverse: not only can psychological profiles be created from your data, but your data can also be used the other way round to search for specific profiles: all anxious fathers, all angry introverts, for example—or maybe even all undecided Democrats? Essentially, what Kosinski had invented was sort of a people search engine.
He started to recognize the potential—but also the inherent danger—of his work. To him, the internet was a gift from heaven.
What he really wanted was to give something back, to share. Data can be copied, so why shouldn’t everyone benefit from it? It was the spirit of Millenials, entire new generation, the beginning of a new era that transcended the limitations of the physical world. But what would happen, wondered Kosinski, if someone abused his people search engine to manipulate people? He began to add warnings to most of his scientific work. His approach, he warned, “could pose a threat to an individual’s well-being, freedom, or even life.” But no one seemed to grasp what he meant.
Around this time, in early 2014, Kosinski was approached by a young assistant professor in the psychology department called Aleksandr Kogan. He said he was inquiring on behalf of a company that was interested in Kosinski’s method, and wanted to access the MyPersonality database. Kogan wasn’t at liberty to reveal for what purpose; he was bound to secrecy.
At first, Kosinski and his team considered this offer, as it would mean a great deal of money for the institute, but then he hesitated.
Finally, Kosinski remembers, Kogan revealed the name of the company: SCL, or Strategic Communication Laboratories. Kosinski Googled the company: “[We are] the premier election management agency,” says the company’s website. SCL provides marketing based on psychological modeling. One of its core focuses: Influencing elections. Influencing elections? Perturbed, Kosinski clicked through the pages. What kind of company was this? And what were these people planning?
What Kosinski did not know at the time: SCL is the parent of a group of companies. Who exactly owns SCL and its diverse branches is unclear, thanks to a convoluted corporate structure, the type seen in the UK Companies House, the Panama Papers, and the Delaware company registry. Some of the SCL offshoots have been involved in elections from Ukraine to Nigeria, helped the Nepalese monarch against the Maoists, whereas others have developed methods to influence Eastern European and Afghan citizens for NATO. And, in 2013, SCL spun off a new company to participate in US elections: Cambridge Analytica.
Kosinski knew nothing about all this, but he had a bad feeling. “The whole thing started to stink,” he recalls. On further investigation, he discovered that Aleksandr Kogan had secretly registered a company doing business with SCL. According to a December 2015 report in the Guardian and to internal company documents given to Das Magazin, it emerges that SCL learned about Kosinski’s method from Kogan.
Kosinski came to suspect that Kogan’s company might have reproduced the Facebook “Likes”-based Big Five measurement tool in order to sell it to this election-influencing firm. He immediately broke off contact with Kogan and informed the director of the institute, sparking a complicated conflict within the university. The institute was worried about its reputation.
Aleksandr Kogan then moved to Singapore, married, and changed his name to Dr. Spectre. Michal Kosinski finished his PhD, got a job offer from Stanford and moved to the US.
Mr. Brexit
All was quiet for about a year. Then, in November 2015, the more radical of the two Brexit campaigns, “Leave EU” supported by Nigel Farage, announced that it had commissioned a Big Data company to support its online campaign: Cambridge Analytica. The company’s core strength: innovative political marketing—microtargeting—by measuring people’s personality from their digital footprints, based on the OCEAN model.
Now Kosinski received emails asking what he had to do with it—the words Cambridge, personality, and analytics immediately made many people think of Kosinski. It was the first time he had heard of the company, which borrowed its name, it said, from its first employees, researchers from the university. Horrified, he looked at the website. Was his methodology being used on a grand scale for political purposes?
After the Brexit result, friends and acquaintances wrote to him: Just look at what you’ve done. Everywhere he went, Kosinski had to explain that he had nothing to do with this company. (It remains unclear how deeply Cambridge Analytica was involved in the Brexit campaign. Cambridge Analytica would not discuss such questions.)
For a few months, things are relatively quiet. Then, on September 19, 2016, just over a month before the US elections, the guitar riffs of Creedence Clearwater Revival’s “Bad Moon Rising” fill the dark-blue hall of New York’s Grand Hyatt hotel. The Concordia Summit is a kind of World Economic Forum in miniature. Decision-makers from all over the world have been invited, among them Swiss President Johann Schneider-Ammann.
“Please welcome to the stage Alexander Nix, chief executive officer of Cambridge Analytica,” a smooth female voice announces. A slim man in a dark suit walks onto the stage. A hush falls. Many in attendance know that this is Trump’s new digital strategy man. (A video of the presentation was posted on YouTube.)
A few weeks earlier, Trump had tweeted, somewhat cryptically, “Soon you’ll be calling me Mr. Brexit.” Political observers had indeed noticed some striking similarities between Trump’s agenda and that of the right-wing Brexit movement. But few had noticed the connection with Trump’s recent hiring of a marketing company named Cambridge Analytica.
Up to this point, Trump’s digital campaign had consisted of more or less one person: Brad Parscale, a marketing entrepreneur and failed start-up founder who created a rudimentary website for Trump for $1,500.
The 70-year-old Trump is not digitally savvy—there isn’t even a computer on his office desk. Trump doesn’t do emails, his personal assistant once revealed. She herself talked him into having a smartphone, from which he now tweets incessantly.
Hillary Clinton, on the other hand, relied heavily on the legacy of the first “social-media president,”Barack Obama. She had the address lists of the Democratic Party, worked with cutting-edge big data analysts from BlueLabs and received support from Google and DreamWorks.
When it was announced in June 2016 that Trump had hired Cambridge Analytica, the establishment in Washington just turned up their noses. Foreign dudes in tailor-made suits who don’t understand the country and its people? Seriously?
“It is my privilege to speak to you today about the power of Big Data and psychographics in the electoral process.” The logo of Cambridge Analytica— a brain composed of network nodes, like a map, appears behind Alexander Nix. “Only 18 months ago, Senator Cruz was one of the less popular candidates,” explains the blonde man in a cut-glass British accent, which puts Americans on edge the same way that a standard German accent can unsettle Swiss people.
“Less than 40 percent of the population had heard of him,” another slide says. Cambridge Analytica, had become involved in the US election campaign almost two years earlier, initially as a consultant for Republicans Ben Carson and Ted Cruz. Cruz—and later Trump—was funded primarily by the secretive US software billionaire Robert Mercer who, along with his daughter Rebekah, is reported to be the largest investor in Cambridge Analytica.“So how did he do this?” Up to now, explains Nix, election campaigns have been organized based on demographic concepts. “A really ridiculous idea. The idea that all women should receive the same message because of their gender—or all African Americans because of their race.” What Nix meant is that while other campaigners so far have relied on demographics, Cambridge Analytica was using psychometrics.
Though this might be true, Cambridge Analytica’s role within Cruz’s campaign isn’t undisputed. In December 2015 the Cruz team credited their rising success to psychological use of data and analytics. In Advertising Age, a political client said the embedded Cambridge staff was “like an extra wheel,” but found their core product, Cambridge’s voter data modeling, still “excellent.” The campaign would pay the company at least $5.8 million to help identify voters in the Iowa caucuses, which Cruz won, before dropping out of the race in May.
Nix clicks to the next slide: five different faces, each face corresponding to a personality profile. It is the Big Five or OCEAN Model.
“At Cambridge,” he said, “we were able to form a model to predict the personality of every single adult in the United States of America.” The hall is captivated. According to Nix, the success of Cambridge Analytica’s marketing is based on a combination of three elements: behavioral science using the OCEAN Model, Big Data analysis, and ad targeting. Ad targeting is personalized advertising, aligned as accurately as possible to the personality of an individual consumer.
Nix candidly explains how his company does this. First, Cambridge Analytica buys personal data from a range of different sources, like land registries, automotive data, shopping data, bonus cards, club memberships, what magazines you read, what churches you attend.
Nix displays the logos of globally active data brokers like Acxiom and Experian—in the US, almost all personal data is for sale. For example, if you want to know where Jewish women live, you can simply buy this information, phone numbers included.
Now Cambridge Analytica aggregates this data with the electoral rolls of the Republican party and online data and calculates a Big Five personality profile. Digital footprints suddenly become real people with fears, needs, interests, and residential addresses.
The methodology looks quite similar to the one that Michal Kosinski once developed. Cambridge Analytica also uses, Nix told us, “surveys on social media” and Facebook data. And the company does exactly what Kosinski warned of: “We have profiled the personality of every adult in the United States of America—220 million people,” Nix boasts.
He opens the screenshot. “This is a data dashboard that we prepared for the Cruz campaign.” A digital control center appears. On the left are diagrams; on the right, a map of Iowa, where Cruz won a surprisingly large number of votes in the primary. And on the map, there are hundreds of thousands of small red and blue dots.
Nix narrows down the criteria: “Republicans”—the blue dots disappear; “not yet convinced”—more dots disappear; “male”, and so on. Finally, only one name remains, including age, address, interests, personality and political inclination. How does Cambridge Analytica now target this person with an appropriate political message?
Nix shows how psychographically categorized voters can be differently addressed, based on the example of gun rights, the 2nd Amendment: “For a highly neurotic and conscientious audience the threat of a burglary—and the insurance policy of a gun.” An image on the left shows the hand of an intruder smashing a window. The right side shows a man and a child standing in a field at sunset, both holding guns, clearly shooting ducks: “Conversely, for a closed and agreeable audience. People who care about tradition, and habits, and family.”
How to keep Clinton voters away from the ballot box
Trump’s striking inconsistencies, his much-criticized fickleness, and the resulting array of contradictory messages, suddenly turned out to be his great asset: a different message for every voter. The notion that Trump acted like a perfectly opportunistic algorithm following audience reactions is something the mathematician Cathy O’Neil observed in August 2016.
“Pretty much every message that Trump put out was data-driven,” Alexander Nix remembers. On the day of the third presidential debate between Trump and Clinton, Trump’s team tested 175,000 different ad variations for his arguments, in order to find the right versions above all via Facebook.
The messages differed for the most part only in microscopic details, in order to target the recipients in the optimal psychological way: different headings, colors, captions, with a photo or video. This fine-tuning reaches all the way down to the smallest groups, Nix explained in an interview with us. “We can address villages or apartment blocks in a targeted way. Even individuals.”
In the Miami district of Little Haiti, for instance, Trump’s campaign provided inhabitants with news about the failure of the Clinton Foundation following the earthquake in Haiti, in order to keep them from voting for Hillary Clinton. This was one of the goals: to keep potential Clinton voters (which include wavering left-wingers, African-Americans, and young women) away from the ballot box, to “suppress” their vote, as one senior campaign official told Bloomberg in the weeks before the election.
These “dark posts”—sponsored news-feed-style ads in Facebook timelines that can only be seen by users with specific profiles—included videos aimed at African-Americans in which Hillary Clinton refers to black men as predators, for example.
Nix finishes his lecture at the Concordia Summit by stating that traditional blanket My children will certainly never, ever understand this concept of mass communication. And before advertising is dead. “My children will certainly never, ever understand this concept of mass communication.” And before leaving the stage, he announced that since Cruz had left the race, the company was helping one of the remaining presidential candidates.
Just how precisely the American population was being targeted by Trump’s digital troops at that moment was not visible, because they attacked less on mainstream TV and more with personalized messages on social media or digital TV. And while the Clinton team thought it was in the lead, based on demographic projections,
Bloomberg journalist Sasha Issenberg was surprised to note on a visit to San Antonio—where Trump’s digital campaign was based—that a “second headquarters” was being created. The embedded Cambridge Analytica team, apparently only a dozen people, received $100,000 from Trump in July, $250,000 in August, and $5 million in September.
According to Nix, the company earned over $15 million overall. (The company is incorporated in the US, where laws regarding the release of personal data are more lax than in European Union countries. Whereas European privacy laws require a person to “opt in” to a release of data, those in the US permit data to be released unless a user “opts out.”)
The measures were radical: From July 2016, Trump’s canvassers were provided with an app with which they could identify the political views and personality types of the inhabitants of a house. It was the same app provider used by Brexit campaigners. Trump’s people only rang at the doors of houses that the app rated as receptive to his messages.
The canvassers came prepared with guidelines for conversations tailored to the personality type of the resident. In turn, the canvassers fed the reactions into the app, and the new data flowed back to the dashboards of the Trump campaign.
Again, this is nothing new. The Democrats did similar things, but there is no evidence that they relied on psychometric profiling.
Cambridge Analytica, however, divided the US population into 32 personality types, and focused on just 17 states. And just as Kosinski had established that men who like MAC cosmetics are slightly more likely to be gay, the company discovered that a preference for cars made in the US was a great indication of a potential Trump voter.
Among other things, these findings now showed Trump which messages worked best and where. The decision to focus on Michigan and Wisconsin in the final weeks of the campaign was made on the basis of data analysis. The candidate became the instrument for implementing a big data model.
What’s Next?
But to what extent did psychometric methods influence the outcome of the election? When asked, Cambridge Analytica was unwilling to provide any proof of the effectiveness of its campaign. And it is quite possible that the question is impossible to answer.
And yet there are clues: There is the fact of the surprising rise of Ted Cruz during the primaries. Also there was an increased number of voters in rural areas. There was the decline in the number of African-American early votes. The fact that Trump spent so little money may also be explained by the effectiveness of personality-based advertising. As does the fact that he invested far more in digital than TV campaigning compared to Hillary Clinton. Facebook proved to be the ultimate weapon and the best election campaigner, as Nix explained, and as comments by several core Trump campaigners demonstrate.
Many voices have claimed that the statisticians lost the election because their predictions were so off the mark. But what if statisticians in fact helped win the election—but only those who were using the new method? It is an irony of history that Trump, who often grumbled about scientific research, used a highly scientific approach in his campaign.
Another big winner is Cambridge Analytica. Its board member Steve Bannon, former executive chair of the right-wing online newspaper Breitbart News, has been appointed as Donald Trump’s senior counselor and chief strategist. Whilst Cambridge Analytica is not willing to comment on alleged ongoing talks with UK Prime Minister Theresa May, Alexander Nix claims that he is building up his client base worldwide, and that he has received inquiries from Switzerland, Germany, and Australia.
His company is currently touring European conferences showcasing their success in the United States. This year three core countries of the EU are facing elections with resurgent populist parties: France, Holland and Germany. The electoral successes come at an opportune time, as the company is readying for a push into commercial advertising.
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Kosinski has observed all of this from his office at Stanford. Following the US election, the university is in turmoil. Kosinski is responding to developments with the sharpest weapon available to a researcher: a scientific analysis. Together with his research colleague Sandra Matz, he has conducted a series of tests, which will soon be published. The initial results are alarming: The study shows the effectiveness of personality targeting by showing that marketers can attract up to 63 percent more clicks and up to 1,400 more conversions in real-life advertising campaigns on Facebook when matching products and marketing messages to consumers’ personality characteristics.
They further demonstrate the scalability of personality targeting by showing that the majority of Facebook Pages promoting products or brands are affected by personality and that large numbers of consumers can be accurately targeted based on a single Facebook Page.
In a statement after the German publication of this article, a Cambridge Analytica spokesperson said, “Cambridge Analytica does not use data from Facebook. It has had no dealings with Dr. Michal Kosinski. It does not subcontract research. It does not use the same methodology. Psychographics was hardly used at all. Cambridge Analytica did not engage in efforts to discourage any Americans from casting their vote in the presidential election. Its efforts were solely directed towards increasing the number of voters in the election.”
The world has been turned upside down. Great Britain is leaving the EU, Donald Trump is president of the United States of America. And in Stanford, Kosinski, who wanted to warn against the danger of using psychological targeting in a political setting, is once again receiving accusatory emails. “No” says Kosinski, quietly and shaking his head. “This is not my fault. I did not build the bomb. I only showed that it exists.”
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About authors:Hannes Grassegger and Mikael Krogerus are investigative journalists attached to the Swiss-based Das Magazin specialized journal. The original text appeared in the late December edition under the title: “I only showed that the bomb exists” (Ich habe nur gezeigt, dass es die Bombe gibt).Mikael Krogerus This, English translation, is based on the subsequent January version, first published by the Motherboard Magazine (titled: The Data That Turned the World Upside Down) Approved, present is the advanced version of the original Zurich text for the MD. Additional research for this report was provided by Paul-Olivier Dehaye.
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Published by Diplomat Magazine March 5, 2017
www.diplomatmagazine.eu/2017/03/05/big-data-and-the-future-of-democracy-the-matrix-world-behind-the-brexit-and-the-us-elections/
