1 00:00:07,710 --> 00:00:12,300 Welcome to the Bone Marrow Institute and also to our very first litigating rights lecture. 2 00:00:12,300 --> 00:00:18,810 My name is only because I'm the head of programmes of the VanDerveer Institute and we're delighted to have worked on colleague and been wise, 3 00:00:18,810 --> 00:00:24,660 not with us as our first renowned litigators in this new series and in the series, 4 00:00:24,660 --> 00:00:31,710 we plan to invite legal practitioners who have litigated human rights cases in different jurisdictions and national courts, 5 00:00:31,710 --> 00:00:33,630 but also supranational courts. 6 00:00:33,630 --> 00:00:43,890 And to explore in this conversation a range of questions relating to the role and value of litigation in the promotion of human rights well and colic. 7 00:00:43,890 --> 00:00:48,360 As a leading German lawyer and distinguished human rights activist for more than two decades, 8 00:00:48,360 --> 00:00:54,720 he has been involved in the global struggle to hold powerful people and governments accountable for human rights abuses, 9 00:00:54,720 --> 00:00:59,430 fighting alongside so suffering injustice at the hands of powerful perpetrators. 10 00:00:59,430 --> 00:01:02,100 Who too often enjoy impunity. 11 00:01:02,100 --> 00:01:11,280 Just this month, Wolfgang was awarded the 2019 Bassiouni Justice Award for his leadership in the discourses and practise of double standards, 12 00:01:11,280 --> 00:01:16,800 strategic human rights litigation, universal jurisdiction and capacity sharing. 13 00:01:16,800 --> 00:01:22,350 Wolfgang is the founder of the European Centre for Constitutional and Human Rights are 14 00:01:22,350 --> 00:01:26,730 an organisation that has prepared numerous important legal actions against politicians, 15 00:01:26,730 --> 00:01:31,130 military leaders and corporations for crimes against humanity. 16 00:01:31,130 --> 00:01:36,290 And I must say that it is also a special pleasure for me personally to welcome you to Oxford Wolfgang, 17 00:01:36,290 --> 00:01:40,460 having met you 11 years ago and still having one of the very first flyers, 18 00:01:40,460 --> 00:01:46,580 obviously see it at home and then also working with this asset in Berlin for four years myself. 19 00:01:46,580 --> 00:01:54,650 So welcome. Wolfgang and Ben Weisner is the director of the Speech, Privacy and Technology Project of the American Civil Liberties Union. 20 00:01:54,650 --> 00:01:59,750 For nearly two decades, he has worked at the intersection of civil liberties and national security, 21 00:01:59,750 --> 00:02:08,960 litigating numerous cases involving airport security policies, government watch lists, surveillance practises, targeted killing and torture. 22 00:02:08,960 --> 00:02:16,970 He appears regularly in global media and has testified before Congress and is also an adjunct professor at New York University's School of Law. 23 00:02:16,970 --> 00:02:23,240 Since July 2013, he has been the principal legal adviser to the same whistleblower, Edward Snowden. 24 00:02:23,240 --> 00:02:26,810 And now to tonight's agenda. So welcome will open. 25 00:02:26,810 --> 00:02:36,620 The evening was reading from his new book Law vs. Power, and I will then moderated the conversation between Wolfgang and Ben, followed by an open Q&A. 26 00:02:36,620 --> 00:02:40,940 And then afterwards, we all invite you for a drinks reception outside. 27 00:02:40,940 --> 00:02:48,210 But first, lot of us has power. The floor is yours. Yeah, thank you very much. 28 00:02:48,210 --> 00:02:56,540 And Alain, and also big thanks to Vienna, where we are going to have a very interesting work. 29 00:02:56,540 --> 00:03:03,230 So more on the techniques and the mythology and politics of litigation tomorrow. 30 00:03:03,230 --> 00:03:12,170 And so the idea was aniline and Kate to some parts of the book and asked me to read a little bit. 31 00:03:12,170 --> 00:03:22,340 But before I do that, I just want to say a couple of words because it cost me quite a lot to write a book in the first person. 32 00:03:22,340 --> 00:03:26,060 First of all, it's uncommon in Germany as a lawyer there. 33 00:03:26,060 --> 00:03:33,620 There is a different culture and it's it's it's it's it's it's in a way exposing yourself to a certain critique. 34 00:03:33,620 --> 00:03:42,170 And the critique is like, you know, being doing all of this only because to get more public attention, 35 00:03:42,170 --> 00:03:48,800 something which is like very common in London or in New York and even in other parts of the world. 36 00:03:48,800 --> 00:03:53,870 But in German, lawyering is a very discreet and serious thing. 37 00:03:53,870 --> 00:04:03,230 And if you go out and and look for the public, you're becoming an unserious person, you're not taking serious. 38 00:04:03,230 --> 00:04:12,290 But I thought and I was encouraged by a number of people that it makes sense not only because of my personal history, 39 00:04:12,290 --> 00:04:16,940 but this history coincides a little bit with the rise of, you know, 40 00:04:16,940 --> 00:04:21,890 transnational human rights litigation because actually, I started in nineteen ninety eight. 41 00:04:21,890 --> 00:04:27,350 So we we started with the Argentina cases and then come back to that 1998. 42 00:04:27,350 --> 00:04:31,160 And then the Pinochet was arrested in October 1980, 43 00:04:31,160 --> 00:04:39,740 and then I went through the ups and downs of universal jurisdiction and the expectation on the International Criminal 44 00:04:39,740 --> 00:04:48,800 Court and also now the ups and downs with business and human rights litigation and recently also migration litigation. 45 00:04:48,800 --> 00:04:55,130 And so that's the one thing, the one layer I which I consider as extremely interesting. 46 00:04:55,130 --> 00:05:00,050 And the other layer is it's also very clear in the time where you know, 47 00:05:00,050 --> 00:05:06,860 people don't are not reluctant to declare human rights and human rights litigation for death. 48 00:05:06,860 --> 00:05:15,440 I want to remind of a time a little bit over 20 years ago where this kind of litigation wasn't even established. 49 00:05:15,440 --> 00:05:28,400 And so my first the first chapter I'm talking about Guatemala shows that because it shows also the way of of of of, 50 00:05:28,400 --> 00:05:38,630 let's say, more or less normal progressive leftist lawyers into this transnational litigation field. 51 00:05:38,630 --> 00:05:43,370 But at the time I write, I make my first experience. 52 00:05:43,370 --> 00:05:54,450 It was actually in 1919, in Mexico and in Guatemala. There was no thinking about litigating against perpetrators of of gross human rights violations. 53 00:05:54,450 --> 00:06:00,560 So this is this is this is the first chapter when I arrived in Mexico, 54 00:06:00,560 --> 00:06:06,830 Guatemala had been suffering for thirty five years and a more or less openly military rule. 55 00:06:06,830 --> 00:06:08,300 In the early 80s, 56 00:06:08,300 --> 00:06:18,950 the dictators pursued the US backed counterinsurgency policy of scorched earth tactics to rupture civilian support for the leftist guerrilla, 57 00:06:18,950 --> 00:06:24,890 who had been fighting the state for decades. The consequences were devastating. 58 00:06:24,890 --> 00:06:31,120 In a few years, more than 100000 people were murdered, around a million war, mostly from the. 59 00:06:31,120 --> 00:06:36,620 Populations were forced to flee in more than 400 villages were razed to the ground. 60 00:06:36,620 --> 00:06:44,300 As I write this, I'm debating with myself as to whether I should set out those horrors in detail. 61 00:06:44,300 --> 00:06:53,450 It might help to make a lot of things clearer. But then the portrayal and the observation of the suffering of others brings its own conflicts. 62 00:06:53,450 --> 00:06:58,490 In her essay on photography, Susan Sontag asked the important question. 63 00:06:58,490 --> 00:07:07,520 I quote what to do with the feelings that have been aroused, the knowledge that has been communicated. 64 00:07:07,520 --> 00:07:15,560 Do they not lead to boredom, cynicism and apathy? I also see a danger that we, those of us who work on these issues, 65 00:07:15,560 --> 00:07:25,130 only inflate our own importance with dramatic portrayals as though our own significance rises with the scales of the horror we report. 66 00:07:25,130 --> 00:07:34,310 Aren't we then appropriating the stories from those who have suffered in order to further our own work, even if that work has the best intentions? 67 00:07:34,310 --> 00:07:42,530 I choose to follow suit. Some text suggestions and reflect on quote how our privileges are located in the same map 68 00:07:42,530 --> 00:07:49,790 as their suffering and may be linked to their suffering as the wealth of some may lie. 69 00:07:49,790 --> 00:07:53,600 The distribution of others end of quote. Politically, 70 00:07:53,600 --> 00:07:58,610 it would be wrong to look at the question of human rights violation from a Western paternalistic 71 00:07:58,610 --> 00:08:05,030 point of view isolated from the political and economic crisis in the global capitalist system. 72 00:08:05,030 --> 00:08:13,310 I have to say that something I right now in richer perspective, while while I was in Guatemala, there was no thought of something like that. 73 00:08:13,310 --> 00:08:19,610 There was definitely not this level of reflection on my colleagues at the commission. 74 00:08:19,610 --> 00:08:26,300 I worked at the Exide Commission of Human Rights in of Guatemala, who had to work from Mexico. 75 00:08:26,300 --> 00:08:33,090 All of my colleagues were forced to flee Guatemala. The long I work with them, the more I learnt about the past. 76 00:08:33,090 --> 00:08:42,190 I hear stories about their own education, careers and entire lives were upended due to the threat posed by the military. 77 00:08:42,190 --> 00:08:46,690 On November 1st, we celebrate DIA de los Muertos The Day of the Dead. 78 00:08:46,690 --> 00:08:50,200 Like millions of people in Mexico and across Central America, 79 00:08:50,200 --> 00:09:00,010 my colleagues set up a no frienda kind of attack with pictures of the death and colourful offerings like flowers, red ribbons and figurines. 80 00:09:00,010 --> 00:09:03,670 Many of the faces in the photos are very young, 81 00:09:03,670 --> 00:09:15,140 and each picture tells a story of violence and pain of torture and murder and relatives, comrades or colleagues. 82 00:09:15,140 --> 00:09:25,100 In my third week, the head of the commission and I'm Tony Harris, as it was spirited woman in her early 30s comes to me with an idea since 88. 83 00:09:25,100 --> 00:09:30,260 Around 50000 indigenous women who lost their husbands to the state of repression 84 00:09:30,260 --> 00:09:34,460 to state repression have joined forces under the National Association, 85 00:09:34,460 --> 00:09:36,230 called Kunhardt V.Q.A. 86 00:09:36,230 --> 00:09:45,620 This woman faced discrimination various kind as part of the ruling class because of their ethnic background as women and as widows, 87 00:09:45,620 --> 00:09:50,030 and Antonia suggests that her right to report on this young organisation and travel to 88 00:09:50,030 --> 00:09:57,470 Guatemala to witness the celebrations around the two year anniversary of its establishment. 89 00:09:57,470 --> 00:10:03,500 As a German, it will be safe for me to travel, she says. We start making enquiries in Guatemala. 90 00:10:03,500 --> 00:10:09,920 It dawns on me that I'm secretly hoping it won't work out. I'm overwhelmed by the prospect of this trip. 91 00:10:09,920 --> 00:10:16,880 My Spanish is only passable. By that time, and I'm glad to have somewhat settled into life in Mexico City. 92 00:10:16,880 --> 00:10:18,200 In this smaller of a city, 93 00:10:18,200 --> 00:10:25,550 I found people whom I like and who like me are from places I'm fond of the markets and the cantinas at night, as well as the music. 94 00:10:25,550 --> 00:10:33,650 When I look back in early 2015, when I write this book in German, it my old notes and reflect a bit. 95 00:10:33,650 --> 00:10:41,270 I still relate to the long young law student I was back then angry, romantic, indignant, ever questioning. 96 00:10:41,270 --> 00:10:49,490 But when I read the entries on my Guatemala trip, I also see how inexperienced I was dealing with people from other cultures. 97 00:10:49,490 --> 00:10:56,750 The note point to an inner conflict I was on the sidelines a mere observer, but wanted to be more than that. 98 00:10:56,750 --> 00:11:05,660 I was aware of my privileged situation and grappling with the distance between me and the struggle of those with whom I declared solidarity. 99 00:11:05,660 --> 00:11:11,330 My notes from this times are largely about me, and the situation was so alien to me. 100 00:11:11,330 --> 00:11:17,720 It wasn't until later in the life that I managed to stop conceiving of these encounters as journeys 101 00:11:17,720 --> 00:11:25,340 of political self-discovery and developed real empathy for people affected by injustices in Germany. 102 00:11:25,340 --> 00:11:30,680 There were few people outside the Latin America Solidarity Movement who were openly 103 00:11:30,680 --> 00:11:36,290 describing and criticising the crimes being committed there and the complicity of the West. 104 00:11:36,290 --> 00:11:43,160 And so my work was certainly worthwhile. But at the time, there wasn't anything more I could contribute. 105 00:11:43,160 --> 00:11:49,880 I did not yet have the requisite access to the legal community to power resources or an audience. 106 00:11:49,880 --> 00:11:56,950 Nonetheless, it wasn't start. And it spurred me on. 107 00:11:56,950 --> 00:12:08,200 Yeah, and two, to finish a little bit to the reflections on Guatemala in my in my in my epilogue while writing the book, 108 00:12:08,200 --> 00:12:13,900 I had the pleasure and the privilege to meet many of the protagonists. 109 00:12:13,900 --> 00:12:23,290 So also some of those whom I have been with in the in the Times of the Guatemala taken Human Rights Commission. 110 00:12:23,290 --> 00:12:30,060 And so I also meet and Antonia in. 111 00:12:30,060 --> 00:12:40,650 And reflect a little bit with her about about that, that experience of 1990 in autumn 1990 as German reunification was underway. 112 00:12:40,650 --> 00:12:46,950 Was it the good to my take human rights commission getting my first experience in human rights work at the time, 113 00:12:46,950 --> 00:12:53,670 I found it hard to imagine that I could ever work in Europe and be useful to the human rights struggles as those 114 00:12:53,670 --> 00:13:01,380 people who are working in the commission to ensure they could one day to return to a democracy in their home country. 115 00:13:01,380 --> 00:13:09,090 In Guatemala, I meet again and Antonio Reyes, that was then in 2014, who was the head of the Commission of the time. 116 00:13:09,090 --> 00:13:18,840 She was able to return after the peace agreement in 96 and continue the academic career she had to abandon while in exile. 117 00:13:18,840 --> 00:13:28,680 Now she's teaching at the university and working for the state human rights body, once notorious for its proximity to the regime. 118 00:13:28,680 --> 00:13:31,320 It's a moving encounter with an Antonia. 119 00:13:31,320 --> 00:13:39,150 We compare notes on what has happened over the past 25 years, and we see we've travelled somewhat parallel path. 120 00:13:39,150 --> 00:13:46,590 Former dictator Rios Montt will remain firmly in power in 1990 was since convicted of genocide. 121 00:13:46,590 --> 00:13:51,450 Even in Guatemala, things have changed and then again, not so much. 122 00:13:51,450 --> 00:13:57,510 Indigenous politicians in the gluten in the Guatemalan highlands are facing harassment 123 00:13:57,510 --> 00:14:02,250 and threats for organising opposition to mining and infrastructure projects. 124 00:14:02,250 --> 00:14:06,750 Yet the fact that it's possible to take action within a global network in the 125 00:14:06,750 --> 00:14:13,230 fight for human rights and thus ensure that ever fewer crimes remain invisible, 126 00:14:13,230 --> 00:14:30,240 that's perhaps our greatest success. Going back to my my own way into this, you asked me to read a little bit about the Argentinian experiences. 127 00:14:30,240 --> 00:14:40,560 That was, yeah, I said it in the introduction back in 1998 99. 128 00:14:40,560 --> 00:14:47,190 Actually? Yeah, before before the before the Pinochet precedent. 129 00:14:47,190 --> 00:14:54,660 So this was also true in the case of Nora Marx. In addition to a complaint brought by her mother, Ellen Marx, 130 00:14:54,660 --> 00:15:01,920 I find witness statements from those who had been arrested with Nora on that August in 76. 131 00:15:01,920 --> 00:15:07,650 The meeting was due to take place in a workshop in a suburb in Buenos Aires. 132 00:15:07,650 --> 00:15:11,370 The police had monitored the house, waited until all arrived, 133 00:15:11,370 --> 00:15:17,010 arrested those who were present and taking them to nearby police stations where they were 134 00:15:17,010 --> 00:15:26,270 tortured and had visited this very police stations a few days after Nora's disappearance. 135 00:15:26,270 --> 00:15:31,220 Without knowing that she was inside based on the testimonies in the file, 136 00:15:31,220 --> 00:15:36,080 a trek down others who were arrested that day and interview them, the results are frustrating. 137 00:15:36,080 --> 00:15:45,230 None of them know why they survived. But Nora didn't because of Norris Jewish heritage and her name marks. 138 00:15:45,230 --> 00:15:50,900 The Argentine armed forces not only saw themself as carrying on the tradition of the Prussian army, 139 00:15:50,900 --> 00:15:57,480 but also looked favourably on the vehement and cultivated and aggressive anti-Semitism. 140 00:15:57,480 --> 00:16:02,940 I speak with human rights organisations, many of them have their own archives, 141 00:16:02,940 --> 00:16:08,580 but we can't find any evidence to show that after being brought to the police station. 142 00:16:08,580 --> 00:16:14,520 Nora Marx ended up at another locations, such as one of the secret torture centres. 143 00:16:14,520 --> 00:16:19,290 She may be have been killed after just a few days in detention. 144 00:16:19,290 --> 00:16:24,120 Amit Hagle what's a walking archive of the human rights movement? 145 00:16:24,120 --> 00:16:30,360 He collects all the available information, including witness statements from former detainees, 146 00:16:30,360 --> 00:16:36,330 to reconstruct the topography of the hundreds of detention centres strewn all 147 00:16:36,330 --> 00:16:40,690 across the country and to piece together the stories of those held there. 148 00:16:40,690 --> 00:16:54,120 Horgan himself was held at the Elvis Rubio prison in the province of Buenos Aires alongside Juan Miguel Tannhauser, whose case I was also handling. 149 00:16:54,120 --> 00:17:03,180 Hot ticket touts about Juan Miguel and a group of others were prepared for transfer dress. 150 00:17:03,180 --> 00:17:10,710 This indicated that a detainee would be murdered, shot and burned in a mass grave or drugged and thrown thrown into the sea. 151 00:17:10,710 --> 00:17:16,100 I ask to. Why were you not transferred along with the others? 152 00:17:16,100 --> 00:17:19,310 I can sense the significance of this question. 153 00:17:19,310 --> 00:17:28,130 It implies that there may have been a rational logic behind the military's method of selection that the detainees could recognise, 154 00:17:28,130 --> 00:17:32,750 and it touches on the very sensitive issues for those who survived. 155 00:17:32,750 --> 00:17:37,400 The sense of guilt haugen gives an answer. 156 00:17:37,400 --> 00:17:43,020 I can feel an answer that stopped me in my tracks. 157 00:17:43,020 --> 00:17:51,300 He says that by the time the military had tortured him so much that he lay down in the corner of his cell, unable to move. 158 00:17:51,300 --> 00:17:56,910 In moments like this, I can feel that I have overstepped an inner boundary. 159 00:17:56,910 --> 00:18:04,200 The more I asked, the more responsibility I bear, the more I learn, the more I become involved. 160 00:18:04,200 --> 00:18:12,660 We talk about the past, but the conversation creates a situation in the present one that brings together both partners in the dialogue. 161 00:18:12,660 --> 00:18:18,570 I'm being entrusted with information and stories and I must handle them carefully. 162 00:18:18,570 --> 00:18:33,830 One woman I speak to says that talking about it helps her to overcome the past, but only when there is openness on both sides. 163 00:18:33,830 --> 00:18:40,470 1999, having processed all the information, I submit criminal complaints just a few weeks later, 164 00:18:40,470 --> 00:18:46,080 it looks like the case might already be brought to a close. 165 00:18:46,080 --> 00:19:00,520 There are legal complications and I don't go into detail, but it was the time before the German International Crimes Statute. 166 00:19:00,520 --> 00:19:08,440 Parallel to the to the Rome ICC Statute was established so very random legislation, 167 00:19:08,440 --> 00:19:18,580 and we we were we tried to argue that the the German Jewish victims have to be treated just like Germans, 168 00:19:18,580 --> 00:19:26,690 even though they were stripped of their German citizens by the Nazis in 1941. 169 00:19:26,690 --> 00:19:34,520 And that that that got a little bit complicated when I hear that the prosecutors are planning to close the proceedings, 170 00:19:34,520 --> 00:19:40,520 a draught letter to my client to add in marks and to a group of the German Jewish mothers. 171 00:19:40,520 --> 00:19:49,670 I tried to break it to her as gently as possible that the case we had launched with such high hopes might be ended prematurely. 172 00:19:49,670 --> 00:19:55,400 I use terms like Don't be alarmed. It's possible there is a chance that. 173 00:19:55,400 --> 00:20:00,140 It's a convoluted letter, since I also don't want to dash all hopes completely. 174 00:20:00,140 --> 00:20:06,590 In response, I received a memorable fax was the time the defects were even sent. 175 00:20:06,590 --> 00:20:12,330 And in MOCS writes Dear sir, she keeps up this form of tone throughout. 176 00:20:12,330 --> 00:20:16,610 Dear sir, we are old and hardened fighters. 177 00:20:16,610 --> 00:20:23,810 She tells me I don't need to worry about her descending into hysterics that I should just carry on working. 178 00:20:23,810 --> 00:20:29,190 She says that over the past 20 years, she's gotten used to defeat. 179 00:20:29,190 --> 00:20:33,120 The facts is an eye opener, an important and a very important moment for me. 180 00:20:33,120 --> 00:20:36,780 I realise that I've fallen victim to my own prejudices. 181 00:20:36,780 --> 00:20:44,550 I don't talk to my other clients through pacifists who blocks the street or the environmentalist who climbs up power station smokestacks. 182 00:20:44,550 --> 00:20:53,700 The way I talk to these older ladies, these women have a wealth of experience greater than we can imagine in dealing with oppression. 183 00:20:53,700 --> 00:21:04,380 The images of this patient, seemingly apolitical mother's humble and close to despair and white headscarf is the call on the regime to show Mercy 184 00:21:04,380 --> 00:21:12,630 was a powerful political weapon in this way that had stood up to the dictatorship during its most violent phase, 185 00:21:12,630 --> 00:21:17,100 an act of defiance that had cost some of them their lives. 186 00:21:17,100 --> 00:21:21,030 The facts from an unmarked shames me. I should have known better, 187 00:21:21,030 --> 00:21:30,270 particularly with her someone who has lost so many people and who was one of the strongest and most intelligent woman I have. 188 00:21:30,270 --> 00:21:32,640 I have met. So she's she's a gentleman, 189 00:21:32,640 --> 00:21:46,800 Berlin Jewish woman who whose parents were smart enough to send her as a teenager on the journey to to Latin America in 1938, 190 00:21:46,800 --> 00:21:52,850 nearly in the very last moment, and her whole family was was was killed by the germs. 191 00:21:52,850 --> 00:22:01,830 And yeah, she not only survived that, but formed energy and fight spirit in Argentina, 192 00:22:01,830 --> 00:22:09,930 and then her her daughter got disappeared, by the way, the Argentinian military dictatorship. 193 00:22:09,930 --> 00:22:13,470 So I realise that there are some things that must be done, 194 00:22:13,470 --> 00:22:18,630 regardless of the chances of success doing everything possible to uncover the truth and 195 00:22:18,630 --> 00:22:23,730 a chief justice on behalf of the mothers of the disappeared is one of those duties. 196 00:22:23,730 --> 00:22:27,870 It doesn't matter what judges, prosecutors or other lawyers might think of me. 197 00:22:27,870 --> 00:22:33,720 I learnt that humility is not a bad trait, especially when it's when, 198 00:22:33,720 --> 00:22:43,770 as with the mothers, it goes hand in hand with the resistance and the fighting spirit. 199 00:22:43,770 --> 00:22:52,830 And in continuation of this Argentinian story, in another small part. 200 00:22:52,830 --> 00:23:04,710 A couple of years later, as many of you know, the there were there were a lot of cases being brought in European countries such as in Germany, 201 00:23:04,710 --> 00:23:11,010 which which I was part of in France and Italy and of course, also in Spain. 202 00:23:11,010 --> 00:23:23,190 And so from 2006 on, Argentina reopened the investigations and trials against the military dictatorship and abolished the the the amnesty laws. 203 00:23:23,190 --> 00:23:30,030 And so one of the biggest waves of national prosecution of international crimes began. 204 00:23:30,030 --> 00:23:35,760 And I just write a short episode of that. 205 00:23:35,760 --> 00:23:47,790 It's a pity that Ellen Marx and many other mothers of the disappeared are not around to see history being made in Argentina on December 11, 2009. 206 00:23:47,790 --> 00:24:00,030 The trial begins in Argentina, begins in Buenos Aires against two dozen senior officers for crimes committed at the Torture Centre at Essman. 207 00:24:00,030 --> 00:24:08,520 Amongst excuse accused are men who subjected my clients, Audriana, Marcus and Bettina Erin House, 208 00:24:08,520 --> 00:24:13,530 whose stories I described early in the book to such miserable misery. 209 00:24:13,530 --> 00:24:18,150 I know the faces and the stories of those being let into the packed courtroom, 210 00:24:18,150 --> 00:24:27,690 partly from Adriana's descriptions Hotjar to the tiger, Alfredo Ortiz, the blonde angel of death and Miguel cover you. 211 00:24:27,690 --> 00:24:32,970 This hearing is the last step in the long process that we have been part for so many years. 212 00:24:32,970 --> 00:24:45,210 It's a result of a huge amount of preparatory work after 1990, when the newly reunited German state thought to investigate crimes in the former East. 213 00:24:45,210 --> 00:24:53,220 They set up the Special Prosecution Authority, with several thousand staff working on the cases for many years here in Argentina. 214 00:24:53,220 --> 00:24:57,810 It was just a dozen investigators researching these odd crimes. 215 00:24:57,810 --> 00:25:05,010 Once again, it shows the importance of the decades of patience and persistence on the part of the human rights movement, 216 00:25:05,010 --> 00:25:14,850 which are now in a position to assist with the criminal proceedings and take part as civil parties in these in these same proceedings. 217 00:25:14,850 --> 00:25:19,200 My friends in Argentina are pleased about the reopening of the proceedings. 218 00:25:19,200 --> 00:25:27,420 They have never been able to forget what happened then, but now many are reluctant to find the time and the energy to engage with the past. 219 00:25:27,420 --> 00:25:32,550 The journalist and author, Augusto Verbinski, makes the point during one of our conversation. 220 00:25:32,550 --> 00:25:40,210 I have spent decades of my life writing about this. Now it's time for other younger ones to do it. 221 00:25:40,210 --> 00:25:43,630 This is understandable, and it's also a smart political strategy, 222 00:25:43,630 --> 00:25:49,570 the tryouts are being monitored by members of the Eagles, the Organisation of Children of the Disappeared. 223 00:25:49,570 --> 00:25:53,800 Many of the lawyers and journalists working on the case are young. 224 00:25:53,800 --> 00:25:59,170 The work of addressing the crimes of the dictatorship has now passed to the next generation. 225 00:25:59,170 --> 00:26:06,250 It takes me a while to figure out how I feel about it. For ten years, I've worked to ensure that these strides take place. 226 00:26:06,250 --> 00:26:11,140 I've made this story my own as far as such a thing as possible. 227 00:26:11,140 --> 00:26:17,170 Now, the language of violence has been silent. It's time for the language of law here in Argentina. 228 00:26:17,170 --> 00:26:27,010 I'm witness to an exemplary model of criminal prosecution, and yet I take no joy in seeing the old man being brought into the courtroom in handcuffs. 229 00:26:27,010 --> 00:26:32,470 It was never a sense of hatred of individuals that spurred me on. 230 00:26:32,470 --> 00:26:38,170 I find it strange to see thousands of people gathering on the big avenida outside the 231 00:26:38,170 --> 00:26:43,860 courtroom to watch life on the big screen as the verdict is delivered in another big case. 232 00:26:43,860 --> 00:26:49,380 Feuds. A few days later. 233 00:26:49,380 --> 00:26:59,700 The charges relate to murders committed as part of crimes against humanity, each guilty verdict is met with applause from the crowd. 234 00:26:59,700 --> 00:27:04,020 The whistle, the whistle, really when someone is acquitted? 235 00:27:04,020 --> 00:27:12,330 I find this hard to understand. I get a better inside what's happening when I start talking to some activists at a party later that day. 236 00:27:12,330 --> 00:27:18,150 After months of tension, the verdict comes as a great relief to so many of them. 237 00:27:18,150 --> 00:27:23,760 A lot of people had to give evidence using the trial. They were nervous and felt threatened. 238 00:27:23,760 --> 00:27:28,440 Some of them were the targets of explicit threats. 239 00:27:28,440 --> 00:27:34,200 The young helped the old to prepare the statements and accompanied them to the court. 240 00:27:34,200 --> 00:27:44,580 The court hallways were filled with tears joint pain. This drama stretched on for many months and finally came to an end with the verdict. 241 00:27:44,580 --> 00:27:48,990 And importantly, they told their stories they were believed. 242 00:27:48,990 --> 00:27:56,820 The legal assistance system that had been so hostile to them in earlier times and now rejected the excuses and 243 00:27:56,820 --> 00:28:05,530 justifications put forward by the military and their defence team and had seen fit to jail once powerful figures. 244 00:28:05,530 --> 00:28:15,560 It was all of these emotions that started to spill out on the streets when the verdict was handed down. 245 00:28:15,560 --> 00:28:25,340 In spring 2007, our second attempt to initiate investigative investigations against Donald Rumsfeld and others in Germany ends in failure. 246 00:28:25,340 --> 00:28:34,460 The German prosecutors see no link to Germany and consider it too difficult, if not impossible, to investigate U.S. state crimes in Germany. 247 00:28:34,460 --> 00:28:39,950 They do not accept our central argument that public prosecutors of different countries 248 00:28:39,950 --> 00:28:45,170 have to work collaboratively fully when it comes to complex international crimes. 249 00:28:45,170 --> 00:28:52,580 We're more convinced than ever. In order to make any progress, there needs to be a way to gather evidence in one place, 250 00:28:52,580 --> 00:28:59,630 linked up with an investigation in a different place and then bring charges eventually, even in a third jurisdiction. 251 00:28:59,630 --> 00:29:04,970 One action builds upon another. You have to start at some single point. 252 00:29:04,970 --> 00:29:11,600 Even if for now, it may not be possible to follow through with the case all the way to to an end. 253 00:29:11,600 --> 00:29:13,280 When the Pinochet case was filed, 254 00:29:13,280 --> 00:29:22,490 no one could have foreseen that the extra ex-dictator would travel to the United Kingdom in a private capacity two years later. 255 00:29:22,490 --> 00:29:28,370 But the reason the arrest warrant could be issued at the right moment was that when you arrived in Europe, 256 00:29:28,370 --> 00:29:34,250 the groundwork had been laid in Spain and in decades before in Chile that there was 257 00:29:34,250 --> 00:29:41,060 already substantial documentation and eyewitness testimony concerning the crimes. 258 00:29:41,060 --> 00:29:46,250 In spite of this renewed disappointment, we had worked on this project for two years. 259 00:29:46,250 --> 00:29:51,320 I don't doubt that it was the right thing to do since speaking with Alan Marks. 260 00:29:51,320 --> 00:29:57,920 I've let go the idea that our nection, our actions need to be successful and should short term. 261 00:29:57,920 --> 00:30:05,360 We continue our work on the Rumsfeld cases and push the French public prosecutor to the issue to issue an arrest warrant. 262 00:30:05,360 --> 00:30:10,790 When Rumsfeld visits Paris in 2007 but we have no luck. 263 00:30:10,790 --> 00:30:19,550 We plan a criminal complaint in Spain. We want to demonstrate how vital it is to hold powerful actors liable for their actions. 264 00:30:19,550 --> 00:30:35,370 These ideas start to spread. Our project is received with great interest in other places, with similar human rights violations have occurred. 265 00:30:35,370 --> 00:30:38,670 At this point, I'm still a partner at our law firm, 266 00:30:38,670 --> 00:30:47,070 but it's clear that over the years I've become increasingly increasingly removed from this work as much as I love to be a criminal defence lawyer. 267 00:30:47,070 --> 00:30:56,580 I cannot imagine doing only this. My troubles and the cases that arise from them have expanded my horizons and the dimensions of my legal work. 268 00:30:56,580 --> 00:31:00,510 Recently, the everyday laundering, the almost daily courtrooms, 269 00:31:00,510 --> 00:31:06,930 the meetings and briefs to be written have seemed ever less satisfying, though important. 270 00:31:06,930 --> 00:31:16,740 All of those are standalone, unrelated cases defending individuals, especially the poor and the politically active against the state. 271 00:31:16,740 --> 00:31:24,180 Sometimes overly vigorous powers of prosecution is, of course, a form of human rights work. 272 00:31:24,180 --> 00:31:28,530 This is the conviction I have held since I started out as a defence lawyer, 273 00:31:28,530 --> 00:31:32,970 but more and more I see a broader picture with more and more complex problems. 274 00:31:32,970 --> 00:31:37,650 I want to participate in something that goes beyond the individual case. 275 00:31:37,650 --> 00:31:48,200 I want to be part of a political project. Well, thank you very much, Wolfgang, for this insight into your very powerful book. 276 00:31:48,200 --> 00:31:53,870 I had the pleasure of already reading it a while ago in German and now to read it again in this bill of goods, 277 00:31:53,870 --> 00:32:00,920 and it really emphasises the stories of those you who accompany you, 278 00:32:00,920 --> 00:32:10,820 accompanied in their struggle for justice and gave us some insight into your journey as a human rights lawyer and as a lawyer. 279 00:32:10,820 --> 00:32:11,660 So maybe a first one, 280 00:32:11,660 --> 00:32:19,370 and I would like to ask Ben to tell us more about how you became a lawyer and specifically in rights lawyer and involved in these trials. 281 00:32:19,370 --> 00:32:27,980 Sure. And I'll be brief so that we can get into the conversation of the of the issues that Wilkins book raises. 282 00:32:27,980 --> 00:32:34,130 The first thing I think I should say is that human rights law is a term that is not 283 00:32:34,130 --> 00:32:39,530 commonly used in the United States to describe domestic public interest practise. 284 00:32:39,530 --> 00:32:46,010 If you had told me when I was a law student that I was going to be a human rights lawyer specifically, 285 00:32:46,010 --> 00:32:54,350 that I was going to be a human rights lawyer working on torture cases and extrajudicial executions, I would have said how interesting. 286 00:32:54,350 --> 00:33:02,670 I'll be working in Central America or in Sudan. But as it happens, the. 287 00:33:02,670 --> 00:33:12,090 Grotesque radicalisation of the national security state after 9-11 meant that I could do all of that work in a domestic U.S. context. 288 00:33:12,090 --> 00:33:18,570 I went to work for the American Civil Liberties Union in August of 2001 with a plan that I was going to work 289 00:33:18,570 --> 00:33:25,320 in jails and prisons in the United States as what we would call a civil rights lawyer in the US context. 290 00:33:25,320 --> 00:33:30,300 I was in Los Angeles. It has the biggest jail system in the world still, 291 00:33:30,300 --> 00:33:36,300 and I had no expectation that I would be travelling around the world to follow my country's human rights abuses. 292 00:33:36,300 --> 00:33:41,190 Five weeks after I began that job, the nine 11 attacks occurred. 293 00:33:41,190 --> 00:33:44,700 And from that moment, 294 00:33:44,700 --> 00:33:54,270 all of these issues that we had imagined had been resolved in our legal system half a century earlier were front and centre again. 295 00:33:54,270 --> 00:34:00,450 Detention without trial. Detention without judicial review. 296 00:34:00,450 --> 00:34:08,100 Torture, completely unthinkable kidnapping or, as they called it, extraordinary rendition. 297 00:34:08,100 --> 00:34:16,050 People being placed on a no fly list so they couldn't get on a plane with no explanation and no kind of due process. 298 00:34:16,050 --> 00:34:22,640 And so all of that became my practise just to take a larger step back. 299 00:34:22,640 --> 00:34:33,060 And, you know, I had wanted to be a lawyer, not because I think it's the most important way to engage with any of the issues that we're talking about. 300 00:34:33,060 --> 00:34:41,850 But because I thought it was a very interesting way to do that, I think you make at some point a decision about whether you want your professional 301 00:34:41,850 --> 00:34:46,380 life to be fundamentally about helping people or accumulating property, 302 00:34:46,380 --> 00:34:54,750 to be very blunt. And once you've made that decision on the side of people, the challenge is to find work that is stimulating and interesting. 303 00:34:54,750 --> 00:35:03,420 But I have no claim that any of the work or approaches that I've taken in particular are more successful, 304 00:35:03,420 --> 00:35:08,670 more important and more significant than any other approaches. 305 00:35:08,670 --> 00:35:16,170 And I think the importance of having various approaches to two of those issues, but you mentioned also really comes out in your book that as lawyers, 306 00:35:16,170 --> 00:35:21,870 we also need to be part of wider movements and need to look at other strategies. 307 00:35:21,870 --> 00:35:28,340 What are your lessons learnt after so many years of doing this? Yeah, I mean. 308 00:35:28,340 --> 00:35:39,380 I had the luck and the privilege to accompany the Argentina case is now for four more than 20 years, and it was a successful series of cases. 309 00:35:39,380 --> 00:35:45,740 So that is still kind of, yeah, pushing me. 310 00:35:45,740 --> 00:35:55,730 I mean, I have experienced something that yeah, that's that is yeah, or very big for big enough for one professional life. 311 00:35:55,730 --> 00:36:08,090 And how did it come that that the Argentinians were somehow successful, relatively successful to challenge their victory, dictatorial last? 312 00:36:08,090 --> 00:36:19,970 That is, I mean, difficult to find out when you sit here, but it's easier to find out when you when you are in Argentina because there you see, 313 00:36:19,970 --> 00:36:28,100 especially when you see mobilisations on the street, you have tens, if not hundreds of thousands of people in the front line. 314 00:36:28,100 --> 00:36:32,270 It's it's always the mothers of the Plaza de Mayo. 315 00:36:32,270 --> 00:36:41,120 And so it was a very interesting experience also to see and I had already described it in the parts I read. 316 00:36:41,120 --> 00:36:49,790 I mean, for us is it's a western European especially verdict, you know, activist and leftist lawyers. 317 00:36:49,790 --> 00:36:57,470 Obviously, the it's like the the typical the typical hero, the leftist hero is, you know, 318 00:36:57,470 --> 00:37:06,770 or the street fighter in the in the in the demonstrations or somebody who fights in the liberation struggle. 319 00:37:06,770 --> 00:37:16,340 But here you have the complete contrary. You have you have mothers, elderly women with yeah, 320 00:37:16,340 --> 00:37:26,450 who are not at all appearing as as militant and show their militants over the years and their engagement over the years. 321 00:37:26,450 --> 00:37:29,660 And that was obviously also a turn around for me. 322 00:37:29,660 --> 00:37:42,130 And from this kind of post adolescence, you know, attitudes towards the judge, you know, resistance or political resistance from the outside. 323 00:37:42,130 --> 00:37:48,440 And what I saw over the years and it became even more obvious now. 324 00:37:48,440 --> 00:37:55,350 First of all, coming from Germany, it's very clear that, you know, 40 years ago, 325 00:37:55,350 --> 00:38:01,660 this kind of crimes crimes of the past, especially the German Genocide. 326 00:38:01,660 --> 00:38:04,130 This is a task for the whole society. 327 00:38:04,130 --> 00:38:12,410 So lawyers, the lawyers, the law and trials play can play a role there, but it's definitely not the most important. 328 00:38:12,410 --> 00:38:18,560 Maybe the most important thing about the Auschwitz trial in the 60s in Frankfurt was not the trial itself, 329 00:38:18,560 --> 00:38:25,040 but some of the more spirited, righteous in Germany had to observe this trial and wrote about it. 330 00:38:25,040 --> 00:38:34,100 And that made us, you know, learn about learn about the extermination of the European Jews and not the trial itself. 331 00:38:34,100 --> 00:38:43,250 And so having seen that and having seen also in Argentina how different sectors of the society 332 00:38:43,250 --> 00:38:49,730 work together was was it was a huge inspiration because here people tend to think in boxes. 333 00:38:49,730 --> 00:38:55,260 Here are the lawyers. You are the artist, here are the sociologists or whatever. 334 00:38:55,260 --> 00:38:59,870 And in there they saw it as as a common task. 335 00:38:59,870 --> 00:39:06,260 The lawyers developed intentionally or intuitively a toolbox where, you know, 336 00:39:06,260 --> 00:39:12,740 the national level was complemented by the Inter-American level, by the universal jurisdiction cases in Europe. 337 00:39:12,740 --> 00:39:20,990 And finally, it came together. The lawyering went together with social mobilisation and also with arts, 338 00:39:20,990 --> 00:39:26,420 and the younger were marching side by side with with the with, with the elder. 339 00:39:26,420 --> 00:39:34,700 And that was that was something really interesting. And so I still think that is that is a kind of the story that has to be told here. 340 00:39:34,700 --> 00:39:43,220 But unfortunately, it's not really perceived here because justice can only made in the court in London, in Berlin or in New York. 341 00:39:43,220 --> 00:39:46,220 That's the way how the legal community or in Strasbourg, 342 00:39:46,220 --> 00:39:58,400 that's the way how the legal community here digests lawyering and trial outside outside of North America and outside of Europe. 343 00:39:58,400 --> 00:40:02,240 And I think that's that's a huge mistake. Hmm. That's true. 344 00:40:02,240 --> 00:40:06,540 And how do you see it in the US? Yeah, we talked a little bit about the. 345 00:40:06,540 --> 00:40:11,930 Well, currently, what can we do to make sure that as lawyers, we are part of a bigger movement? 346 00:40:11,930 --> 00:40:16,130 So yes, I am going to speak now from a U.S. context. 347 00:40:16,130 --> 00:40:24,880 I think the relationship between law and litigation and social and political movements is actually fairly complex and. 348 00:40:24,880 --> 00:40:33,070 I often describe my job as working on those issues where politics has failed, 349 00:40:33,070 --> 00:40:39,110 where the workings of majoritarian politics have produced an outcome that is unacceptable. 350 00:40:39,110 --> 00:40:43,480 Right. So that's what I how I would define constitutional lawyer in the public interest. 351 00:40:43,480 --> 00:40:51,220 And so, for example, there is no political constituency for prisoners rights in the United States or in most countries. 352 00:40:51,220 --> 00:40:55,240 There is no one who's going to organise a majority to say the government needs to 353 00:40:55,240 --> 00:41:02,200 spend more money for the care of prisoners unless you have some absolute catastrophe. 354 00:41:02,200 --> 00:41:07,180 And so here, litigation actually plays an important political function. 355 00:41:07,180 --> 00:41:14,620 You can get a judge to order a government to properly fund services in a prison. 356 00:41:14,620 --> 00:41:22,720 And actually, we found over the years that the people who run the prisons who we sue are quietly grateful for the 357 00:41:22,720 --> 00:41:27,460 litigation because they're not going to get the resources that they need from elected officials. 358 00:41:27,460 --> 00:41:35,350 But the litigation can create a wedge, and it can compensate for this failure of majoritarian rule. 359 00:41:35,350 --> 00:41:39,490 And if you look at something like marriage equality in the United States, you know, 360 00:41:39,490 --> 00:41:43,720 this is not something that politicians really wanted to vote on until courts 361 00:41:43,720 --> 00:41:47,680 essentially forced the issue by saying that as a matter of constitutional principle, 362 00:41:47,680 --> 00:41:51,760 these rights had to be extended and that was part of changing public opinion on it. 363 00:41:51,760 --> 00:42:01,930 The reason why I say it's complex is that litigators have to be very mindful of not being too far ahead of the public, 364 00:42:01,930 --> 00:42:06,580 even though the point of litigation is to compensate for failures in social and political movements. 365 00:42:06,580 --> 00:42:17,650 Because if you bring these cases 10 or 15 years before the public is ready for them and you win, there can be a very genuine backlash against it. 366 00:42:17,650 --> 00:42:23,320 The first marriage equality case to succeed in the United States was in 2004 in Massachusetts, 367 00:42:23,320 --> 00:42:28,300 and it might have re-elected George Bush because of the politics that were created around that case. 368 00:42:28,300 --> 00:42:34,690 And the US Supreme Court didn't get there until 2016, 12 years later when the country was more ready for it. 369 00:42:34,690 --> 00:42:45,400 So I think sort of understanding that litigation is a tool and very often a blunt tool in what has to be a broader social and political movement. 370 00:42:45,400 --> 00:42:57,910 Its role is to again step in where a majority and political system is going to produce a very harmful outcome. 371 00:42:57,910 --> 00:43:06,640 But the reason why I'm still comfortable in many contexts using the term strategic litigation is that we have to know not just what cases to bring, 372 00:43:06,640 --> 00:43:09,760 but when to bring them. Absolutely. 373 00:43:09,760 --> 00:43:16,960 And I mean, I know you also think a lot about the term strategic litigation and also comes from from a wider history. 374 00:43:16,960 --> 00:43:23,830 The term success without victory was coined 15 years ago by Jules Lobel from the Centre for Constitutional Rights. 375 00:43:23,830 --> 00:43:37,050 We also know where do you think? Is that headed, that discussion and what makes it different and in using litigation as as a tool, as you say? 376 00:43:37,050 --> 00:43:37,380 Well, 377 00:43:37,380 --> 00:43:55,350 I think it's in a way it's it's a wrong description of what had happened in the early days of the litigation in the US based on the False Claims Act. 378 00:43:55,350 --> 00:44:01,770 So that was started in 1980 and it was far away from being strategic. 379 00:44:01,770 --> 00:44:11,790 When you talk to the actors of the time Peter Weiss of the Centre for Constitutional Rights, it was more like Be having a good intuition, 380 00:44:11,790 --> 00:44:19,890 having the good feeling that from a position of of of of less power and less resources than the opponent of 381 00:44:19,890 --> 00:44:28,020 still exploring a situation and having a good feeling that this might be an opportunity to overcome this, 382 00:44:28,020 --> 00:44:31,600 this powerlessness for a moment, at least for a moment. 383 00:44:31,600 --> 00:44:40,230 And so I think strategic litigation cover covers that and it's it's permitted for because of that. 384 00:44:40,230 --> 00:44:49,980 It's like an ex-post description of something which might have been successful but was never meant as strategic litigation. 385 00:44:49,980 --> 00:44:59,420 And also, it's in a way it's kinds of overestimates the role of the lawyers and the litigation organisation that. 386 00:44:59,420 --> 00:45:07,770 And it's also kind of isolates the the activity of the lawyers, 387 00:45:07,770 --> 00:45:12,120 which all of us have to proceed in conjunction with the political aspects of the situation, 388 00:45:12,120 --> 00:45:17,070 which has always to be contextualised in sort of political situation. 389 00:45:17,070 --> 00:45:26,970 And therefore, I'm very sceptical. Can I ask you, though, because I'm I'm sceptical of long arguments about terminology. 390 00:45:26,970 --> 00:45:33,390 So but it seems important to you to use the term legal intervention rather than strategic litigation. 391 00:45:33,390 --> 00:45:40,650 And to me, it seems not important. Yeah, that's another discussion, but I think it's first of all, it's important to question, you know, 392 00:45:40,650 --> 00:45:51,280 our own paradigm of strategic litigation because I think it's important to question our practise over the last 10, 15 years. 393 00:45:51,280 --> 00:45:55,950 And I mean, it's nice to say success without victory. 394 00:45:55,950 --> 00:46:01,060 I mean, you can basically talk every failure. 395 00:46:01,060 --> 00:46:07,060 Nice. Nicer than it is. And I think that's that's the wrong take. 396 00:46:07,060 --> 00:46:16,260 We have we have rather than, you know, kind of painting our own work in nice colours. 397 00:46:16,260 --> 00:46:21,480 We have to be very clear what can and what cannot be achieved with our work. 398 00:46:21,480 --> 00:46:27,720 And I think what we did also because there was a certain Bulworth of litigation, 399 00:46:27,720 --> 00:46:34,560 not only here in the UK and continental Europe, but also in other parts of the world. 400 00:46:34,560 --> 00:46:39,840 We got we get we get a serious amount of funding for all of this. 401 00:46:39,840 --> 00:46:47,610 We get public attention for it. And that raises expectations which we cannot fulfil. 402 00:46:47,610 --> 00:46:54,870 And I think that's a political mistake. And and that's something, you know, rather than just speak about terminology. 403 00:46:54,870 --> 00:47:04,320 I want to speak about. I want to initiate political discussion because I think that this work is important and it can play a certain role. 404 00:47:04,320 --> 00:47:13,050 But it's another role than than we ourselves talk about in our funding applications press releases. 405 00:47:13,050 --> 00:47:14,430 Can I ask him another question? 406 00:47:14,430 --> 00:47:21,940 I don't want to leave you out, but but do you think that the universal jurisdiction cases got too far ahead of the public? 407 00:47:21,940 --> 00:47:28,650 You know, I said before you need to be ahead of the public, that's why you're litigating, but you can't be too far ahead or there can be a backlash. 408 00:47:28,650 --> 00:47:35,340 One with five minutes, I got some the investigation that's who was in charge of the arrest and was 409 00:47:35,340 --> 00:47:44,670 later then suspended and basically kicked out of this is his office as a judge. 410 00:47:44,670 --> 00:47:51,150 And the other was Maxim Wananga, an Argentinian legal scholar who wrote three incredible, 411 00:47:51,150 --> 00:47:57,840 important articles to describe the practise of of universal jurisdiction over the years. 412 00:47:57,840 --> 00:48:09,200 And I'm. Are some kind of this is the kind of figure you you have, you might have in mind. 413 00:48:09,200 --> 00:48:21,320 This is the typical Spanish judge who really thinks he, you know, he is the most important person in the world and in a way such as such, 414 00:48:21,320 --> 00:48:28,310 such and such a character judge is needed in this, in this, in this, in this, in this kind of work. 415 00:48:28,310 --> 00:48:39,050 I mean, obviously, it was important to have a social movement back in Argentina and also a little a smaller movement in interceded. 416 00:48:39,050 --> 00:48:43,790 But it's also important to acknowledge to encounter this kind of judges. 417 00:48:43,790 --> 00:48:49,520 And I mean, it's always about and I don't believe in this story. 418 00:48:49,520 --> 00:48:55,640 You know, sometimes you are too much ahead of, I think this is about, you know, 419 00:48:55,640 --> 00:49:02,360 always breaking the boundary of what we consider as as possible or doable at this time. 420 00:49:02,360 --> 00:49:03,960 And it is, 421 00:49:03,960 --> 00:49:15,470 therefore it was incredibly helpful to have someone like a son who was set ahead and who was actually far beyond not only his own colleagues in Spain, 422 00:49:15,470 --> 00:49:19,610 but many of the European judges. The problem, then, 423 00:49:19,610 --> 00:49:29,690 was years later that he still insisted that it's enough to have him and at some of the police and not 424 00:49:29,690 --> 00:49:39,500 having seen that 50 that these kind of cases mobilise the opponents mobilise very powerful opponents. 425 00:49:39,500 --> 00:49:44,780 And they were already about to abolish this practise, and I think that is the mistake. 426 00:49:44,780 --> 00:49:51,470 I mean, it's very interesting to have this icebreaker or pioneer, you know, persons may be lawyers, 427 00:49:51,470 --> 00:49:57,320 may be prosecutors or judges, but at some point you must also build political coalitions. 428 00:49:57,320 --> 00:50:06,650 And that was not made, especially in Spain and in Belgium, where universal jurisdiction was on the rise in the beginning of the 2000s. 429 00:50:06,650 --> 00:50:17,150 And then in both countries, there was a real backlash. And I think that is that is the experience we have to learn that one successful 430 00:50:17,150 --> 00:50:24,860 case or series of cases or one successful practise then needs to be analysed, 431 00:50:24,860 --> 00:50:31,280 and it cannot just be repeated. Whereas the human rights movements tend to repeat. 432 00:50:31,280 --> 00:50:37,490 Yeah. And you know, yeah, and we reviewed the case and we relied on funding applications. 433 00:50:37,490 --> 00:50:44,360 And yesterday, Espino said, tomorrow it's this tomorrow that and not looking at the circumstance, 434 00:50:44,360 --> 00:50:51,440 not looking at the political situation and the same in the US Courts Claims Act cases. 435 00:50:51,440 --> 00:50:55,100 And I think that's that's then the wrong thing. But I think it's there. 436 00:50:55,100 --> 00:50:58,790 Nothing wrong about me to be beyond that. 437 00:50:58,790 --> 00:51:07,730 What is thinkable today? And I will just say, and then I'll relinquish my role as moderator, that. 438 00:51:07,730 --> 00:51:16,940 The Rumsfeld cases, which you described as a failure before, did not succeed judicially. 439 00:51:16,940 --> 00:51:26,240 But I'm quite certain that Donald Rumsfeld does not leave the United States to travel to Europe, which is a kind of accountability. 440 00:51:26,240 --> 00:51:34,920 Is that success without victory? I don't know. It makes me feel a little bit better that he, although he hasn't been held legally accountable, 441 00:51:34,920 --> 00:51:40,430 is confined to the United States and too nervous to travel around the world. 442 00:51:40,430 --> 00:51:44,000 Stephanie, at least as a symbol of what is happening, 443 00:51:44,000 --> 00:51:50,540 but I'm still quite curious and I know also wanting to discuss this tomorrow in greater depth at the workshop. 444 00:51:50,540 --> 00:51:58,670 But what? What do you think? Do human rights organisations do human rights lawyers need to change in their approach 445 00:51:58,670 --> 00:52:05,810 in order to take this political space better into account and to to prepare for that? 446 00:52:05,810 --> 00:52:12,230 I mean, a lot of the I mean, we all was their own selves, you know, connected to social movements. 447 00:52:12,230 --> 00:52:18,950 We think it's important to work interdisciplinary, but we don't we don't take our own words seriously. 448 00:52:18,950 --> 00:52:27,410 And I think that's that's the first thing. Then the second thing is it's might be helpful for some human rights activists, 449 00:52:27,410 --> 00:52:34,970 human rights organisations or movements to say that they are to declare themselves neutral, politically neutral. 450 00:52:34,970 --> 00:52:46,520 Obviously, it helps you and the Soviet Union of the of the 80s or in China now or in whatever country where where you 451 00:52:46,520 --> 00:52:54,500 calling yourself radical or whatever declaring that you want to change society is really more dangerous. 452 00:52:54,500 --> 00:53:07,490 But I think for human rights organisations in Europe and in North America, it's it's important to understand that human rights is a political issue. 453 00:53:07,490 --> 00:53:15,350 And in order to enforce and to realise human rights, especially when it comes to economic and social rights, 454 00:53:15,350 --> 00:53:22,490 we need to change societies and we need to change the world's economic system and we need to spell it out. 455 00:53:22,490 --> 00:53:31,850 And whereas many of us in this community think that this is this is dangerous, it's dangerous to spell that out. 456 00:53:31,850 --> 00:53:37,400 It's dangerous to spell out that we have political political motivation and political goals. 457 00:53:37,400 --> 00:53:39,590 And I think over the years, 458 00:53:39,590 --> 00:53:50,360 that doesn't that doesn't bring us in a better position because many people watch attracted by the fact that we can raise issues, 459 00:53:50,360 --> 00:53:59,150 we can address certain injustices, observe our work, find it stupid that we are arguing. 460 00:53:59,150 --> 00:54:04,190 So we are blacking out the political situation. 461 00:54:04,190 --> 00:54:11,040 Whereas I would say these are, you know, these are our allies and we need to we need to work for them something. 462 00:54:11,040 --> 00:54:16,460 And we need also to to say, I mean, sometimes we have a good law like in the torture cases, 463 00:54:16,460 --> 00:54:19,910 we have good law, we have the absolute provision of torture. 464 00:54:19,910 --> 00:54:24,710 But when it comes to economic and social rights, sometimes law is very bad. 465 00:54:24,710 --> 00:54:31,760 It's very dirty that the law is part of the problem and the law is is is is confirming this. 466 00:54:31,760 --> 00:54:37,730 Yeah, and complete justice complete in this situation. 467 00:54:37,730 --> 00:54:48,950 And then, you know, we need to to struggle for for you and other laws and for the and other way to organise the world's economic system. 468 00:54:48,950 --> 00:54:53,750 And that, of course, cannot be carried out by lawyers because yeah. 469 00:54:53,750 --> 00:55:07,610 And so I think that's it's it's it's towards a more outspoken political attitude and to talk to a cooperation with others. 470 00:55:07,610 --> 00:55:13,110 And how do you see it in the US? Is that a different feeling or is it? 471 00:55:13,110 --> 00:55:16,460 I agree with everything that Wolfgang just said. 472 00:55:16,460 --> 00:55:22,010 I think that when when human rights lawyers say that they're not political, 473 00:55:22,010 --> 00:55:30,380 people laugh at them so that the ones who insist on being not political are not even taken seriously by the people that they're trying to impress. 474 00:55:30,380 --> 00:55:35,870 With that statement, I mean, I would love to live in a world where the Universal Declaration of Human Rights is not a political document, 475 00:55:35,870 --> 00:55:38,390 but in the world that we live in. It's a radical documents. 476 00:55:38,390 --> 00:55:47,720 And if you really believe in a world that honours all of those commitments, then you are on the side of some kind of radical politics. 477 00:55:47,720 --> 00:55:58,520 And I also agree with something that Wolfgang said before about where law fits into, you know, moving us from here to here. 478 00:55:58,520 --> 00:56:02,300 And this is not an entirely related example, 479 00:56:02,300 --> 00:56:07,200 but we were just talking a minute ago before we came out here about how millions of people in the United States. 480 00:56:07,200 --> 00:56:13,920 It's who should have been the political opposition spent the last two years in front of their televisions and computers waiting 481 00:56:13,920 --> 00:56:20,970 for a prosecutor to solve our political problems through an investigation instead of building a real political opposition. 482 00:56:20,970 --> 00:56:31,140 Even though we have seen enough examples of how you actually beat these kinds of authoritarian leaders, 483 00:56:31,140 --> 00:56:37,530 and it's not by having legal rescue, it's by having a real mobilised political opposition. 484 00:56:37,530 --> 00:56:42,480 I think we still have time to do that before 2020 in the United States, 485 00:56:42,480 --> 00:56:49,950 but a lot of time was wasted by people who thought that law was going to be the answer to their problems rather than politics. 486 00:56:49,950 --> 00:56:56,760 Absolutely. I also want to address one of the questions which we asked ourselves for the litigating rights series as such, 487 00:56:56,760 --> 00:57:05,280 and that is always the difficult relationship we have as lawyers with those we represent as well and how we deal with this relationship. 488 00:57:05,280 --> 00:57:09,630 And especially, I think, with these bigger strategic human rights cases, 489 00:57:09,630 --> 00:57:19,710 it's always a already a question of how do we choose those who actually go and do a case who chooses them, who approaches whom in a way? 490 00:57:19,710 --> 00:57:24,810 And how would you how do you make sure that even if it's maybe only one claimant in the case or two? 491 00:57:24,810 --> 00:57:31,050 Very few. But they are a representative for a wider, wider problem of a broader community. 492 00:57:31,050 --> 00:57:43,190 So how do we interact in that in that space? How do you make sure that it's really for everyone that the cases can you do that allows them to? 493 00:57:43,190 --> 00:57:48,290 Yeah, I mean, again, that's a complex question, because it also involves legal ethics. 494 00:57:48,290 --> 00:57:55,760 What does it mean to be a movement lawyer representing an actual human being in an attorney client relationship? 495 00:57:55,760 --> 00:58:00,260 Because once a case begins, whatever your movement goals are, 496 00:58:00,260 --> 00:58:05,420 must be subordinated to your ethical obligations to whoever it is that you're actually representing in that case, 497 00:58:05,420 --> 00:58:12,200 and the best way to to reduce those tensions is to be very clear upfront what kind 498 00:58:12,200 --> 00:58:19,010 of lawyer you are when you are taking on these cases and taking on these clients. 499 00:58:19,010 --> 00:58:31,610 And I think most of us are most of us when we represent clients in these cases are extremely candid about what we think the likelihood of success is. 500 00:58:31,610 --> 00:58:34,640 You know, in the United States, until last year, 501 00:58:34,640 --> 00:58:41,120 every single case we brought on behalf of the torture victim was dismissed without any adjudication of the law or the facts. 502 00:58:41,120 --> 00:58:46,920 We didn't get past any motions to dismiss Sun on secrecy grounds, on immunity grounds. 503 00:58:46,920 --> 00:58:57,530 And there's a real danger that you are going to retraumatize a torture victim by having the legal system do to him. 504 00:58:57,530 --> 00:59:00,710 You know what the intelligence community has already done, 505 00:59:00,710 --> 00:59:10,490 so you need to work with with those clients to make sure that they're actually committed to the same political project that you are, 506 00:59:10,490 --> 00:59:18,410 which is not only trying to resolve the case with a remedy for them, but trying to end the practise overall. 507 00:59:18,410 --> 00:59:23,900 And one other way to do that is to represent organisations as well as individuals 508 00:59:23,900 --> 00:59:28,640 where it's possible in these cases so that you actually have as your client, 509 00:59:28,640 --> 00:59:37,620 not just one victim or plaintiff, but a whole organisation that represents the values we sometimes represent ourselves. 510 00:59:37,620 --> 00:59:44,960 Right. A lot of our cases are called ACLU versus Trump or ACLU versus Sessions. 511 00:59:44,960 --> 00:59:54,080 Or are you? Yeah, that's one answer that would I would add to that that I mean, there is a lot of incredible, 512 00:59:54,080 --> 00:59:58,760 interesting literature being written in the last 50 years about that. 513 00:59:58,760 --> 01:00:08,500 And I I mean, I still think the strongest piece is Michael to us savages, victims and saviours. 514 01:00:08,500 --> 01:00:18,230 So where obviously the role of the saviours are is reserved for us, the western human rights of people. 515 01:00:18,230 --> 01:00:22,430 And of course, we have to overcome that. 516 01:00:22,430 --> 01:00:35,060 But I see also a tendency I mean, we could continue to discuss that far was I see also a tendency to be too much. 517 01:00:35,060 --> 01:00:44,960 It's important to link our work to critical two to two critical legal theory and especially to postcolonial theory, 518 01:00:44,960 --> 01:00:54,230 but it's also too important to come to come to that. I mean, this is this is a real this is real time happening. 519 01:00:54,230 --> 01:01:04,520 And if we don't act, we would then act. And so therefore we often come into we often act in a very contradictory way, 520 01:01:04,520 --> 01:01:11,570 and we often act in situations which are full of contradictions and where you can only choose between 521 01:01:11,570 --> 01:01:21,740 two to two evils and that we must be aware it's a question of consciousness and it's a question of, 522 01:01:21,740 --> 01:01:27,650 you know, spelling that out and verifying that because what should not happen? 523 01:01:27,650 --> 01:01:32,150 And I see a huge tendency we shouldn't be paralysed. 524 01:01:32,150 --> 01:01:35,540 Bye bye. Bye bye. Bye bye. 525 01:01:35,540 --> 01:01:40,670 Reading and discussing only theory, of course. 526 01:01:40,670 --> 01:01:47,210 Also not overestimating the US as the petitioner is a bit. 527 01:01:47,210 --> 01:01:56,150 It has to be balanced out, and I think this balance is is is is sometimes in danger to be lost. 528 01:01:56,150 --> 01:02:04,610 And we also not the only actors, right? So what I saw often in my work in Colombia is also the immense power the corporations have, 529 01:02:04,610 --> 01:02:09,650 and they really want to play out and see from satisfying leaders trying to divide communities. 530 01:02:09,650 --> 01:02:16,490 So I mean, we are not the only players in the field. And I think also the question of what to do when communities become divided, 531 01:02:16,490 --> 01:02:22,340 either through the work of corporations themselves or just because the proceedings take a long time. 532 01:02:22,340 --> 01:02:27,320 And then maybe a settlement is being discussed and opinions just go in various ways. 533 01:02:27,320 --> 01:02:34,310 I think that this is quite a difficult moment as well for any any court proceeding and litigation you do for me, open. 534 01:02:34,310 --> 01:02:37,490 I do want to have one one last question to you often as well, because in your book, 535 01:02:37,490 --> 01:02:45,500 I think you also beautifully describe the importance of art and human rights and how art can also be a really important tool. 536 01:02:45,500 --> 01:02:52,220 I just wanted to ask you a little bit about your proposal in that field before we then open to this. 537 01:02:52,220 --> 01:02:54,080 I'm not sure if this is about proposals. 538 01:02:54,080 --> 01:03:09,260 It's more like, Oh, I think it's it's as necessary as it is to develop the very pragmatic attitudes towards today's realities. 539 01:03:09,260 --> 01:03:17,270 We should also develop utopian visions, which is very difficult to do as lawyers and with law. 540 01:03:17,270 --> 01:03:25,060 And therefore, I feel very inspired to combine arts and law. 541 01:03:25,060 --> 01:03:28,160 And because I mean, 542 01:03:28,160 --> 01:03:40,370 artists can can draw connexions between past and present very easily and can know not very easily if it's maybe easier than us as lawyers. 543 01:03:40,370 --> 01:03:53,870 So where it's it's difficult for us to squeeze the colonial past of the country in a 50 pages are legal writ on the the artist can do it. 544 01:03:53,870 --> 01:04:05,000 And it's also, of course, it's also about imagining another society, which is also difficult to deal with as a lawyer. 545 01:04:05,000 --> 01:04:17,150 Although we have the Universal Declaration of Human Rights where there some, yeah, as you said, very radical claims are are part of that. 546 01:04:17,150 --> 01:04:25,700 So yeah, but what I also argue is, is to see arts as ornamental for work. 547 01:04:25,700 --> 01:04:36,140 You know, the funders asking us to which our our reports and the whole world and to see, you know, 548 01:04:36,140 --> 01:04:49,590 this is a growing number of exhibitions around our work which are just like, yeah, seen as as all of that, but at the same time. 549 01:04:49,590 --> 01:04:54,730 And I think you've been a model of this for me over the last 12 years. 550 01:04:54,730 --> 01:04:59,470 How do you do this work for your life without burning out? 551 01:04:59,470 --> 01:05:05,590 And one way to do that is to build a rich community of support. 552 01:05:05,590 --> 01:05:09,100 And we don't want that community to be only human rights lawyers. 553 01:05:09,100 --> 01:05:18,280 We want that to be a community of people who are using different means and methods are also trying to bring us a different and better world. 554 01:05:18,280 --> 01:05:23,890 And and I hope that you don't get the impression when you hear Wolfgang reading from that that he hasn't. 555 01:05:23,890 --> 01:05:31,630 He doesn't have a very rich and rewarding life because he does, and I do. 556 01:05:31,630 --> 01:05:38,620 And again, part of that is the community that we managed to build around the work. 557 01:05:38,620 --> 01:05:46,480 Well, maybe before we close, I do want to ask you to maybe also say something about what you would recommend nowadays, students or some of them? 558 01:05:46,480 --> 01:05:46,840 Yes. 559 01:05:46,840 --> 01:05:57,590 Well, the thinking of that kind of activism, what they should do, of course, besides going to go to sit, I was with one of our fellowship buddies. 560 01:05:57,590 --> 01:06:09,180 No, I mean, I am old enough to be in that position, but I still I still deny it. 561 01:06:09,180 --> 01:06:18,040 You know, it's like everyone has to make his or her own experiences. 562 01:06:18,040 --> 01:06:26,680 But what? It's what I try to describe and and then also pointed to this. 563 01:06:26,680 --> 01:06:38,830 It's like, I think it's important to follow your own intuition and and also to to believe in your own dreams. 564 01:06:38,830 --> 01:06:52,300 And that is that that is something actually writing such a book is also incredibly enriching in this regard when I mean, I wrote a diary. 565 01:06:52,300 --> 01:07:00,770 And so reading my diary from years ago is sometimes very crazy because I I found out that I thought 566 01:07:00,770 --> 01:07:08,230 I'd read dreamed things that at the time when I wrote it were kind of impossible to think about. 567 01:07:08,230 --> 01:07:13,930 But later on came true. And so of course, I'm I'm a journalist. 568 01:07:13,930 --> 01:07:20,770 I'm a lawyer. So the driest ever, you know, think of all this. 569 01:07:20,770 --> 01:07:25,840 So for me, it was a big learning experience over the last two years. 570 01:07:25,840 --> 01:07:36,100 So, yeah, to argue more with with categories like into for myself or to think more of categories like intuition or like grades. 571 01:07:36,100 --> 01:07:46,870 And because actually I did it, but I couldn't speak about it because I was I was captured on my own, you know, German lawyers mindset. 572 01:07:46,870 --> 01:07:54,070 And I think that's important to to to to to find your own position as a human being. 573 01:07:54,070 --> 01:08:03,560 And then, of course, develop your your, your, your lawyers sort of jurors career. 574 01:08:03,560 --> 01:08:10,760 Any final thoughts? Yeah, so I think, you know, the the framing of this question that I like the least and it's not the way you framed it is, 575 01:08:10,760 --> 01:08:16,160 you know, what's the most important work you can do if you want to be a human rights activist? 576 01:08:16,160 --> 01:08:22,280 And it's all it's all important work across the board. 577 01:08:22,280 --> 01:08:26,210 The best advice that I ever heard on this was from a professor who said that, you know, 578 01:08:26,210 --> 01:08:37,400 most of you are going to spend more time at work than at home with your families, waking hours of your life if you have to work. 579 01:08:37,400 --> 01:08:44,150 And so it's a good idea to surround yourself with people you love in that work. 580 01:08:44,150 --> 01:08:47,760 And you know, when I was a. 581 01:08:47,760 --> 01:08:56,220 University student and academia seemed like a possibility, I had a great experience that cured me of that which was, you know, 582 01:08:56,220 --> 01:09:05,670 writing an undergraduate thesis which which took a year, and I realised that if I pursued that route, I would be a complete fraud. 583 01:09:05,670 --> 01:09:11,040 I would cut every corner possible because I didn't want to be in that cubicle by myself, surrounded by books. 584 01:09:11,040 --> 01:09:17,560 I wanted to be out with other people all day and save books for something else, which is pleasure. 585 01:09:17,560 --> 01:09:26,190 In evenings and other times, I didn't want to do what you need to do to to be a principled scholar, which is to want to spend your day. 586 01:09:26,190 --> 01:09:33,630 But some of you will actually want to get away from the noise of the crowd and retreat back into that cubicle. 587 01:09:33,630 --> 01:09:37,470 And you know what? Our movement needs scholars to write so they're there. 588 01:09:37,470 --> 01:09:42,330 It really is about finding out what you want to do most days. 589 01:09:42,330 --> 01:09:50,040 And even if you decide to be a public interest lawyer, if you're a criminal defence lawyer, you're in court almost every day. 590 01:09:50,040 --> 01:09:56,940 If you have a job like mine, you sit on the 17th floor of an office building near Wall Street, 591 01:09:56,940 --> 01:10:01,590 and most of your day is spent reading and writing and in meetings and maybe talking on the phone. 592 01:10:01,590 --> 01:10:09,990 But you're very rarely in court, so. So if you don't like that part of the practise of law, you wouldn't like my job at all. 593 01:10:09,990 --> 01:10:16,480 If you want the action or speaking to a jury or seeing clients every day, you'd want to practise in a different way. 594 01:10:16,480 --> 01:10:24,890 So and the only way to know which of these things suits you best is to do many of them. 595 01:10:24,890 --> 01:10:29,840 So, yeah, I think that's a good message also for students and for all of us to tout various things 596 01:10:29,840 --> 01:10:37,220 and to see you your best and that everyone and every type of work serves no good purposes. 597 01:10:37,220 --> 01:10:39,620 So before thanking our fantastic speakers, 598 01:10:39,620 --> 01:10:45,860 I do want to write everyone that we also have a drinks reception outside now where you can also find Wolfgang's book lovers with power. 599 01:10:45,860 --> 01:10:56,085 And now please do join me in thanking Wolfgang and Ben for this wonderful conversation.