Welcome to the Bone Marrow Institute and also to our very first litigating rights lecture.
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,
not with us as our first renowned litigators in this new series and in the series,
we plan to invite legal practitioners who have litigated human rights cases in different jurisdictions and national courts,
but also supranational courts.
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.
As a leading German lawyer and distinguished human rights activist for more than two decades,
he has been involved in the global struggle to hold powerful people and governments accountable for human rights abuses,
fighting alongside so suffering injustice at the hands of powerful perpetrators.
Who too often enjoy impunity.
Just this month, Wolfgang was awarded the 2019 Bassiouni Justice Award for his leadership in the discourses and practise of double standards,
strategic human rights litigation, universal jurisdiction and capacity sharing.
Wolfgang is the founder of the European Centre for Constitutional and Human Rights are
an organisation that has prepared numerous important legal actions against politicians,
military leaders and corporations for crimes against humanity.
And I must say that it is also a special pleasure for me personally to welcome you to Oxford Wolfgang,
having met you 11 years ago and still having one of the very first flyers,
obviously see it at home and then also working with this asset in Berlin for four years myself.
So welcome. Wolfgang and Ben Weisner is the director of the Speech, Privacy and Technology Project of the American Civil Liberties Union.
For nearly two decades, he has worked at the intersection of civil liberties and national security,
litigating numerous cases involving airport security policies, government watch lists, surveillance practises, targeted killing and torture.
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.
Since July 2013, he has been the principal legal adviser to the same whistleblower, Edward Snowden.
And now to tonight's agenda. So welcome will open.
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.
And then afterwards, we all invite you for a drinks reception outside.
But first, lot of us has power. The floor is yours. Yeah, thank you very much.
And Alain, and also big thanks to Vienna, where we are going to have a very interesting work.
So more on the techniques and the mythology and politics of litigation tomorrow.
And so the idea was aniline and Kate to some parts of the book and asked me to read a little bit.
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.
First of all, it's uncommon in Germany as a lawyer there.
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.
And the critique is like, you know, being doing all of this only because to get more public attention,
something which is like very common in London or in New York and even in other parts of the world.
But in German, lawyering is a very discreet and serious thing.
And if you go out and and look for the public, you're becoming an unserious person, you're not taking serious.
But I thought and I was encouraged by a number of people that it makes sense not only because of my personal history,
but this history coincides a little bit with the rise of, you know,
transnational human rights litigation because actually, I started in nineteen ninety eight.
So we we started with the Argentina cases and then come back to that 1998.
And then the Pinochet was arrested in October 1980,
and then I went through the ups and downs of universal jurisdiction and the expectation on the International Criminal
Court and also now the ups and downs with business and human rights litigation and recently also migration litigation.
And so that's the one thing, the one layer I which I consider as extremely interesting.
And the other layer is it's also very clear in the time where you know,
people don't are not reluctant to declare human rights and human rights litigation for death.
I want to remind of a time a little bit over 20 years ago where this kind of litigation wasn't even established.
And so my first the first chapter I'm talking about Guatemala shows that because it shows also the way of of of of,
let's say, more or less normal progressive leftist lawyers into this transnational litigation field.
But at the time I write, I make my first experience.
It was actually in 1919, in Mexico and in Guatemala. There was no thinking about litigating against perpetrators of of gross human rights violations.
So this is this is this is the first chapter when I arrived in Mexico,
Guatemala had been suffering for thirty five years and a more or less openly military rule.
In the early 80s,
the dictators pursued the US backed counterinsurgency policy of scorched earth tactics to rupture civilian support for the leftist guerrilla,
who had been fighting the state for decades. The consequences were devastating.
In a few years, more than 100000 people were murdered, around a million war, mostly from the.
Populations were forced to flee in more than 400 villages were razed to the ground.
As I write this, I'm debating with myself as to whether I should set out those horrors in detail.
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.
In her essay on photography, Susan Sontag asked the important question.
I quote what to do with the feelings that have been aroused, the knowledge that has been communicated.
Do they not lead to boredom, cynicism and apathy? I also see a danger that we, those of us who work on these issues,
only inflate our own importance with dramatic portrayals as though our own significance rises with the scales of the horror we report.
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?
I choose to follow suit. Some text suggestions and reflect on quote how our privileges are located in the same map
as their suffering and may be linked to their suffering as the wealth of some may lie.
The distribution of others end of quote. Politically,
it would be wrong to look at the question of human rights violation from a Western paternalistic
point of view isolated from the political and economic crisis in the global capitalist system.
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.
There was definitely not this level of reflection on my colleagues at the commission.
I worked at the Exide Commission of Human Rights in of Guatemala, who had to work from Mexico.
All of my colleagues were forced to flee Guatemala. The long I work with them, the more I learnt about the past.
I hear stories about their own education, careers and entire lives were upended due to the threat posed by the military.
On November 1st, we celebrate DIA de los Muertos The Day of the Dead.
Like millions of people in Mexico and across Central America,
my colleagues set up a no frienda kind of attack with pictures of the death and colourful offerings like flowers, red ribbons and figurines.
Many of the faces in the photos are very young,
and each picture tells a story of violence and pain of torture and murder and relatives, comrades or colleagues.
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.
Around 50000 indigenous women who lost their husbands to the state of repression
to state repression have joined forces under the National Association,
called Kunhardt V.Q.A.
This woman faced discrimination various kind as part of the ruling class because of their ethnic background as women and as widows,
and Antonia suggests that her right to report on this young organisation and travel to
Guatemala to witness the celebrations around the two year anniversary of its establishment.
As a German, it will be safe for me to travel, she says. We start making enquiries in Guatemala.
It dawns on me that I'm secretly hoping it won't work out. I'm overwhelmed by the prospect of this trip.
My Spanish is only passable. By that time, and I'm glad to have somewhat settled into life in Mexico City.
In this smaller of a city,
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.
When I look back in early 2015, when I write this book in German, it my old notes and reflect a bit.
I still relate to the long young law student I was back then angry, romantic, indignant, ever questioning.
But when I read the entries on my Guatemala trip, I also see how inexperienced I was dealing with people from other cultures.
The note point to an inner conflict I was on the sidelines a mere observer, but wanted to be more than that.
I was aware of my privileged situation and grappling with the distance between me and the struggle of those with whom I declared solidarity.
My notes from this times are largely about me, and the situation was so alien to me.
It wasn't until later in the life that I managed to stop conceiving of these encounters as journeys
of political self-discovery and developed real empathy for people affected by injustices in Germany.
There were few people outside the Latin America Solidarity Movement who were openly
describing and criticising the crimes being committed there and the complicity of the West.
And so my work was certainly worthwhile. But at the time, there wasn't anything more I could contribute.
I did not yet have the requisite access to the legal community to power resources or an audience.
Nonetheless, it wasn't start. And it spurred me on.
Yeah, and two, to finish a little bit to the reflections on Guatemala in my in my in my epilogue while writing the book,
I had the pleasure and the privilege to meet many of the protagonists.
So also some of those whom I have been with in the in the Times of the Guatemala taken Human Rights Commission.
And so I also meet and Antonia in.
And reflect a little bit with her about about that, that experience of 1990 in autumn 1990 as German reunification was underway.
Was it the good to my take human rights commission getting my first experience in human rights work at the time,
I found it hard to imagine that I could ever work in Europe and be useful to the human rights struggles as those
people who are working in the commission to ensure they could one day to return to a democracy in their home country.
In Guatemala, I meet again and Antonio Reyes, that was then in 2014, who was the head of the Commission of the time.
She was able to return after the peace agreement in 96 and continue the academic career she had to abandon while in exile.
Now she's teaching at the university and working for the state human rights body, once notorious for its proximity to the regime.
It's a moving encounter with an Antonia.
We compare notes on what has happened over the past 25 years, and we see we've travelled somewhat parallel path.
Former dictator Rios Montt will remain firmly in power in 1990 was since convicted of genocide.
Even in Guatemala, things have changed and then again, not so much.
Indigenous politicians in the gluten in the Guatemalan highlands are facing harassment
and threats for organising opposition to mining and infrastructure projects.
Yet the fact that it's possible to take action within a global network in the
fight for human rights and thus ensure that ever fewer crimes remain invisible,
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.
That was, yeah, I said it in the introduction back in 1998 99.
Actually? Yeah, before before the before the Pinochet precedent.
So this was also true in the case of Nora Marx. In addition to a complaint brought by her mother, Ellen Marx,
I find witness statements from those who had been arrested with Nora on that August in 76.
The meeting was due to take place in a workshop in a suburb in Buenos Aires.
The police had monitored the house, waited until all arrived,
arrested those who were present and taking them to nearby police stations where they were
tortured and had visited this very police stations a few days after Nora's disappearance.
Without knowing that she was inside based on the testimonies in the file,
a trek down others who were arrested that day and interview them, the results are frustrating.
None of them know why they survived. But Nora didn't because of Norris Jewish heritage and her name marks.
The Argentine armed forces not only saw themself as carrying on the tradition of the Prussian army,
but also looked favourably on the vehement and cultivated and aggressive anti-Semitism.
I speak with human rights organisations, many of them have their own archives,
but we can't find any evidence to show that after being brought to the police station.
Nora Marx ended up at another locations, such as one of the secret torture centres.
She may be have been killed after just a few days in detention.
Amit Hagle what's a walking archive of the human rights movement?
He collects all the available information, including witness statements from former detainees,
to reconstruct the topography of the hundreds of detention centres strewn all
across the country and to piece together the stories of those held there.
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.
Hot ticket touts about Juan Miguel and a group of others were prepared for transfer dress.
This indicated that a detainee would be murdered, shot and burned in a mass grave or drugged and thrown thrown into the sea.
I ask to. Why were you not transferred along with the others?
I can sense the significance of this question.
It implies that there may have been a rational logic behind the military's method of selection that the detainees could recognise,
and it touches on the very sensitive issues for those who survived.
The sense of guilt haugen gives an answer.
I can feel an answer that stopped me in my tracks.
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.
In moments like this, I can feel that I have overstepped an inner boundary.
The more I asked, the more responsibility I bear, the more I learn, the more I become involved.
We talk about the past, but the conversation creates a situation in the present one that brings together both partners in the dialogue.
I'm being entrusted with information and stories and I must handle them carefully.
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.
1999, having processed all the information, I submit criminal complaints just a few weeks later,
it looks like the case might already be brought to a close.
There are legal complications and I don't go into detail, but it was the time before the German International Crimes Statute.
Parallel to the to the Rome ICC Statute was established so very random legislation,
and we we were we tried to argue that the the German Jewish victims have to be treated just like Germans,
even though they were stripped of their German citizens by the Nazis in 1941.
And that that that got a little bit complicated when I hear that the prosecutors are planning to close the proceedings,
a draught letter to my client to add in marks and to a group of the German Jewish mothers.
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.
I use terms like Don't be alarmed. It's possible there is a chance that.
It's a convoluted letter, since I also don't want to dash all hopes completely.
In response, I received a memorable fax was the time the defects were even sent.
And in MOCS writes Dear sir, she keeps up this form of tone throughout.
Dear sir, we are old and hardened fighters.
She tells me I don't need to worry about her descending into hysterics that I should just carry on working.
She says that over the past 20 years, she's gotten used to defeat.
The facts is an eye opener, an important and a very important moment for me.
I realise that I've fallen victim to my own prejudices.
I don't talk to my other clients through pacifists who blocks the street or the environmentalist who climbs up power station smokestacks.
The way I talk to these older ladies, these women have a wealth of experience greater than we can imagine in dealing with oppression.
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
was a powerful political weapon in this way that had stood up to the dictatorship during its most violent phase,
an act of defiance that had cost some of them their lives.
The facts from an unmarked shames me. I should have known better,
particularly with her someone who has lost so many people and who was one of the strongest and most intelligent woman I have.
I have met. So she's she's a gentleman,
Berlin Jewish woman who whose parents were smart enough to send her as a teenager on the journey to to Latin America in 1938,
nearly in the very last moment, and her whole family was was was killed by the germs.
And yeah, she not only survived that, but formed energy and fight spirit in Argentina,
and then her her daughter got disappeared, by the way, the Argentinian military dictatorship.
So I realise that there are some things that must be done,
regardless of the chances of success doing everything possible to uncover the truth and
a chief justice on behalf of the mothers of the disappeared is one of those duties.
It doesn't matter what judges, prosecutors or other lawyers might think of me.
I learnt that humility is not a bad trait, especially when it's when,
as with the mothers, it goes hand in hand with the resistance and the fighting spirit.
And in continuation of this Argentinian story, in another small part.
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,
which which I was part of in France and Italy and of course, also in Spain.
And so from 2006 on, Argentina reopened the investigations and trials against the military dictatorship and abolished the the the amnesty laws.
And so one of the biggest waves of national prosecution of international crimes began.
And I just write a short episode of that.
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.
The trial begins in Argentina, begins in Buenos Aires against two dozen senior officers for crimes committed at the Torture Centre at Essman.
Amongst excuse accused are men who subjected my clients, Audriana, Marcus and Bettina Erin House,
whose stories I described early in the book to such miserable misery.
I know the faces and the stories of those being let into the packed courtroom,
partly from Adriana's descriptions Hotjar to the tiger, Alfredo Ortiz, the blonde angel of death and Miguel cover you.
This hearing is the last step in the long process that we have been part for so many years.
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.
They set up the Special Prosecution Authority, with several thousand staff working on the cases for many years here in Argentina.
It was just a dozen investigators researching these odd crimes.
Once again, it shows the importance of the decades of patience and persistence on the part of the human rights movement,
which are now in a position to assist with the criminal proceedings and take part as civil parties in these in these same proceedings.
My friends in Argentina are pleased about the reopening of the proceedings.
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.
The journalist and author, Augusto Verbinski, makes the point during one of our conversation.
I have spent decades of my life writing about this. Now it's time for other younger ones to do it.
This is understandable, and it's also a smart political strategy,
the tryouts are being monitored by members of the Eagles, the Organisation of Children of the Disappeared.
Many of the lawyers and journalists working on the case are young.
The work of addressing the crimes of the dictatorship has now passed to the next generation.
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.
I've made this story my own as far as such a thing as possible.
Now, the language of violence has been silent. It's time for the language of law here in Argentina.
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.
It was never a sense of hatred of individuals that spurred me on.
I find it strange to see thousands of people gathering on the big avenida outside the
courtroom to watch life on the big screen as the verdict is delivered in another big case.
Feuds. A few days later.
The charges relate to murders committed as part of crimes against humanity, each guilty verdict is met with applause from the crowd.
The whistle, the whistle, really when someone is acquitted?
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.
After months of tension, the verdict comes as a great relief to so many of them.
A lot of people had to give evidence using the trial. They were nervous and felt threatened.
Some of them were the targets of explicit threats.
The young helped the old to prepare the statements and accompanied them to the court.
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.
And importantly, they told their stories they were believed.
The legal assistance system that had been so hostile to them in earlier times and now rejected the excuses and
justifications put forward by the military and their defence team and had seen fit to jail once powerful figures.
It was all of these emotions that started to spill out on the streets when the verdict was handed down.
In spring 2007, our second attempt to initiate investigative investigations against Donald Rumsfeld and others in Germany ends in failure.
The German prosecutors see no link to Germany and consider it too difficult, if not impossible, to investigate U.S. state crimes in Germany.
They do not accept our central argument that public prosecutors of different countries
have to work collaboratively fully when it comes to complex international crimes.
We're more convinced than ever. In order to make any progress, there needs to be a way to gather evidence in one place,
linked up with an investigation in a different place and then bring charges eventually, even in a third jurisdiction.
One action builds upon another. You have to start at some single point.
Even if for now, it may not be possible to follow through with the case all the way to to an end.
When the Pinochet case was filed,
no one could have foreseen that the extra ex-dictator would travel to the United Kingdom in a private capacity two years later.
But the reason the arrest warrant could be issued at the right moment was that when you arrived in Europe,
the groundwork had been laid in Spain and in decades before in Chile that there was
already substantial documentation and eyewitness testimony concerning the crimes.
In spite of this renewed disappointment, we had worked on this project for two years.
I don't doubt that it was the right thing to do since speaking with Alan Marks.
I've let go the idea that our nection, our actions need to be successful and should short term.
We continue our work on the Rumsfeld cases and push the French public prosecutor to the issue to issue an arrest warrant.
When Rumsfeld visits Paris in 2007 but we have no luck.
We plan a criminal complaint in Spain. We want to demonstrate how vital it is to hold powerful actors liable for their actions.
These ideas start to spread. Our project is received with great interest in other places, with similar human rights violations have occurred.
At this point, I'm still a partner at our law firm,
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.
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.
Recently, the everyday laundering, the almost daily courtrooms,
the meetings and briefs to be written have seemed ever less satisfying, though important.
All of those are standalone, unrelated cases defending individuals, especially the poor and the politically active against the state.
Sometimes overly vigorous powers of prosecution is, of course, a form of human rights work.
This is the conviction I have held since I started out as a defence lawyer,
but more and more I see a broader picture with more and more complex problems.
I want to participate in something that goes beyond the individual case.
I want to be part of a political project. Well, thank you very much, Wolfgang, for this insight into your very powerful book.
I had the pleasure of already reading it a while ago in German and now to read it again in this bill of goods,
and it really emphasises the stories of those you who accompany you,
accompanied in their struggle for justice and gave us some insight into your journey as a human rights lawyer and as a lawyer.
So maybe a first one,
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.
Sure. And I'll be brief so that we can get into the conversation of the of the issues that Wilkins book raises.
The first thing I think I should say is that human rights law is a term that is not
commonly used in the United States to describe domestic public interest practise.
If you had told me when I was a law student that I was going to be a human rights lawyer specifically,
that I was going to be a human rights lawyer working on torture cases and extrajudicial executions, I would have said how interesting.
I'll be working in Central America or in Sudan. But as it happens, the.
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.
I went to work for the American Civil Liberties Union in August of 2001 with a plan that I was going to work
in jails and prisons in the United States as what we would call a civil rights lawyer in the US context.
I was in Los Angeles. It has the biggest jail system in the world still,
and I had no expectation that I would be travelling around the world to follow my country's human rights abuses.
Five weeks after I began that job, the nine 11 attacks occurred.
And from that moment,
all of these issues that we had imagined had been resolved in our legal system half a century earlier were front and centre again.
Detention without trial. Detention without judicial review.
Torture, completely unthinkable kidnapping or, as they called it, extraordinary rendition.
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.
And so all of that became my practise just to take a larger step back.
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.
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
life to be fundamentally about helping people or accumulating property,
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.
But I have no claim that any of the work or approaches that I've taken in particular are more successful,
more important and more significant than any other approaches.
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,
we also need to be part of wider movements and need to look at other strategies.
What are your lessons learnt after so many years of doing this? Yeah, I mean.
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.
So that is still kind of, yeah, pushing me.
I mean, I have experienced something that yeah, that's that is yeah, or very big for big enough for one professional life.
And how did it come that that the Argentinians were somehow successful, relatively successful to challenge their victory, dictatorial last?
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,
especially when you see mobilisations on the street, you have tens, if not hundreds of thousands of people in the front line.
It's it's always the mothers of the Plaza de Mayo.
And so it was a very interesting experience also to see and I had already described it in the parts I read.
I mean, for us is it's a western European especially verdict, you know, activist and leftist lawyers.
Obviously, the it's like the the typical the typical hero, the leftist hero is, you know,
or the street fighter in the in the in the demonstrations or somebody who fights in the liberation struggle.
But here you have the complete contrary. You have you have mothers, elderly women with yeah,
who are not at all appearing as as militant and show their militants over the years and their engagement over the years.
And that was obviously also a turn around for me.
And from this kind of post adolescence, you know, attitudes towards the judge, you know, resistance or political resistance from the outside.
And what I saw over the years and it became even more obvious now.
First of all, coming from Germany, it's very clear that, you know, 40 years ago,
this kind of crimes crimes of the past, especially the German Genocide.
This is a task for the whole society.
So lawyers, the lawyers, the law and trials play can play a role there, but it's definitely not the most important.
Maybe the most important thing about the Auschwitz trial in the 60s in Frankfurt was not the trial itself,
but some of the more spirited, righteous in Germany had to observe this trial and wrote about it.
And that made us, you know, learn about learn about the extermination of the European Jews and not the trial itself.
And so having seen that and having seen also in Argentina how different sectors of the society
work together was was it was a huge inspiration because here people tend to think in boxes.
Here are the lawyers. You are the artist, here are the sociologists or whatever.
And in there they saw it as as a common task.
The lawyers developed intentionally or intuitively a toolbox where, you know,
the national level was complemented by the Inter-American level, by the universal jurisdiction cases in Europe.
And finally, it came together. The lawyering went together with social mobilisation and also with arts,
and the younger were marching side by side with with the with, with the elder.
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.
But unfortunately, it's not really perceived here because justice can only made in the court in London, in Berlin or in New York.
That's the way how the legal community or in Strasbourg,
that's the way how the legal community here digests lawyering and trial outside outside of North America and outside of Europe.
And I think that's that's a huge mistake. Hmm. That's true.
And how do you see it in the US? Yeah, we talked a little bit about the.
Well, currently, what can we do to make sure that as lawyers, we are part of a bigger movement?
So yes, I am going to speak now from a U.S. context.
I think the relationship between law and litigation and social and political movements is actually fairly complex and.
I often describe my job as working on those issues where politics has failed,
where the workings of majoritarian politics have produced an outcome that is unacceptable.
Right. So that's what I how I would define constitutional lawyer in the public interest.
And so, for example, there is no political constituency for prisoners rights in the United States or in most countries.
There is no one who's going to organise a majority to say the government needs to
spend more money for the care of prisoners unless you have some absolute catastrophe.
And so here, litigation actually plays an important political function.
You can get a judge to order a government to properly fund services in a prison.
And actually, we found over the years that the people who run the prisons who we sue are quietly grateful for the
litigation because they're not going to get the resources that they need from elected officials.
But the litigation can create a wedge, and it can compensate for this failure of majoritarian rule.
And if you look at something like marriage equality in the United States, you know,
this is not something that politicians really wanted to vote on until courts
essentially forced the issue by saying that as a matter of constitutional principle,
these rights had to be extended and that was part of changing public opinion on it.
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,
even though the point of litigation is to compensate for failures in social and political movements.
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.
The first marriage equality case to succeed in the United States was in 2004 in Massachusetts,
and it might have re-elected George Bush because of the politics that were created around that case.
And the US Supreme Court didn't get there until 2016, 12 years later when the country was more ready for it.
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.
Its role is to again step in where a majority and political system is going to produce a very harmful outcome.
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,
but when to bring them. Absolutely.
And I mean, I know you also think a lot about the term strategic litigation and also comes from from a wider history.
The term success without victory was coined 15 years ago by Jules Lobel from the Centre for Constitutional Rights.
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?
Well,
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.
So that was started in 1980 and it was far away from being strategic.
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,
having the good feeling that from a position of of of of less power and less resources than the opponent of
still exploring a situation and having a good feeling that this might be an opportunity to overcome this,
this powerlessness for a moment, at least for a moment.
And so I think strategic litigation cover covers that and it's it's permitted for because of that.
It's like an ex-post description of something which might have been successful but was never meant as strategic litigation.
And also, it's in a way it's kinds of overestimates the role of the lawyers and the litigation organisation that.
And it's also kind of isolates the the activity of the lawyers,
which all of us have to proceed in conjunction with the political aspects of the situation,
which has always to be contextualised in sort of political situation.
And therefore, I'm very sceptical. Can I ask you, though, because I'm I'm sceptical of long arguments about terminology.
So but it seems important to you to use the term legal intervention rather than strategic litigation.
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,
our own paradigm of strategic litigation because I think it's important to question our practise over the last 10, 15 years.
And I mean, it's nice to say success without victory.
I mean, you can basically talk every failure.
Nice. Nicer than it is. And I think that's that's the wrong take.
We have we have rather than, you know, kind of painting our own work in nice colours.
We have to be very clear what can and what cannot be achieved with our work.
And I think what we did also because there was a certain Bulworth of litigation,
not only here in the UK and continental Europe, but also in other parts of the world.
We got we get we get a serious amount of funding for all of this.
We get public attention for it. And that raises expectations which we cannot fulfil.
And I think that's a political mistake. And and that's something, you know, rather than just speak about terminology.
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.
But it's another role than than we ourselves talk about in our funding applications press releases.
Can I ask him another question?
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?
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.
One with five minutes, I got some the investigation that's who was in charge of the arrest and was
later then suspended and basically kicked out of this is his office as a judge.
And the other was Maxim Wananga, an Argentinian legal scholar who wrote three incredible,
important articles to describe the practise of of universal jurisdiction over the years.
And I'm. Are some kind of this is the kind of figure you you have, you might have in mind.
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,
such and such a character judge is needed in this, in this, in this, in this, in this kind of work.
I mean, obviously, it was important to have a social movement back in Argentina and also a little a smaller movement in interceded.
But it's also important to acknowledge to encounter this kind of judges.
And I mean, it's always about and I don't believe in this story.
You know, sometimes you are too much ahead of, I think this is about, you know,
always breaking the boundary of what we consider as as possible or doable at this time.
And it is,
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,
but many of the European judges. The problem, then,
was years later that he still insisted that it's enough to have him and at some of the police and not
having seen that 50 that these kind of cases mobilise the opponents mobilise very powerful opponents.
And they were already about to abolish this practise, and I think that is the mistake.
I mean, it's very interesting to have this icebreaker or pioneer, you know, persons may be lawyers,
may be prosecutors or judges, but at some point you must also build political coalitions.
And that was not made, especially in Spain and in Belgium, where universal jurisdiction was on the rise in the beginning of the 2000s.
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
case or series of cases or one successful practise then needs to be analysed,
and it cannot just be repeated. Whereas the human rights movements tend to repeat.
Yeah. And you know, yeah, and we reviewed the case and we relied on funding applications.
And yesterday, Espino said, tomorrow it's this tomorrow that and not looking at the circumstance,
not looking at the political situation and the same in the US Courts Claims Act cases.
And I think that's that's then the wrong thing. But I think it's there.
Nothing wrong about me to be beyond that.
What is thinkable today? And I will just say, and then I'll relinquish my role as moderator, that.
The Rumsfeld cases, which you described as a failure before, did not succeed judicially.
But I'm quite certain that Donald Rumsfeld does not leave the United States to travel to Europe, which is a kind of accountability.
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,
is confined to the United States and too nervous to travel around the world.
Stephanie, at least as a symbol of what is happening,
but I'm still quite curious and I know also wanting to discuss this tomorrow in greater depth at the workshop.
But what? What do you think? Do human rights organisations do human rights lawyers need to change in their approach
in order to take this political space better into account and to to prepare for that?
I mean, a lot of the I mean, we all was their own selves, you know, connected to social movements.
We think it's important to work interdisciplinary, but we don't we don't take our own words seriously.
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,
human rights organisations or movements to say that they are to declare themselves neutral, politically neutral.
Obviously, it helps you and the Soviet Union of the of the 80s or in China now or in whatever country where where you
calling yourself radical or whatever declaring that you want to change society is really more dangerous.
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.
And in order to enforce and to realise human rights, especially when it comes to economic and social rights,
we need to change societies and we need to change the world's economic system and we need to spell it out.
And whereas many of us in this community think that this is this is dangerous, it's dangerous to spell that out.
It's dangerous to spell out that we have political political motivation and political goals.
And I think over the years,
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,
we can address certain injustices, observe our work, find it stupid that we are arguing.
So we are blacking out the political situation.
Whereas I would say these are, you know, these are our allies and we need to we need to work for them something.
And we need also to to say, I mean, sometimes we have a good law like in the torture cases,
we have good law, we have the absolute provision of torture.
But when it comes to economic and social rights, sometimes law is very bad.
It's very dirty that the law is part of the problem and the law is is is is confirming this.
Yeah, and complete justice complete in this situation.
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.
And that, of course, cannot be carried out by lawyers because yeah.
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.
And how do you see it in the US? Is that a different feeling or is it?
I agree with everything that Wolfgang just said.
I think that when when human rights lawyers say that they're not political,
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.
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,
but in the world that we live in. It's a radical documents.
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.
And I also agree with something that Wolfgang said before about where law fits into, you know, moving us from here to here.
And this is not an entirely related example,
but we were just talking a minute ago before we came out here about how millions of people in the United States.
It's who should have been the political opposition spent the last two years in front of their televisions and computers waiting
for a prosecutor to solve our political problems through an investigation instead of building a real political opposition.
Even though we have seen enough examples of how you actually beat these kinds of authoritarian leaders,
and it's not by having legal rescue, it's by having a real mobilised political opposition.
I think we still have time to do that before 2020 in the United States,
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.
Absolutely. I also want to address one of the questions which we asked ourselves for the litigating rights series as such,
and that is always the difficult relationship we have as lawyers with those we represent as well and how we deal with this relationship.
And especially, I think, with these bigger strategic human rights cases,
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?
And how would you how do you make sure that even if it's maybe only one claimant in the case or two?
Very few. But they are a representative for a wider, wider problem of a broader community.
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?
Yeah, I mean, again, that's a complex question, because it also involves legal ethics.
What does it mean to be a movement lawyer representing an actual human being in an attorney client relationship?
Because once a case begins, whatever your movement goals are,
must be subordinated to your ethical obligations to whoever it is that you're actually representing in that case,
and the best way to to reduce those tensions is to be very clear upfront what kind
of lawyer you are when you are taking on these cases and taking on these clients.
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.
You know, in the United States, until last year,
every single case we brought on behalf of the torture victim was dismissed without any adjudication of the law or the facts.
We didn't get past any motions to dismiss Sun on secrecy grounds, on immunity grounds.
And there's a real danger that you are going to retraumatize a torture victim by having the legal system do to him.
You know what the intelligence community has already done,
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,
which is not only trying to resolve the case with a remedy for them, but trying to end the practise overall.
And one other way to do that is to represent organisations as well as individuals
where it's possible in these cases so that you actually have as your client,
not just one victim or plaintiff, but a whole organisation that represents the values we sometimes represent ourselves.
Right. A lot of our cases are called ACLU versus Trump or ACLU versus Sessions.
Or are you? Yeah, that's one answer that would I would add to that that I mean, there is a lot of incredible,
interesting literature being written in the last 50 years about that.
And I I mean, I still think the strongest piece is Michael to us savages, victims and saviours.
So where obviously the role of the saviours are is reserved for us, the western human rights of people.
And of course, we have to overcome that.
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.
It's important to link our work to critical two to two critical legal theory and especially to postcolonial theory,
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.
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,
and we often act in situations which are full of contradictions and where you can only choose between
two to two evils and that we must be aware it's a question of consciousness and it's a question of,
you know, spelling that out and verifying that because what should not happen?
And I see a huge tendency we shouldn't be paralysed.
Bye bye. Bye bye. Bye bye.
Reading and discussing only theory, of course.
Also not overestimating the US as the petitioner is a bit.
It has to be balanced out, and I think this balance is is is is sometimes in danger to be lost.
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,
and they really want to play out and see from satisfying leaders trying to divide communities.
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,
either through the work of corporations themselves or just because the proceedings take a long time.
And then maybe a settlement is being discussed and opinions just go in various ways.
I think that this is quite a difficult moment as well for any any court proceeding and litigation you do for me, open.
I do want to have one one last question to you often as well, because in your book,
I think you also beautifully describe the importance of art and human rights and how art can also be a really important tool.
I just wanted to ask you a little bit about your proposal in that field before we then open to this.
I'm not sure if this is about proposals.
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.
We should also develop utopian visions, which is very difficult to do as lawyers and with law.
And therefore, I feel very inspired to combine arts and law.
And because I mean,
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.
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.
And it's also, of course, it's also about imagining another society, which is also difficult to deal with as a lawyer.
Although we have the Universal Declaration of Human Rights where there some, yeah, as you said, very radical claims are are part of that.
So yeah, but what I also argue is, is to see arts as ornamental for work.
You know, the funders asking us to which our our reports and the whole world and to see, you know,
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.
And I think you've been a model of this for me over the last 12 years.
How do you do this work for your life without burning out?
And one way to do that is to build a rich community of support.
And we don't want that community to be only human rights lawyers.
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.
And and I hope that you don't get the impression when you hear Wolfgang reading from that that he hasn't.
He doesn't have a very rich and rewarding life because he does, and I do.
And again, part of that is the community that we managed to build around the work.
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?
Yes.
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.
No, I mean, I am old enough to be in that position, but I still I still deny it.
You know, it's like everyone has to make his or her own experiences.
But what? It's what I try to describe and and then also pointed to this.
It's like, I think it's important to follow your own intuition and and also to to believe in your own dreams.
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.
And so reading my diary from years ago is sometimes very crazy because I I found out that I thought
I'd read dreamed things that at the time when I wrote it were kind of impossible to think about.
But later on came true. And so of course, I'm I'm a journalist.
I'm a lawyer. So the driest ever, you know, think of all this.
So for me, it was a big learning experience over the last two years.
So, yeah, to argue more with with categories like into for myself or to think more of categories like intuition or like grades.
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.
And I think that's important to to to to to find your own position as a human being.
And then, of course, develop your your, your, your lawyers sort of jurors career.
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,
you know, what's the most important work you can do if you want to be a human rights activist?
And it's all it's all important work across the board.
The best advice that I ever heard on this was from a professor who said that, you know,
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.
And so it's a good idea to surround yourself with people you love in that work.
And you know, when I was a.
University student and academia seemed like a possibility, I had a great experience that cured me of that which was, you know,
writing an undergraduate thesis which which took a year, and I realised that if I pursued that route, I would be a complete fraud.
I would cut every corner possible because I didn't want to be in that cubicle by myself, surrounded by books.
I wanted to be out with other people all day and save books for something else, which is pleasure.
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.
But some of you will actually want to get away from the noise of the crowd and retreat back into that cubicle.
And you know what? Our movement needs scholars to write so they're there.
It really is about finding out what you want to do most days.
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.
If you have a job like mine, you sit on the 17th floor of an office building near Wall Street,
and most of your day is spent reading and writing and in meetings and maybe talking on the phone.
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.
If you want the action or speaking to a jury or seeing clients every day, you'd want to practise in a different way.
So and the only way to know which of these things suits you best is to do many of them.
So, yeah, I think that's a good message also for students and for all of us to tout various things
and to see you your best and that everyone and every type of work serves no good purposes.
So before thanking our fantastic speakers,
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.
And now please do join me in thanking Wolfgang and Ben for this wonderful conversation.