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Berlin’s human rights lawyer extraordinaire: Wolfgang Kaleck

Super-lawyer Wolfgang Kaleck represents Edward Snowden, founded the ECCHR and sued torturers and dirty multinationals across the globe. We spoke to him.

Image for Berlin's human rights lawyer extraordinaire: Wolfgang Kaleck

Many in Berlin know him as “Snowden’s lawyer”, but Wolfgang Kaleck’s fight for justice and human rights started 30 years ago – it’s brought him from challenging Latin American ex-dictators and their accomplices,  including Western corporations like Mercedes Benz, to representing the families of US drone-attack victims in Yemen, to holding accountable people in power who torture and kill.

This includes the protagonists of the CIA-led “Enhanced Interrogation Techniques” perpetrated by the US in Iraq’s Abu Grahib and Guantanamo Bay during the Bush Jr. era, or those who still torture in the jails of Syrian President Assad.

With human rights as his legal arsenal, domestic and international courts as his stage, Kaleck has been part of a growing network of worldwide NGOs, activists and lawyers working in concert to bring about transnational justice.

As the founder and director of the European Center for Constitutional and Human Rights (ECCHR), the Berlin-based organisation he set up 12 years ago, he’s filed criminal complaints against the likes of ex-US Secretary of Defence Donald Rumsfeld and new CIA director Gina Haspel – unsuccessfully so far, but decades of experience have taught him that determination pays off. We spoke to him.

In your book, you describe how you started out as a young romantic student who couldn’t stand still in the face of injustice and human rights violations, someone who chose law to make a difference not just inside but beyond the borders of Germany. It started with your work in Latin America, can you explain?

Part of my legal education was in Mexico and Guatemala at the beginning of the 1990s, and the human rights organisations by that time were counting the deaths, the disappeared and the tortured, and putting them in reports. There was no talk of accountability back then, because there was no idea that at some point people like Guatemala’s ex-dictator Efraín Ríos Montt would face a trial for genocide against the indigenous population in Guatemala (in 2012). But within 10 years the panorama changed: it was the result of self-empowerment of civil society and lawyers’ networks, happening basically at the same time in many parts of the world. A good example of that was the whole Pinochet case, and the proceedings in Spain, France, Italy and other countries.

So I grew with this network of lawyers who said relatively quickly that it was necessary to go after the Pinochets and the Videlas [Argentine President Jorge Rafael Videla] of this world, but also apply the same kind of law to other torturers, or those who bear responsibility to torture. And then it was relatively easy to say, “Okay, let’s move from Argentina and Chile to Rumsfeld and Abu Ghraib and Guantanamo.” But in my particular case I had the privilege to work with one of the most exciting and, I would say, one of the most intelligent organisations in the world – the Madres de Plaza de Mayo.

How does a German lawyer get to take on the case of the disappeared of Plaza de Mayo in Argentina – can you tell us more about a woman named Ellen Marx?

In this case I was dealing with German-Jewish emigrants of Argentinian children who had been killed or had disappeared. The German mothers were headed by a very sophisticated German-Jewish-Argentinian woman called Ellen Marx; her parents had been smart enough to send her on one of these Youth Transports in the 1930s. In Argentina Ellen married, and had three children – one of them, Nora, got engaged in the leftist movement, and disappeared in the very first summer of the dictatorship in 1976. Back then (the 1990s) there was impunity for the military.

But the Argentinian human rights movement was challenging the impunity, so they went to court in Argentina; they went to the streets, to the houses of torturers – everything. And then at some point they thought, okay, here in Argentina it’s not moving on much, so they went to other European countries and tried to initiate cases there. And their angle was that many of the victims had double citizenships, or European ancestry. So in Italy, France, Germany and Spain, they started proceedings.

And at some point, Adolfo Pérez Esquivel, the Nobel Peace Prize winner from Argentina, and the German Mothers group and other Argentinian groups, approached the Nürnberger Menschenrechtszentrum – the Nuremberg Human Rights Centre – and said, why don’t we do something similar in Germany? That was in 1998 and I was one of the lawyers. And we filed close to 100 cases here in Germany.

So all your Argentinian cases were on behalf of German nationals…

Exactly. What we tried to communicate is that the German prosecutors have to do their share. In the beginning they said to us, “Oh wonderful, interesting, but what should we do?” And then we managed to push for investigation. And after four years, they ended up releasing an arrest warrant against Videla and Massera, by that time still living members of the junta.

And then Germany would ask for their extradition, which was the most you could get at that time, in 2003. So this was the first set of cases I took – it was incredibly enriching, and it was successful. And here was the blueprint for future work. I like to quote Ellen Marx on this when she said: “There are things that just need to be done.” And that is something that then became part of my, and later on the organisation’s, DNA.

In Argentina you had the German angle. In the case of US torture and Rumsfeld, what could justify a German federal court’s investigation?

In the Argentina cases we needed the German angle, we needed the citizenship, we needed some of the victims to be Germans, because the law wasn’t as developed. We had to apply the law of the time. But that was 20 years ago. In 2002, Germany started implementing a code against international crimes, the so-called Völkerstrafgesetzbuch, which allows universal jurisdiction in crimes against humanity and in war crimes.

So here for the first time we can really count on more international law being implemented in the German legislation. But of course the probability that prosecutors will take up the case is bigger when there is a link to the country. So in the Rumsfeld cases, we first argued that many of the units who then committed torture crimes in Abu Ghraib were stationed here in Germany. The prosecutor didn’t accept it. That was our entry into the greater international scene. I see organisations like The Centre for Constitutional Rights (in New York) and how they work – a completely different model from what we had in Europe in the mid-2000s. So we set up this organisation, the ECCHR, and call it ‘European’ from the very beginning in order to make it as European as possible.

Many have pointed to the double standard of international justice, and asked why no Western head of state ever had to stand for trial before the ICC. Can you tell us more about your effort to make the powerful West accountable as well?

From the very beginning we said it’s not enough to point to the Videlas and the Pinochets of the world – the torturers in uniform, dark and unsympathetic – we have to also look at the complicity of Western states.”

From the very beginning we said, it’s not enough to point to the Videlas and the Pinochets of the world – the torturers in uniform, dark and unsympathetic – but we have to also look at the complicity of Western states, in the time of the Cold War but also after that. That’s what we do in many cases. We address Western war crimes like Guantanamo, like the Kunduz bombing in Afghanistan, but also the complicity of transnational corporations. That is fairly new because what we are doing is not only saying if you have a case, come to us to bring it to court – that was our idea 10 years ago, but then we hooked up with groups of activists, lawyers and human rights organisations in India, Columbia, South Africa and came up with strategies: how can we connect their efforts in the domestic courts and our efforts dealing with transnational and international cases?

Do you have an example?

For example, we go to India because the Indians filed a petition to their supreme court, asking the state to probate the import of poisonous pesticides from Bayer in Germany and Syngenta in Switzerland. When it comes to human rights violations by companies, there are some really dirty industries. Obviously the oil industry is very dirty in every sense of the word, so that is the focus of litigation against Shell, Chevron and others. Many, many important lawsuits all over the world.

The Germans have more technology-based industry, less dirty, but still a number of cases where we would say they are involved with dictatorships, for example. Take Mercedes Benz in Argentina, where 15 trade unionists disappeared; Volkswagen in Brazil, again many trade unionists disappeared; Nestle in Colombia, trade unionists were assassinated by paramilitary, and Nestle did not take action against it.

So that’s one line. The other line is human rights violations in the textile industry; people are not tortured and assassinated, but we think it’s important to address this kind of human rights violation. The KiK case is an example of that – the fire in Karachi. We now go there, too.

So you brought the German textile giant KiK to court for its connection to the tragedy of over 200 people dying in a factory in Karachi, Pakistan, in 2012. Can you tell us more about that?

We have an angle, because the German discounter KiK had 70 percent of their textiles produced there. We were a back-up because our colleagues in Pakistan first tried to negotiate with the company. At some point they said “negotiations are stuck, please move on in Germany,” that’s the way it should work. It’s a collaborative way of practicing law which is absolutely new and didn’t exist even 10 years ago. That is something our network was able to develop. It’s still a work in progress, but the world is developing very quickly and we are experiencing all kinds of backlash – we have no idea if this works.

Many of the problems are systemic and endemic, like the exploitation of workers in the textile industry. So, with our piece of litigation we won’t change the world, we won’t solve the problem. But we can contribute. All over the world these crimes are committed – by state actors, by non state actors including corporations. As an organisation, as a network, we do not have so many resources, so we are trying to prioritise.

What’s your priority right now? In the preface of your book you mentioned a major breakthrough with your Syrian torture cases…

Lots of priorities! But yes, maybe the biggest single project right now is the Syria work, and for the good reason that we have over 500,000 refugees in Germany, many of them torture survivors, but also Syrians in other European countries. So we fight cases in Germany against the torturers, including the heads of the secret service, and we got the German Federal Court to issue an arrest warrant against Jamil Hassan, the head of the Syrian Air Force Intelligence Service and a close advisor of President Assad.

We also went to Austria last year, and we plan to present more cases across Europe. So what we try to do is not always focus on Germany, but make it European-wide. Last year we tried to litigate cases against the high-up figures of the Assad regime; but at the same time we also looked into the complicity of the West, so we fight cases against surveillance technology companies who provided the tech to the state, like the German firm Utimaco and their French and Italian partners.

Then there are the arms traders…

Yes. Many of the arms traders who fuel these terrible wars, which then cause emigration from nearly completely destroyed countries, sit down and say: “As long as this is not prohibited, we do it.” So now we’re trying to build up a series of cases against arms traders who export to Saudi Arabia, over the Yemen War, and last year we went to Italy and fought a case against the daughter of Remington.

Speaking of warfare – you supported litigations in cases of victims of drone attacks arguing Germany’s complicity through the role of Ramstein as a satellite relay station providing crucial information for those so-called targeted killings.

It’s a world-wide system. Of course the centre is the US, but they also count on other bases like the US air base of Ramstein. Without Ramstein, many of the drone strikes in the Middle East couldn’t be carried out. So we filed two cases, with similar arguments, in Germany and Italy, where we try to achieve a court judgement by administrative courts to say that Germany has to guarantee that no illegal drone strikes are carried out from German territory. The German government would reply, “That’s what we’re doing, we asked the US please don’t breach international law,” and the US says, “No, of course we don’t breach International law.” It’s typical argumentation and we have to work so Germany imposes more restrictions on the US.

What about people who argue that we should leave the painful past behind, the dead in peace and concentrate on looking forward and reconciliation? That’s pretty much what happened in the US with the Bush Jr-era torture programme we now all know about since that Senate report in 2014. It clearly showed two things: they tortured and lied about it. But Obama decided not to look back.

Obama thinks other issues are more important, and he doesn’t want to raise more opposition; and then Trump appears on the scene and says let’s use waterboarding again because it’s functioning.”

Exactly, that is a repetitive way of approaching these crimes. President Lopez Obrador in Mexico basically said the same thing, that what we need now is national reconciliation. In Brazil it ended with Bolsonaros’ election. Whereas in Argentina and Chile the torturers were tried in court. Argentinian and Chilean society got an insight into what torture means. They are therefore more immune against torture than the Brazilians are, where it was never really an issue. And the same goes for the US. I mean, President Bush and Cheney and Rumsfeld established this torture system; Obama thinks other issues are more important, and he doesn’t want to raise more opposition; and then Trump appears on the scene and says let’s use waterboarding again because it’s functioning.

But is torture always illegal, or can it be legal in outstanding circumstances as argued by some?

No, torture is illegal. If we have one good human rights law, it’s the absolute prohibition of torture. Basically everyone signed it and it’s been implemented in many different national statutes, so it’s forbidden. But obviously when the US starts to torture and rely on it all the time – I mean they tortured in Latin America, Central America, just as the colonial powers France and the UK did after the Second World War, which is why these wonderful conventions were introduced. Of course they try to justify it as war against terror…

They also euphemistically renamed it “enhanced interrogation techniques”.

Well, waterboarding was always a technique of torture. When North Korea, China and Russia used it during the Cold War, the US Foreign Office would rightly call it torture. So basically they cannot escape their own wording. But the interesting thing is that here, they try to basically abolish the absolute prohibition, and that’s a new thing. It becomes an incentive for countries like China to say, “Why are you pointing to our human rights violations? Let’s talk about Guantanamo.”

Do you see an erosion of international law when it comes to human right standards?

Yes, and this erosion of international law is pretty much caused by US and Western states post-9/11, but also post 2003: the illegal invasion of Iraq. That was a turning point. This is why Obama was so terribly wrong not to address that, because he had a moment where he could, at least, do something for the restoration of international law. He didn’t, and now we’re in a worse situation, and it’s not Trump and Putin alone. I mean they deserve criticism a lot of the time, no question about that, but it was others who now seem more honourable, more respectful, who set the course for the current situation. Like Bush, Blair, and the others who allowed torture, who ordered torture and who went to war against Iraq.

But many, especially in the US, seem to consider torture a necessary evil that should be used when required, especially in the case of terrorists. That’s a position reflected by someone like Cheney when he says “I would do it [torture] again, because it works.” Films like Kathryn Bigelow’s Zero Dark Thirty insinuated that it did work, that that’s how Bin Laden was caught. Yet, there was an inquiry that showed it didn’t actually lead to any meaningful information. What do you think?

The case against torture was made – and it showed it doesn’t work. But this debate ignores the individual and collective consequences of torture. Torture causes trauma to the individual, the family, the whole environment of the tortured and the disappeared – they’re traumatised for the rest of their lives. But the society is also traumatised. On both sides – the one that identifies with the disappeared and with the tortured, but also that which identifies with the torturers. The US is a country which pretends to solve problems in a legal way. And then you see there are 40,000 deaths by gunshots every year. It’s a crazy and sick society, and you have to face that. The not-looking-back paradigm is completely stupid. The past is not past, it still lives. And if we allow that to happen without any kind of investigation, it will happen all over again.

And when you don’t, someone like Gina Haspel gets appointed director of the CIA!

Yes, that woman was the head of a black site unit in Thailand where people were tortured. People like her should have to carry files in a dark room in Washington for the rest of their lives, not be appointed head of her country’s top intelligence agency… It’s terrible that people have such a short memory. I’ve just come back from the US and I’ve been talking to lots of students, and they raised this point. We were discussing how we can get more people to have longer historical memory. People should not only be pointing to Trump, but looking beyond that.

We’ve talked a lot about contributing to fixing human rights infringement outside Europe – what about inside Europe? Can you talk about your work on behalf of refugees and asylum seekers?

We think that it’s currently the most important set of human rights violations in Europe. Thousands and thousands of refugees from the Middle East – political refugees, as well as sub-Saharan Africans – are completely denied their rights. Even if they are on European soil, they have no access to justice.

So what can you do for them?

We go to the European Court of Human Rights. An example of our achievements is that on October 3, 2017 Spain was convicted (they are now appealing) in the name of two sub-Saharan Africans. We filed a case against Spain, because the practice in Ceuta and two other enclaves was building up walls; but when the migrants had crossed the borders and were on Spanish territory, they were sent to the back door without any kind of access to a proceeding, and that is a breach of the prohibition against collective expulsions. That was our argument – and the European Court agreed. We fight similar cases, such as that between Greece and Macedonia, which we also presented to the European Court of Human Rights. These cases are not only dealing with individual complaints, but setting a precedent.

Do you sometimes feel a little frustrated that the legal way is so slow?

Of course, but frustration can be a source for more motivation and engagement. It’s a life decision: you can be a bystander of this current situation, or you can throw yourself at the struggle. We decided to be lawyers and we think that lawyers can contribute to the struggle for human rights. Are we successful? Not necessarily on the very spot, but that’s the same experience that political activists experience in their lives.

You haven’t been successful with Snowden so far: he’s still exiled in Russia and couldn’t find a safe haven anywhere even in Europe, even in Germany, where especially in Berlin he’s enjoyed much support. I guess it’s as you say: “The whistleblowers of your enemy are your great friends, and you support them, but your own whistleblowers, or your allies’, you don’t.”

In the case of Edward Snowden, you have a masterpiece of political persecution: the espionage act from 1940 doesn’t even allow an evaluation of whether there’s any good in what he’s revealed.”

Yes, our whistleblowers are criminalised in a way that is unbearable. In the case of Edward Snowden, you have a masterpiece of political persecution: the espionage act from 1940 doesn’t even allow an evaluation of whether there’s any good in what he’s revealed. He is treated the same way as if he’d given data to the North Koreans! Whereas he’s an example of a good faith whistleblower, who was motivated to prevent future violations of law. And the problem with him is that the US, not only the US but also European countries, don’t allow him safer stay than Russia, which I find a very bigoted position, especially of Germany. It’s an ongoing scandal.

But isn’t Snowden’s lonesome exile in Putin’s Russia setting a sad precedent for anyone willing to blow the whistle in future?

He’s free to speak, he’s free to work, he sees his family. He was aware of what he was doing and he’s still satisfied with that, so why do you say it’s a sad precedent? No, it’s not. He’s an inspiring example of what a single person can achieve. Because his is a historical achievement. We have a world before and after 2013. He enabled all of us to see the risk of surveillance, not only of the secret services but also of the data collecting operations all over the world. And that is something we want to point to. Of course you can always focus on the downside of such a story.

But still, he is risking life-time imprisonment in his home country, many people still hold him to be a traitor, and not a single Western country is prepared to offer him a safe haven…

So what? He is aware of his situation and still says it was worth it. He’s in the sixth year now after the revelations, he’s still in his early thirties. I’m insisting on this point because all of this is about our attitude – individual and collective – and if you frame it like this, you make a call to everyone to continue as bystanders. It isn’t necessary to put him on a stage and call him a hero. I would rather bring him down to earth and say, look what one human being can do, and continue to live. And the story is not over. Everyone has to make the choice: how do I want to live my life? I’m not saying everyone should follow in Snowden’s footsteps. But all of us can take more risk, in a way that’s appropriate to our own lives.

So, at the end of the day, we need brave people; do you see enough of them?

There could be more [laughs].

Do you consider yourself brave?

I would say others can judge for themselves. It’s easier to do what I do being based in Berlin compared to Mexico or Manilla. The people there are risking their lives and existence. Here, I’m not.

Law Vs Power, published in 2019, recounts the 30 years that span the fascinating career of one intrepid Berlin lawyer. It’s a book that inspires through the unique blend of bravery and humility of its author, but also through the mix of realism and pragmatic optimism it speaks for: things might look bad, but they can and will change, as long as there are enough of us yearning and striving for change.