In Conversation with Wolfgang Kaleck, European Center for Constitutional and Human Rights (Part 1)

In Conversation with Wolfgang Kaleck, European Center for Constitutional and Human Rights (Part 1)

Anuj Agrawal

Wolfgang Kaleck is the General Secretary of the  European Center for Constitutional and Human Rights. In the first part of an interview with Bar & Bench’s Anuj Agrawal, the civil rights lawyer talks about the “double standards” of international criminal law, going after the Bush administration, and more.

Anuj Agrawal: What brings you to India?

Wolfgang Kaleck: I wanted to get to know India better, see different parts of the country such as Bombay, and the North-East. In fact, I started my trip in the Andaman islands.

Anuj Agrawal: So no work?

Wolfgang Kaleck: I see myself as an intellectual so either I never work or I always work, however you want to define it.

Anuj Agrawal: In this interview on your book,  Double Standards, you said you wrote this book out of anger.  Are you still angry?

Wolfgang Kaleck: Of course.

The book deals with international criminal justice, with all those wonderful laws where the letter of law reads so well and in unequal manner. But who are these laws applied to? In front of the international tribunals, you might only find the defeated, the weak from Africa, Yugoslavia, but not the powerful perpetrators.

Most people would draw the conclusion that the legal system is corrupt or dysfunctional, and that you can never use it to progress. Now, many human right activists  don’t address this issue, and others are too cynical to work with the human rights system at all.

But I draw another conclusion in the book; I agree that until now we are facing some serious inequality. Even at the International Criminal Court in the Hague, for instance, by now you only have African perpetrators on trial. But this has to be changed. I wanted to find a productive way to deal with this critique.

Anuj Agrawal: In your book, you write about the importance of the idea that even the most powerful are equal before the law. 

Wolfgang Kaleck: Yes.

In one sense, our most important case have been the war crime complaints in Germany against [former US Defense Secretary] Donald Rumsfeld and others since 2004. The most interesting thing was that in the beginning people were looking at us, and asking “Are you really expecting German prosecutors to investigate US war crimes?”

And our reply was, It is not about what we are expecting; it is about starting this work.”

We did serious legal research; [the complaint] wasn’t just clippings of newspaper articles with flimsy legal analysis. We presented two complaints in 2004 and 2006- one consisted of two hundred pages, the other of five hundred including discussions by legal scholars. It was two years of serious work by dozens of lawyers in the US and Germany.

With the Rumsfeld case people got this idea, that the crimes of the powerful can be challenged. And I found that to be very important.

We argued that if the prosecutor wanted to take the case with this complaint, he could begin. We also said that if the prosecutor does not want to take it now, this is a piece of work which stands for its own. And that was something that became true afterwards.

With the Rumsfeld case people got this idea, that the crimes of the powerful can be challenged. And I found that to be very important. So I went to Israel and Palestine, to the Philippines and Mexico, where I was invited to talk. I even went to China, where I gave a speech on Pinochet and on Rumsfeld.

The Chilean dictator was arrested in London on  October 10th 1998 and many critiques then said, “He is only a fallen Latin American dictator.”

And we said, “No, this is someone. This is the precedent that was needed.”

But of course, we now want to move forward. So the next step is from Pinochet to Rumsfeld to Nestlé, to the transnational corporations who are involved in human right violations.

Anuj Agrawal: I will come to that in a bit. Last year, the French Court of Appeal ordered the summoning of former Guantanamo Chief, General Geoffrey Miller. Do you see this as a start?

Wolfgang Kaleck: First of all, in connection with Guantanamo we have targeted many more military people and politicians.

The common mistake is that the assumption, “Are you really expecting Rumsfeld or Miller to be prosecuted tomorrow?” to which we say, “No, probably not but we have to start.”

It was about initiating something. From Germany, we went to France in 2007, to Spain in 2008, then to Switzerland. And the interesting thing is, the more we did, the more happened.

Even Rumsfeld was affected. Somebody who seemed untouchable – this guy said in 2004 that if [the war crime] complaint is not off the table, he would not travel to Germany.

In 2011 when George W. Bush was no longer protected by presidential immunity, he was supposed to travel to Switzerland for private reasons. Again we prepared a complaint and when he learnt about that, he did not travel there.

The same goes for hundreds of CIA agents who were involved in torture and kidnapping under the “extraordinary rendition” programme. They were recommended by their lawyers  not to travel in several western European countries because they ran the danger of being arrested.

It is not impossible, you have to just start.

It is not impossible, you have to just start.

With respect to the Miller case, the complaint was filed on behalf of a French citizen who was detained and tortured in Guantanamo. This enabled us to have access to the French courts. But the case was kind of sleeping, until the US Senate published it’s report on the CIA torturein 2014. This gave our legal interventions  a new push. We don’t know whether it will work – that is life.

Anuj Agrawal: It’s not been easy though has it? In 2003, the US pressured Belgium to change its laws so that a complaint against General Tommy Franks, who led the Iraq invasion, was thrown out of the courts.

Wolfgang Kaleck: That was back when the Iraq war began, and Belgian lawyers had filed a case against Franks. The case was a bit controversial from the very start, because [Franks] had begun an illegal war – there was no decision by the UN.

But to make this a war crime would have meant that the law of aggression would have to be incorporated into domestic law – which it isn’t in most countries.

Anyway, the US put Belgium under pressure, and said that if they did not withdraw the case, they would remove the NATO headquarters from Brussels.

But we also have to say that the Belgians/ Belgium did not get any backing from the other European countries; they were left on their own. And what happened later was quite sad, because the law was changed; the courts could only hear cases affecting Belgian nationals.

My conclusion is, that of course it is about law and politics. We are leading a legal and political struggle, so don’t expect everything just by filing a well-researched, intelligent law suit. You also have to reach out to the public, you have to explain what you want, and you have to gain a certain amount of public support. This is also a war of opinions and if you are not able to convince a significant part of the public, you are going to face some difficulties.

This is also a war of opinions and if you are not able to convince a significant part of the public, you are going to face some difficulties.

Anuj Agrawal: But a sovereign country changing its own laws?

Wolfgang Kaleck: I think it was really ugly from the side of the US, but you expected it. I mean, the US government actually told the German government to get the Rumsfeld complaint off the table. Have they ever heard anything about the separation of powers? Do they know that there is an executive and a judiciary that has certain independence?

In the German case, it would have been more of a surprise if the Germans had reacted in the same way as the Belgians. But still, they were submissive in another sense that they ruled in favor of the US. But this story is not over. The same law is still applicable in Germany and the same issue is again pending before the German General Attorney.

Just a few days after the Senate’s report on CIA torture, the ECCHR filed a criminal complaint against Rumsfeld, Tenet and other “architects of torture” in the former Bush Administration.

(In the second part of the interview the civil rights lawyer talks about the criminal liability of corporations, Edward Snowden, and more. Part II of this interview will be published next week. )

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