Wolfgang Kaleck is the General Secretary of the European Center for Constitutional and Human Rights. In the second part of the interview with Bar & Bench’s Anuj Agrawal, the civil rights lawyer talks about the criminal liability of corporations, Edward Snowden, and more.
Anuj Agrawal: Coming to the criminal liability of corporations, in the Jeddaliya interview you said,“A CEO can be as much as a war criminal as a Muammar Gaddafi.”
Wolfgang Kaleck: Yes, but is a very difficult issue. Look, the most wonderful and comprehensive approach to massive human right trials were the Nuremberg trials organized by the Allied winners. The most well known trials are the ones involving the main perpetrators such as Goering etc.
But what the prosecutors also did was to analyze the historical situation and conclude that the Nazi system was not only driven by the Nazi party but also by the powerful economic actors and the bureaucracy as well. So in the so-called “Follow up” trials, they put a number of big industrialists, such as Flick and Krupp, on trial.
So since the late 1940s it is confirmed that corporations, or managers of corporations, can be held accountable under criminal law. Most people don’t know many cases but we have some. We are in the middle of a struggle where we hold that corporations have to be held accountable. Meanwhile, the corporate community is trying to immunize themselves from any sort of legal regulations.
Anuj Agrawal: You went after Nestlé’s top management in Switzerland after a trade unionist, and Nestle worker, was murdered in Colombia. How do you identify who to go after?
Wolfgang Kaleck: It depends.
There is the Mercedes Benz case, where about 16 trade union leaders were killed in Argentina during the military dictatorship 1976/1977. There, we went after a mid-level manager with German and Argentinean passport based in Argentina. We knew of his actions; he gave the location of a unionist to the army, and then this unionist was arrested at that very address and “disappeared”. So, there was concrete evidence.
Whereas in the Nestle case, the direct perpetrators were members of the paramilitary forces in Colombia, and were prosecuted and convicted in Colombia. But the Court also stated that the companies’ role in the crime should be investigated.
So then we sat down and said, “Let’s bring this home to Europe”. Together with the widow and with partners from Colombia ECCHR, we filed a case against the top management of Nestlé.
We did not say that they ordered the assassination of the unionist. No.
But, they knew that trade unionists were being persecuted. Civil society in Switzerland had approached them and asked to protect the unionists to let them come to Switzerland. So, they could have done something, they were informed. They should have told their Colombian counterparts to ask their paramilitary “friends” to stop all forms of violence against the unionists or Nestlé would pull out of the country.
But they did not.
So we argue that this is a criminal omission. The prosecutor in Switzerland was not particularly amused. We were treated quite badly by the prosecutor but it still triggered something. It was the first case of its kind in the country’s history. Everybody knows about the case. So the company itself was warned. If something similar would happen now, everybody would point to Nestlé and say this has happened again.
And this is what our work is also about. Start something, communicate to the people, trigger this kind of activities, and it will have this kind of effect.
Anuj Agrawal: You seem to have a lot of hope.
Wolfgang Kaleck: “Hope”? (pauses) that sounds too religious (smiles).
We work on it, we want to make it possible. But if that will happen – that is another story. But we don’t want the public and the human rights activist to lean back and say, “Let’s watch a football match”
That is an attitude of a spectator, of a bystander. We want to intervene and we want others to intervene to end unbearable situations. And most of the situations we have been talking about are unbearable.
We are not saying that laws will heal the world, but the courtroom is definitely one place where injustice has to be challenged, where the rights of those who are oppressed and discriminated are enforced. So in the best case, law is part of the solution rather than a part of the problem.
The courtroom is definitely one place where injustice has to be challenged, where the rights of those who are oppressed and discriminated are enforced.
Anuj Agrawal: You are also part of the legal team that works with Edward Snowden. Do you think global equations changed after Snowden?
Wolfgang Kaleck: (Smiles) You know that is a question we often discuss. It’s my personal point of view that the world changed after the Snowden revelations.
Because before he came out with all this information, people who talked about mass surveillance and the dangers of mass surveillance – they were branded as people with a vivid imagination. It was easy for politicians, for home affairs, to say: “No, such practices would violate the law.”
But incidents of [mass surveillance] became very clear after Snowden. You could draw a number of conclusions; one of which is, that whatever is technically possible, our “friends” from the secret service and the police around the world will use. No matter the legal mechanisms, they will use it.
One way to prevent them is of course to disband secret services. This is a demand of ours, because I am yet to see a useful secret service. Most are either involved in crimes or involved in covering up these crimes. We had cases in Germany recently of neo-Nazi violence, where the whole group was infiltrated by informants of the German inland service – they have the informants and they cannot prevent a gang of neo Nazis from killing twelve people all over Germany!
Anuj Agrawal: But what about national security?
Wolfgang Kaleck: We need a police that takes its jobs seriously but also one that is as transparent as possible. So if secret services are not abolished, then transparency of its activities needs to be achieved; and of course judicial and parliamentary oversight. And we, as civil society, have to be extremely aware.
Anuj Agrawal: You have also written about sexual violence within the field of international criminal law. That it is not given as much importance as it should.
Wolfgang Kaleck: Yes, there has been some change though. We have a number of provisions prohibiting rape, of including sexual violence as part of war crimes. And this is progress.
But the next step is to be communicated within the criminal law community, that this is as serious as torture, killings or disappearances. Then we come to the next problem – the evidence. Many national police authorities do not make thorough reports of sexual violence – this is a problem all over the world.
Anuj Agrawal: Coming to India, what are your thoughts on AFSPA?
Wolfgang Kaleck: There have already been a number of decisions by international bodies on the AFSPA: that granting immunity and impunity to armed forces is a violation of international law. Laws like AFSPA should be repealed. Unfortunately, governments have the tendency to use the military in internal conflicts and then prevent the alleged perpetrators from being investigated and prosecuted in ordinary criminal courts. I think that is a very big mistake.
At least internationally there is a growing recognition of the fact that massive human right violations cannot be tolerated and those who are guilty have to face sanctions.
If you want to belong to the Russias and Chinas of the world. you might not care about it. But countries who have a constitutional tradition, like India, they shouldn’t be part of the dictatorial family.
Anuj Agrawal: Last year you wrote about the law clinic introduced at the Humboldt University. Your thoughts on the future of legal education?
Wolfgang Kaleck: In Germany or elsewhere, it was always clear that the legal professionals was part of the elites; they defended the interests of the elites. The legal profession was also very focused on the national soil. In Germany you would learn German law and German law only. One would not speak English, although we were part of the EU.
In Germany or elsewhere, it was always clear that the legal professionals was part of the elites; they defended the interests of the elites.
But there is a growing number of lawyers who are not in accord with that, especially young lawyers all over the world. I see younger lawyers travelling more, learning more, speaking several languages. I see a new generation of lawyers growing and gaining more and more experience at the international level.
I also see Indian lawyers being part of that movement, which is particularly wonderful. I have met here young lawyers who have come from all sorts of difficult cast, social and ethnic backgrounds. These are lawyers who don’t forget where they come from.
Anuj Agrawal: Any advice for young lawyers?
Wolfgang Kaleck: I don’t feel that I am old enough to give advice. When I first started working in the field of International Criminal Law, I was a legal intern at the Guatemala Human Rights Commission. Back in the 1990’s they couldn’t even work in Guatemala because they were so oppressed. It was impossible to even think that the military of Guatemala would sit on trial. And yet, 23 years later, Rios Montt, one the most brutal dictators was tried for genocide.
That is like half a circle of life, but it means that one is allowed to think the impossible. Even lawyers can do this. You should act according to your own ideals, to your own values. Don’t think that if it does not seem possible now, we should forget about it. It is an ongoing story and if something does not seem possible now, we are the ones who are in charge of making it possible in the future.
