Intro

[00:00:00] Dr. Miranda Melcher: Hello and welcome to Just Access. In this podcast series, we talk to some fascinating people, legal experts, academics and human rights advocates to explore ideas about the future of human rights and improving access to justice for all. I'm Dr. Miranda Melcher, and I'm a Senior Legal Fellow at Just Access and over the next two episodes I speak with Andreas Schüller. He's the Director of the International Crimes and Accountability Program at the European Center for Constitutional and Human Rights, the ECCHR. In this first episode, we focus on the ECCHR and his work there to understand how the organization works and what kinds of efforts they're making to improve access to justice.

[00:00:48] In the second episode, we focus on thinking about the international system overall, where gaps are for access to justice, and ways that things could be improved.

Interview

[00:01:03] Dr. Miranda Melcher: You have a really interesting job, and I'm sure we're going to get into the details of what that looks like conceptually and day-to-day, but could you maybe tell us first a bit about your background and how you came to have this role? 

[00:01:18] Andreas Schüller: Well, my background is obviously in law and I studied in Germany, but also in Leiden in the Netherlands, a specialized LLM on public international and international criminal law and then interned with the ICTY at the time, which basically paved my way into international criminal justice work. And I then came back to Berlin to do my bar exam basically and that's when I started to work with the ECCHR, back in 2009 and that's basically how I came from law school, some international studies, back to Berlin and to the NGO work with the ECCHR.

[00:02:01] Dr. Miranda Melcher: And how would you describe the E C C HR to someone who may not be familiar with the organization?

[00:02:08] Andreas Schüller: Well, our organization and the long name is the European Center for Constitution and Human Rights, a pretty long name, but we are a human rights organization, using the law and legal means to seek social change. So we try to select particular cases, build them, file and communicate them in order not only to change the law and enforce the law, but also to have some social change and societies on selected topics, obviously, and on also selected countries or regions. And it's often happening in collaboration with our organizations from those countries and regions so that we brainstorm and build cases together, see also what the political impact might be and then how to best use the law in a wider struggle to support what the global movement on human rights and on social justice is doing.

[00:03:08] Dr. Miranda Melcher: So within that context, what does your role involve on a typical day?

[00:03:14] Andreas Schüller: I mean, ECCHR is growing and we are almost 50 people now here. So basically the roles are quite different than in the beginning, than some 15 years ago where we were pretty small organizations and now it's more compartmentalized and specialized I would say. But typically, I think what we do and most of us do, is what we would call in case management and networking.

[00:03:38] So a lot is communicating with partners, with clients and survivors with other NGOs and domestic ones, international ones, in some broader networks, I would say. And on the other end a lot is, of course, research when it comes to the cases to the human rights violations.

[00:03:57] Also here again, not necessarily all done by us, but always in partnerships, so lot of exchange again with others. And then it comes to the case building, the drafting of legal submissions and so on. So that's more the lawyers and legal work we often do here at ECCHR, in the office, it's desktop work, obviously. So that's also part of the daily work.

[00:04:20] And then we have sessions on here internally and externally to brainstorm and strategize on potentially new projects, or existing projects, certain direction we want to take and so on. So there's a lot of strategic exchange involved as well.

[00:04:38] Dr. Miranda Melcher: So that's something I'd like to ask you about because from our point of view at Just Access, one of the reasons we wanted to talk to you is because of the organization that you work for and the advocacy aspect and the strategic litigation initiatives we see as really, really interesting because of how they combine ingenuity with efficacy.

[00:04:56] So they're innovative and they get things done, which is a very cool and not always common combination. So given all those pieces that you've just mentioned, could you walk us through maybe the process for tying them together through the example of one of the cases that the organization has worked on?

[00:05:12] I know you've worked on Iraq, Columbia, Yemen, Syria. Walk us through that process from the first proposal, having those strategy meetings of what to do, to thinking about dedicating resource to it, the external fundraising aspect, making sure you've got the right people on the team, collecting all the evidence, all of that sort of stuff. Could you maybe take us through an example of how those pieces come together?

[00:05:38] Andreas Schüller: I mean, it's of course a big question and I think first starts with indeed some strategic questions. So for the program area I'm working on, which is on international crimes and accountability, and we also have one on migration and border justice and one on business and human rights, for example, of course we are constantly observing what's happening in the world, we are speaking to other NGOs, we approach them from different sides by other NGOs, lawyers, survivors, but also journalists and politicians and so on, so that we kind of know what's going on and I think pretty closely following global developments.

[00:06:19] If we take, for example, the case of Syria over the past 12 years, we decided in 2011 to focus a bit more on the so-called Minna region, middle East and Northern African region because we saw there is, what's the so-called Arab Spring happening. Tunesia and Egypt first, there's a proximity to Europe obviously, so we thought strategically, whatever will happen there, for human rights, it will be quite significant. Either turning towards democracies or with large repression as we've mostly seen, including a commission of international crimes and so on and then the European relation to what's happening there. 

[00:07:00] So basically at the time we started to build some networks there, trying to understand better the political context in the region and so on, first looking into Egypt and then from 2012 on into Syria in a combination, so with some Syrians that came already at that time to Germany, being injured in the protests and stuff like that. So we started to represent their cases, filed them already with the German federal prosecutor. Under the principle of universal jurisdiction, also German prosecutor has jurisdiction to look into crimes against humanity and war crimes, even if they are committed in Syria. 

[00:07:39] And from there on, we stayed in touch with Syrian partners, we continued to focus what's happening in the region, and then of course in 2015, 16, when many more Syrians came this was also for us a game changer that we say, okay, there are now so many survivors here, so many colleagues as lawyers, the most known NGO people from Syria came to Europe, Berlin, Paris, and so on. So there was a proximity and it was much easier to work together, which we then started. 

[00:08:09] One part is of course then to bring resources behind those projects. So we were lucky to have this support, for example, by the Heinrich Boell Foundation in Germany and some donations and so on, but that's of course central then to be able to rather flexible and quickly move on, start cases, focus them on particular detention sites in Syria and high ranking responsibles. That's what we did.

[00:08:36] So we started a kind of a strategic case building after consulting a lot with Syrian organizations and lawyers and then submitted those cases in 2017 to the German federal prosecutor. This led then to arrest warrants to a trial we had in Koblenz against Syrian regime torturers where we had some civil parties represented there. The Syrian community participated in the trial quite extensively.

[00:09:02] So one thing came to the other, but it shows also that when we look into topics, we are not speaking about a two or three year project, it's a 10 - 15 year often decision to go into that and then also to see some achievements after that time because when we speak about international criminal justice investigations, prosecutions, and all that comes with it, it often needs quite some time to get somewhere. But then on the other end, if you do that we also see results.

[00:09:32] Dr. Miranda Melcher: So given how much time and coordination and effort it takes to work on a case like that, how do you decide whether to go for a sort of particular country case or a particular set of violations in a conflict context versus trying to kind of, as you talked about earlier, move the societal needle, move the legal norms on a broader issue like the responsibility of businesses or head of state immunity or sexual violence or something like that. How do you make that decision between what kind or what category almost of issue to tackle?

[00:10:14] Andreas Schüller: I think it's a combination of quite a number of factors. It's almost like a metrics where a lot of components play a role and if we stay on the example of Syria, on the one end we focused on, torture charges at the beginning and then against high level responsibles that are still in Syria, on the one end because we think such cases you can only have a handful, there will not be hundreds of such cases outside the country, so then we rather focus on higher level responsibilities than on single direct perpetrators because they have more systematic impact, obviously on what's happening in the country.

[00:10:50] We took torture because from an evidential perspective that's usually easier to prove, especially the chains of command and the detention site are pretty clear, who's responsible for this detention site and we know what's happening inside, so you have your case. But once starting with that, we then added and integrated charges of conflict related sexual violence, which is another topic we decided to focus on because it has different impacts on society. 

[00:11:18] We partnered with some certain feminist organization, we've a Syrian feminist colleague working here with us as well at ECCHR so we've built that component, and at the same time, we of course are observing how the cases are going on, where are the limits, what would need to change also in the law to have more or better cases or more access for a community also to such cases.

[00:11:42] So that's led us to publish also policy papers on for example, the reform need of the German international crimes laws, in terms of recordings of such trials access of Syrian, Arabic speaking community to court trials in Germany, language wise and so on, where there were quite some gaps: rights of victims in criminal trials in Germany and so on.

[00:12:07] So that's something also at the same time we pushed for and currently that's under review by the Ministry of Justice in Germany. So we likely will also see some changes there, which we can then use again for the next cases, be it on Syria or any other conflict. So these are some components.

[00:12:25] There's another strategic part that if we look into a conflict situation or a region like the MENA region, of course we also try to see and understand how businesses are functions there, who's profiting from a conflict, so there's obviously business and human rights and corporate crimes component as well combined. And in Syria we had the case, we're still having the case in France, some company Lafarge ongoing, which did business in ISIS held areas, so that's also going on. So basically if you take the Syria situation, you have the different components there, which go from torture cases to sexualized violence to the role of European corporations.

[00:13:06] And of course we're also looking into other international actors, from Russia to Turkey, what's their role in the conflict and so on. But on the other hand, we are of course also a bit limited what we can do because it needs quite some resources to look into all of that. Of course we're also cooperating with a number of other NGOs, also domestic ones who are also looking in that topic, so it's a bit also complimentary with the work we do and what other NGOs do.

[00:13:34] Dr. Miranda Melcher: Thank you for taking us through those components. It's a really interesting combination of kind of the practical, the strategic, the fitting, all the puzzle pieces together. And obviously there's a lot of coordination with other NGOs, with different government actors, with international actors. How much time and in what ways does engagement with the press fit in to both making those sorts of decisions, but of course, then also trying to make the cases, you know, as the case progresses, making progress in that way?

[00:14:05] Andreas Schüller: Yeah, I think the public outreach and media component is also extremely important because if you do cases and nobody learns about them and hears about them, and also what you want to achieve with such cases, what's the context of such cases? You also lose a big component on where you could have some impact.

[00:14:24] And we have a full communications team within ECCHR, that's also observing who's reporting about which situation so that we know which are the journalists to approach that are already writing on the topic or on the region, for example. Of course we have a big network of journalists already on a number of topics, especially when it comes to the legal strategic combination to some more regional and local human rights issues. What's important is of course when speaking with survivors that are also witnesses in a criminal case, you need to have a certain trust with journalists that the way they cover the story will not harm and impact the legal case.

[00:15:06] So that's also important to build that relationship. And I think then journalists appreciate and see how well our cases are researched, that there is a lot of strategic thinking behind it, so I think a lot of interesting components also to report about. But still there are cases we do non-publicly, at the beginning or for a longer time for a number of reasons.

[00:15:27] For example, if we expect the suspect maybe to travel or if a company might have some documents and we would ask prosecutors basically to get them before they're destroyed. So there are components, we wouldn't go public, at first at least and then other cases directly come with a public component because it's important that, like the Syria cases in 2017, to build a large support for criminal justice and international cases on Syria. So that there's a big movement basically that carries on the cases, where a lot of really targeted and strong communication plays a role to build this public support for the work we are doing.

[00:16:07] Dr. Miranda Melcher: And if I can ask a follow up on that point: when you talk about securing public support and engagement, are there particular sort of groups within the public that you're most hoping to reach? Does that change depending on the case or how does the idea of talking to the public, writ large, get thought about on a more granular level?

[00:16:27] Andreas Schüller: Again, I think it's a combination. Of course we're working differently than Amnesty International, for example. I think they're reaching more to much wider public it's core human rights issues where many people can subscribe to and so on. I think we are a bit more targeted in terms of course, on the one hand, the judiciary, prosecutors', courts, the legal community is of course key to understand and support our cases. Understand what's behind it, what are the legal matters also at stake obviously, and then combined with that, at the political level, actors that use or build on the cases to also shape foreign policies, security policies, human rights policies and so on.

[00:17:07] And then a quite important component is on the other hand, with the survivor communities, with domestic NGOs, with movements from those countries basically, that are behind the cases, that are coming to Europe to file their cases here. Cause in their home countries, the judiciary is not working properly and so on.

[00:17:28] But we seek then to basically play back what's been reached in maybe European courts so that it can be of use, let's say in Syria or in Colombia, or in Yemen or wherever. So far as that you need it quite close exchange with those organizations and partnership at equal levels, so that basically we do that together with different roles, but that's certainly the groups who come with the cases can also then use them domestically and hopefully seek some change in their home countries.

[00:18:02] Dr. Miranda Melcher: One of the things that is really interesting about NGOs in this space of international law and access to justice is the number of different ways that NGOs can get information to different actors, right? There's communications, there's independent fact finding missions, there's relations with the international criminal court, but also things independent of that, special procedures complaints, amicus briefs, all sorts of things; on the record comments, off the record comments, and of course then there's even things that are kind of to the general public more broadly. Is there an ideal sequence of using these options? Does it depend on the case? In some ways it's a great benefit to have such a wide menu of options, but I imagine it also creates rather a lot of decisions to be made.

[00:18:50] So how exactly do all of those things get? Is there a sequence, is it: here's the one that's most likely to work, how does that get done?

[00:19:02] Andreas Schüller: I think it's a bit what I've described in the beginning that it's a big network of organizations, international ones and domestic ones, working together and it's also kind of, in the best case, complementing the work of each other so that some focus more on what's happening at the UN level in New York, in Geneva, and so on. 

[00:19:21] But at the same time also understand what's happening in courts, maybe in Germany or at the International Criminal Court and so on. So that there is a constant exchange of those groups, in the best case also of the authorities, of course, because often you can built on what's happening elsewhere. And if, again, if we look into Syria, there were the attempts by the UN Security Council to refer the situation to the International Criminal Court.

[00:19:50] There was a lot of lobbying advocacy in New York with such a UN Security Council resolution to pass. And that failed. Then the UN General Assembly took over and created this independent and impartial UN mechanism to at least do investigations, so there was also a lot of advocacy in New York involved, but something not ECCR was involved in because that's not our focus.

[00:20:15] But there were other Syrian groups and international groups, advocating for those steps to be taken. And then once it was implemented and running this UN mechanism, it supported war crimes units units in Europe and elsewhere. That's where we came then in again to make the connection and bring them together, so there's another actor who supports accountability work. 

[00:20:39] So it's a big puzzle basically and the different pieces come together in the best case they match, they fit to each other. Sometimes also they don't very much and not much comes out of the one or other decision, or action. It's also happening of course, but in order to make them fit, I think it's quite important to speak to each other in this broader network about strategies, about what's coming up, about how this would relate to something else, again to strategize and see, how to progress basically.

[00:21:08] And usually the worst thing is if nothing's happening anymore. So also to keep it running, you know, to keep actions going on and then the sequence, that's not the one size fits all solution obviously, so that really depends on the case and the situation, in legal terms on the jurisdiction.

[00:21:24] In one case you can go to this court and the other case you can go to that court. And in others it's on the political constellation, Human Rights Council and the general Assembly, where in one situation you can expect more or less. So I think that's, these are all factors you need to have in mind to see strategically what's the right body to go to, at which point in time and when to go on the streets to protest or through artistic interventions and so on. When do you try to also do these forms of protests? And again, usually it's a combination of many of those forms of activism.

Outro

[00:21:57] Dr. Miranda Melcher: Thank you Andreas, for explaining your job at the ECCHR and helping us understand more about how the organization works. In our next episode, we'll continue our conversation with Andreas to understand the ECCHR's engagement with states, and learn more about Andreas's thoughts on the future of international justice and improving access to justice for all.