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Intro

[00:00:03] Dr. Miranda Melcher: Hello and welcome to Just Access. Too many individuals and groups around the world today are denied access to justice. Such access is vital for making human rights effective and securing human dignity, especially for those in a situation of vulnerability like women, children, minorities, migrants, or detainees.

[00:00:23] In this podcast series, we speak to academics, international legal experts and human rights advocates about hot topics in international law. Our goal is to expose and highlight situations of structural injustice and explore unusual solutions to these issues aiming to protect and enforce the rights contained in international treaties.

[00:00:43] My name is Dr. Miranda Melcher, and I'm a senior legal fellow at Just Access. In this episode, I continue my conversation 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. Our discussion in this episode builds on our conversation in the last episode when Andreas explained what he does at the organization and how the organization works to improve access to justice.

[00:01:12] In this episode, we discuss the ECCHR's engagement with states, and Andreas helps us understand where some of the gaps are in the current international legal system and ideas for how access to justice could be improved.

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Interview

[00:01:34] Dr. Miranda Melcher: Obviously one of the things that you have spent years working on is ensuring more access to justice, and that's very much of course, our mission as well. So in this complicated system, where it does very much depend, there's no one size fits all and there are so many different actors and so many different procedures and ways to attempt to progress things.

[00:01:55] In your experience, what have you found that's missing in this system? For example, the relationship between domestic war crimes units and the UN bodies. Are there ways that that could be improved? The idea of being able to submit communications and petitions on behalf of particular groups or individuals or families.

[00:02:15] But there of course, are restrictions on the size of those groups and restrictions on jurisdiction and things like that. There's issues with feedback mechanisms, especially for some of the larger bodies and holding them to account. So given your range of experience in the weeds and the details of all of these systems, what have you found that's missing or could be improved?

[00:02:41] Andreas Schüller: Well, I think access to justice is one of the key questions and obviously a lot would need to be improved, especially if it takes a global perspective. I mean, there are many, many countries where there's no access to justice, a system that's independent and impartial. So it starts there and you move out of the country and look into regionally, maybe or internationally. Regionally, of course, you have a European Court of Human rights and Inter-American Commission court on Human R ights, in Africa you have the African Court of Human Rights and so on. But in Asia, for example, it's much more difficult. Then the UN complaint mechanisms usually states have to ratify optional protocols and so on.

[00:03:26] So that also individual complaints would be possible to those. So that's another issue where many states did not allow for that option. And then of course, if you look into international crimes, the sheer number happening in conflicts, take Syria, take Ukraine now, or Ethiopia, or yeah, you name it, there will only be a limited number of survivors of family members, of persons killed and so on, that will be able to basically bring their cases and exercise their rights if there's not a big and comprehensive domestic mechanism, which often isn't in place or only comes many, many years later.

[00:04:05] So, it's a constant problem and also if you come to Europe, for example, as a survivor of an international crime in theory under universal jurisdiction, there would be a competence of authorities here to investigate such a case. But, under universal jurisdiction, there would be a competence of authorities here to investigate such a case, but I mean there are hundreds of thousands of survivors in the European Union and again, I think not many can bring their case as a lack of knowledge. Also, even in victim support services there are not many specialized lawyers and then the war crimes units, for example, also focus only on a handful of cases. 

[00:04:46] In Germany, it's mostly Syria and Ukraine at the moment, but for example, not on Yemen, Libya or Sri Lanka or Belarus. So, you know, there are many other situations where survivors are in Europe and even active war crimes unit as the one in Germany is only focusing on a number of conflicts and not so much on others. So basically the picture is pretty limited on where you your access to justice domestically, regional, or internationally.

[00:05:14] If we talk about those cases and another focus of our work is on european internal and external borders, where with collective pushbacks people don't even have their right to exercise their rights. So it's not even access to justice, but it's a basically easy, the right to have rights, which is limited and attacked through these collective pushbacks where you can't even register your individual case and have it reviewed and so on.

[00:05:40] So there's much more also happening within Europe in terms of access to the judiciary or, or simply to claim your rights for many, many people.

[00:05:50] Dr. Miranda Melcher: Could you tell us more about those issues within Europe and what that might look like?

[00:05:56] Andreas Schüller: Yeah, if you look especially into the external but also internal border situations from Spain to Bulgaria at the Balkans, but also then in the central Mediterranean. And then going up, of course, also the border with Poland and Lithuania, everywhere basically, you see that there's a fortress Europe, as it's called, there are collective pushbacks at the borders of migrants, refugees, people on the move trying to enter the European Union and being collectively pushed back on the other side of the border fences, or in the central Mediteranian and back to Libya and Tunisia, so that they can't even exercise there rights in terms of fighting an asylum case. It's reviewed whether a person would've protection or not because it's not even guaranteed under those collective pushbacks. And in the central Mediterranean, it's another area we are looking into, you have this collaboration between the European Union, Italy, Malta, the EU Navy forces, Frontex with so-called Lybian Coast Guards.

[00:07:05] They're heavily financed and trained by European actors. They are the ones who basically are called when people are in distress at sea and they then pull them back to Libya where migrants face the situation of constant crimes against humanity. We looked into the detention centers there.

[00:07:24] We looked into what's happening of people that were pulled back by the Libian coast guards to Libya. So they're again in those camps, there's torture, sexual exploitation, there's forced labor, they're falsely enlisted to fight in the civil wars in Libya with certain militias, so it's a terrible situation which amounts to international crimes and where again, EU agencies and Malta and Italy in this particular case are basically not rescuing people in distress at the sea as they would be obliged to, but rather according in the Libyans, handing them back into such a situation where they're exposed to international crimes. 

[00:08:05] So that's all happening there. There's certainly no access to justice at all and what we are trying is with survivors who made it to Europe in the end, that they can bring their international crimes cases before the International Criminal Court or also before war crimes units in Europe, so that it's investigated what's happening in Libya, but also at the central Mediterranean.

[00:08:28] Dr. Miranda Melcher: Thank you for expanding on that. I think it'll be to some people, quite a shock to think of it in those terms. And a very helpful one to understand the additional facets that go beyond what is often reported in headlines, to understand the kind of additional barriers to access that are less obvious than what might be happening literally on a ship that can get photographed. Speaking of things that are less obvious but have a really direct impact, we've mentioned a little bit the idea of universal jurisdiction and also that one of the ways people can be denied access to justice is when their own domestic courts are unwilling, unable to take up their cases.

[00:09:09] So could you tell us a bit about the ECCHR and what actions you guys have undertaken to try and motivate states, especially in Europe, to not just look into universal jurisdiction, but to really make an effort on it and to sustain cases under this umbrella.

[00:09:30] Andreas Schüller: Yeah, universal jurisdiction basically stands for the possibility for what we also call extraterritorial cases. So it means that war crimes, genocide, crimes against humanity cases can basically, or in a theory be prosecuted worldwide. These are before an international criminal court or before domestic courts because the crimes are so grave that there's a international community agreement and number of conventions that say should be prosecuted wherever possible or wherever you also have perpetrators living and hiding. 

[00:10:03] So that's the basic principle and of course, the 1998 arrest of the Chilean dictator Pinoche in London was a landmark event. It was based on an arrest warrant by Spain, where many Chileans fled too. And there were cases built in Spain. And then when Pinoche was in London for medical treatment, the arrest warrant was filed and he was put under house arrest in London. So that was a quite emblematic case of movement of survivors from Chile jointly with Spanish lawyers, built the cases and then took action in Great Britain.

[00:10:39] And there were similar cases by the Argentinian movement, in Germany and other European countries that led to arrest warrants against the junta leaders of Argentina by Germany, at around the same time in 2003. So that's how it, universal jurisdiction basically came to life and was successfully exercised against high level perpetrators.

[00:11:00] There were then some pushbacks and only in about 2011, 2012, with the cases on Syria and some other countries, basically it was revived and now it's more and more exercised. But basically what we try to do at ECCHR to see what are the laws, what's possible under the law because they vary from country to country, even within the European Union.

[00:11:21] So in some countries you need to have a perpetrator present on the soil that the country can exercise its jurisdiction. In Germany you don't need that. You you need some link to the country, to Germany, but if a larger, significant number of survivors is in Germany, that would be sufficient also for prosecutor to open such an investigation and take testimonies.

[00:11:43] Then another important component is of course, the resources of war crimes unit. Another one, political will and often goes together if there's political will, then of course also war crimes unit can be properly resourced, if there's no political will it's often a budgetary questions and there is no war crimes unit at all in the country or not properly resourced, which then basically also means that cases will not really go forward.

[00:12:07] It's all coordinated by the EU Genocide Network under Eurojust in the Hague, so there's a lot of exchange at that level including civil society groups, so that's quite important also to follow developments on who's doing what and where are possibilities to investigate and prosecute those cases in order to collaborate, because typically in international crimes cases, the evidence is spread in many different countries and you need this cooperation to build cases to bring the evidence together in one court. 

[00:12:40] So you need international corporations to make those cases happening and going forward and as ECCHR of course, we can play a role there on the one hand, in supporting victims and finding the case in different European jurisdictions. We were active in almost most European countries already in the last 15 years, depending on the case. 

[00:13:00] Then to see how a case can be built by the one or the other war crimes unit, to whom else they should talk, which other countries possess evidence, can support cases, build the political support behind it, but then also criticize and push for more resources, for example, or shaping a political will if cases are not taking up, as we tried it a lot with Guantanamo cases or US officials that were traveling, or wanted to travel to Europe to bring cases against them, which were more reluctantly, only taking up as at, if at all. There were some steps happening, but of course, nothing compared to the situations like in Syria or those.

[00:13:43] Dr. Miranda Melcher: Thank you for explaining that. I think it, again, helps us understand a thing that many people might have heard of, heard of the phrase, heard of these instances, but the behind the scenes perspective is really valuable, both for understanding, what has happened, what's currently happening, but also looking to the future.

[00:14:01] So I was wondering if you could tell us a bit, maybe about, from your perspective, what do you think is the future of advocacy, strategic litigation, especially when we talk about things like criminal accountability?

[00:14:16] Andreas Schüller: Well, I think there's been quite some progress made with the Syria cases over the past almost 10 years, which was not really foreseeable 10 years ago. And the number of factors that determined that on the one hand, that the International Criminal Court was not competent because otherwise everyone would have focused on the ICC and also domestic units probably wouldn't have investigated cases as they then did as the ICC was no option and it was more decentralized. 

[00:14:46] And then later this UN mechanism also came in. So there was something established, five, six war crimes units, the UN mechanism, NGOs, basically building those cases, supporting each other and that's something now in the context of Ukraine, which of course is all over the place, as others use these experiences and first expand them, so there's more, much more focus on this sector. 

[00:15:12] Now there are more countries interested in investigating in cases, there's Ukraine, domestically, there's the ICC, as well involved, so there are many more actors doing this, and it's not as in the past that every prosecutor would say, well, I'm not competent, go to the next one. I'm not competent, go to the next one. It's now different. Everyone basically wants to investigate and build cases and then of course it's always a challenge to enhance cooperation among the actors. But that's also happening. 

[00:15:44] So, there's a lot in the move, but unfortunately only for a handful of cases. So, I've mentioned Ukraine, I've mentioned Syria, but almost on other conflicts I did not mention also not under investigations, they hope is that international criminal justice. Through setting up the system is then also able to take on more and more situations to look into, be it under universal jurisdiction, be it as the ICC, be it through UN mechanisms or also in collaboration with domestic mechanisms or courts or prosecutors.

[00:16:16] So that's on the one end, the hope, but also I think we need to be pretty careful that so far it looks rather than like a European project, the universal jurisdiction cases are mostly happening in Europe on non-European cases. The ICC is a bit more global, but still not with the, um, big successes.

[00:16:36] It's not looking anymore only into Africa. There's cases on Philippines, on Myanmar, Afghanistan, now Ukraine, Venezuela, so that's, it's much more global, but quite limited in terms of numbers. So we also still need to see where this goes and certainly also how countries outside Europe can play a bigger role.

[00:16:57] Argentina does it to a bit, there was the so-called Habre case on Chad in courts of the , there's a lot of movement in The Gambia, for example. I think that needs to be strengthened quite a bit that it will be global project, global effort to prosecute international crimes, also domestically and not a European project because then of course it's quite open to post-colonial critique and rightly so, especially if the European crimes are not being investigated and so on.

[00:17:25] So in the longer term, I think that's absolutely irrelevant to look more into that direction and of course then within the crimes also to look more into corporate crimes, sexual violence is still underrepresented and certainly it's a number other set of crimes that also would need to be further focused on. There needs to be more practice on disappearance cases, on legal responses to air warfare and airstrikes, which is still not really happening. So there's quite a lot to do.

[00:17:57] Dr. Miranda Melcher: Are there one or two things that immediately spring to mind of relatively straightforward things that could improve access to justice? Not necessarily things that are politically possible, but if you could wave a magic wand, I suppose, something that comes to mind of, ooh, well this would make things a lot better. 

[00:18:16] Andreas Schüller: Well, there's a lot. You know, one thing is for states to review their universal jurisdiction laws, to open them, that you don't have this presence requirement, that there's more flexibility by prosecutors to open a case and that they have sufficient resources to do so. In Syria, I would say that there was an easy one. There are reform processes in Italy and Denmark and Germany going on at the moment. But, that's something local parliaments can take up and make some legal changes that would potentially change quite a bit if it comes with budgetary decisions as well. 

[00:18:47] When it comes to the International Criminal Court, of course, more ratifications would be great and important. I mean also Ukraine hasn't ratified the statute yet. There are about some 127 states, if I'm not mistaken, but not as many as are in the UN of course. The long term topic is the veto right at the UN Security Council which often stops cases being referred to the International Criminal Court, so that's quite obvious, , something that's often misused, especially when it comes to international crimes cases. 

[00:19:19] So there are a lot of things that would change a lot if they would change, obviously, in terms of widening jurisdiction and with that also having more resources, hopefully and then through that also comes more access for survivors and communities to those mechanisms and courts.

[00:19:36] Dr. Miranda Melcher: Thinking of, perhaps more realistically, the future, though I agree those would be great changes if they could happen, is there any project in particular that the ECCHR is currently working on or looking to work on soon that you are especially excited about and want people to know more about?

[00:19:55] Andreas Schüller: Well, I mean, of course things are on the move I would say. As I said before, we need to think in dimensions of 10, 15 years of those cases. So I still expect a lot coming out of the Syria cases, maybe lots more on international actors on the rule of Russia, Turkey, and so on in the Syrian conflict. So that's certainly one direction. 

[00:20:15] We'll see what's coming out of the Ukraine situation because it can strengthen international criminal justice, it can also weaken it, if it's too much politicized and instrumentalized by states as a political tool, but not in terms of equal standards and stopping the erosion of international criminal, public international law basically. So there are lots of stakes in that one. And then of course there the work I've mentioned before on Libya, on the European responsibility on what's happening there.

[00:20:42] It's also another double standard case, which also needs to be properly addressed, because I think the continuous application of double standards in international criminal justice is one of the biggest critiques voiced here and we at ECCHR try with a number of cases to address that, again, be it on international actors in Syria, be it on the EU responsibility or be it also on US or UK torture cases coming from the Iraq more.

[00:21:11] Dr. Miranda Melcher: Very important work. Thank you for highlighting that to the audience. As my final question, I wonder if you could maybe speak specifically to listeners who might be students, recently finished their studies, or anyone else who's interested in helping out in this field and working on these issues. How do you think people in those positions could effectively help in expanding access to justice?

[00:21:39] Andreas Schüller: Yeah. What I haven't mentioned yet is our critical legal training program, which basically exists since ECCHR exists, some 15 years ago. We constantly have trainees working with us from all different regions of the world. There were, I think more than 500 alum until today, which we'll still gather usually once a year here in Berlin at our offices.

[00:22:01] It's a big community now after 15 years and one of the pillars I would say of ECCHR's work, to build this global community to have young, motivated and enthusiastic lawyers working with us. So there is still the opportunity to join us for a couple of months in these traineeship programs. And these are most often also friends and colleagues, we are still working with either cause they moved on into other organizations with who we partner or they're working with ECCHR now as members of staff and so on. It's a big network where we basically stay in touch and move things forward.

[00:22:39] And I think that's the best way to engage. Of course there are different programs we also have with non-lawyers interdisciplinary collaborations, also with universities, with artists and so on. So there are a number of possibilities in our Institute for Legal Intervention and within the investigative comments to other programs and projects we have at ECCHR, which combines more of these aspects of the work. I think there are a lot of opportunities to get in touch and in the one or the other way join the network, collaborate, support and certainly we also don't say no to any forms of donations and so on. That's also always needed to keep this work independent and running. 

[00:23:24] Dr. Miranda Melcher: Thank you, Andreas, for speaking with us and sharing your insights. Stay tuned for future just access interviews and do get in touch with us. If you have any suggestions for people or topics we should cover.