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S1E13: Death in Detention

Branch 251
July 24, 2020
28
 MIN
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English
July 24, 2020
28
 MIN

S1E13: Death in Detention

In this episode, Fritz takes a look back at the first-ever universal jurisdiction trial based on Germany’s Code of Crimes Against International Law, a trial against two Rwandan militia leaders for crimes committed in Congo.

In this episode, Fritz takes a look back at the first-ever universal jurisdiction trial based on Germany’s Code of Crimes Against International Law, a trial against two Rwandan militia leaders for crimes committed in Congo.

Our guests, Der Spiegel's Beate Lakota and Andreas Schueller from ECCHR, followed this trial closely and talk to us about how the main accused died in detention, the lessons learned, and the parallels and differences with the Koblenz trial.

For regular updates, you can follow us on Twitter @Branch_251, @Fritz_Streiff , @KaramShoumali and @Paulinepeek

Additional information on the topics discussed in the episode:

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Episode Transcript

Beate Lakotta: Because what is more disastrous than the fact that without a legally valid verdict, someone sits in custody for nine years and then dies there. I really don't think things could get any worse than that.

Fritz Streiff: Death in Detention. That is how the first-ever universal jurisdiction trial based on Germany’s Code of Crimes against International Law ended after more than seven years of proceedings, conviction, appeals, partial acquittal, and health problems of the main accused. It was a case against two Rwandan militia leaders for crimes committed in Congo, and the trial took place at the Higher Regional Court in Stuttgart, Germany.

[music]

Karam Shoumali: Welcome to Branch 251. Today, we will take a look back at that first trial. When did it take place, where, and what were the success stories, challenges, and failures? How come the man accused died in custody? Fritz took a deep dive into this case and come back with a retrospective.

Fritz: When the trial in Koblenz came about, it made me think of that other trial, of the first one based on the German Code on Crimes Against International Law or in German, the Völkerstrafgesetzbuch. When the arrests happened, I was interning with Human Rights Watch in Berlin, and we started monitoring the case. That was back in 2009. The case was brought to the Higher Regional Court in Stuttgart in 2011, and it received a lot of international attention.

In short, the German Federal Prosecutor brought this first case of its kind against two Rwandan leaders of the Hutu militia group, Forces Démocratiques de Libération du Rwanda or FDLR. The main accused was Ignace Murwanashyaka, president of the FDLR. He and his vice president, Musoni, were accused of orchestrating grave breaches of international law in eastern Democratic Republic of Congo, in 2008 and 2009, from their homes in Germany where they had been living.

Human rights groups and United Nations experts reported that the FDLR was responsible for killing several 100 civilians, pillaging and burning down numerous villages, and leaving many women raped or subjected to other forms of sexual violence. The accusations also included the recruitment of child soldiers. One of our guests on today's episode titled an article of hers about the start of the trial in 2011 in German, Ein Hauch von Den Haag, or in English, A Hint or A Touch of The Hague.

Indeed, a case like this could have just as easily been brought to the International Criminal Court in The Hague, but it was Germany's federal prosecutor who pushed for international justice for crimes committed in faraway Congo. Then 10 years later Anwar R and Eyad A were arrested, and Germany is again in the spotlight. This time, for pioneering in putting Syrian officials on trial for alleged crimes against humanity, a worldwide first with lots of international attention and high expectations similar to the FDLR trial in many ways. It got me wondering, what could a retrospective teach us looking back at Stuttgart and then onto Koblenz? What are the lessons learned and where are we with those now?

Karam: To try to find answers to these questions, Fritz talked with two people who know a lot about the FDLR trials, and are now again looking at Koblenz with a special interest. Andreas Schüller has a program on International Crimes and Accountability at the European Center for Constitutional and Human Rights or ECCHR in Berlin. His organization followed the FDLR trial closely, but first, let's listen to the conversation Fritz had with Beate Lakotta. She's a trial reporter for the German weekly Der Spiegel. She attended many of the 320 court sessions and wrote several articles about the trial. We will include links to those in our show notes. Fritz started by asking her about the beginnings of this historic trial in Stuttgart.

Beate: The attention was enormous on the first day. Press from all over the world was there: CNN, New York Times, African newspapers, magazines, a lot of television, so the attention was tremendous. The trial began in 2011. After 320 days of proceedings, the Stuttgart Higher Regional Court sentenced Ignace Murwanashyaka for leading a foreign terrorist organization and aiding and abetting for war crimes. They sentenced him to 13 years in prison.

The defense then appealed to the Federal Supreme Court. The Federal Supreme Court overturned the verdict actually on the most important point, namely aiding and abetting the fore war crimes. The public prosecutor's office said, "It doesn't matter. In the next instance, we will prove conclusively," but before that, Murwanashyaka died after nine years in custody.

Fritz: Could you perhaps describe in some more detail how that could have come about?

Beate: Yes. Murwanashyaka was arrested in 2009, then he was taken into custody and he remained there until his death in 2019. He was in solitary confinement for most of the time and he was only allowed very few visitors. Murwanashyaka was not allowed to participate in community activities, sports, not even attending church services. He became very ill while in custody. He had a lot of pain in his back and in the end, he could not get up at all. Then he wrote to the court and asked for medical treatment, and that went on for a few weeks. Only five days before his death, he was actually transferred to a clinic, and there he died. I think it was cancer but I'm not sure.

Fritz: That was a tragic end to a long trial that had not yet even concluded. When you look back, what went well in the trial at the time and what was rather problematic?

Beate: What was noticeable from the very beginning is that the prosecution was based on reports from human rights groups, UN experts, information that came secondhand. This became problematic on the very first day of the reading of the indictment. In the indictment, all witnesses were only numbered and had no names, and that was actually the big issue with the prosecution.

It was based on anonymous testimonies which had been given secondhand to UN observers or human rights representatives. The entire victim side was not represented in the courtroom in any real form at all over the span of 300 days of proceedings. That is, of course, an enormous problem. It became more and more clear from one day of the trial to the next.

Fritz: In your articles, you also described very impressively certain cultural differences that became apparent in the courtroom and which were problematic for the proceedings. Could you just describe a few of those scenes?

Beate: One problem is, of course, the translation problem. The witness appears, says something, the translator interprets, and immediately the defense objects, "That means something completely different." For example, Murwanashyaka once wrote, "The management of war cost him a lot of time." This is how it's translated. Then immediately objection because Kinyarwanda is a language in which every word has many meanings. Is it now called war or is it fight or is it our cause? That's quite different. These were the problems that came up all the time.

This also makes me think of another trial in which cultures collided. It was a trial against Somali pirates at the regional court in Hamburg. Some of them didn't know their dates of birth. The judge asks, "When were you born or where were you born?" The witness says, "I was born under a tree or I was born on the day it rained," something like that. This is, of course, completely different terminology.

Fritz: One thing that stands out, and which also produced quite a stir at a time is that the presiding judge of the Higher Regional Court in Stuttgart commented on the unsuitability of the German judiciary for such complex international proceedings. Could you summarize his statement and briefly describe how that was received at the time?

Beate: In his opening statement, the representative of the Federal Prosecutor's Office had announced that the court would pronounce a verdict not only in the name of people but in the name of humanity and humanists. When it came to the judgment, the presiding judge, Jürgen Hettich said that all these terms seemed far too lofty to him. He said only four words about the proceedings. "That's not the way it works." That's what he said, literally.

With the means of the German Code of Criminal Procedure, such a mammoth trial cannot be brought under control at all. In fact, one has to say that we're talking about events that took place thousands of kilometers away somewhere many years ago. The witnesses are not known by name, not even to the Federal Prosecutor's Office. Other witnesses would have to be brought from the Congo or Rwanda to Germany. There are translation problems. There are 38 files alone with telecommunications monitoring protocols that was all to be translated from Kinyarwanda.

The trial cost about €4.8 million. Then you have to add the court itself. Of course, there are highly qualified legal professionals, but not necessarily in international criminal law. The presiding judge previously headed a senate that was responsible for appeals in traffic violations, road traffic. In this respect, the real question is whether such proceedings should not, in principle, be heard in specially qualified courts or at least the members of the Senate or at least some members of the Senate and also the lawyers speak the languages that are essential there. It does not necessarily have to be in Kinyarwanda, but at least English should be a prerequisite, and that was not given either in Stuttgart.

Probably, hardly anyone took note of the verdict in Rwanda and the Congo. Then you really ask yourself, "Is this the right way to deal with it? Shouldn't we leave such proceedings to the courts that are set up to conduct them in such a way that the defense has equal rights, for example?" That they record their proceedings so that people in the Congo or in Rwanda also can follow the proceedings. That too is not the case in Germany.

For me in this respect, the question arises about the sense of such proceedings in German courts. To put it maliciously, now we have had this International Criminal Code and an investigation team at the Federal Prosecutor's Office and of course, it is also prestige project to conduct such proceedings. Then it has to be said that as far as the prosecution is concerned, this has actually backfired completely, the whole thing. Because what is more disastrous than the fact that without a legally valid verdict, someone sits in custody for nine years and then dies there. I really don't think things could get any worse than that.

Fritz: Yes, that is really sobering. Let us hope that things will be different in Koblenz and that we can learn as much as possible from the mistakes.

Beate: Yes, I'm very curious. At least in the beginning in Koblenz, I thought this is all the same as with the FDLR trial, namely that the prosecutors flanked by human rights organizations, appear with an unbelievable claim to justice. Of course, one wishes for this global justice. I wish for that too. Above all for the victims, they wished for that. But the expectations that are being created are, once again, very high, and I hope that they can be better fulfilled than with the FDLR proceedings.

Fritz: We certainly hope so too. Thank you, Beate. Your account definitely does not spare our listeners from any of the challenges and failures of the FDLR trial, and the most tragic element, the death of the main accused before a final verdict. We try to find out what the cause of death was but have not been able to find more concrete information on that. After an impression from a trial reporter, we will now hear it from someone who followed the FDLR trial from another perspective, from the perspective of civil society.

Karam: Now, we turn to Andreas Schüller. His organization, the ECCHR, monitored the FDLR trial and published a report at the end of the trial. We will include this and other materials about the FDLR trial in the show notes. ECCHR is an organization that is also very involved in justice and accountability efforts for Syria generally, and the Koblenz case specifically. That's why Fritz went to talk to Andreas about the parallels and differences with the Koblenz trial, and how he looks back at the FDLR trial 10 years later. Here is their conversation.

Fritz: Would you say that this FDLR case, looking back, was rather a failure or a success?

Andreas Schüller: Well, it's mixed and also success because finally, there were war crimes prosecutions under universal jurisdiction before German courts. On the other hand, there were quite a number of issues.

Fritz: If we just zoom in to some of the difficulties, maybe you can help us understand one or two more concretely. What would you say were the most interesting and structural difficulties that the German justice system should have learned from and perhaps did learn from leading up to other cases such as in Koblenz right now, or did not learn from since the difficulties at the FDLR trial?

Andreas: I think to start with is victim's participation, and to look into that one because there were no civil parties in the FDLR trial although victims have the right to participate in those trials. Now in the Koblenz trial fortunately there's victim's participation in the form of civil parties, so there's some improvement. It was certainly an aspect that was problematic from early on in the FDLR trial, and which still remains to a certain extent, problematic or can certainly still be improved.

Fritz: Do you think that some of the evidentiary problems in the FDLR trial may have been not fixed but perhaps improved if victims had participated?

Andreas: It's definitely important that victims are represented from very early on in an investigation, not only come in when the trial starts. Because also during investigation, the victim and their representatives can provide information to the investigators. Of course, they can also later provide evidence to the court.

Fritz: Now, after a bit more than two months of trial in Koblenz, is there something that you can already identify whether lessons were learned or on the other hand, maybe not?

Andreas: Yes, we see here still the difficulty for the Syrian community, other survivors who are willing to participate and monitor what's happening. That was a problem already in the FDLR case, basically, nothing that was happening four years in court in Stuttgart was made available to people in the region, also, different German ministries did not bridge that gap. Basically, it's not the role of the judiciary but then on Foreign Office of or the Ministry of Economic Development, for example, to say, "Look, there's a prosecution of massacres that happened here, going on under international standards in a German court and all of that were not communicated in the region."

It's now in Syria. It's a different scenario. It's not easier because many survivors, also live in Germany and can more easily go to attend court sessions, but then they don't speak Germans, they cannot follow because you don't have any translation to Arabic for visitors, and other jurisdictions provide. I think it would be possible once the German procedure rules provide that. There's also no audio-visual recording.

Also, it's an extremely important case for Germany but also for Syria, from a global perspective, it's certainly a case that in years to come researchers, scientists, historians would like to analyze about systemic torture in Syrian prisons and so on, into this documentation whatsoever. That's also another lost opportunity here, which we saw on the FDLR case and where we still don't see any improvement now within the Syria case.

Fritz: One thing that we heard after the FDLR trial to improve trials of the kind, was that perhaps it would be worthwhile considering as the German justice system to focus trials like these at one court in one specific location where the judges and everybody working with, and towards the court have expertise in this regard like we're seeing in other countries such as France and the Netherlands. Is that something that has been discussed in Germany, maybe since the FDLR trial? We are now seeing this trial and Koblenz, so we're not seeing any signs of it but it would be interesting to get your take on this.

Andreas: Yes. One had wished that the court in Stuttgart would have been prepared or more open to universal jurisdiction trials at the time, but we also see now with the trials going on in the context of Syria and the Iraq, many smaller cases, led by the federal prosecutor or also by the local general prosecutor's office. If you see now how many cases we have on Syria in total as it would be too much I think for just one court. It's good that also the prosecutor can file indictments with different courts in different regions and sets courts basically. experiences and are exposed to those cases, which is good in the longer term.

Fritz: One last question. Looking back at the FDLR trial, how do you look back at this, rather a tragic end of that trial?

Andreas: Yes, in perspective, the FDLR was an important one, because it was the first one under this Code of Crimes against International in Germany. There's a quite bitter taste, of course, with the man accused dying in detention before there was a final judgment. You can also question the length of the whole trial and certainly there's quite some frustrations, I think, on all sides of all parties involved in this case. Those are some difficulties in how to lead such a trial by the court or how to balance the rights of the accused of victims, the prosecutor and all that, but on the other end, also, all parties involved learned a lot and those lessons learned, are already applied in cases on Syria, and actually also facilitating cases on Syria but now with the good set of cases on Syria and Iraq, also the smaller cases against the non-state actors, and that's a good way forward.

Fritz: It is obviously too early to say whether Koblenz will do better than Stuttgart to oversimplify a bit here. The Koblenz trial is still in the beginning stages. Based on our discussions and what we learned from Beate Lakotta and Andreas Schüller, I think we can already observe a few interesting points.

Karam: What do you think they are, the three most significant items that we learned from them?

Fritz: I think to start with, it's interesting to compare the types of witnesses. As Beate told us, the prosecutor in the FDLR trial based the indictment on anonymous witnesses to a large extent. That is, of course, not unheard of and that has to do with the personal security of witnesses but the witness accounts came to the prosecutor secondhand, and together with the anonymity, that just has an effect on the credibility of the evidence of those witnesses testimonies, and eventually on the legal value of it.

Now in Koblenz, at least in the first few weeks that we've been observing, we're seeing that the prosecutor is bringing witnesses to the trial that are not anonymous, not numbers, but real voices in the courtroom with first-hand testimony. That makes the case stronger, but as we discussed two episodes ago, that does have the potential to create certain problems in terms of the personal security of the witnesses.

One of the witnesses actually claims that his family has been pressured, even threatened because he testified and Koblenz. Clearly, this is an important consideration, security of witnesses versus the strength of witness testimonies. Especially for these kinds of trials dealing with international crimes, the whole topic of victim participation is absolutely crucial. In Stuttgart, at the FDLR trial, no victims participated at all as civil parties joined the prosecutor's case against the accused. That is very different now in Koblenz as Andreas said, and has to do with a lot of things, for example, that many Syrian victims now live in Germany. The fact that victims are now officially participating as civil parties in this trial, that's a hugely positive development when comparing the FDLR trial to Koblenz.

Karam: You might also remember that we did reach out to the court's spokesperson to address an important lack of outreach and the fact that court sessions are not translated to Arabic. In their reply, they pointed out the court's official language is German, and simply referred us to the German court on criminal procedure. I think it is safe to say that Koblenz's court similar to the Stuttgart court just does not see these problematic elements as their responsibility to address or solve. They do not fit into the procedural rules and that's it.

Fritz: Of course, that is understandable in a way but still problematic, especially after very similar problems were identified and solutions were proposed by civil society representatives after the FDLR trial. I think we have arrived at the crux of it all. These German courts can only do much, at least, that's what they have been saying and still seem to be saying. It's perhaps also a way of theirs of signaling to all this global attention." We are not the ICC, we are not a United Nations tribunal. We only have a lot of capacity and resources. We are no international judges trained in international criminal law, lower your expectations, everyone."

Karam: At the same time, Germany does have the Code of Crimes against International Law in its legislation. Germany has made pure universal jurisdiction cases possible in its justice system and the Federal Prosecutor's Office and the German War Crimes Unit are using this legal framework to push these kinds of cases.

Fritz: Exactly. That is the disconnect right there.

Karam: Having said that, experts and commentators agree that trials like the one in Koblenz are only the third-best option for justice for Syria. As we discussed in an earlier episode of this podcast, other preferred routes to accountability in Syria are either impossible or blocked. Fair and objective trials cannot be expected in Syria itself and the International Criminal Court and The Hague is not an option. Syria is not a member state. The Security Council at the United Nations could refer cases to the ICC, but many attempts over the years have been blocked and vetoed under the Security Council by Russia and China.

Fritz: The option of universal jurisdiction in European countries is not ideal. In an ideal world, the first step towards criminal accountability for crimes committed by the Syrian regime and justice for Syrian victims would not happen in the German court, that many people have never heard of. In the earlier episode, I said nobody has ever heard of it. I think that is probably changing now and Koblenz is becoming a name. What we have learned from Syrian victims and survivors is that it is a first step, a small one, and only a start, but it is justice, fair, and objective. It may not be ideal, but it is absolutely better than nothing like all those years before.

Karam: That brings us to the end of this week's episode. In case you are wondering where the court update is, there was no court session this week. The trial will resume on the 29th of July, so next week. We will update you on anything significant that might happen next week in court, but stay tuned for an entire episode of court updates the week after next. First, next week, we will dive a bit deeper into a topic that we have mentioned several times before, but we have only scratched its surface.

Fritz: The Caesar photos. We will learn more about these gruesome photos and how they made their way from a Syrian military photographer's camera to the case files of European police and prosecutors. Karam, you will tell us your very own relationship with these photos dating back to 2013 when you lived in Turkey, and then just the other week, you had a pretty shocking experience with the photos.

Karam: Yes, I'll tell you listeners more about that next week.

Fritz: Until then, thank you all for listening.

Karam: See you next week.

Fritz: See you then.

Pauline Peek: Branch 251 is created, produced, and hosted by Karam Shoumali and Fritz Streiff. Production feedback by Maarten van Doornmalen. Production assistance by me Pauline Peek. Katarina Buhl provided this week's voiceover and Hannah El-Hitami is our court reporter. This podcast is listener-supported, you can help keep it going by subscribing, rating, reviewing, sharing it with your friends, and becoming a patreon of the show via Patreon. You can find a link to our Patreon page in the show notes. Thank you for your support.

[00:27:53] [END OF AUDIO]


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