On 19 June 2017, the International Nuremberg Academy hosted the 1st Elisabeth Käsemann Symposium Nuremberg which took place in the historic Courtroom 600 of the Nuremberg Palace of Justice.
The subject of the symposium was the "International Criminal Prosecution of Governmental Crimes in Germany and Latin America: 1933 – 1976 – today".
Renowned experts from Germany and Latin America analyzed the efforts which are employed to enhance democratic rule-of-law structures and to protect human rights. It further was discussed how Germany and Latin American countries deal with State-sponsored crimes. They considered the development in this field as well as the current situation and also looked at the possibilities and limits of international and transnational co-operation concerning the investigation and the prosecution of such crimes. In addition, the discussion covered the consequences and opportunities for a society when it deals with its authoritarian past from a legal angle.
Words of welcome were spoken by the Academy’s interim director, Christian Much, by the founder and director of the Elisabeth-Käsemann foundation, Dr. Dorothee Weitbrecht, by Professor Julia Lehner, Nuremberg Cultural Affairs Officer, and by the Argentinian deputy Consul General, Esteban Morelli. Then the Argentinian federal investigating judge, Professor Daniel Rafecas, delivered his keynote address. He described the political and social background to the rise of the Argentinian military dictatorship (1976-1983) and the efforts made by this dictatorship, hidden from public view, to “eradicate“ all opposing groups and persons. Between 1976 and 1977 there were some 500 clandestine detention centres, each capable of holding up to 300 prisoners, who were tortured and killed. It can be assumed that there were 30,000 victims. Around 500 children and babies were taken away from their mothers and given over to members of the military and their families for adoption. Argentinian state terror perpetrated other crimes against humanity such as sexual abuse, the systematic theft of victims‘ possessions, the illegal transfer of companies to their allies and the systematic persecution of trade unions.
Hopes that a first large-scale trial would see high-ranking members of the military sentenced to long-term imprisonment and thus usher in a period of the restitution of criminal justice were dashed when far-reaching amnesty laws were passed in reaction to rumours of renewed putsch attempts. From 1987 to 2001 in Argentina there was a state of impunity before the law. The only solution to this was to go increasingly down the path of international criminal prosecution, a move which led to investigations of state-level Argentinian human rights abusers being pursued in Madrid, Rome, Nuremberg, Paris and elsewhere. To counter this the ruling social groups developed the narrative of a “dirty war“ between two demonic forces, a war that should now be brought to an end, having an “eye to the future“. It wasn’t until 2001 that an Argentinian federal judge set aside impunity and brought a case of a crime against humanity against a torturer whom he had arrested. This “Simon“ case reached the Supreme Court in 2005 and led to a change of direction in Argentina. The court found that there should be no procedural obstacles in matters of crimes against humanity. Since then due legal proceedings have been initiated in all major cities and have, to date, led to 750 convictions and a further 800 charges being brought. Some 300 accused were acquitted due to lack of evidence or put under house arrest because of their age. At present the number of those sentenced to imprisonment (455) is smaller than that of those under house arrest (518). The great majority of sentences were passed by reason of unlawful detention and torture, sentences for murder were rarer because of lack of evidence.
Professor Rafecas saw parallels between Germany and Argentina when comparing the criminal prosecution of state crimes against human rights. Both countries took decades before starting criminal prosecution of state crimes. Impunity strategies (a statute of limitation, hidden amnesties) were similar. In both countries impunity was bolstered by a dominating discourse of forgetting and reconciliation. Both in Germany (the “Einsatzgruppen-trial“ in Ulm in the 60s) and in Argentina it was county court judges that drove the trials forward. A large number of charges was soon established: in Germany some 6,000 and in Argentina around 1,500 (but the number goes on steadily increasing). Today the trials involve all the actors, from the high command to middle levels right through to the immediate perpetrator. In a few exceptional cases civil collaborators — employers or civil servants — were also sentenced. Both in Germany and in Argentina the sentences and the criminal trials had a far-reaching impact: we must be honest as we look at the recent past and strive to learn lessons so that we do not repeat it.
But Professor Rafecas also saw differences between German and Argentinian criminal prosecutions. If the extent of the crimes and the number of cases brought are compared, then the Argentinian criminal prosecution appears the more dynamic. The average level of sentencing is markedly higher in Argentinian than in German cases. In Argentina the involvement of survivors, victims‘ representatives, relatives and human rights organisations had a more marked influence on proceedings. In Germany on the other hand it was specialist state prosecutors that were the driving force.
Argentina is, according to Professor Rafecas, a clear example of how the international community has created conditions in which political decision-makers and local judicial authorities can devote themselves to the criminal prosecution of severe human rights violations and the pursuit of truth. This, he said, is decisive in thwarting the perpetrators‘ strategies of forgetting, denial and impunity.
Perhaps the biggest lesson to be learned from the example of Argentina was, he said, that the public, which for decades had relativised or even denied the existence of state terrorism, came to recognise the extent and depth of this evil as the cases proceeded. Citizens, the younger generation especially, offered their unwavering and quite open support to the legal process. The court cases of the last ten years have, he said, led to a healing process of remembering, truth and justice, as well as to an overcoming of the deeply rooted authoritarian culture. Today a culture of remembering, truth and justice is part of the Argentinian social contract.
The podium discussion that followed, moderated by Professor Susanne Buckley-Zistel (Director of the Centre for Conflict Studies at the Philipps-Universität Marburg), went into the points made by Professor Rafecas in some depth. The panel consisted of Dr. Rosario Figari Layús (Argentinian sociologist and political scientist), Dr. Daniel Rafecas, Senior Public Prosecutor Jens Rommel (Head of the Central Office of Federal Justice Administration for the Investigation of National-Socialist Crimes, Ludwigsburg) and Professor Christoph Safferling (Professor of Criminal Law, Criminal Procedural Law, International Criminal Law and International Law at the Friedrich-Alexander-Universität Erlangen-Nürnberg).
Professor Buckley-Zistel said the way the Elisabeth Käsemann case was handled in the 70s would, as regards diplomacy and justice, no longer be possible today. These days far greater value was placed on human rights and opportunities for criminal prosecution had increased.
Professor Safferling and Jens Rommel commented on the possibilities and the significance of international criminal prosecution in international criminal courts as well as, applying the principle of universal jurisdiction, in national courts (as is currently being discussed in Germany in the matter of Syrian torturers).
Dr. Figari-Layús made some additional comments affirming the importance of the role played by civil society organisations in dealing with the past. What was important for the victims, she said, is not just the judicial processing but also the change of judicial and political culture by society as a whole. In many of the provinces of Argentina erstwhile perpetrators of state terrorism held positions in state institutions long after the end of the dictatorship, thereby spreading fear. On top of this there was the pact of silence and the stigmatisation of victims and survivors. Professor Rafecas agreed that what was often fundamental for the victims was the simple recognition of who was a victim and who a perpetrator. Jens Rommel observed that being made public can also have an inhibiting influence. German public opinion, he said, had always tended to the view of “time to draw a line under all this.“
Professor Rafecas then addressed the Argentine proceeding concerning the murder of Elisabeth Käsemann, in which the German Federal Government appeared as joint plaintiff. He also referred to the intensive bilateral cooperation of the Argentine judicial authorities with Spain and with federal judge Baltasar Garzón. The extradition proceedings brought in connection with Spanish victims of the Argentinian military dictatorship had for the first time produced a wealth of witness statements and documentary material. As regards proceedings that are pending today in Argentina against perpetrators under the Franco dictatorship, Professor Rafecas remarked that this constellation is entirely possible these days, even though it involves the unusual role distribution of a developed country and a developing country coming together. Victims and survivors of the Franco dictatorship had succeeded, he said, in getting the Argentinian judiciary to investigate their cases. The judge heading up the matter had already made several, thus far unsuccessful, requests to Spain.
The panellists were agreed in their concluding assessment that democracy and human rights must be defended with the strongest means that a democracy has to offer, that is to say with criminal prosecution, even if expectations of justice as an instrument for determining the truth should not be set too high (Jens Rommel).
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