Branch 251/
S1E15: Recording Koblenz


The Koblenz court recently rejected two motions regarding translation and audio recording of the trial. While the court argues these decisions protect witness testimonies and the road to justice, NGOs and legal scholars worry that denying translation and recording could diminish the impact of the trial.

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Additional information on the topics discussed in the episode:

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Episode Transcript

Fritz: Welcome back listeners. This week, we're discussing two recent developments in the Koblenz trial. That is Pauline and myself since Karam is on a well-deserved holiday.

Pauline: That's right. We'll look at two recent court decisions. Not about the case itself, but about the procedure around it. One of the motions was about the translation of the trial into Arabic and the other about audio recordings of the proceedings. We're discussing these procedural decisions today because they say a lot about the difference between the needs and wishes of the public and the prosecutor's ambitions as representatives of the public, and the limitations that the court is working with.

Fritz: Throughout the podcast, we have often said that the trial in Koblenz is historic because it's the world's first criminal trial dealing with atrocity crimes committed by Syrian officials. In other words, it's the first time since the start of the Syrian uprising and the war that followed that any member of the Syrian regime is answering for their crimes in a court of law. On the basis of universal jurisdiction, a lot of countries have this type of legislation, especially European countries, but Germany is the first to put it into practice against Syrian regime officials at the Koblenz Court.

Pauline: Last week, we discussed the Caesar photos as evidence in court. Their origin story and content is another element that makes this trial historic.

Fritz: Absolutely. Koblenz is now part of a whole range of trials dealing with international crimes, atrocity crimes of the worst kind. In terms of historic significance and structural substance of the case, this case could as easily be dealt with by an international court or tribunal. As we know, for the time being, that's just not possible and so the spotlight is on Koblenz.

Pauline: The trial is followed closely around the world. There is still a lot of international attention, even a few months after its start, especially from Syrians in Germany and other diaspora countries. Maybe you think then that everything is translated, at least into Arabic. You'd think it's meticulously recorded and archived for the parties in the courtroom, especially the judges, but also for future generations for history, but you'd be wrong. As we've discussed on the podcast before, there are some issues regarding accessibility and outreach. Now there have been two concrete decisions on these issues.

Fritz: Exactly. The two issues here are, one, that the proceedings are in German. Not even the audience in the public gallery has access to a simultaneous translation. Two, none of the sessions are recorded. No transcript, no audio recording nothing.

Pauline: Honestly, that is so surprising to me. At first, I thought, "Okay, that's weird," but when you think about it more, it's actually crazy to think that it's completely up to the media and NGOs to bring this case to a global audience. Shouldn't that be the court's task or some related public authority?

Fritz: Yes, I agree it's strange, the disconnect between expectations and reality. There is a reason why things work the way they do. We'll also look at the perspective of the court, but let's get into these two recent decisions. We went to talk to some people that are directly involved to hear more from them on why they think the court's decisions are so disappointing. More than that, why they're really a missed chance.

The first motion that the court decided on was about the translation problem. The question seems so obvious from a common-sense perspective. Why is the trial only in German if it deals with Syrians who allegedly committed crimes against other Syrians in Syria, especially considering the fact that many Syrian victims and families come to the public gallery to follow the trial?

As you might remember from our episode about the FDLR trial, we posed this question to the Koblenz court. They gave us a very dry reply, simply stating that German law requires trials in Germany to be conducted in German. Witnesses, defendants, legal representatives, they do have the right to an interpreter, but the audience inside and outside of the courtroom, they're not the court's responsibility. Here we have the court basically saying, "It's not required by law. We're not going to do it."

You have this weird situation that the trial attracts a lot of public attention. Many Syrians come to the public gallery, but they can't understand any of what's happening. They're sitting there and it's about them, it's about their country and their shared experience, and they can listen, they can't understand. When I was in Koblenz at the trial a few weeks ago, I actually ended up translating some of the German into English for some of the Syrians that were present in the public gallery as the proceedings were going on in a whispering simultaneous translation.

Others were doing something similar, but, of course, that's far from ideal. Plus, we're hearing now that even that is impossible because of COVID-19 measures. NGOs and journalists appealed to the court to change this. The court said it won't. In addition to the argument they presented to us, an online article indirectly quotes a courts spokesperson as saying, it's mostly actually a logistical and practical problem.

Simultaneous translations for people in the public gallery would be impossible because there are multiple languages and nationalities present, not just Arabic speakers. It wouldn't just be about translating into Arabic, but into other languages as well, and this would be practically impossible to implement as a solution, is what the court's saying.

Pauline: I get that. I get that it might be a bit of a logistical nightmare, but wouldn't translations to, for example, only English and Arabic already go a really long way?

Fritz: Yes, of course, they would. Translation to English and Arabic would accommodate a lot of people who have been excluded up until now. The court argues that the principle of equality would require them to accommodate everyone. Only providing English and Arabic translations would exclude other languages.

Pauline: Okay, so they're applying this all-or-nothing rationale. Either we include everyone or we stick to German.

Fritz: Technically, of course, they're right. That's what the law says, but in reality, this means that most people inside and outside the courtroom don't know what's going on and that just doesn't sit right. Shouldn't victims' families attending the hearings know what's being said? Mohammad Al Abdallah certainly thinks so. He's the Director of the Syria Justice and Accountability Center in Washington, DC. He's a human rights lawyer and was himself once a prisoner of the Assad regime.

Mohammad: This trial is about violations committed in Syria. The victims, the primarily interested parties are Syrians. They would like to listen and hear what happens in those trials. They want to see what those defendants are saying. We had a couple of families of victims, families of detainees, or representatives of civil society actors attend some sessions in Koblenz. However, they were not very pleased with the results since they were unable to understand the German trial proceedings. There is a hope this trial could provide a sense of closure and address those victims, and that will not happen, unfortunately, unless they can understand what happens inside the courtroom.

Pauline: That's interesting. The lack of translation is directly impacting the family sense of closure.

Fritz: Yes, exactly. I get why that's frustrating, especially for people like Mohammad, representatives of civil society organizations that are so actively trying to push for justice for Syria because closure is part of the reason for criminal trials like this. That is literally part of the whole justice process. Mohammad mentioned a few other reasons why he thinks there should be translation made available.

Mohammad: Also, this is important for transparency. We want Syrians inside Syria and in the diaspora to understand and listen and hear what's happening in those transitions from lots of different sources. For the time being, only several NGOs are able to report on the trial because they have the resources and the access to German-speaking staff or employees.

Also, the efforts and expenses were put together to make this trial a reality were a lot a, really. We don't want to limit the opportunity to reap the considerable benefits of those universal jurisdiction cases only because we don't offer Arabic translation during the trial session so the public can attend and can hear what's happening.

We're hoping the court will revise its decision and will understand, really, the sensitivity and the importance of making the Arabic language translation available, as this will provide a much-needed closure and address to lots of the victims who are watching the first trial ever for war crimes committed in Syria.

Pauline: He says, "We hope the court will understand the sensitivity and importance of making Arabic translations available." Isn't he implying that at the moment it doesn't?

Fritz: Yes, in a way he is. He's pointing out that the trial is important for Syrians, but also for Germany, and for International Justice in general. The court doesn't necessarily see it that way. Like we pointed out in an earlier episode, the court in Koblenz is not to the International Criminal Court in The Hague. It doesn't want to be the ICC either. We can safely assume that, of course, they do think the work they do is important. They're judges, and working towards justice is what they do every day. Maybe they don't think their work carries as much weight as these huge international tribunals do.

In fact, in the article mentioned before, the court's spokesperson literally says that the court does not consider the trial to be as important as certain NGOs think it is. If they don't want to give this trial, that huge importance, why would they have to go through the trouble of providing simultaneous translations right? Also, doing so is probably incredibly expensive. Depending on the amount of languages and quote sessions per week, the cost could go into the hundreds of thousands or even more.

It's also just very unfortunate that people in the public gallery can't bring their own translators at the moment, for reasons that have nothing to do with the law, but simply because huddling together and whispering just isn't safe right now because of the Coronavirus. What about translation devices that people could bring themselves. In its decision, the court ruled that those might pose a security risk, after all, devices that can translate can often also record, which brings us to the second ruling.

Pauline: Yes, the second ruling is fascinating really. A team at the University of Marburg led by Professor Dr. Stefanie Bock filed a motion to allow audio recordings of the trial. This motion was also rejected. We asked Professor Bock to explain why that's a shame.

Dr. Stefanie Bock: An audio recording of the trial would have given us opportunity to evaluate if the German system allows for an efficient and fair prosecution of international crimes and when need be, to develop recommendations for improvement. That the court denied a motion for recording is a missed opportunity for legal science and practice alike.

Fritz: A missed opportunity for legal science and practice alike.

Pauline: Yes, what do you think of that Fritz?

Fritz: I agree. This trial is very complex, and legal scholars, lawyers, judges of the future would benefit from studying it, definitely in the way that Professor Bock mentions, to evaluate whether German courts are fit to conduct such trials, and also for current and future investigations into similar crimes that will result in trials. We've also seen in the first few weeks, this trial is not just about accusations against Anwar R and Eyad A.

The court is also documenting a lot of information about the structural crimes the Syrian regime has committed. This can be important for future trials. Whatever the outcome will be, this is a precedent. A lot of investigators, prosecutors, judges are looking at Koblenz with interest, but without recordings in audio or written form, what is there to study? What can they learn from?

Pauline: Exactly, and I would also raise the issue of historical significance. Some audio recordings of trials had a real historical impact. Let me give you an example, the Auschwitz trials that took place in Frankfurt am Main in the 1960s. Those trials were audio-recorded, and the tapes turned out to be really important works of reference. Not just from a legal science perspective, either, as in, what can we learn from the way this trial was conducted? Rather, what can we learn from what was said in this trial.

The topic was Auschwitz and by studying the tapes, we collectively learned about the darkest chapters in Germany's history. The tapes are relevant as historical sources, historical data. Interestingly enough, the recordings were originally only meant as a tool for the judges to remember what had been said, to refresh their memory. They were supposed to be destroyed after the trial was over. Luckily, a historian named Hermann Langbein understood the value of the recordings and save them from destruction, and thank God he did.

The tapes are not just recordings of history, but they also made history. After all, the tapes contributed to the way that we remember and understand Auschwitz today. Of course, we can never know how big exactly the impact of a trial recording will be, but by not recording at all, we definitely diminish it.

Fritz: Plus audio recordings add a whole new dimension when you compare them to written records. An example is the famous trial against members of the terrorist organization Rote Armee Fraktion that took place in Stuttgart Stammheim in the 1970s. Those tapes were also supposed to be destroyed but were later found in a safe. I've listened to some of them when I wrote a paper about the trial at college, and it was fascinating. You can actually hear the judges and the accused argue with each other. You can feel the atmosphere the tension, written trial reports, not even transcripts can give you that years and decades later.

Some courts do get the need for audio recordings, like the German court Magdeburg and mark the book that is conducting the trial against the neo-Nazi who tried to attack a synagogue in Halle and killed two people after his plan failed. The presiding judge decided to have the entire trial audio recorded because of the trial's historic relevance. If you'd like to know more about these examples, we recommend an article written by Dr. Burghardt and Dr. Thurn of Forum Justizgeschichte, an NGO dealing with legal history. We've put a link in our show notes.

Pauline: Professor Dr. Bock also mentioned the historical significance of the Koblenz trial.

Stefanie Bock: The higher regional court exercises universal jurisdiction which shows Germany's commitment to the International Justice System, as well as its willingness to live up to its historical responsibility, and to continue the legacy of the Nürnberg trials conducted after World War II. The trial, therefore, is of historical importance and worth being recorded.

Pauline: Surely the judges are aware of the historical significance of Koblenz. Why then did they decide against allowing audio recordings?

Fritz: The judges are very well aware, of course. In fact, since 2018, there is a law in Germany that allows audio recordings to take place for historic and academic purposes if the trial is of particular historic significance, but there are a few big problems that keep the courts from applying this new legal provision regularly.

The first is that a witness who is being recorded could very well behave differently than a witness who is not. They might be worrying about their safety and feel like there are certain things they shouldn't or can't say. Maybe they're scared that they might be recognized by somebody and that they themselves or their families could get into trouble. Especially when you think about the sensitive nature of testimonies like the ones we're hearing in Koblenz. In fact, we have already seen that this is turning out to be a recurring issue.

It's not the court's responsibility to protect the witnesses themselves. The judges in Koblenz even said this to witnesses, who said that they were scared for the safety of their family. It is important for the Courts of Justice to get the best testimony from the witnesses. In order to guarantee that, witnesses have to feel safe. By banning audio recordings, the court protects the witnesses, and by protecting the witnesses, they protect their testimony. I agree this is the crucial point, recordings should not come at the cost of witness security, that's for sure. Ideally, there should be both transparency and witness security. That's a huge challenge that the court in Koblenz decided it will not engage with.

Another big problem with audio recordings is that according to this law from 2018, recordings are only allowed if they are of particular historic significance for Germany. Since the Koblenz trial is about Syria with Syrian defendants and Syrian victims, technically, that criterion is not fulfilled either.

Pauline: The German authorities thought that the case was important enough to apply the principle of universal jurisdiction, but they don't think it's important enough to record it?

Fritz: Just to be clear, the prosecutors likely do think it's important enough, but apparently, the courts don't. What I think we're seeing here is a disconnect. On the one hand, you have the progressive ambitions of new laws, here in this case, universal jurisdiction, prosecutors apply this new legal concept, bringing international crimes to trial and really pioneering like that. Then, on the other hand, we have to deal with the often conservative tendencies of courts. They look at what the law says and interpret it often in a cautious way, illustrated here by not allowing translations and recordings.

Pauline: What a bizarre contrast. Germany is basically saying to the world, "We think bringing Anwar R and Eyad A to justice is so important to the world that we'll take it upon ourselves to conduct an enormous year's long and expensive trial, but unfortunately, you won't be able to understand what is said in a trial. Also, we're not going to record it because it's not really about us anyway."

Fritz: That's it in a nutshell. That's the general idea. There's definitely an overarching legal and philosophical conflict here. It's pretty fascinating to see it play out in Koblenz.

Pauline: Maybe this is a bit of an impossible question, but which side do you think will "win"? I know that the court has now rejected these two motions, but then again, laws change. There's a lot of outside pressure. Has the last word on this been spoken?

Fritz: Unfortunately, in this specific case, the decision about audio recordings can't be appealed but as far as the translation is concerned, well, the civil society organizations involved in the Koblenz trial don't seem like they will let this one go easily. It's an ongoing struggle and the debate will continue also beyond Koblenz. Then again, with future similar trials, these issues have come up time and again. It's not a one-time debate.

Pauline: I certainly hope the Koblenz court will change its mind.

Fritz: Again, we shouldn't lose sight of the fact that this trial is happening at all, that Germany is pioneering to get this going. That is commendable. Let's not forget that. Yes, it's a small step and there are challenges and flaws and we've discussed those, but justice is at least in motion.

Pauline: That's very true. We can all say, well done Germany for taking this important first step towards justice for Syria while staying critical and vocal about what could be improved.

Fritz: In the meantime, you can listen to Branch 251.

Pauline: Exactly.

Fritz: On that note, we have an announcement to make. The first 15 weeks of the trial are over. It was important to us that you listeners would get familiar with the most important topics of this trial, the reason for Koblenz as the stage for this worldwide first, universal jurisdiction, the main protagonists, including survivors and victims, major updates from the courtroom, and so on.

After some important first testimonies and developments, the court in Koblenz has now also settled into a routine, and it's slowly moving towards the second phase. While we are entering that next phase, we're adapting the pace of the podcast. From now on, we'll show up in your feed twice a month instead of once a week.

Pauline: We will of course continue to bring you the most important developments from the courtroom, and we'll continue exploring related topics.

Fritz: That's it from us this week. We'll be back with another episode in two weeks. Together with our court reporter, Hannah, we'll update you on everything that happened in court. We'll also dive into the concept of justice. Justice. You've heard this word so often on this podcast, but what is it exactly? What does it mean and what does justice for Syria really mean? What would it even look like?

Pauline: See you in two weeks.

Fritz: See you then.


Pauline: 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. Hannah El-Hitami is our court reporter. This podcast is listener-supported. You can help keeping it going by subscribing, rating, reviewing, by sharing it with your friends, and by becoming a patron of the show via Patreon. We'll put a link to our Patreon page in the show notes. Thank you for your support.

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