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November 19, 2014
Please join us for a talk by Pulitzer Prize-winning New York Times reporter Eric Lichtblau, whose new book explores how thousands of Nazis — from concentration camp guards to high-level officers in the Third Reich — came to the United States after World War II and quietly settled into new lives. Lichtblau’s research uncovered new evidence of how these self-styled war “refugees,” with the help and protection from the U.S. government, were put to work as spies, scientists and engineers.
November 17, 2014
“The Inter-American Human Rights System: Contributions and Challenges”
A talk by Professor Dinah L. Shelton
5:00 – 7:00 p.m.
Please join us for a talk by Dinah L. Shelton, Professor of International Law, George Washington University, and past president of the Inter-American Commission on Human Rights. Professor Shelton served on the Commission from 2010 to 2014, a period marked by controversy within the OAS about the Commission’s powers, and struggle over institutional reform. She is a leading expert on international law, human rights law, and international environmental law.
November 13, 2014
Posted by Deborah Popowski, Morgan Davis, JD '15, Pete Barnett, LLM '15, Lauren Blodgett, JD '16, Darren Bartlette, JD '16
Just a few hours ago, the U.N. Committee Against Torture concluded its formal review of the United States. As members of Advocates for U.S. Torture Prosecutions, our clinical team has been in Geneva all week advocating for senior-level prosecutions of those responsible for the U.S. program of torture of detainees post-9/11.
Here’s our group’s statement:
In its response to the Committee’s questioning, the U.S. government failed to answer whether the Durham investigation looked up the chain of command at those who authorized, ordered, and justified the torture. The government did not address how any such investigation could have failed for lack of evidence when former President George W. Bush and other senior officials have acknowledged authorizing torture, including waterboarding, in public statements. The elephant in the room is the legal architecture that senior officials and lawyers put in place to shield themselves from criminal responsibility for torture in the first place. The Committee’s clear concern with U.S. failures of accountability is another important sign that “get out of court free” cards will not last forever.
Advocates for U.S. Torture Prosecutions is a group composed of concerned U.S. citizens, residents, and students—scholars, legal and health care professionals, and law students—who have sought for years to use what modest levers we have to end the U.S. program of torture put in place post-9/11, to obtain justice and redress for those harmed, and to seek accountability for those responsible. We were joined in our shadow report by nearly 300 supporting organizations and individuals from across civil society.
Read the shadow report we submitted to the UN Committee Against Torture
November 13, 2014
Dismantling the Legal Architecture of Impunity: A Necessary Step Towards Torture Accountability in the U.S.
As the UN Committee Against Torture continues its review of the United States today, the Clinic and its partners in Advocates for U.S. Torture Prosecutions have released the following briefer, with possible questions and suggested recommendations for the Committee.
Dismantling the Legal Architecture of Impunity:
A Necessary Step Towards Torture Accountability in the United States
Today, the prospect of prosecuting senior officials for torture is considered politically unimaginable in the United States. Our job is to make it imaginable. The Committee Against Torture, in its role as treaty monitor, is uniquely placed to help in this effort by making clear that torture authorizing leaders cannot declare themselves to be above the law.
A Head of State Authorized Torture.
U.S. civilian and military leaders, including former head of state, President George W. Bush, created a program of torture breathtaking in scope, drawing in the people and governments of at least 54 other nations—including Denmark, Georgia, Italy, and Morocco.
The Program Relied on Legal Architecture to Shield Torturers from Liability.
The fear of prosecution was pervasive among both senior-level officials and those responsible for implementing the torture program. To address this, political leaders worked with lawyers and doctors to create a sophisticated system of legal cover aimed at shielding people at all levels from criminal responsibility for authorizing or committing acts of torture.
The Golden Shield: Lawyers and Doctors in Collusion
Government lawyers authored legal opinions that distorted beyond recognition the laws against torture to produce the result desired by those at the top: a legal stamp of approval on waterboarding, prolonged sleep deprivation, forced nudity, and other techniques clearly prohibited by the Convention Against Torture.
Medical professionals were brought in to calibrate the suffering of prisoners, and more importantly, to inoculate the torture program authors and actors from liability. The lawyers argued that the doctors’ mere presence would prove the lack of intent required to constitute torture. The system in turn would then allow the doctors to invoke the lawyers’ guidance in their own defense.
According to a former Justice Department attorney, the CIA called these memos the Golden Shield.
Retroactive Immunity: Congress
The executive branch worked with Congress to erect the second pillar of this legal architecture of impunity: the Military Commissions Act of 2006, which retroactively redefined war crimes so as to impede the prosecution of those responsible for them.
The United States Continues to Legitimize Impunity.
Although President Obama withdrew the Bush-era legal advice in 2009, his administration has legitimized this legal architecture of impunity:
– by declining to prosecute anyone who acted within the confines of what the lawyers purportedly authorized—despite President Obama’s recent admission that these constituted techniques that “any fair-minded person would believe were torture” and
– by failing to prosecute and thereby effectively immunizing those responsible for authorizing and enabling manifestly illegal acts of torture.
The result is impunity for torture on a global scale and a massive derogation from the absolute prohibition on torture. It was recognized as early as Nuremberg that such legal maneuvering cannot excuse torture and other war crimes.
The Committee is concerned that despite significant evidence that senior civilian and military officials authorized torture, the State party appears not to have impartially investigated those acts. The Committee is further concerned that the State party is setting a dangerous precedent by shielding from investigation and prosecution officials who authorized torture and officials who issued legal advice that justified torture. In the Committee’s view, this amounts to the State party recognizing a defense to torture that is inconsistent with the absolute prohibition in Article 2. The Committee is also concerned that the State party has shielded officials from liability through jurisdiction-stripping mechanisms such as the Military Commissions Act of 2006.
The State party should promptly and impartially investigate senior officials for their authorization of acts amounting to torture without regard to whether those acts fell within the scope of legal advice, consistent with the absolute prohibition on torture. The State party should also investigate the responsibility of lawyers who gave legal pretexts for manifestly illegal conduct. Finally, the State party should stop using mechanisms to actively shield liability for these crimes, and revoke any statutes, such as the MCA, that prevent torture victims and survivors from obtaining redress.
1. Does the State party rely on Justice Department legal advice as a basis for not investigating the criminal responsibility of the senior-level officials who authorized acts of torture, including waterboarding? If so, how does the State party reconcile this position with the absolute nature of the prohibition against torture in Article 2 of the Convention?
2. Does the State party rely on the Military Commissions Act of 2006 as a basis for not investigating the criminal responsibility of the senior-level officials who authorized acts of torture, including waterboarding? If so, how does the State party reconcile this position with the absolute nature of the prohibition against torture in Article 2 of the Convention?
3. Does the United States consider there to be obstacles under U.S. law to prosecuting a former president under the federal extraterritorial torture statute (18 USC § 2430A)?
CONTACT: Deborah Popowski, Clinical Instructor, International Human Rights Clinic, email@example.com
November 12, 2014
Posted by Cara Solomon
Earlier today in Geneva, in advance of the UN Committee Against Torture’s formal review of the United States, Morgan Davis, JD ’15, spoke to the U.S. delegation, pointing to its lack of engagement with the issue of senior-level accountability for post-9/11 torture. She spoke on behalf of Advocates for U.S. Torture Prosecutions, a civil society group that includes the International Human Rights Clinic, drawing from the group’s prepared comments, reprinted below.
“To truly move forward, we have to start by being honest,” she said. “The decision to shield senior-level government officials is not about law or justice; it’s about politics.”
The Committee will have the chance to raise this question with the U.S. government at tomorrow’s formal review.
Full text of the group’s prepared comments below:
My name is Morgan Davis, and I am a student at Harvard Law School. I will be speaking on behalf of the group “Advocates for US Torture Prosecutions,” a group of legal and health professionals and scholars in the United States. We are supported by 291 organizations and individuals who have joined our call for accountability for senior-level civilian and military officials for their central role in the post-9/11 torture program.
For years, these officials—including George Bush, Dick Cheney, George Tenet, Condoleeza Rice, Donald Rumsfeld, John Ashcroft, and former State Department Legal Adviser John Bellinger—have lived with impunity for their role in authorizing and enabling acts that President Obama has publicly called torture.
The Convention Against Torture requires states to investigate and prosecute crimes of torture, including up the chain of command. This is not a hollow aspirational principle; accountability for unconscionable crimes is a basic tenet of justice and rule of law.
Just this summer, President Obama told a gathering of young international leaders, “a country without the rule of law will not succeed.”
It doesn’t serve the rule of law to court martial lower-level service members while those that authorized and justified brutal tactics including near-drowning, sleep deprivation, and forced nudity have enjoyed impunity.
Nor does it serve the rule of law to shield senior officials on the basis that they “acted within the scope” of a legal standard justifying conduct that the US government has unequivocally called torture.
President Obama and Attorney General Holder justified this shielding by saying that “we must look forward, not backward.” No competent defense attorney would make such an argument in court. To truly move forward, we have to start by being honest. The decision to shield senior-level government officials is not about law or justice; it’s about politics.
By placing some powerful individuals above the law in the service of political expediency, we make a mockery of our national values and set a dangerous precedent for future generations in countries around the world.
At the last civil society consultation in D.C., the government representatives in the room ignored our demand for answers and gave us canned talking points that dodged any real acknowledgement of this problem that has left thousands of human beings without redress and tainted the reputation of the United States throughout the world.
We can only hope that this week, when confronted by the Committee Against Torture, you will have the courage to give real answers, accept real responsibility, and take some real steps towards accountability, thereby upholding the universal protection against torture that all human beings deserve.
November 11, 2014
Ukraine, Syria: Incendiary Weapons Threaten Civilians
Stronger International Law Needed for Weapons That Burn
(Geneva, November 11, 2014) – Evidence of the use of incendiary weapons in Ukraine and Syria highlights the need for stricter law to govern these weapons, Human Rights Watch said in a report released today with Harvard Law School’s International Human Rights Clinic.
The 16-page report, “Incendiary Weapons: Recent Use and Growing Opposition,” details incendiary weapon attacks in Ukraine and Syria and illustrates the increasing stigma against the weapons. Incendiary weapons can cause excruciatingly painful thermal and respiratory burns. Victims who survive often suffer long-term physical and psychological damage due to extensive scarring and disfigurement.
“Weapons that cause terrible burns and disfigure survivors have been used against towns in both Syria and Ukraine,” said Bonnie Docherty, senior Arms researcher at Human Rights Watch and lead author of the report. “The recent attacks with incendiary weapons show it’s past time for nations to reassess and strengthen international law on these cruel weapons,” said Docherty, who is also a lecturer in the Harvard clinic.
The report is being distributed at the annual meeting of countries that are party to the Convention on Conventional Weapons (CCW), which is being held at the United Nations in Geneva from November 10-14, 2014. Protocol III of the treaty bans certain use of incendiary weapons, but its loopholes and inconsistencies have not been addressed since the law was created more than 30 years ago.
Human Rights Watch researchers will present the report’s findings at a CCW side event at 2 p.m. on November 12 in Room XXIV at the UN Palais des Nations in Geneva.
Human Rights Watch documented attacks with incendiary Grad rockets on two towns in Ukraine, although the organization was unable to confirm the party responsible. In Syria in 2014, government forces have continued their use of incendiary weapons and have also dropped indiscriminate barrel bombs containing incendiary components.
All countries and especially CCW states parties should condemn such use of incendiary weapons and express support for revisiting and amending the protocol, Human Rights Watch and the Harvard clinic said. Continue Reading…
November 10, 2014
Posted by Cara Solomon
Humble, hilarious, and altogether inspiring, Ben became Chief Prosecutor in the Einsatzgruppen case at the Nuremberg Tribunal at the age of 27- and has been a tireless advocate for peace ever since.
After his talk, titled “Law not War,” students surrounded Ben with requests to pose for pictures. He greeted one student this way: “Where you from? Want to help me save the world?”
Read more about Ben, and download his free books, at his website.
November 7, 2014
Senior Myanmar Officials Implicated in War Crimes and Crimes Against Humanity
Myanmar must decide how to address legacy of abuses by military
November 6, 2014, Yangon, Myanmar—A four-year investigation by the International Human Rights Clinic at Harvard Law School has found that the Myanmar military committed war crimes and crimes against humanity in 2005-2006, and that perpetrators, including the current Home Affairs Minister, continue to serve at the highest levels of the country’s government.
Today, the Clinic released a legal memorandum, War Crimes and Crimes Against Humanity in Eastern Myanmar, which examines the conduct of the Myanmar military during an offensive that cleared and forcibly relocated civilian populations from conflict zones in eastern Myanmar. Through more than 150 interviews with eyewitnesses, the Clinic documented how soldiers fired mortars at villages; opened fire on fleeing villagers; destroyed homes, crops, and food stores; laid landmines in civilian locations; forced civilians to work and porter; and captured and executed civilians.
“These are serious allegations that demand a determined, good faith response by the Myanmar government and military,” said Tyler Giannini, Co-Director of the Clinic. “The abuses perpetrated by the military have been too widespread, too persistent, and too grave to be ignored.”
The memorandum specifically implicates three commanders in international crimes as defined by the Rome Statute of the International Criminal Court: Major General Ko Ko, the current Home Affairs Minister; Brigadier General Khin Zaw Oo, the current commander of the Bureau of Special Operations 4; and General Maung Maung Aye, most recently the Naypyidaw Regional Commander. All three received promotions after the offensive.
As part of its investigation, the Clinic compiled more than 1,000 pages of draft affidavits from interviews with individuals in Myanmar and along the Thailand-Myanmar border, including villagers, village leaders, and former Myanmar Army soldiers. Additionally, the Clinic collected photographic evidence and solicited expert declarations from four individuals with knowledge relevant to the offensive and the Myanmar military’s structure and policies.
“In interview after interview, villagers described a pattern of military abuse—stories that have been notably absent from the national conversation about reform,” said Matthew Bugher, Global Justice Fellow at Harvard Law School and a principal researcher on the Clinic’s memorandum. “It is critical that these voices are heard, especially since a similar pattern appears to be playing out today in Kachin State and northern Shan State.”
The Clinic’s evidence is sufficient to satisfy the standard required for the issuance of an arrest warrant against these commanders by the International Criminal Court. Under international criminal law, these commanders could be held accountable for their own actions as well as for crimes committed by soldiers under their effective command and control. Although the Clinic’s memorandum uses the framework of the Rome Statute, international justice is not the only means of addressing past abuses.
“Myanmar faces profound and difficult decisions as it transitions away from military rule and towards meaningful reform,” said Susan Farbstein, Co-Director of the Clinic. “Ultimately, it is the people of Myanmar who must decide how to address the legacy of military abuse.”
The International Human Rights Clinic at Harvard Law School has been working on human rights in Myanmar since 2004 and has examined international crimes in the country since 2008. Among its publications, the Clinic released Crimes in Burma in May 2009 and Policy Memorandum: Preventing Indiscriminate Attacks and Wilful Killings of Civilians by the Myanmar Military in March 2014.
For more information:
Matthew Bugher, Global Justice Fellow at Harvard Law School, in Yangon:
firstname.lastname@example.org or +95 094 0159 6412
Tyler Giannini, Co-Director, International Human Rights Clinic, Harvard Law School, in the United States:
email@example.com or 617-496-7368
Cara Solomon, Communications Manager, Human Rights Program, Harvard Law School, in the United States:
firstname.lastname@example.org or 617-495-9214
November 6, 2014
Tomorrow, Nov. 7, in Yangon: Clinic Presents Findings from Investigation into War Crimes and Crimes Against Humanity in Eastern Myanmar
The International Human Rights Clinic at Harvard Law School (the Clinic) is pleased to invite you to a press conference to be held in Yangon, Myanmar, on Friday, November 7, 2014.
The Clinic will present Legal Memorandum: War Crimes and Crimes against Humanity in Eastern Myanmar, which details the findings of a four-year investigation into abuses committed by the Myanmar military.
Full copies of the Legal Memorandum will be distributed at the press conference.
Date: Friday, November 7, 2014
Time: 10:00 a.m.
Venue: Sule Shangri-La, Level 3, Konbaung Tagaung Room
Matthew Bugher, Global Justice Fellow at Harvard Law School and a principal researcher with the International Human Rights Clinic, will present the Clinic’s Legal Memorandum. Matthew has extensive experience with human rights issues in Myanmar, in particular with the civilian impact of armed conflict in the country. He is a graduate of Harvard Law School and an alumni of the International Human Right Clinic.
For more information, please contact Matthew in Yangon at email@example.com or +95 094 0159 6412, or Tyler Giannini, Co-Director of the International Human Rights Clinic at Harvard Law in Cambridge, Massachusetts at firstname.lastname@example.org or 617-4956-7368
November 6, 2014
“Law not War”
A special event with Benjamin Ferencz, ’45, Chief Prosecutor in the Einsatzgruppen case, Nuremberg Tribunal
12:00 – 1:00 p.m.
Please join us for a talk by Benjamin Ferencz ’43, Chief Prosecutor in the Einsatzgruppen case, Nuremberg Tribunal. Beginning in 1945 with his prosecution of war criminals during the Nuremberg Tribunal, the work of Benjamin Ferencz has long focused on issues of international criminal justice and world peace. A strong supporter of the International Criminal Court, Mr. Ferencz advocates steps to replace the “rule of force with the rule of law.” On the occasion of his visit, Dean Minow will be awarding Mr. Ferencz with the HLS Medal of Freedom. The Medal of Freedom is the highest honor conferred at the Law School and was established to commemorate the achievements of individuals who have worked to uphold the legal system’s fundamental commitment to freedom, justice, and equality.
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