Renowned psychologist Ken Pope has written an excellent essay on the Hoffman Report and its conclusions that the American Psychological Association enabled torture. Pope is a former APA Ethics Chair who resigned from the APA in 2008, out of disagreement with the organization’s post-9/11 ethics stances.
July 30, 2015
Second Circuit Decision in Apartheid Appeal Denies Plaintiffs the Opportunity to Proceed with Their Claims
Earlier this week, the Second Circuit handed down its opinion in In re South African Apartheid Litigation, denying Plaintiffs an opportunity to proceed with their claims against the remaining Defendants Ford and IBM. In doing so, the appellate court affirmed the District Court’s prior decision on the grounds that Plaintiffs’ proposed amended complaints had not alleged sufficient plausible new facts to move forward.
While the outcome was disappointing, so too was the opinion of the Court itself, which failed to fully engage with new, specific, and detailed allegations in the proposed amended complaints — in particular, allegations about how both defendants, in the United States, took purposeful and repeated actions to aid and abet the South African state to commit international law violations. With respect to the allegations against Ford, the Court glanced over important facts about the U.S. parent corporation’s direct involvement in the design and approval of the sale of specialized vehicles to South African security forces, in contravention of international sanctions regimes. Instead, the Court concluded broadly that the allegations were insufficient to link Ford in the United States to the violations in South Africa.
With respect to the allegations against IBM, the Court did find sufficient U.S. domestic conduct by the parent — specifically, that it designed particular technologies that facilitated the denationalization of black South Africans. But while this conduct did “touch and concern” the United States, the standard set by the Supreme Court in Kiobel v. Royal Dutch Petroleum, the Court held that the allegations did not plausibly allege that IBM’s conduct was “purposeful.” Because purpose (rather than knowledge) is the required standard for an aiding and abetting claim in the Second Circuit under Presbyterian Church of Sudan v. Talisman, the Court determined that Plaintiffs’ claims could not proceed.
The Plaintiffs will now seek en banc review of the panel’s decision, requesting that all active judges on the Court rehear the case because it presents questions of exceptional importance and conflicts with prior decisions of the Second Circuit as well as the U.S. Supreme Court.
July 23, 2015
In the last few weeks, the public’s attention has been drawn to the relationship between the American Psychological Association’s (APA) leadership and US military and intelligence operations in the wars in Iraq and Afghanistan.
The New York Times first revealed the findings of the APA’s commissioned inquiry into its own activities. The Hoffman report, as this investigation is known, found that APA officials colluded with government officials to enable psychologists to participate in torture.
APA Ethics Director Stephen Behnke was fired shortly before the the report was released to the public. He has since retained as counsel former FBI Director Louis Freeh, who issued a statement rejecting the investigation’s findings. Behnke is a lawyer-psychologist and former instructor in Harvard Medical School’s department of psychiatry.
Earlier this week, The Boston Globe reported on the Harvard ties of two former APA presidents implicated in the report: Gerald Koocher, a psychologist at Harvard-affiliated Boston Children’s Hospital, and Ronald Levant, who taught at Harvard and Boston University.
Most recently, Russ Newman, whose actions as chief of the APA’s practice directorate also came under scrutiny in the Hoffman report, resigned as provost and senior vice president for academic affairs at Alliant International in San Diego.
That there is renewed focus on this issue and finally some recognition of responsibility is testament to the persistent and incisive efforts of a national grassroots movement to hold psychologists accountable for their complicity in torture and cruel, inhuman and degrading treatment of detainees, in violation of international and US domestic law and codes of ethics. For years, our colleague, Deborah Popowski, Clinical Instructor, has played a critical role in that movement, alongside her clients, Trudy Bond, Josie Setzler, Michael Reese and Colin Bossen. Read more about their work together here and here.
June 29, 2015
The coalition of civil society representatives in the Aníbal Bruno (Curado) Prison litigation before the Inter-American Court of Human Rights has issued a statement urging the government of Pernambuco, Brazil, to rescind its prohibition on the use of cameras during prison inspections. The camera ban has impeded the collection of evidence of human rights abuses at the prison.
The prohibition was first enforced just a few months after the coalition’s publication of the case files of the Aníbal Bruno litigation this past February. The case files—partially redacted to preserve privacy, security, and investigatory integrity—provide an alarming picture of chronic violence, torture, lack of access to healthcare, and arbitrary detention at the notorious prison. Photographic evidence is vital to documenting the realities of the Aníbal Bruno Complex, which incarcerates nearly 7000 men in space designated for roughly 2000.
This is not the first time the coalition has faced a camera ban in Pernambuco. In 2012, a similar prohibition hindered efforts to gather evidence in numerous cases, including that of a severely injured Aníbal prisoner who reported being raped by officers.
Prison administrators lifted that ban in 2013, after the coalition used drawings by a clinical student to publicly expose abuses at Aníbal Bruno.
The civil society coalition litigating the case is comprised of Pastoral Carcerária (Catholic Prison Ministry), Serviço Ecumênico de Militância nas Prisões (Ecumenical Service of Advocacy in Prisons), Justiça Global (Global Justice), and the International Human Rights Clinic at Harvard Law School.
Read the coalition’s full statement, which was released last Friday, International Day in Support of Victims of Torture (translated from Portuguese):
June 26, 2015
After photos revealed torture practiced by United States personnel at Abu Ghraib prison in Iraq, authorities appeared more concerned with obscuring than responding. They prohibited cameras. They offered amnesty to those who handed over other photographs, later refusing to make them public. They did not prosecute any high level official, but they publicly exposed the name of the soldier who turned in the embarrassing evidence, effectively condemning him to fear reprisals.
This Friday, we remember the International Day in Support of Torture Victims repudiating this type of inverted logic in Brazil. Since May 18, members of our coalition of human rights organizations have been forbidden from entering with cameras at the Aníbal Bruno Prison Complex (officially renamed “Complexo do Curado”) in Recife. The coalition—composed of the Pastoral Carcerária [Catholic Prison Ministry], Serviço Ecumênico de Militância nas Prisões [Ecumenical Service of Advocacy in Prisons], Justiça Global [Global Justice] and the International Human Rights Clinic at Harvard University—has already met twice with high-level Pernambuco government officials without being able to reverse this prohibition.
Photography is explicitly provided for in the United Nations Istanbul Protocol, an internationally recognized methodology for documenting torture cases. Resolution No. 1 of February 7, 2013, of the National Council on Criminal and Penitentiary Policy determines that “the use audiovisual and photographic recording instruments is permitted … by … civil society, which serve the function of monitoring the penitentiary system and defending human rights, with the purpose of informing reports on inspection, monitoring and visits to prison establishments.” The government insisted on the ban anyway.
Aníbal Bruno Complex is one of the main symbols of the crisis of the Brazilian prison system. It recently underwent three rebellions. It incarcerates nearly 7,000 men in space designated for approximately 2,000 and has an extremely reduced number of staff working in precarious conditions. Over the past four years, our coalition sent hundreds of complaints of violence and torture, denial of access to healthcare and other abuses in the Complex to the Organization of American States (OAS).
In light of this scenario, on May 22, 2014, the Inter-American Court of Human Rights of the OAS determined that the State protect the life and integrity of prisoners, staff and visitors of the Aníbal Bruno Complex. In February 2015, facing a continued lack of sufficient action by the state, we gathered the hundreds of complaints sent to the OAS about the Complex, edited the documents to ensure the anonymity of those involved, and made the information public on arquivoanibal.weebly.com. Shortly after, we were forbidden from using cameras.
We are not the only ones being censored after revealing abuses in the Complex. We were told by Pernambuco authorities that the State Mechanism to Prevent and Combat Torture would be subject to the camera ban, even though State Law 14.863 guarantees the right of members of that prison monitoring body to “make records using audiovisual resources, respecting the privacy of those involved.” Prison officers have also reported feeling pressured not to use cameras to document unlawfulness at the public institutions in which they serve.
This is not the first time we have dealt with obstructions to our work. Coalition members have been working with other organizations in international cases concerning various notorious prisons in the country, including in Maranhão (Pedrinhas), Espírito Santo (CASCUVI), Rondônia (Urso Branco), Rio de Janeiro (Polinter) and São Paulo (Araraquara). We have always obtained clear jurisprudence from the Court on the duty of the state to grant full access to human rights monitors, as evidenced, for example, in resolutions on the Urso Branco and Araraquara prisons.
Pernambuco authorities themselves previously imposed a ban on the use of cameras after the OAS convened a meeting on the Complex Aníbal Bruno in November 2012. The prohibition caused serious harms. For example, we were unable to photographically document the case of a prisoner full of bodily injuries who reported being raped with broom stick by prison officers. We also could not record testimony concerning various other crucial complaints, including about corruption. We had to produce handmade sketches to try to continue portraying the reality of the Complex. The ban was overturned by the Pernambuco authorities only after we exposed these drawings at a public hearing in 2013.
There is no way to hide such glaring problems. It is better to opt for transparency. Only it can transform an abusive, chaotic and corrupt prison system.
Serviço Ecumênico de Militância nas Prisões (SEMPRI) [Ecumenical Service of Advocacy in Prisons]
Pastoral Carcerária do Estado de Pernambuco [Catholic Prison Ministry of the State of Pernambuco]
Pastoral Carcerária Nacional [National Catholic Prison Ministry]
Global Justice [Justiça Global]
International Human Rights Clinic, Harvard University
June 19, 2015
Civilian Harm from Explosive Weapons
Agreement Needed to Curb Use in Towns, Cities
(Geneva, June 19, 2015) – Extensive civilian casualties caused by the use of explosive weapons in towns and cities around the globe show the urgent need for countries to agree to curb the use of these weapons in populated areas, Human Rights Watch said in a report released today.
Air-dropped bombs, artillery projectiles, mortars, rockets, and other explosive weapons kill or injure tens of thousands of civilians every year. In the first half of 2015, Human Rights Watch documented incidents involving the use of explosive weapons that claimed civilian lives and destroyed vital infrastructure in populated areas of Iraq, Libya, Syria, Sudan, Ukraine, Yemen, and elsewhere.
The 35-page report, “Making a Commitment: Paths to Curbing the Use of Explosive Weapons in Populated Areas,” published jointly with Harvard Law School’s International Human Rights Clinic, says that countries should develop and implement a new non-binding agreement to reduce the harm from explosive weapons and offers options for developing such an agreement.
“The high levels of civilian death and destruction from explosive weapons are avoidable,” said Bonnie Docherty, senior arms researcher at Human Rights Watch and co-author of the report. “Nations should agree to curtail the use of explosive weapons in populated areas and stop using those with wide-area effects entirely.”
Explosive weapons that produce wide-area effects are particularly dangerous. They encompass weapons that produce a large blast and/or spread fragments over a wide radius, such as aircraft bombs; weapons that deliver multiple munitions that saturate a large area, such as Grad rockets and others from multi-barrel rocket launchers; and weapons that are so inaccurate that they cannot be effectively targeted, such as barrel bombs.
Momentum for international action is growing as recognition of the harm caused by explosive weapons in populated areas increases. In September, Austria will host a meeting to consider how to improve protection of civilians from the use of explosive weapons in populated areas.
The new report seeks to inform these discussions by providing options for a non-binding instrument – a political commitment – in which countries would agree to restrict the use of explosive weapons in populated areas. The report examines about 30 relevant commitments that could serve as models for the shape of an explosive weapons commitment and the process to achieve it.
A new political commitment could take a variety of forms including a declaration, compilation of regulations, set of guidelines, manual, or combination of these types. The process of developing a commitment could be led by countries, emerge from the United Nations system, or be a mix of those two options.
Developers of the commitment would also have to decide on a mechanism for countries to endorse the final document.
Whatever process is followed, nongovernmental organizations should be actively involved because they would bring extensive expertise as well as humanitarian concerns to the process, Human Rights Watch and the Harvard clinic said.
Over the past few years, the UN secretary-general, several UN agencies – notably the Office for the Coordination of Humanitarian Affairs (OCHA) – and the International Committee of the Red Cross have all acknowledged the need to address the civilian harm caused by the use of explosive weapons with wide-area effects in populated areas.
Many countries have echoed their concerns, and the September meeting in Austria follows a 2014 meeting about the subject in Norway. The Austria meeting provides an opportunity for countries to take the next step to initiating a process to develop a new commitment on explosive weapons.
“Extensive precedent shows that the timely development of an explosive weapons commitment is feasible,” said Docherty, who is also a lecturer on law at the Harvard clinic. “Countries need only recognize the urgency of the problem and bring political will to deal with it.”
This report was written by Docherty and Anna Crowe, clinical advocacy fellow, with significant research and writing contributions from Ben Bastomski, JD ’15, Kate Boulton, JD, ’15, and Ishita Kala, JD ’16.
For more information on the use of explosive weapons in populated areas, please visit:
For more information, please contact:
In Boston, Bonnie Docherty (English): +1-617-669-1636 (mobile); or firstname.lastname@example.org
June 17, 2015
The International Human Rights Clinic and Privacy International released a publication today that examines the vital role that encryption and anonymity tools and services play in safeguarding human rights. The 30-page publication, “Securing Safe Spaces Online: encryption, online anonymity, and human rights,” complements a landmark report by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, David Kaye.
Kaye’s report, which he will present to the United Nations Human Rights Council in Geneva today, calls on states to ensure security and privacy online by providing “comprehensive protection” through encryption and anonymity tools.
The clinic’s joint publication explores measures that restrict online encryption and anonymity in four particular countries – Morocco, Pakistan, South Korea, and the United Kingdom. In all four countries, these restrictions impede private and secure online communication and inhibit free expression. The publication also points to opportunities for governments, the corporate sector, and civil society to eliminate or minimize obstacles to use of encryption and online anonymity.
The Clinic’s collaboration with Privacy International dates back to last fall, when we supported a coalition of NGOs calling for the creation of a new Special Rapporteur on the Right to Privacy. In March 2015, the Human Rights Council established this new Special Rapporteur.
The Clinic began work on the encryption and anonymity publication this past spring. Clinical students Sarah Lee, JD ’16, and Mark Verstraete, JD ’16, worked on the publication throughout the semester and participated in a meeting of Privacy International’s global partners in April.
June 04, 2015
Yesterday, the Clinic and our partners filed a reply brief in In re South African Apartheid Litigation, currently on appeal before the Second Circuit. The case, which is being litigated under the Alien Tort Statute, brings claims against Ford and IBM for the assistance and support they provided to the apartheid government and security forces to commit human rights violations against black South Africans.
At issue in the appeal is whether the Plaintiffs will be allowed to file their proposed amended complaints so that the case can proceed. In order to do so, the claims must “touch and concern” the territory of the United States with sufficient force, as mandated by the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum Co.
Plaintiffs argue that they meet this standard because the proposed amended complaints contain detailed and specific allegations of the ways in which both Defendants, in the United States, took actions to aid and abet the South African government and security forces. For example, the complaints allege that, in the United States, IBM developed hardware and software systems used to produce identity documents that stripped black South Africans of their citizenship and that Ford, in the United States, made decisions not only to sell but also to specialize vehicles used by the South African security forces to oppress and control the black population.
Oral argument before the Second Circuit will be heard on June 24, and a decision is expected later this year.
June 03, 2015
First of all: CONGRATULATIONS! YOU MADE IT!
Secondly, if we missed each other during commencement, here is what we wanted to say: thank you. Thank you for the hard work and heart you put into your time with the International Human Rights Clinic. We are better for it.
Finally, we wanted to send our sincere appreciation to the students who made public service a focus of their time here. A grand total of 15 Clinic graduates performed more than 1,000 hours of community service: Kathryn Boulton, Kathleen Borschow, Afton Cissell, Avery Halfon, Julianne Hill, Brian Kelly, Akhila Kolisetty, Brein Millea, Elizabeth Nehring, Oded Oren, Francesca Procaccini, Kacie Rupp, Caroline Sacerdote, Melissa Shube, and Katie Soltis.
Terrific work, Class of 2015. We wish you all the good luck that life has to give.
May 26, 2015
This past January, I traveled with a team from the International Human Rights Clinic to a small rural community on the border of Thailand and Myanmar. While the Clinic had been there many times before, it was my first time to meet the survivors of a brutal military offensive in Eastern Myanmar. As children ran up and down the aisles of the makeshift meetinghouse, we spoke with the villagers about the document we had written—a document that was, in a sense, their own.
On the strength of more than 1,000 pages of their testimony, we had produced a legal memorandum that made a case for war crimes and crimes against humanity. It also implicated current high-ranking military and government officials. Last November, when it was released, the findings sparked a discussion about accountability in a country that is, for the most part, considered to be on the path to reform.
When we finished telling the villagers all of this, I expected people to ask questions or to begin filtering down the dusty aisles towards the exits. Instead, after a few more minutes of silence, a man stood up and began telling us a story about his life. After he finished, another person rose to speak. Slowly, one by one, more came forward to talk to us.
As the crowd dwindled, one woman approached, her young son’s arms wrapped tightly around her neck, and started telling her story. A few years earlier, the Myanmar military had come into her village, shooting at people and burning homes as they moved through the streets. She took shelter in the jungle with her children, but without proper food or medicine, one of them died; then another; then a third.
I knew this story. I had read it back in Cambridge while working on the Clinic’s legal memorandum. But it was one thing to process her story from a distance. It was another to stand in front of her.
I have always believed in the power of storytelling to create empathy and human connection. But somewhere along the way in law school, I lost sight of it. I got distracted, poring over pages of documents, piecing together facts, checking grammar, debating sentence structure. It was easy to forget that at the heart of the Clinic’s work are people, wanting to be heard.
For those three weeks in January, our clinical team listened to people all over Myanmar. We heard about ongoing abuses in Shan State and Kachin State. We heard about police crackdowns at Letpadaung. The stories are everywhere.
Ironically enough, a story I heard back in Cambridge left one of the deepest impressions. It came from U Teikkha Nyana, a monk who participated in a panel discussion the Clinic organized on accountability in Myanmar.
Speaking in his crimson robes via Skype, U Teikkha Nyana took the audience of law students and professors back to a dark, brisk night in Letpadaung in northern Myanmar, where hundreds of monks were lined up in peaceful protest outside of a copper mine. First, he recalled how the police doused the men with water; then, how they shot canisters of white phosphorus, an acidic weapon that burns flesh.
“We kept our heads down, covered ourselves with robes and blankets, and took the brunt of it,” U Teikkha Nyana told us.
He waited for his words to be translated, then began again.
“My robes and blankets that were soaking wet suddenly caught on fire . . . . I was engulfed in flames.”
Another pause, as the audience absorbed those words.
“I raised my arms up and screamed at them, ‘Look what you have done. Do you see what you have done?’”
From the moment U Teikkha Nyana started speaking, I was captivated. It was more than just the words that he spoke. It was seeing him speak, hearing the inflection in his voice, seeing the look in eyes—the depth of compassion, pain, and ultimately hope. I already knew the facts about the crackdown in Letpadaung; I had read the statistics. But here was one man, in front of me, telling his story, a small window into the experiences of others like him who have also suffered.
It brought me back to that day in the village, when one person after another stepped forward—story after story, followed by a sea of handshakes and heartfelt thanks.
There is no one way to achieve accountability in Myanmar. That much is clear. Different communities and advocates will have different ideas, and it is not my place to define that path. But at the center of it all, surely, are stories—the stories of the many who have suffered, from the villagers at the border of Thailand and Myanmar, to the monks whose burns are still healing. These stories should be heard. These stories need to be a part of the conversation.
U Teikkha Nyana and the villagers at the heart of the Clinic’s work: thank you for sharing your stories. I, for one, feel honored to have heard them.
Below is the video from the Clinic’s panel discussion featuring U Teikkha Nyana, who is suing the Home Affairs Minister, Major General Ko Ko, for his responsibility in the Letpadaung crackdown. Ko Ko is one of the high-ranking government officials implicated in the Clinic’s legal memorandum. The panel also included U Teikkha Nyana’s lawyer, U Aung Thein; Roger Normand, of Justice Trust; and Matt Smith, of Fortify Rights.
May 22, 2015
Today, we have some great news: in recognition of her excellence as both a teacher and a human rights advocate, Clinical Director Susan Farbstein has been promoted to become a Clinical Professor of Law.
Since arriving at HLS, Susan has centered her work on three main areas of expertise: transitional justice, Alien Tort Statute litigation, and South Africa. Her accomplishments are numerous, and the Harvard Law School website highlights them in this article announcing Susan’s promotion from Assistant Clinical Professor.
Most recently, over the past three years, Farbstein and her clinical students have collaborated with Equal Education Law Centre in South Africa to advance the right to education enshrined in that country’s constitution. She has also continued to distinguish herself as a leading Alien Tort Statute litigator, serving as co-counsel on several major cases, including In Re South African Apartheid Litigation and Mamani v. Sanchez de Lozada and Sanchez Berzain.
Please join us in congratulating Susan on this much-deserved honor.