January 4, 2019
How Facebook is Reconfiguring Freedom of Speech in Situations of Mass Atrocity: Lessons from Myanmar and the Philippines
Posted by Jenny Domino LLM'18
Jenny Domino is a Satter Human Rights Fellow (funded through the Human Rights Program) working with ARTICLE 19 to counter hate speech. In an article for OpinioJuris, she argues that Facebook’s secrecy around its community standards and its intermediary status as a hosting “platform” detract from international law’s ability to hold the corporation accountable for its role encouraging harmful rhetoric that fuels mass atrocity. Find the full text of the article below and at OpinioJuris.org. The views expressed in this article are the author’s own and not the views of ARTICLE 19.
Facebook has been described as a service to democracy. This perception arguably peaked during the Arab Spring uprisings, touted as Facebook’s crowning glory in its mission to connect people. The past two years have effectively undermined that rhetoric, as serious lapses in the Cambridge Analytica scandal and the Russian hacking in the 2016 US Presidential election have shown.
In Southeast Asia, we don’t need to look far to see how Facebook has been used to oppress. The OHCHR Fact-Finding Mission in Myanmar recently concluded that Facebook was instrumental in the dissemination of hate speech against the Rohingya. In the Philippines, disinformation on Facebook has enabled the triumph and reign of Duterte, whose war on drugs has reportedly claimed thousands of civilian lives. Notably, both situations are under preliminary examination at the International Criminal Court. If Facebook has failed in a mature democracy such as the United States, it has all the more failed in struggling democracies. Rather than bringing the world closer, Facebook has facilitated the spread of divisive rhetoric even within borders.
This year, Facebook finally published its Community Standards in an effort to be more transparent. It has also started to publish a report of their Community Standards enforcement. These were announced during the first Asia-Pacific Facebook Community Standards Forum held last month in Singapore, which I attended.
Conspicuously, relevant information on how these rules operate remain shrouded in secrecy. We have the applicable rules and the results of their implementation, but we are left in the dark as to what happens in between. Facebook did disclose the type of people they hire as content moderators (ranging from counter-terrorism experts to previous law enforcers), or the fact that they use human labor and algorithms to review content, but when pressed about the details on the process, they invoke their content reviewers’ safety in refusing to disclose any information on this aspect.
This seems odd. If Facebook has chosen to disclose the type of people they are hiring, why can’t they disclose their procedure on content moderation, which is arguably less likely to reveal the identity of their content reviewers and thus expose them to physical risk?
This is crucial in monitoring Facebook’s efforts to improve its operations in situations of mass atrocity. Information on procedure would help civil society monitor social media companies’ timely detection and moderation of hate speech posted on their platform, which could prevent further escalation of violence or abuse towards a victim group. This, in turn, could strengthen the normative force of the Genocide Convention’s preventive provisions, including the crime of direct and public incitement to commit genocide.
Information on procedure can also shed light on how a certain situation will be prioritized over others. During the forum, Facebook admitted that the company prioritizes certain content over others, but there is no information on how these priorities are decided. The situation in Myanmar is unique in that the UN itself made a finding on Facebook’s enabling role; what metric does Facebook plan to use moving forward? This will be crucial in the work of the ICC, whose recent statementson potential situation countries include references to incitement to violence, where the battle is increasingly being fought on Facebook.
The kind and depth of information that Facebook chooses to disclose regarding its Community Standards reflect the ease with which corporations can evade accountability through the use of the “platform” nomenclature. Tarleton Gillespie has written about how intermediaries manipulate the ambivalent, multi-layered meanings of the term “platform” to serve different constituencies – ordinary citizens, businesses, policymakers, and so forth. Though platforms seem to only “facilitate” expression, there is nothing neutral about the curating, filtering, and “orchestrating” of posted content that they take on. As mediators of content, platforms also crucially mediate relations among users, between users and the public, between users and sellers, and even between users and governments.
Facebook’s earlier reference to itself as a neutral platform could explain its previous indifference to the impact of its operations in Southeast Asia, but it also continues to frame corporate policy on public engagement. Because the term “platform” does not carry with it a clear, corresponding set of obligations for accountability on Community Standards enforcement, Facebook can conveniently choose what to disclose depending on what their interests dictate at a given point in time – whether improving public image, expanding operations, or fulfilling the demands of the UN.
This is worrying. While our demand for transparency from our public officers is guaranteed by law, our expectation from Facebook is not. We can only know what Facebook lets us know despite the impact of their Community Standards enforcement to situations of mass atrocity. Continue Reading…
December 20, 2018
We are pleased to present HRP’s 2017-2018 Annual Report. The report showcases the global reach and impact of the Human Rights Program in its 34th year, featuring work on populism, armed conflict, and accountability litigation. It spotlights fieldwork undertaken by students and alumni, and details pedagogical innovations and new research.
We thank all of the students, partners, and alumni who made the year so strong.
Click below to open the Annual Report as a flipbook or download the PDF.
December 15, 2018
Defense Alliance with US not Legal Bar to Ratifying New Treaty
(Cambridge, MA, December 14, 2018) – Australia’s alliance with the United States need not stand in the way of Australia joining the 2017 treaty banning nuclear weapons, Harvard Law School’s International Human Rights Clinic said in a report released today.
The Treaty on the Prohibition of Nuclear Weapons (TPNW) would require Australia to end its reliance on US nuclear arms for defense. But it would not undermine the countries’ broader collective security agreement established under the 1951 ANZUS Treaty.
“Australia has long claimed to support nuclear disarmament,” said Bonnie Docherty, lead author of the report and the Clinic’s associate director of armed conflict and civilian protection. “Joining the ban treaty would advance that goal without creating insurmountable legal obstacles to ongoing military relations with the US.”
The 13-page report “Australia and the Treaty on the Prohibition of Nuclear Weapons” explains why Australia can renounce its nuclear defense arrangement with the US (under the so-called “nuclear umbrella”) while maintaining military ties to its ally. The report also shows the compatibility of the treaty with Australia’s disarmament commitments under other treaties and policies.
The Labor Party is expected to discuss the TPNW at its national conference from December 16 to 18, 2018. The conference will provide a forum for Labor to develop a new party platform. In its last platform, adopted in 2015, the Labor Party called for negotiations of a treaty banning nuclear weapons. Continue Reading…
December 11, 2018
Salma Waheedi, Clinical Instructor and Lecturer on Law at the International Human Rights Clinic and Associate Director of the Islamic Legal Studies Program: Law and Social Change, has co-authored a book chapter with Kristen A. Stilt, Professor of Law and Director of the Islamic Legal Studies Program, that appeared in the recently-published volume Comparative Judicial Review, edited by Erin F. Delaney and Rosalind Dixon. The chapter, titled “Judicial Review in the Context of Constitutional Islam,” identifies and examines different models of judicial review in countries with constitutional Islam clauses.
The chapter begins by providing a brief background to Islamic law and constitutional design. The authors develop a classificatory scheme that outlines the different institutional design models for constitutional interpretation in Muslim countries. These include a secular model, an Islamic model, and a hybrid model, with different countries falling along a spectrum of variations. The authors consider several case studies, including Kuwait and Egypt for the secular model, Iran and Saudi Arabia for the Islamic model, and Malaysia, Afghanistan, and Pakistan for the hybrid model. The chapter concludes by highlighting ways in which the political context and certain choices in constitutional drafting can foster one system or another along the spectrum.
December 10, 2018
Today marks the 70th anniversary of the Universal Declaration of Human Rights—a groundbreaking document that established the modern foundation of today’s human rights movement. As we reflect on the movement’s achievements over the last seven decades, we can see the lasting impact of the declaration across laws, theory, and practice, including here at Harvard Law School through the Human Rights Program. Our Program, which is entering its 35th year, commemorates and celebrates the Universal Declaration, and now more than ever, re-affirms its ongoing importance to equality and justice for all people.
November 27, 2018
Clinical Instructor and Lecturer on Law Yee Htun was profiled in the Harvard Gazette on November 19, 2018. The article explored Htun’s personal journey fleeing persecution in her birth country of Myanmar and returning there to help advance law reform efforts After years spent in the field working to end sexual violence in conflict, among other issues, she came to the the International Human Rights Clinic in 2016 where she now teaches human rights advocacy and works on projects focused on women’s rights, hate speech, and de-escalation of communal tensions in Myanmar and neighboring countries. As she states:
“We want to show that the law cannot only be a tool for oppression,” said Htun. “What drew me to law was the fact that it is a crucial tool for change and can play a key role in safeguarding democracy and enshrining rights. That’s the lesson I have learned in my personal journey and one that I hope to share with my students and the communities we serve.”
Read the full piece on the Harvad Gazette website.
November 16, 2018
The Human Rights Program invites applications for its Visiting Fellows Program for the 2019-2020 academic year.
About the Visiting Fellows Program
The Visiting Fellows Program gives individuals with a demonstrated commitment to human rights an opportunity to step back and conduct a serious inquiry in the human rights field. Visiting Fellows are usually scholars with a substantial background in human rights, experienced activists, or members of the judiciary or other branches of government.
Typically, fellows come from outside the U.S., and spend from one semester to a full academic year in residence at Harvard Law School, where they devote the majority of their time to research and writing on a human rights topic.
The fellows form an essential part of the human rights community at Harvard Law School, and participate in the Human Rights Program’s Visiting Fellows Colloquium, as well as a number of other activities.
The Human Rights Program provides between four to eight fellows annually with a shared office space, access to computers, and use of the Harvard library system.
In order to profit from the fellowship, fluent spoken English is essential.
For the 2019-2020 year, HRP has a particular interest in research focusing on the topic of indirect discrimination in comparative perspective.
As a general matter, the Human Rights Program does not fund fellows. However, applicants who are nationals of low or middle income countries are eligible to apply for the Eleanor Roosevelt Fellowship, which offers a stipend to help defray the cost of living.
The deadline to submit applications is February 1, 2019. Click here for more information on how to apply or write to Emily Nagisa Keehn, the Associate Director of the Academic Program, at email@example.com.
November 16, 2018
(Geneva, November 14, 2018) – Countries at an upcoming United Nations disarmament conference, faced with evidence of 30 new incendiary weapons attacks in Syria, should agree to strengthen the international law that governs their use, the International Human Rights Clinic said in a report released this week.
The 13-page report, “Myths and Realities About Incendiary Weapons,” counters common misconceptions that have slowed international progress in this area. Incendiary weapons produce heat and fire through the chemical reaction of a flammable substance. While often designed for marking and signaling or producing smokescreens, incendiary weapons can burn human flesh to the bone, leave extensive scarring, and cause respiratory damage and psychological trauma. They also start fires that destroy civilian objects and infrastructure.
“The excruciating burns and lifelong disabilities inflicted by incendiary weapons demand a global response,” said Bonnie Docherty, associate director of conflict and civilian protection at the Clinic. “Simple changes in international law could help save civilian lives during wartime.”
The report details the exceptionally cruel harm caused by incendiary weapons, explains the shortcomings of existing law, and lays out steps countries should take in response. The report, designed as an accessible overview of the incendiary weapons issue, was jointly published with Human Rights Watch.
Countries that are party to the Convention on Conventional Weapons (CCW) are scheduled to address incendiary weapons at the UN in Geneva from November 19 to 23. Protocol III to this treaty imposes some restrictions on the use of incendiary weapons, but it does not provide sufficient protections for civilians.
November 13, 2018
Posted by Thomas Becker
On October 12th, students from the International Human Rights Clinic arrived at the Villa Ingenio Cemetery on the outskirts of El Alto, Bolivia to celebrate the lives of those killed in Bolivia’s “Black October.” Despite the somberness of the drizzly afternoon, the cemetery was adorned with the bright colors of the family members’ aguayos (blankets) and polleras (traditional billowy skirts worn by Bolivia’s Aymara women). Today was a special occasion.
Téofilo Baltazar was one of the family members present at the cemetery. Fifteen years ago to the day, Bolivian soldiers shot and killed his pregnant wife Teodosia while she was praying inside her sister’s home. As Téofilo placed flowers on his wife’s tomb, he stated, “Hasta el último momento lucharé por la justicia.” (“Until the last moment, I will fight for justice.”)
Téofilo, like so many relatives of the roughly 500 casualties during Black October, is Aymara. Historically, the country’s indigenous people have been excluded from justice, but Téofilo and his friends were determined to change this.
In 2007, nine Aymara Bolivians launched a landmark lawsuit in U.S. federal court against Bolivia’s ex-President Gonzalo “Goni” Sánchez de Lozada and ex-Defense Minister Carlos Sánchez Berzaín, who fled to the United States after Black October and have lived here ever since. The case sought to hold both men responsible for the role they played planning and organizing the mass killings that took their family members.
After years of legal obstacles, the lawsuit went to trial in March of this year, marking the first time ever a former of head state was forced to directly face his accusers in a U.S. courtroom. The victims’ family members made history when, after a three-week trial and a week of deliberations, the ten-person jury unanimously held Goni and Sánchez Berzaín liable for the killings and awarded the plaintiffs $10 million. This was the first human rights verdict in the United States against a living head of state.
Unfortunately, in May, a judge overturned the historic jury decision. The judge upheld the defendants’ Rule 50 Motion for Judgment as a Matter of Law, which argued that there was insufficient evidence to support the verdict. This decision forced the families back to court.
Last month, as Bolivians celebrated the lives of those killed in Black October, the plaintiffs submitted an appellate brief to the United States Court of Appeals for the Eleventh Circuit arguing that the district court applied the wrong legal standard for extrajudicial killings and the jury verdict should be reinstated. Additionally, current and former U.N. Special Rapporteurs on Extrajudicial, Summary, or Arbitrary Executions, retired U.S. military commanders, and law of war scholars submitted amicus briefs on behalf of the plaintiffs. Early next year, the Defendants will file their opposition brief and Plaintiffs will file their reply; oral argument is expected in spring 2019.
Though the struggle has been long, the families remain steadfast in their fight for justice. It is the memories of their loves ones that keep them going. At the cemetery, Téofilo shared with the Clinic’s students the importance of their victory and its significance for survivors throughout the world. “The jury is the voice of the American people, and the people have spoken. No court can change that. No court can change the message it sends to the world,” he told the students, adding: “But the struggle continues.”
The Clinic and co-counsel from Center for Constitutional Rights, Akin, Gump, Strauss, Hauer & Feld, LLP, and Schonbrun, De Simone, Seplow, Harris & Hoffman, LLP have represented the plaintiffs from the outset in the case. Clinical students Luna Borges Pereira Santos LLM ’19 and Kevin Patumwat JD ’19 traveled with clinical instructor Thomas Becker JD ’08 to Bolivia in October to commemorate 15 years since Black October.
November 6, 2018
Last month, we welcomed writer, activist, and lawyer Maria McFarland Sánchez-Moreno to HRP for a talk about her new book, There Are No Dead Here: A Story of Murder and Denial in Colombia. As the executive director of the Drug Policy Alliance, Maria is at the helm of the leading U.S. organization fighting to end the war on drugs domestically and beyond. Her new book is a narrative non-fiction account of the rise of paramilitaries in Colombia in the late 1990s. With close ties to the cocaine business, the paramilitaries carried out a violent expansion campaign committing atrocities against thousands of people. The story is told through the perspective of three characters—a fearless activist, a dogged journalist, and relentless investigators—whose lives intersect in the midst of this drug-fueled cycle of terror.
This talk was co-sponsored by the Criminal Justice Policy Program, the Harvard Human Rights Journal, and HLS Advocates for Human Rights.
Listen to the full audio of the talk below or on our SoundCloud: