May 10, 2018
Emily Nagisa Keehn Co-Authors Article on Strategic Litigation to Address HIV and TB in South African Prisons
Congratulations to Emily Nagisa Keehn, Associate Director of the Academic Program, who co-authored with Ariane Nevin an article published this week in the Health and Human Rights Journal. The article, “Health, Human Rights, and the Transformation of Punishment: South African Litigation to Address HIV and Tuberculosis in Prisons,” examines the use of strategic litigation to develop and vindicate the health rights of incarcerated people in South Africa.
As the authors note: “The South African experience illustrates the value of an incremental strategic litigation strategy that begins with tackling narrow issues, such as access to anti-retroviral therapy (ART), and progresses towards challenging systemic drivers of disease, such as overcrowding and unsanitary conditions.” The article also examines “how South Africa’s strong and independent judiciary has facilitated change through the courts—despite the absence of popular support for penal reform—and how sustained lobbying, coalition-building, and mass media advocacy by activists have increased the impact of litigation.”
May 9, 2018
This piece originally appeared as the spotlight feature on Harvard Law School’s homepage.
The global impact of populist movements was the topic of a two-day symposium, “Human Rights in a Time of Populism,” that was held on March 23-24 at Harvard Law School. The Human Rights Program organized the conference under the leadership of its co-director, Gerald L. Neuman, J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law.
Friday’s two panels, “Populism and its Causes” and “Populism and its Effects: The United States and Poland,” brought together a team of faculty and international experts to discuss the direct and indirect effects of this worldwide and largely right-wing phenomenon.
“This will not be the most cheerful conference I’ve attended,” noted former HLS Dean Martha Minow, who moderated the second panel. The speakers looked at populist movements including the rise of Donald Trump in America, Jarosław Kaczyński in Poland, and Viktor Orban in Hungary, and found that each shared similar xenophobic tendencies and anti-elite rhetoric.
At the opening of the first panel, Peter A. Hall, Knapp Foundation Professor of European Studies at Harvard, said that populism is a hard term to define, but pinpointed what it means in the current climate: “I would define populist candidates as ones with a distinctive set of appeals; those who claim to speak for a broad people whose voice is said to be ignored by a political elite that is presented as corrupt or incompetent.” By this standard, he said, Donald Trump would be defined as a populist while Bernie Sanders, though a radical critic of capitalism, would not.
Hall asked the underlying question: Why this movement, and why now? One answer, he said, is the sense of the middle class being “left behind,” socially and economically marginalized. “If the root cause of discontent lies in the disappearance of decent jobs, and I think it does, remember that public policies such as minimum-wage laws can make existing jobs more decent.” Instead, he said, modern populists have moved the focus to social issues such as immigration. “Centering political competition around values issues makes a perfect storm for populist candidates.”
Stephen Pomper, the Director of the International Crisis Group’s U.S. program and a veteran of the Obama administration, said that human rights foreign policy initiatives are difficult to enforce in the best of times—and that this is definitely not the best of times. Obama, he said, was criticized for being soft on abusive regimes, but he still had a human rights policy that he tried to implement. “What’s most jarring about the Trump administration is that it has called the ideals themselves into question. He ran as a candidate on the presumption that Washington and foreign elites cooked up deals that were harmful to ordinary Americans. Now we are being driven by economic nationalism, immigration restriction, and a robust militarism that may not be about getting into wars but threatening them.” The silver lining, he suggested, is that many of Trump’s staff actively disagree with him—but this hardly bodes well for human rights initiatives.
HLS Professor Matthew C. Stephenson examined the role that corruption—or sometimes, just the perception of corruption—plays in the rise of such movements. In some cases, he said, a regime change results when actual systematic corruption is exposed; Italy’s “Mani pulite” (“clean hands”) investigations, which led to the collapse of its center-left and center-right parties in the ‘90s, is a notable example. But more recent populists, including Trump and Orban, have campaigned on the idea that the existing elite is corrupt, without necessarily providing evidence. Thus, said Stephenson, “Corruption itself can open the door for an insurgent populism, but anti-corruption rhetoric can do the same thing.”
The paradox, he noted, is that the new leaders maintain their popularity when they themselves are revealed to be corrupt. “Why doesn’t this behavior alienate supporters of the populist movement more? One hypothesis is that the rhetoric of corruption wasn’t really what they were appealing to; it was more a code word for ‘Defeat cosmopolitan snobs taking your jobs.’ Another possibility is that even though voters don’t like corruption, they dislike moralists even more. Berlusconi in Italy and Trump in America are seen as living the dream. [Voters] admire the charismatic populist leader, and take attacks on the leader as attacks on them.”
HLS Professor Ruth L. Okediji examined populist trends in sub-Saharan Africa. Although in some countries democracy may seem stable on the surface—as reflected in this month’s famous handshake between Kenyan President Uhuru Kenyatta and his political arch-rival Raila Odinga—tensions are likely growing beneath. “The deep dissatisfaction that fuels populism is a strange thing to see in the African context, because economic insecurity has long been the status quo. But there is something different about the current state of economic anxiety.” She warned that the insufficient emphasis of the human rights movement on realizing economic, social and cultural rights has contributed to the success of populist leaders who claim to provide economic benefits for their own constituencies, instead of a pluralist democratic system serving the good of all.
According to Wojciech Sadurski, a visiting professor at Yale Law School, the recent right-wing power grab in Poland is the most puzzling of all. “There is no reason that democracy should have failed in Poland. None of the common factors apply, not even [the presence of] oil.” Yet, he said, Kaczyński’s Law and Justice party was able to rise through a familiar populist formula. “What he did was to package together xenophobia, an anti-elite type of rhetoric, and a sense of cultural distance from modernism—LBGT, the Green movement, etc. By being able to present this package as logical and serious and responding to certain anxieties in society, he managed to create a backslide in a society where it should never have happened.” Poland, he said, is already feeling the effect on human rights, particularly in the courts. “They are now used as an instrument of the government, to fight its opposition. Yet because those changes maintain the façade of the institution, they are less visible to outsiders.”
One way forward, suggested Douglas A. Johnson of the Kennedy School, is a return to the more traditional definition of populism: A movement of the people. “Even if the public prefers stricter gun control or universal healthcare, those are difficult things to make happen. In public-good situations, this only happens when there is a strong sense of moral urgency that keeps a social movement at play.” Thus, he suggested, the best solution may be a return to old-fashioned activism. “Historically, populism has created agendas that forced elites to make changes. You can’t create a movement unless you have an adversary.” And he recommended that future populists learn the art of political messaging. “What moves things forward is a language, often an emotional language. I think it’s important that the human rights movement embraces that.”
Pomper also suggested that the best antidote to populism may be a more enlightened populism. “We’re not headed into a good space in the next couple years,” he said toward that panel’s end. “But it’s important that the community who cares about these issues figures out what their approach is going to be.”
The conference continued on Saturday with panels on populism in Southeast Asia, Turkey, and Latin America. It then turned to lessons learned for human rights regimes, and how to address the effects of populism. Some of the speakers on Saturday included Jeremy Waldron, Michael Posner, T. Alexander Aleinikoff, Richard J. Heydarian, Jamie O’Connell, and Anna Crowe.
May 9, 2018
Posted by Cara Solomon
In Kenya’s sprawling Kakuma Refugee Camp, there’s no telling when the internet connection will work: Sometimes it will flicker or fail for three weeks straight. But ever since the opportunity to study came into his life, Yunis, a refugee from Somalia, comes to the center as often as possible, hoping to learn.
“His dream is to become an expert in computer science and networking,” said Kitala Mupenge Fabrice, co-founder of the Solidarity Initiative for Refugees (SIR), which runs a center that provides online access to higher education for 47 students. “He has a little skill now and he is surely assisting the community in Kakuma.”
For the founders of SIR, the dream is to offer this kind of online education to more of their neighbors in the camp—and to find programs that will provide certificates or diplomas that testify to the students’ achievements. Currently, they say, the online higher education options for refugees in Kenya are too limited.
In a camp largely run by humanitarian and government bodies, SIR is part of an ecosystem powered by refugees themselves. The materials for the center came from researchers who live abroad: 13 second-hand computers, one modem, four batteries, six solar panels, a lockbox, and iron sheets for walls. But the vision came from Fabrice and three other refugees, who recruited students and have run the center for the past year.
It all started with a Google search. Fabrice, a social worker by training, found an online higher education program on social work. He told his friend Ebengo Honore Alfani, also a social worker, who was then admitted to an online program to study political science. Months later, they had the idea to help even more refugees access these online learning opportunities.
The first obstacle was the advertisement.
“The question was: How will we make it while we don’t have paper or a laptop for typing?” said Honore.
Fabrice offered to donate 500 Kenyan shillings ($5 USD) to buy a ream of paper. Honore promised to find a laptop for typing.
“We wrote an announcement, which was saying that everyone who is interested to pursue his higher education, let us meet at Fuji Primary School on Sunday at 2 p.m.,” said Fabrice. “That Sunday, we got 253 potential applicants.”
Together with two other refugees, they formed SIR, bringing under the same umbrella several different refugee-run initiatives. They created a constitution. They created operational rules. And with donations from foreigners, they set up a small learning center in Kakuma 3, one of the four parts of the camp.
May 1, 2018
Posted by Dana Walters
As part of its mission to merge theory with practice, the Human Rights Program continually offers students the opportunity to leave the law school environment to engage in scholarly inquiry and gain practical experience in the field. Winter Term is but one period that offers JD students a short yet intensive time to do research or internships abroad in human rights. This year, the Program provided Winter Term fellowship awards to four students to immerse themselves in different arenas of advocacy, human rights research, and documentation with courts and NGOs.
Elisa Quiroz, JD ’19, conducted research in Chile, examining the government’s legislative and policy responses to the country’s rapid rise in migration. Recently, Chile has sought to strengthen migrants’ access to socio-economic rights, including labor rights, the right to health, and the right to education. Quiroz examined how services are being delivered, and whether the government is meeting commitments in line with its international human rights obligations.
Without working under the umbrella of an organization, Quiroz undertook this research initiative largely independently. Assistant Clinical Professor Sabi Ardalan of the Harvard Immigration and Refugee Clinic served as her adviser, as the project had grown out of an International Labor Migration reading group Ardalan had taught with Lecturer on Law Jennifer Rosenbaum. Spending time in Chile doing desk research and speaking with academics and civil society experts allowed Quiroz to further contextualize the historical conditions of this recent migration and the legal responses to it. In one instance, she notes, migrants’ equal access to housing is compromised by the insufficient attention the government gives to housing rights in general. Quiroz hopes to analyze this rights gap, as well as the innovative responses by the government and civil society to the influx of new peoples, in a longer academic paper.
In addition to Quiroz, other Winter Term grantees included Molly Ma, JD’18, Ellen Zheng, JD’18, and Mila Owen, JD’18. Ma traveled to The Hague to work with Judge Chung Chang-ho of the International Criminal Court, where she researched the operations of the Court and potential reforms. As a returning intern at Justice Base in Myanmar, Zheng studied ethnic violence and discrimination in the Rakhine state. Likewise, Mila Owen, JD’18, also continued her work for the second year in a row at Zimbabwe Lawyers for Human Rights in Harare, where she focused on disability rights, among other projects. You can read more about her experience in Zimbabwe on the OCP blog here.
This summer, the Human Rights Program has funded six fellows to intern abroad at various human rights organizations. Among these are: Ginger Cline, JD’20, who will travel to Kenya to work for the Hebrew Immigrant Aid Society; D Dangarang, JD’20, for Lawyers for Human Rights in South Africa; Krista Oehlke, JD’20, for EarthRights, International in Peru; Sara Oh, JD’19, for the UN High Commissioner for Refugees in Turkey; Delphine Rodrik, JD’20, for Human Rights Watch in Lebanon; and Eun Sung Yang, JD’20, for Justice Base, in Myanmar.
April 30, 2018
As the semester winds down and graduation gets near, we’re missing the calming presence of Katherine Young, until recently HRP’s Program Manager, whose expertise guided us through so many milestones for nearly four years.
She’s moved on to something particularly exciting—a job as a researcher with Control Arms, a coalition that works to end the flow of arms and ammunition that fuel conflict, poverty and human rights abuses. This seems only fitting. Even as she seamlessly coordinated the many moving parts of our program—including supporting dozens of students and managing HRP’s budget—Katherine also steeped herself in the field of human rights advocacy.
It was not her job to do it. She did it because it interested her. And she did it because she cared.
As the undisputed champion of proofreading at HRP, Katherine often found herself immersed in the language of human rights. But as she read, she spent an equal amount of time processing the substance of the reports and amicus curaie briefs and legal memorandums that crossed her desk. As a result, she developed a deep knowledge of many of the Clinic’s areas of focus, from business and human rights to accountability litigation to armed conflict and civilian protection.
It goes without saying that Control Arms will be tremendously lucky to have her. Curious and kind-hearted, with a sharp sense of humor and a warm and welcoming way, Katherine is a gift to any community. We wish her the best of luck on this new path, and send her off with an HRP tradition: a fake press release from Bonnie Docherty, who was a journalist in her previous life.
KATHERINE QUITS TO CAT AROUND CATSKILL
Human Rights Program Disarmed by Young’s Departure
(Cambridge, MA, April 5, 2018)—Katherine Talbot Young, the Human Rights Program’s center of sanity, is leaving Cambridge for the Catskills, the Human Rights Program (HRP) announced with dismay today.
April 17, 2018
April 18, 2018
Judicial Legal Officers in International Courts and Tribunals
12:00- 1:00 p.m.
When considering actors within international criminal tribunals, judges, prosecutors and defense attorneys readily come to mind. Often overlooked figures are legal officers working in Judges Chambers. Legal officers play a vital role in assisting investigations, managing pre-trial dockets, and drafting judgments. Priyanka Chirimar, Visiting Fellow at the Human Rights Program and OPIA Wasserstein Fellow-in-Residence, has served as a legal officer for the International Criminal Tribunal for the Former Yugoslavia, the Special Court for Sierra Leone, and the Extraordinary Chambers in the Courts of Cambodia. She will discuss legal officers’ core duties, ethical obligations and challenges, and their role in norm building.
Sponsored by the Human Rights Program and the Office of Public Interest Advising.
April 16, 2018
This piece by Bonnie Docherty, Associate Director of Armed Conflict and Civilian Protection, originally ran in The Guardian, under the headline “We’re Running Out of Time to Stop Killer Robots”
It’s five years this month since the launch of the Campaign to Stop Killer Robots, a global coalition of non-governmental groups calling for a ban on fully autonomous weapons. This month also marks the fifth time that countries have convened at the United Nations in Geneva to address the problems these weapons would pose if they were developed and put into use.
The countries meeting in Geneva this week are party to a major disarmament treaty called the Convention on Certain Conventional Weapons. While some diplomatic progress has been made under that treaty’s auspices since 2013, the pace needs to pick up dramatically. Countries that recognise the dangers of fully autonomous weapons cannot wait another five years if they are to prevent the weapons from becoming a reality.
Fully autonomous weapons, which would select and engage targets without meaningful human control, do not yet exist, but scientists have warned they soon could. Precursors have already been developed or deployed as autonomy has become increasingly common on the battlefield. Hi-tech military powers, including China, Israel, Russia, South Korea, the UK and the US, have invested heavily in the development of autonomous weapons. So far there is no specific international law to halt this trend.
Experts have sounded the alarm, emphasising that fully autonomous weapons raise a host of concerns. For many people, allowing machines that cannot appreciate the value of human life to make life-and-death decisions crosses a moral red line.
Legally, the so-called “killer robots” would lack human judgment, meaning that it would be very challenging to ensure that their decisions complied with international humanitarian and human rights law. For example, a robot could not be preprogrammed to assess the proportionality of using force in every situation, and it would find it difficult to judge accurately whether civilian harm outweighed military advantage in each particular instance.
Fully autonomous weapons also raise the question: who would be responsible for attacks that violate these laws if a human did not make the decision to fire on a specific target? In fact, it would be legally difficult and potentially unfair to hold anyone responsible for unforeseeable harm to civilians. Continue Reading…
April 13, 2018
Spotlight Feature: Clinic team help hold Bolivian ex-leaders responsible for killings in historic case
Posted by Cara Solomon
This post originally ran on the Harvard Law Today homepage under the title, “After a decade of tireless fighting, a measure of justice.”
When the verdict came down, most of the litigation team was in the second row of the courtroom, leaning forward, tense with the waiting, trembling at times. But Thomas Becker ’08, was in the front row beside the plaintiffs, his arm around the shoulders of Felicidad Rosa Huanca Quispe, whose father was shot dead in the street all those years ago.
There was no other place for him to be. He had spent the past decade on and off in Bolivia, working in partnership with the plaintiffs–attending victims’ association meetings, tracking down witnesses, investigating leads. They were not only his inspiration. They were also his friends.
When Mamani, et al. v. Sánchez de Lozada and Sánchez Berzaín reached Federal District Court last month, it had already made history: the first time a living former head of state faced his accusers in a human rights case in U.S. court. Now, as the judge read the verdict form, Becker found the words hard to believe.
Had the jury really just found two of the most powerful men in Bolivian history liable for the extrajudicial killings of eight indigenous people–and awarded the plaintiffs $10 million in damages?
With more than 25 witnesses and hundreds of pages of evidence, the case against Gonzalo Sánchez de Lozada and Carlos Sánchez Berzaín seemed clear—how they had deployed massive military force to quash protests, leading to scores of civilian deaths. Still, Becker turned around for reassurance from Susan Farbstein ’04 and Tyler Giannini, co-directors of the International Human Rights Clinic (IHRC), which was co-counsel in the litigation from the start.
“Susan was smiling with tears running down her face, and Tyler was nodding in his Zen-like way,” said Becker. “And I knew that after a decade of tireless fighting, the plaintiffs had gotten some form of justice.”
In the summer of 2006, Becker was a rising 2L, living in Bolivia, and immersed in the social justice movement around “Black October,” the military violence that killed more than 50 and injured more than 400 in the fall of 2003.
The fight for accountability was already well underway, and would later lead to the Trial of Responsibilities, which found five members of the Military High Command guilty for their role in the killings. But the men who had unleashed the military on civilians—Sánchez de Lozada and Sánchez Berzaín—had fled to the United States in the aftermath of the violence, and lived there ever since.
At some point, Becker remembered something he’d learned about in his 1L year. It was called the Alien Tort Statute (ATS), and it allowed people to sue in U.S. courts for human rights violations. What if lawyers in the United States could use it to help the victims’ associations here get some justice for their loved ones?
He reached out to experts in ATS litigation—Paul Hoffman, Judith Chomsky, and Giannini—to see what was feasible.
For Giannini, it felt reminiscent of another long-shot ATS case: Doe v. Unocal, brought by Burmese villagers against the company for human rights abuses related to a gas pipeline project. Back in 1995, when the organization he co-founded, EarthRights International, decided to sue a corporation for human rights violations, the reception was less than enthusiastic.
“People thought we were nuts,” he said.
But Giannini served as co-counsel on that case for a decade, right up until it settled. So when Becker called with the idea of suing the president of Bolivia, he had a receptive audience: this was not a litigator put off by long odds.
April 11, 2018
April 12, 2018
Human Rights in the Council of Europe and the European Union
12:00- 1:00 p.m.
Dr. Steven Greer, Professor of Human Rights at the University of Bristol Law School, will discuss his new book, which examines the complex regional arrangements in Europe for the protection of human rights, where bodies of the European Union and the larger Council of Europe interact both as partners and competitors. He and his co-authors show how the institutionalization of human rights has contributed to securing minimum standards across Europe. They consider the central challenges to these institutions and how they could be managed, particularly for the U.K. in the post-Brexit era. Professor Greer will be joined by his co-authors, Professor Janneke Gerards from Utrecht University School of Law, and Rosie Slowe, Senior Research Fellow at the University of Bristol Law School.
April 10, 2018
Understanding Victim Assistance and Environmental Remediation Under the Treaty on the Prohibition of Nuclear Weapons
Posted by Bonnie Docherty
The humanitarian impact of the Treaty on the Prohibition of Nuclear Weapons (TPNW) depends on both its comprehensive ban on nuclear weapons and its obligations to assist victims and remediate the environment affected by use and testing. The former aims to prevent future harm, while the latter addresses harm that has already occurred.
The Clinic is releasing new papers on victim assistance and environmental remediation in order to increase awareness of these elements of the treaty. The short publications provide an overview of the provisions in the TPNW and guidance from other humanitarian disarmament treaties as to how they might be implemented.
The TPNW’s so-called “positive obligations” establish a framework of shared state responsibility for helping victims and cleaning the contaminated environment
During last year’s treaty negotiations at the United Nations, the Clinic worked closely with the International Campaign to Abolish Nuclear Weapons (ICAN), which received the 2017 Nobel Peace Prize. A team from the Clinic, along with advocates from Article 36, Mines Action Canada, and Pace University, played a leading role in ensuring that the treaty included the positive obligations.