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:
November 1, 2018
Press Statement: Constitutional Law Scholars Respond to Trump’s Threats Against Birthright Citizenship
On Tuesday, Oct. 30, leading constitutional scholars stated that there is no serious scholarly debate about whether a president can, through executive action, eliminate birthright citizenship and contradict the Supreme Court’s long-standing and consistent interpretation of the Citizenship Clause of the 14th Amendment. Gerald L. Neuman, HRP Co-Director and J. Sinclair Professor of International, Foreign, and Comparative Law, was one of fifteen authors on this statement.
The full statement reads as follows:
President Donald Trump is reportedly considering an executive order to essentially rewrite the Citizenship Clause of the 14th Amendment to eliminate birthright citizenship. In an interview to be aired later this week, he explains that people are now telling him that he can do this “just with an executive order.” As constitutional scholars who have studied the 14th Amendment, we write to say in no uncertain terms that he is wrong.
The Citizenship Clause—enshrined as Section 1 of the 14th Amendment to the U.S. Constitution in 1868—states simply that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” The 14th Amendment, adopted in the immediate aftermath of a Civil War that very nearly ripped this country in two, established the foundational principle that all persons are entitled to due process and equal protection under the law. The Citizenship Clause contained therein was meant as a direct rebuke to the infamous decision in Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), in which the Supreme Court held that that people of African descent born on our soil whose ancestors were slaves could not be citizens, even if they were free.
The Supreme Court 120 years ago in United States v. Wong Kim Ark, 169 U.S. 649 (1898), settled the very issue raised by the president. In that case, the Court held that with certain very limited exceptions, all children born in the United States are natural-born citizens regardless of the citizenship status of their parents. Many decades later in the case of Plyler v. Doe, 457 U.S. 202 (1982), in which the Court upheld the right of all children regardless of alienage to a free public education, the Court analogized its holding on Equal Protection Clause grounds to the settled law on the Citizenship Clause as declared in Wong Kim Ark. Specifically, the Court noted that just as undocumented immigrants are “subject to the jurisdiction of the United States” for purposes of the Citizenship Clause, they too are “within the jurisdiction” of a state for purposes of the Equal Protection Clause. Id. at 211 n.10.
There is today no serious scholarly debate about whether a president can, through executive action, contradict the Supreme Court’s long-standing and consistent interpretation of the Citizenship Clause of the 14th Amendment. Instead, as conservative legal scholar James Ho, now a federal judge on the U.S. Court of Appeals for the 5th Circuit nominated by President Trump, wrote more than a decade ago, “a constitutional amendment is … the only way to restrict birthright citizenship.” The executive branch’s own lawyers have long agreed.
It took a Civil War—the bloodiest conflict in American history—to resolve a dispute about what it means to be an American—a person—in this country. The 14th Amendment, including the Citizenship Clause, is the rightly cherished result of that American tragedy.
Signatories included: Muneer I. Ahmad, Yale Law School; Walter E. Dellinger III, Duke University School of Law; Lucas Guttentag, Stanford Law School and Yale Law School; Harold Hongju Koh, Yale Law School; Stephen H. Legomsky, Washington University School of Law; Gerard N. Magliocca, Indiana University Robert H. McKinney School of Law; David A. Martin, University of Virginia School of Law; Michael W. McConnell, Stanford Law School; Hiroshi Motomura, University of California, Los Angeles (UCLA) School of Law; Gerald L. Neuman, Harvard Law School; Cristina Rodríguez, Yale Law School; Peter J. Spiro, Temple University Law School; Geoffrey R. Stone, The University of Chicago; Laurence H. Tribe, Harvard Law School; and Stephen I. Vladeck, The University of Texas at Austin Law School.
Find the full press release on the Center for American Progress’s website.
October 30, 2018
HRP has added several exciting events to our fall programming, including a panel on human rights impact litigation, a screening of the film War Don Don, a talk with Raymond Atuguba, and an information session on HRP Summer Fellowships with last year’s fellows.
More on Summer Fellowships
For 1Ls and 2Ls interested in exploring human rights as a career, a summer fellowship is the perfect place to introduce yourself to the field. Advising has already begun. Reach out to Emily Nagisa Keehn to think through placements and swing by the HRP lounge on Nov. 14th to learn more.
Otherwise, read on to learn more about the slate of events upcoming this fall, especially those recently added.
October 29, 2018
This month, the Musawah Movement for Equality in the Muslim Family submitted a thematic report to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) Committee advocating for codification of family law provisions to protect the rights of Muslim women in Mauritius. International Human Rights Clinic students Samantha Lint JD’20 and Natalie McCauley JD’19 contributed to drafting the report and developing its legal recommendations, working in close collaboration with Mauritian attorney and family law expert, Narghis Bundhun.
As the report notes, a major cause of the lack of rights protection and inequality for Muslim women in Mauritius is the absence of a clear legal framework that protects rights in the context of religious marriages. The report highlights this legal ambiguity and key resulting inequalities that harm Muslim Mauritian women and in turn damage families, communities, and society as a whole. The report encourages the State of Mauritius to leverage its robust framework of diversity and inclusion to promote equality for Muslim women and take concrete steps to ensure all women in Mauritius enjoy full legal protection.
The report will be considered by the CEDAW Committee in its Constructive Dialogue with the Government of Mauritius. Today, Monday, October 29, the IHRC team has joined Musawah in Geneva, Switzerland, where the session and associated Committee briefings are now taking place. Tune in to the #CEDAW71 Constructive Dialogue starting tomorrow (10:00 a.m. – 5:30 p.m. CET) and follow Musawah on Twitter for updates. Watch live at http://webtv.un.org/…/71st-session-committee-…/5723840293001.
October 26, 2018
We are sad to share the news that James Tamboer, one of the clinic’s clients in the apartheid litigation, passed away this week. Here, several of the attorneys who worked with James on the case, reflect on his life and this loss.
From Judith Chomsky:
James Tamboer critically set the stage for my understanding of the workers’ struggle against apartheid. Like others who came forward in the struggle against apartheid, his courage and steadfast commitment inspired both his comrades and those of us who came to know him working on the apartheid case in U.S. courts. Meeting and learning from James has given meaning to our work and pride in our association with him.
From Susan Farbstein:
James Tamboer died this week, and I don’t have words to adequately describe the loss. How do I explain my love and respect for a man who started out as a client but became a friend, an inspiration, and the source of so much wisdom and kindness. How do I describe my grief that another member of this generation of South Africans—a generation that struggled and fought and persevered and survived—has died, and that with his death we lose another piece of history and another connection to that past.
Representing James was one of the greatest honors of my life. For nearly a decade, we worked together on a case which sought to hold multi-national corporations accountable for their role in supporting and assisting the apartheid government to commit gross human rights violations. James, who was born in 1959, worked at the General Motors plant in Port Elizabeth from 1977 until 1986. As he said, “I started as a laborer and ended as a laborer.” He worked the trim line, fitting together truck parts, including chassis for military vehicles.
Before joining GM James had been politically active in the student movement, although he had never been arrested. He continued his organizing efforts with the union at GM, first as a shop steward and later as a senior shop steward. James worked not only for pay increases but also to break down racial barriers, such as separate toilets and canteens, within the plant.
He paid heavily for this involvement. He recalled 1982 being one of the worst years for him, a year in which he was arrested on a regular basis—including being taken from the GM plant—because he was a vocal and visible union leader. Security branch personnel often came into the plant, and to his mother’s home, to question James about plans for strikes or other political activities.
During intense union negotiations that year, James was detained for three weeks at St. Alban’s, a notorious prison facility where hundreds were often held without charge and subjected to police abuse. He was tortured. He described being beaten over a bench and waterboarded as the security police attempted to extract information from him about the union’s plans.
James was held again for several months in 1985-86, swept up following the government’s declaration of a state of emergency. The security forces, interrogating James about his role organizing a major strike at GM, stomped on his legs and chest. They bashed his head into the walls so forcefully that he would suffer from memory loss and epilepsy for the rest of his life.
But James was so much more than an activist and survivor. He was a husband, a father, and a pastor. He hesitated before joining the apartheid litigation as a plaintiff. He was concerned that if his children knew more about the abuse that he had suffered, they might hate the white people who had mistreated him. And he had spent his life working against hatred, and for equality and reconciliation.
Ultimately he joined the case because he wanted stories like his to be heard and because he hoped for some measure of justice and accountability, or at least acknowledgement, by GM and the other corporations. He was clear-eyed about the immense legal hurdles that we would face, but he believed in the importance of the case.
When I think of James now, my strongest memories are of him laughing—deep and loud and heartily, with his whole body—and of the way that he would lean in close, look you right in the eye, and wag his finger a bit when making an important point. I remember speaking with him after we had suffered a major setback in the case. I was apologetic and also, I’m sure, quite upset. As was his way, James offered reassurance and perspective: “We always knew this would be hard. And we have suffered so much worse.” Of course.
James, I will miss you tremendously. I will be forever grateful for the privilege of working with you and learning from you. And I will honor your memory, in my own small way, by carrying your wisdom and passion for justice with me, and by sharing it with others.
From Tyler Giannini:
When Diana Tamboer emailed me on Monday that her husband, James, had passed that morning, I was physically shaken. Sitting with it, I went to a moment etched in my mind forever; I can see James’ face – it was a conversation that he and I had at a fast-food restaurant near his house. We settled in a corner booth away from others. We sat across from each other, the Formica table top between us, and we talked. We had spoken before about his experiences – the torture at the hands of the Special Branch, the struggles to fight against apartheid. But this conversation was about whether he would be a plaintiff and a class representative in the apartheid litigation pending in New York.
I explained how much of a long shot the litigation was going to be; how many years it would take; how hard it would be; how he would have to talk about experiences that are hard to relive.
He was unphased. James simply said that he lived under apartheid and he knew all too well about the law, about the way legal systems do not lead to justice. He had no illusions about where this might go, and yet he was fully on board for the years of struggle that were ahead.
And then he said to me he wanted to do this because he had never told his children what had happened to him. He wanted them to know – not just so that they would know, but because he wanted to break the cycle of violence and hatred that defined apartheid.
No more needs to be said about James. I will miss him. And I will forever remember him and his strength, his wisdom, and his humanity.
October 16, 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 an article in the Harvard Journal of Law and Gender with Kristen A. Stilt, Professor of Law and Director of the Islamic Legal Studies Program, and Swathi Gandhavadi Griffin, practicing attorney. The article, “Ambitions of Muslim Family Law Reform,” examines Islamic legal arguments and strategies used to support family law reform.
The co-authors state:
“Family law in Muslim-majority countries has undergone tremendous change over the past century, and this process continues today with both intensity and controversy. In general, this change has been considered “reform,” defined loosely as the amendment of existing family laws that are based on or justified by Islamic legal rules in an effort to improve the rights of women and children. Advocates seeking to reform family law typically make legal arguments grounded in Islamic law, thus explicitly or implicitly conceding the Islamic characterization of family law. This ‘reform from within’ approach has grown in recent years and the legal arguments have become more ambitious as women’s groups have become more involved and vocal.”
The article identifies and examines the landscape of legal arguments that are used and are needed to support change and analyzes the ambitious, possibilities, and limitations of reform in Muslim family law today.
October 12, 2018
Posted by Bonnie Docherty
Humanitarian disarmament has become a highly effective and firmly established means of dealing with arms-induced human suffering. This year, it has celebrated many milestones that highlight its achievements. These milestones have also generated forward-looking discussions about how civil society campaigns can best work together to advance humanitarian disarmament’s overarching aim.
In March, Harvard Law School’s Armed Conflict and Civilian Protection Initiative (ACCPI) assembled 25 humanitarian disarmament leaders from around the world for a two-day conference in which they could reflect on the state of the field and strategize about its future. The ACCPI has produced a summary of the conference and its conclusions in a new 27-page report Humanitarian Disarmament: The Way Ahead. It has also launched the website humanitariandisarmament.com, which will serve experts and the public alike.
Humanitarian disarmament seeks to prevent and remediate harm caused by arms and related activities through the establishment of norms. It is a people-centered approach, driven by civil society campaigns, that focuses on human rather than national security. Continue Reading…
October 2, 2018
New Book: Human Rights, Democracy, and Legitimacy in a World of Disorder, Edited by Gerald L. Neuman and Silja Voeneky
Gerald L. Neuman, HRP Co-Director and J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law and Silja Voeneky, Co-Director of the Institute for Public Law and Professor of Public International Law, Comparative Law and Ethics of Law at the University of Freiburg and former Visiting Fellow at HRP, have published a new edited volume, Human Rights, Democracy, and Legitimacy in a World of Disorder (Cambridge University Press). The book examines how and why the concepts of human rights, democracy, and legitimacy matter in the conditions of international disorder brought about by the 21st century.
Building from an interdisciplinary symposium organized by Professor Voeneky for HRP in 2016, authors’ perspectives draw from philosophy, history, and legal theory. Their contributions explore the role of human rights, democracy, and legitimacy in addressing such problems as economic inequality, access to health care, mass migration, and the catastrophic risks posed by new technologies.
“Which conceptions of rights can help us find legitimate solutions to the new challenges that social and technological change are raising? That is the urgent question that we gathered to debate,” said Neuman.
Professor Neuman authored a chapter on “Human Rights, Treaties, and International Legitimacy,” and HRP Co-Director and Clinical Professor of Law Tyler R. Giannini contributed a chapter on, “Political Legitimacy and Private Governance of Human Rights: Community-Business Social Contracts and Constitutional Moments,” which examines how to maximize human rights protection in situations where a functioning State is largely absent.
Additional contributions come from notable academics, such as Samuel Moyn, Professor of Law and History at Yale University; I. Glenn Cohen, James A. Attwood and Leslie Williams Professor of Law at HLS; Matthias Risse, Professor of Public Policy and Philosophy at the Harvard Kennedy School; and Iris Goldner Lang, Jean Monnet Professor of EU Law and UNESCO Chair on Free Movement of People, Migration and Inter-cultural Dialogue at the University of Zagreb Faculty of Law.
September 26, 2018
International Human Rights Clinic Students Contribute Research
Human Rights Watch released a brief on Tuesday documenting illegal imprisonment and serious abuses by Yemen’s Houthi rebel forces against detainees in their custody. The brief uses investigative and legal research conducted by students of the International Human Rights Clinic on Houthi practices of hostage-taking and torture, and documents dozens of cases in which Houthis held people unlawfully and profited from their detention since 2014. It also calls on the United Nations Human Rights Council to renew the mandate of the Group of Eminent Experts on Yemen to investigate and identify those responsible for abuses.
“The Houthis have added profiteering to their long list of abuses and offenses against the people under their control in Yemen,” said Sarah Leah Whitson, the Middle East director at Human Rights Watch. “Rather than treat detainees humanely, some Houthi officials are exploiting their power to turn a profit through detention, torture, and murder.”
International Human Rights Clinic students who contributed to this research include Zeineb Bouraoui, LLM ’18, Danesha Grady (Berkeley) ’JD 18, Tarek Zeidan, HKS MPA ’18, and Canem Ozyildirim, JD ’18.
Read the full brief here: https://www.hrw.org/news/2018/09/25/yemen-houthi-hostage-taking.