Blog: Student Perspectives
April 15, 2015
April 16, 2015
“Should There Be Liability If…”
Join Tyler Giannini and Ariel Nelson of the International Human Rights Clinic at Harvard Law School for a discussion about the live issues in Alien Tort Statute (ATS) litigation, including whether torturers and other human rights abusers can use U.S. soil to shield themselves from accountability. Giannini and Nelson will examine current trends in the courts in the wake of the Supreme Court’s decision in Kiobel in 2013. Since that time, the Clinic has authored numerous amicus briefs in major ATS cases around the country, and is co-counsel in two major ATS cases—one stemming from corporate complicity in Apartheid-era crimes and the other involving alleged extrajudicial killings that occurred in Bolivia in 2003.
April 7, 2015
Posted by Cara Solomon
We’re pleased to report that The Irrawaddy, an online news magazine in Myanmar, has just published “How One Father’s Letters Got Him Convicted,” an Op-Ed by Matt Thiman, JD ’16, Courtney Svoboda, JD ’16, and Tyler Giannini. The piece tells the story of Brang Shawng, a grieving father whose request for an investigation into his daughter’s death led to charges from the Myanmar military. The Clinic was among several organizations in December to sign an open letter to the President of Mynamar, requesting that all charges be dropped.
The piece begins:
Shortly after his daughter’s death, Brang Shawng sat down to write the first of two letters that would eventually get him convicted. He wrote to the president of Myanmar first, and then to the Myanmar National Human Rights Commission, wanting to know what had happened to his daughter, whom he believed had been shot by the Myanmar military.
“A submission is made with great respect,” he wrote to the president, “to find out the truth in connection with the killing, without a reason, of an innocent student, my daughter Ma Ja Seng Ing, who wore a white and green school uniform.”
In the letter, he recalled the day in his village clearly. It was Sept. 13, 2012, in an area of conflict between the Kachin Independence Army (KIA) and the Myanmar military in the north of the country. A column of Myanmar Army soldiers had been in the village since before dawn. Late that afternoon, as the column was preparing to leave, there was a loud bomb blast. Then suddenly, soldiers shooting, and the sound of shouting and crying as villagers tried to take cover.
“It was just like the end of the world,” Brang Shawng wrote.
He hid with his wife and two children in their home. But one of their children was not with them: his 14-year-old daughter, Ja Seng Ing.
March 31, 2015
Posted by David Victorson, JD '16
A few weeks ago the Harvard Human Rights Program tweeted about the fact that many students in rural South Africa have to walk more than 20km each day to get to and from school. They cross rugged mountains and flooded rivers. They navigate dangerous highways and treacherous weather. They face physical injury and emotional harm.
Surprisingly, shortly after we posted our tweet, a small number of Twitter users pushed back. One accused us of ignoring how lucky these students are to even be at school, implying that the difficulties of getting there are inconsequential. Another responded that if “it doesn’t kill you it makes you strong.” But as those paying attention to news reports over the past month know, a poor learner transport system has, in fact, already led to the death and injury of multiple children this year. And on our recent trip to Nqutu, KwaZulu-Natal, it didn’t take long to find students who have personal experience with the risks of robbery, rape, kidnapping, and even the death of friends – all created by the long journey to school.
How can this be inconsequential? How does this make anybody stronger?
Faced with such a difficult journey to school, many affected students drop out before completing Grade 12. During our trip, we heard from those who have continued attending school that they arrive exhausted, hungry, and have difficulty focusing in class. When they get home late at night, they may have responsibilities such as caring for livestock, fetching water, and helping to bathe siblings, nieces, and nephews before they can study. Some students go to bed at 11:00 pm, only to rise at 4:00 am and start their journey again.
Because of the many hours lost traveling to and from school, these students are forced to fit a full 24-hour day into something much less. Many struggle to do so by sacrificing homework and sleep, which has long-term consequences on their ability to stay healthy, to concentrate and to learn, and ultimately, to reach their full potential as adults.
Meanwhile, South Africa’s unemployment rate currently hovers around 25%. Among the youth labor force, this numbers jumps to over 33%. Nearly one-third of those aged 15 to 24 are not in employment, education, or training. They are detached from the labor force with seemingly no way to better their situation.
The consequences for South African society stretch far beyond these unemployed individuals. Continue Reading…
March 26, 2015
We’re very pleased to co-sponsor this year’s Harvard Human Rights Journal Symposium, which takes place tomorrow, Friday, March 27. The half-day event will focus on the challenges and successes of international criminal law as a response mechanism to world crises. The event panels are as follows:
“Where Has International Criminal Law Taken Us and Where Can it Go?”
Keynote Address by Serge Brammertz, Chief Prosecutor of the ICTY
12:00 – 1:00 pm, Ames Courtroom, Austin Hall
Lunch will be served
“The Laws of War: Enforcement in Human Rights Versus International Criminal Courts”
1:30 – 3:00 pm, WCC 1015
This panel will feature Judge Robert Spano of the European Court of Human Rights (graciously brought to the Symposium by Harvard European Law Association), Nema Milaninia of the ICTY in the Appeals Division of the Office of the Prosecutor, Fergal Gaynor of the International Criminal Court Victims Division, former ICC prosecutor Professor Alex Whiting, and Vanderbilt University Professor Michael Newton. The panel will discuss the pros and cons of enforcing international humanitarian law in international criminal courts versus international human rights courts. This panel is cosponsored by the Harvard European Law Association.
Coffee with the Experts
3:00 – 4:00 pm, WCC 3038
“Prosecuting a War: Justice for Syria?”
4:00 – 5:30 pm, WCC 1023
Syria triggers critical questions for the role of international criminal law. What system of justice will best address the atrocities that have been committed and documented by various actors throughout the conflict? National courts? An international tribunal? A hybrid model? What role should local forms of justice play in such a process? How can the lessons of past justice models inform the international community’s approach to Syria? What role should the US or other Western powers play? The panel will feature Emily Hutchinson and Jim Hooper of the Public International Law and Policy Group, and Federica D’Alessandra from the Harvard Kennedy School. All three panelists have been involved in Syria fact-finding missions, and Ms. Hutchinson and Mr. Cooper have participated in negotiations with key members of the moderate coalition. Susan Farbstein from the Harvard Human Rights Program will moderate the panel.
Wine and Cheese Reception
WCC 1023, HLS Pub
March 23, 2015
Posted by Katie King, JD '16
I’ve always loved school. Starting from a young age, I even loved the journey to get there. It was time spent with my siblings—an opportunity to tease each other and a chance to get a taste of what felt like the grown-up responsibility of walking alone.
The students in Nqutu, a small, rural area in eastern South Africa, are often just as excited as I was about school. However, as I heard during a trip there this past January with the International Human Rights Clinic, the morning starts for many of them at 4 or 5 a.m., when they wake to fetch water, let out their family’s cows, and help their younger siblings get ready. They then set off on a walk that often exceeds 10 miles.
They tease each other and gossip as I once did, doing their best to protect their uniforms and textbooks from the dirt and weather. But, as the students told us, by the time they arrive at school two hours later, their energy has worn off—and they are fully aware, as they do their best to pay attention in class, that they will have to repeat the journey all over again at the end of the day.
Factor in the additional risks of robbery, rape, snakebites, and treacherous river crossings, and it’s difficult for me to imagine that my five-year-old self would ever have been able to make it to school, let alone focus in class or have the time and energy to complete my homework, in similar conditions. I arrived well-rested and ready to learn. Can the same be said of Nqutu’s students?
Since 2009, the South African government has dragged its heels on finalizing a national scholar transport policy that would address the education system’s many transport-related problems. This is no small matter. As a result of this failure to act, the government is not fulfilling a fundamental right in South Africa’s constitution: the right to a basic education.
Our partners, Equal Education and Equal Education Law Centre, have been campaigning for a range of improvements in the educational system, taking on everything from schools without water and electricity to access to textbooks. In 2014, their student-powered movement shifted its focus to another critical piece of the puzzle: safe, affordable, and reliable school transport.
Not only has the national government failed to fix the problems it itself acknowledged in the draft national scholar transport policy, but the KwaZulu-Natal government has ignored the legal responsibilities it previously set for itself. Provincial policy requires KwaZulu-Natal to provide transportation subsidies to learners who walk more than 3 kilometers to school—a distance easily exceeded by dozens of students we talked to in our short time in Nqutu. None of the students we spoke with were receiving this assistance.
Principals told us they had submitted applications to the provincial government and never heard anything back. Determined to make sure children receive an education, some adults who live closer to school have opened their homes to students from more remote villages. Others drive trucks with more than 20 students packed into the back.
These stop-gap solutions are unsustainable; the government has the responsibility to act. Without a safe, reliable way to get to school, students’ ability to learn is compromised, and education’s promise of a better, more equitable future goes unfulfilled.
The solution may have to be multi-faceted. As we learned on our visit, though many of the difficulties students face are common, there are also different obstacles from school to school; one school may simply need a bus, while another may have learners who are so dispersed that school boarding facilities are the best response. Still, such complexities are not sufficient reason for continuing to stall—especially not when South Africa’s students, in the face of so many challenges, continue to embark upon their long walk to education every day.
Katie King, JD ’16, has been working with the International Human Rights Clinic since last September on issues related to the right to education in South Africa. She spent her 1L summer interning at Equal Education Law Centre in Cape Town.
November 13, 2014
Posted by Deborah Popowski, Morgan Davis, JD '15, Pete Barnett, LLM '15, Lauren Blodgett, JD '16, Darren Bartlette, JD '16
Just a few hours ago, the U.N. Committee Against Torture concluded its formal review of the United States. As members of Advocates for U.S. Torture Prosecutions, our clinical team has been in Geneva all week advocating for senior-level prosecutions of those responsible for the U.S. program of torture of detainees post-9/11.
Here’s our group’s statement:
In its response to the Committee’s questioning, the U.S. government failed to answer whether the Durham investigation looked up the chain of command at those who authorized, ordered, and justified the torture. The government did not address how any such investigation could have failed for lack of evidence when former President George W. Bush and other senior officials have acknowledged authorizing torture, including waterboarding, in public statements. The elephant in the room is the legal architecture that senior officials and lawyers put in place to shield themselves from criminal responsibility for torture in the first place. The Committee’s clear concern with U.S. failures of accountability is another important sign that “get out of court free” cards will not last forever.
Advocates for U.S. Torture Prosecutions is a group composed of concerned U.S. citizens, residents, and students—scholars, legal and health care professionals, and law students—who have sought for years to use what modest levers we have to end the U.S. program of torture put in place post-9/11, to obtain justice and redress for those harmed, and to seek accountability for those responsible. We were joined in our shadow report by nearly 300 supporting organizations and individuals from across civil society.
Read the shadow report we submitted to the UN Committee Against Torture
November 12, 2014
Posted by Cara Solomon
Earlier today in Geneva, in advance of the UN Committee Against Torture’s formal review of the United States, Morgan Davis, JD ’15, spoke to the U.S. delegation, pointing to its lack of engagement with the issue of senior-level accountability for post-9/11 torture. She spoke on behalf of Advocates for U.S. Torture Prosecutions, a civil society group that includes the International Human Rights Clinic, drawing from the group’s prepared comments, reprinted below.
“To truly move forward, we have to start by being honest,” she said. “The decision to shield senior-level government officials is not about law or justice; it’s about politics.”
The Committee will have the chance to raise this question with the U.S. government at tomorrow’s formal review.
Full text of the group’s prepared comments below:
My name is Morgan Davis, and I am a student at Harvard Law School. I will be speaking on behalf of the group “Advocates for US Torture Prosecutions,” a group of legal and health professionals and scholars in the United States. We are supported by 291 organizations and individuals who have joined our call for accountability for senior-level civilian and military officials for their central role in the post-9/11 torture program.
For years, these officials—including George Bush, Dick Cheney, George Tenet, Condoleeza Rice, Donald Rumsfeld, John Ashcroft, and former State Department Legal Adviser John Bellinger—have lived with impunity for their role in authorizing and enabling acts that President Obama has publicly called torture.
The Convention Against Torture requires states to investigate and prosecute crimes of torture, including up the chain of command. This is not a hollow aspirational principle; accountability for unconscionable crimes is a basic tenet of justice and rule of law.
Just this summer, President Obama told a gathering of young international leaders, “a country without the rule of law will not succeed.”
It doesn’t serve the rule of law to court martial lower-level service members while those that authorized and justified brutal tactics including near-drowning, sleep deprivation, and forced nudity have enjoyed impunity.
Nor does it serve the rule of law to shield senior officials on the basis that they “acted within the scope” of a legal standard justifying conduct that the US government has unequivocally called torture.
President Obama and Attorney General Holder justified this shielding by saying that “we must look forward, not backward.” No competent defense attorney would make such an argument in court. To truly move forward, we have to start by being honest. The decision to shield senior-level government officials is not about law or justice; it’s about politics.
By placing some powerful individuals above the law in the service of political expediency, we make a mockery of our national values and set a dangerous precedent for future generations in countries around the world.
At the last civil society consultation in D.C., the government representatives in the room ignored our demand for answers and gave us canned talking points that dodged any real acknowledgement of this problem that has left thousands of human beings without redress and tainted the reputation of the United States throughout the world.
We can only hope that this week, when confronted by the Committee Against Torture, you will have the courage to give real answers, accept real responsibility, and take some real steps towards accountability, thereby upholding the universal protection against torture that all human beings deserve.
October 24, 2014
Posted by Elizabeth Loftus, JD '16
In the coming month, all across South Africa, over half a million students will be sitting down to take the National Senior Certificate exam. Some will be sitting at individual desks in state-of-the-art classrooms. But others will be sitting on cinder blocks and at shared desks in buildings that lack water, electricity, and toilets. Wherever they are, students will be taking the same high-stakes test, one that will determine their future. Students who pass will graduate from high school and gain access to higher education opportunities. Students who fail will not.
The exam has a broader purpose, as well: the South African government uses pass rates to identify public schools that lag behind national performance standards. Institutions at which less than 60% of students pass the exam are designated “underperforming.” Underperformance trends in the South African school system reveal startling inequalities and show that the Department of Basic Education’s own underperformance in addressing this critical issue is inexcusable.
Following last year’s exam, 1,407 schools across South Africa qualified as underperforming. The poorest performing provinces were the Eastern Cape and Limpopo, which had pass rates 15%-20% lower than those in the majority of other provinces. Nearly half of the schools in the Eastern Cape failed to meet national performance standards. Shortcomings such as poor infrastructure, inadequate materials, overcrowding, and negligent management all suppress success in vulnerable schools. Not coincidentally, underperformance in the education system disproportionately affects learners in the poor, rural, historically black areas of the country.
Indeed, many of today’s challenges troublingly echo conditions of twenty-five years ago, when the legal framework for education existed to perpetuate racially separate and unequal education. Under the apartheid education system, black schools were designed to underperform in comparison to their white counterparts in order to keep black South Africans undereducated and capable of performing only unskilled, low-wage jobs. The measurable effects of this policy were severe: the government spent 10 times more on white schools than it did on black schools; while there were 18 white students per teacher, the ratio in black schools was 39 to 1; the standardized exam passage rate for blacks was less than one-half that of whites. It is shocking how little these figures have changed since the end of apartheid. In a visit to the Eastern Cape in 2013, community-based education NGOs found primary school classrooms with over 50 students and secondary school classes with over 100 students. Some schools have no electricity and lack desks, chairs, textbooks, and library facilities.
The persistent, systemic deficiency in school performance requires a coherent, national policy solution. But, rather than designing a coordinated response, the Department of Basic Education (DBE) has largely overlooked underperformance as a problem in and of itself. National guidelines on improving school performance do not exist. At a more basic level, it is unclear that the DBE even fully appreciates the gravity of underperformance since it has failed to comply with monitoring, evaluation and remediation requirements outlined in the governing national legislation, the South African Schools Act (SASA). A recent example of the DBE’s inadequate approach is evident in the comparison of its 2013-2014 yearly action plan with its 2013-2014 year-end review. “Underperforming schools” appeared only twice in the action plan. The year-end review made only general references to underperforming schools, showing little follow-up on the action plan and providing almost no guidance for reform.
Luckily, groups like Equal Education (EE) and Equal Education Law Center (EELC) have turned their attention to the cause and have committed their considerable social resources to drawing others’ attention, as well. In a far-reaching approach, EE and EELC have undertaken a variety of advocacy strategies in Parliament, the court system, communities, and schools. EE has organized policymaker visits to underperforming schools. In 2012, in response to students’ call for help, EE launched litigation to compel authorities to address the dire learning conditions at Moshesh Senior Secondary School in the Eastern Cape. Recently, EE and EELC produced a shadow report for the parliamentary oversight committee on education, pushing the government to hold the DBE accountable for its shortcomings. All of these steps are important in forcing the DBE to acknowledge the problem and meet its obligations, such as those enumerated in the SASA. Only by living up to its own standards can the DBE help schools live up to theirs.
Elizabeth Loftus, JD ‘16, is a student in the International Human Rights Clinic currently working on education-related issues in South Africa, in partnership with EELC. She has previously worked on projects related to South Africa as a member of the Harvard Law and International Development Society.
October 22, 2014
Posted by Peter Barnett, LLM '15, Morgan Davis, JD '15, and Deborah Popowski
In preparation for the UN Committee Against Torture’s review of the United States, the International Human Rights Clinic has joined fellow members of the group Advocates for U.S. Torture Prosecutions in submitting a shadow report to the UN Committee. The report documents how the Obama administration is in clear violation of the law by shielding from criminal liability the senior government officials responsible for the post-9/11 US torture program.
It calls on the UN Committee to ask the United States specifically why it has not prosecuted President George Bush (who admitted in his memoir to authorizing the waterboarding of Khalid Sheikh Mohammed); former Justice Department lawyer John Yoo (author of an opinion that purported to legally authorize the waterboarding of a prisoner known as Abu Zubaydah); and former CIA contract psychologist Dr. James Mitchell (reported to have personally waterboarded the prisoner known as Abu Zubaydah).
The report also urges the UN Committee to renew its calls for criminal investigations and prosecution of officials at the highest levels of the chain of command.
More than 100 organizations and individuals across civil society have already signed on to the report. Advocates for US Torture Prosecutions will continue to gather signatures from individuals and organizations to submit to the UN Committee in Geneva; you can sign on here until November 6.
The fact that US officials designed, authorized and implemented an international torture program is beyond credible dispute. President Obama himself has acknowledged that the United States had “tortured some folks.” This torture included near-drowning (“waterboarding”), stress positions, and sleep deprivation. It caused many people intense suffering, including severe mental harm and, in some cases, led to death.
As far back as 2006, when the United States was last under review, the Committee was already urging it to “promptly, thoroughly, and impartially investigate any responsibility of senior military and civilian officials authorizing, acquiescing or consenting, in any way, to acts of torture committed by their subordinates.”
In its August 2013 report to the UN Committee, the United States effectively ducked the question of senior-level accountability by providing vague and misleading information about investigations and prosecutions at lower levels of the chain of command.
However, on other occasions, the US government has justified its failure to prosecute brutal tactics by claiming reliance on fundamentally flawed legal advice from Justice Department lawyers. This excuse fails on all fronts. The prohibition against torture is absolute and allows for no such defense. As our report makes clear, the record strongly suggests that the torture began before the legal memos were even written, and that in fact these memos were written to justify a predetermined result – to provide legal cover for conduct that no reasonable human being (let alone a reasonable lawyer) could conclude was lawful.
Meanwhile, both the Bush and Obama administrations have blocked or refused to cooperate with criminal proceedings in foreign courts, and vigorously thwarted attempts at redress in civil courts—arguing, among other things, that detainees did not enjoy the right to be free from torture, and that government employees accused of torture had been acting within the scope of their employment.
The bottom line is no accountability for the US program of torture, no redress or justice for survivors, and an invitation for current and future administrations, in the U.S. and around the world, to torture with impunity.
We urge you to make your voices heard on this critical issue in advance of the Committee’s review on November 13 and 14. Add your signature to our report. Like our Facebook page. Follow the progress of the campaign on Twitter through the hashtag #EndTorture.
Read other shadow reports collected by the US Human Rights Network and submitted to the UN Committee Against Torture here.
The shadow report was co-authored by Prof. Ben Davis of the University of Toledo College of Law, psychologist Dr. Trudy Bond, human rights lawyer Curtis Doebbler, and the International Human Rights Clinic at Harvard Law School.
September 17, 2014
Posted by Lily Axelrod, JD '15
One January afternoon in 2012, two hundred men and women gathered at the Captain Morgan Bar in the sunny, Mexican coastal town of Topolobampo, Sinaloa. Their spirits were strong; recruiters had arrived to sign up workers for temporary H-2 visas to the United States. In a region where unemployment is high and the minimum wage is less than $5 a day, the recruiters brought hope. Applicants handed over deposits of several hundred dollars, representing years of savings or serious debt.
Weeks went by, and then months, as recruiters promised the Sinaloans that the visas were “almost ready.” But there were no jobs, and no H-2 visas. By April, it became clear: hundreds of applicants had been defrauded.
This summer, I had the opportunity to support the Sinaloan workers as a fellow with Proyecto de Derechos Económicos, Sociales y Culturales (ProDESC), a human rights organization based in Mexico City. Having lived in Mexico and studied social movements there, I was drawn to ProDESC’s model, which balances a broad international vision with a focus on meaningful participation and leadership from local, marginalized communities. I contributed this summer to the organization’s Transnational Justice for Migrant Workers project, which seeks to promote humane, legal migration by protecting migrant workers’ human rights.
My work focused specifically on the H-2 temporary worker visa program, one of the few avenues for Mexicans to work legally in the United States without advanced degrees or immediate family members with status. ProDESC has been tackling abuses related to the program since 2007. Due to fear of reporting and lack of oversight, it is impossible to know how many applicants were promised visas and never received them, but ProDESC believes the problem is widespread. Even when job offers are legitimate, workers often go into debt to pay illegal “recruitment fees,” and fear blacklisting or violent retaliation if they speak up about their rights.
For years, both the Mexican and American governments turned a blind eye to these abuses, leaving workers vulnerable to exploitation, human trafficking, and forced labor. But ProDESC and the Sinaloan workers have been collaborating to change the status quo. In 2013, with support from ProDESC’s community organizers and attorneys, the workers formed a coalition and brought a groundbreaking collective criminal complaint against the fraudulent recruiter operating in Sinaloa. That coalition, in turn, strengthened ProDESC’s domestic and international policy advocacy to prevent abuse in the H-2 visa program overall.
Together, their activism captured the attention of both the Mexican government, which recently issued new regulations targeting recruiters, and the U.S. Departments of Labor and State, which have committed to cooperate with their Mexican counterparts and with NGOs to educate migrant workers about their rights. Continue Reading…