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June 22, 2011
Posted by Cara Solomon
Here’s an encouraging update from Global Human Rights fellow Maeve O’Rourke, LLM ’10, who has been working on behalf of the all-volunteer advocacy group Justice for Magdalenes. Her recent submission to the UN Committee Against Torture led that body to call on Ireland earlier this month to investigate the Magdalene Laundries, where as many as thousands of women were forced to live and work. Now this:
“I’m really glad to say that the Irish government has at last responded to calls for an investigation, apology and redress for women who suffered in the Magdalene Laundries.
On Tuesday night, the government announced the establishment of an inter-departmental committee, chaired by an independent person, to investigate the state’s role in relation to the laundries and to report back within 3 months. It also announced that it would be calling for the production of all records held by the religious orders, and that the Minister for Justice will be holding discussions with the church and survivors’ groups to discuss how best to achieve reconciliation and reparations.
June 21, 2011
Children’s Rights Committee Will Review January Deaths, State Response, and Juvenile Detention Policies.
June 21, 2011, Geneva—Today at 3:00 pm local time (8:00 am in Panama), the UN Committee on the Rights of the Child will begin to examine Panama’s record on children’s rights and its compliance with the Convention on the Rights of the Child, including a fire this past January at Tocumen detention center that killed five children.
This evaluation comes just one day after at least a dozen juveniles suffered burns in another fire in at the Arco Iris detention center. Authorities have still not provided information on this tragedy.
Along with Panama’s state report, the Committee will receive and review a highly critical report from the International Human Rights Clinic at Harvard Law School and Panamanian civil society groups (the Alianza Ciudadana Pro Justicia, and the Asamblea Ciudadana de Panama), documenting the serious failure of the juvenile detention system to protect the basic rights of children.
“Make no mistake about it: the fire at Tocumen was both foreseeable and preventable,” said Professor James Cavallaro, Executive Director of the Human Rights Program at Harvard Law School. “Yesterday’s fire confirms that Panama has not taken the necessary steps to protect the lives of juveniles in detention centers. Unless Panama changes its failed policies, tragedies such as these will continue to occur.”
The report documents a pattern of physical abuse by detention center officials and police; overcrowding and unsafe conditions; and failure to provide juveniles with basic services, such as health care or education. It also details the January 9 fire at the Centro de Cumplimiento de Tocumen, which started when police threw tear gas bombs that ignited a mattress, and ended with seven boys burning in their cells while guards and watched from outside the building.
Five of those youths died.
The twenty-six page report, Preventable Tragedy in Panama—Unnecessary Deaths and Rights Violations in Juvenile Detention Centers, is based on visits to detention centers, and interviews with detainees and government officials. It includes a legal analysis, which describes Panama’s obligations under the Convention on the Rights of the Child, among other international standards, and concludes that Panama has failed to protect the rights of juvenile detainees and has subjected them to cruel, inhuman, and degrading treatment.
According to the report, juveniles throughout the Panamanian juvenile detention system are routinely deprived of basic necessities, like water, fresh air, and light. Prison administrators crowd juveniles into small cells, and allow them only a few hours of schooling or recreation per week. In interviews, juveniles described regular beatings by guards. They also reported being shot with rubber bullets and sprayed with tear gas.
“As a nation rich in resources, Panama can and should do better,” said Virginia Corrigan, JD ’11, a primary author of the report and a member of the clinical team. “It’s a matter of political will.”
June 18, 2011
Brief in major corporate Alien Tort Statute case argues, on behalf of legal historians, that corporations can be held liable
for supporting and assisting human rights violations
June 17, 2011, Cambridge, MA—Harvard Law School’s International Human Rights Clinic submitted an amicus curiae brief to the Supreme Court today in support of a petition for certiorari in a major corporate Alien Tort Statute (ATS) case, Kiobel v. Royal Dutch Petroleum Co.
The Clinic served as counsel of record on behalf of professors of legal history who argue that Congress adopted the ATS to provide plaintiffs with a meaningful domestic remedy in federal court for violations of international law. According to the amici, creating a special exemption for corporate defendants, as the Second Circuit did in Kiobel, contradicts the original purpose of the statute as well as its plain text, and ignores the history of enforcement of international law violations against corporations.
“Dating back to the 1600s, with cases against the East India Company involving violations of international law, the historical record shows that the Second Circuit erred in its ruling,” said Clinical Director Tyler Giannini. “The drafters of the Alien Tort Statute wanted to provide a broad remedy for all torts in violation of the law of nations, and the text of the statute excludes no class of defendant.”
Giannini and Associate Clinical Director Susan Farbstein served as counsel and supervised the writing of the brief. Harvard Law School students Poppy Alexander, JD ’12, Russell Kornblith, JD ’12, and Marissa Vahlsing, JD ’11, contributed to the research, conceptualization, and drafting of the brief.
“We spent countless hours reading the cases and treatises that the framers of the ATS would have read,” Alexander said. “To have the opportunity in law school to work this closely with a team that includes eminent legal historians, to help form an argument, and then to see it through to the end, is very special.”
The Kiobel opinion represents a significant departure from established ATS jurisprudence, and deprives survivors of corporate misconduct of a valuable tool for seeking justice.
“If the Second Circuit’s decision stands, a corporation could operate the modern-day equivalent of the Nazi death camps or trade in slaves, and it would be exempt from civil liability under the ATS,” Farbstein said. “History shows that the statute’s drafters never would have contemplated such a corporate exception.”
June 8, 2011
Posted by Susan Farbstein
It’s foolish to predict how a court will rule based on oral argument. But a judge’s questions can sometimes offer insight into her perspectives on particular issues. As our former Dean, now Justice, Elena Kagan has noted, “Oral argument provides the first chance for you to see what your colleagues might think about a case, what’s worrying them about a case, what interests them about a case.” And exchanges between judges and counsel can be quite electric, as was the case last week when the Seventh Circuit heard argument in the Boimah Flomo v. Firestone Natural Rubber Co. Firestone appeal.
The Firestone case brings claims under the Alien Tort Statute (ATS) for child labor practices on Firestone’s rubber plantations in Liberia. The International Human Rights Clinic filed an amicus curiae brief on behalf of legal historians in support of the plaintiffs. While the appeal presents many important legal issues, the key question in this case—and in most corporate ATS cases in this post-Kiobel era—is whether corporations can be held liable under the statute.
Tyler and I traveled to Chicago for the argument since we were curious to learn how the Seventh Circuit would handle the corporate liability question. The panel was composed of Judges Bauer, Manion, and Posner. Despite my reluctance to offer any predictions, Judge Posner’s sharp questions at least seemed to reveal real concerns about the majority’s reasoning in Kiobel.
For those who have time and interest, the recording of the argument is available here (Case No. 10-3675) and it’s worth listening to in its entirety. The opening exchange between Judge Posner and Firestone’s counsel, Brian Murray, sets the tone:
Murray: May it please the Court. In Sosa the Supreme Court reiterated a dozen times that outside such established matters as piracy—
Judge Posner: No no no. Forget Sosa. Sosa has that footnote that indicates that persons and corporations can be liable. We’re not going to get anywhere with Sosa.
Murray: It certainly does your honor, and that’s the point. Outside of three narrow, modest norms—
Judge Posner: Look, suppose Firestone went to the Liberian authorities and said, “You know, we really want to reduce our labor costs, so could you just enslave some of your people and sell them to us? And we’re going to use slave labor for this rubber because it’s going to be cheaper.” Now if they did that, do you think the corporation would not be liable under the Alien Tort Statute because it’s a corporation?
Murray: Well, we have to talk about—
Judge Posner: Answer my question.
Murray: No, I don’t think they would be your honor.
Judge Posner: Well, okay, you’ve lost me, but go ahead.
June 8, 2011
Posted by Susan Farbstein
First, the plaintiffs assert, review is necessary because the Kiobel majority’s decision conflicts with Supreme Court precedent governing subject matter jurisdiction. In short, the issue of whether corporations can be sued under the Alien Tort Statute (ATS) is a merits-based question because it concerns the reach of the statute, not a court’s adjudicatory power.
Second, the plaintiffs note, Kiobel generated a circuit split on the issue of corporate liability under the ATS. The Eleventh Circuit has rejected arguments that corporations are exempt from suit under the ATS in both Romero v. Drummond and Sinaltrainal v. Coca-Cola.
Finally, the plaintiffs urge review because the Kiobel decision conflicts with Sosa: it ignores the text, history, and purpose of the ATS; misinterprets footnote 20 in the Sosa decision; overlooks the fact that international law leaves the choice of how to enforce international obligations to domestic jurisdictions; and ignores general principles of law, which provide for corporate liability for serious human rights violations, as a source of international law.
We’ll obviously be keeping a close eye on this one, and will post supporting amicus briefs, the opposition brief, and the reply brief as they are filed.
June 7, 2011
Here’s our posting for a Clinical Advocacy Fellow. Please pass it around to all who might be interested. Note that the deadline to apply through Human Resources is June 12. If you’re having trouble with the link, email documents to HR at firstname.lastname@example.org.
Harvard Law School is offering a Clinical Advocacy Fellowship position at the International Human Rights Clinic to a law-trained practitioner with experience in human rights work, to begin in mid-August or early September 2011. Clinical projects include non-court-centric approaches to human rights defense and promotion, such as advocacy and report writing, as well as litigation, such as submissions to national and international fora. Past clinical projects have included ﬁeld investigations to more than two dozen countries, drafting of human rights reports, preparing model legislation, litigation on behalf of clients and communities, working with governmental authorities to develop human rights policy, and setting strategies for treaty drafting conferences.
Please note: This is a term appointment extending through June 30, 2013. Continuation beyond this date is contingent upon organizational needs, the availability of funding, and the mutual interests of the Program and the Fellow.
Basic Qualifications: Signiﬁcant experience in human rights as well as language skills relevant to the fellow’s particular region or thematic areas of expertise are required. Two or more years of experience in human rights and a J.D. degree or the equivalent are required. English ﬂuency is required.
Additional Qualifications: Fellows must have excellent legal, communication, interpersonal, analytical, writing, and organizational skills. The fellow, under the supervision of the Clinical Director and Associate Clinical Director, will oversee several clinical projects and a team of students enrolled in the Clinic in both the fall and spring semesters. The fellow will be responsible for developing several projects each term that will expose students to the practical realities of human rights work. The fellow will meet regularly with a team of students, guide and review their work, and advise them on strategic and tactical questions that arise during the course of the clinical projects.
June 6, 2011
Posted by Cara Solomon
Great news this morning from Global Human Rights fellow Maeve O’Rourke, LLM ’10, who recently made a submission to the UN Committee Against Torture on behalf of the advocacy group Justice for Magdalenes.
“I’m delighted to report that the UN Committee against Torture released its Concluding Observations for Ireland this morning, and among them is an extremely strong recommendation to the Irish government to investigate and provide redress for the Magdalene Laundries abuse.
At paragraph 22 of the Concluding Observations, the Committee states that it is ‘gravely concerned at the failure by the State party to protect girls and women who were involuntarily confined between 1922 and 1996 in the Magdalene Laundries, by failing to regulate their operations and inspect them, where it is alleged that physical, emotional abuses and other ill-treatment were committed amounting to breaches of the Convention.’
The Committee recommends ‘that the State party should institute prompt, independent, and thorough investigations into all allegations of torture, and other cruel, inhuman or degrading treatment or punishment that were allegedly committed in the Magdalene Laundries.’
It also recommends that the state ‘ensure that all victims obtain redress and have an enforceable right to compensation including the means for as full rehabilitation as possible.’
Finally, the Committee recommends that the state ‘in appropriate cases, prosecute and punish the perpetrators with penalties commensurate with the gravity of the offences committed.’
The Committee has included the Magdalene Laundries as one of its four issues for follow-up, at paragraph 33 of the Concluding Observations. This means that the Irish government will have one year within which to demonstrate to the Committee the steps it has taken to implement the Committee’s recommendations, and the Committee will formally review these steps next year in its Annual Report.
June 2, 2011
Posted by Cara Solomon
Lawyer and journalist Bec Hamilton, JD ’08, has spent the past several years working in Sudan, reporting and writing about events as they unfold there. Here’s her compelling new article in Foreign Policy magazine about the days-long attack on Abyei town, which sits in a disputed, oil-rich territory between Northern and Southern Sudan.
She describes the government-controlled area as “eerily quiet” now, with homes burned and looted, and most of the civilian population gone. South of Abyei town, Bec interviewed residents who fled the area, some of them separated from family in the chaos.
“Many sustained injuries as they ran,” she writes. “Mothers tell of how difficult it was for their young children on a journey of up to five days with no food or water. Sunday Taban Lobaya, interviewed in the South Sudan town of Wau, said her two-year-old son died of dehydration on the way. ‘I had to just bury him and keep going with my other children,’ said Lobaya, who is seven months pregnant.”
A Special Correspondent on Sudan for The Washington Post, Bec is also the author of a recent book, “Fighting for Darfur: Public Action and the Struggle to Stop Genocide,” a years-long investigation into the U.S.-based citizen advocacy movement for Darfur policy. And if that’s not enough, she’s a Pulitzer Center grantee and a Fellow with the New America Foundation.
Check out her Web site here and get inspired.
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