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February 29, 2012
Posted by Cara Solomon
After a months-long hurricane of hard work, the clinical team settled into their seats at the U.S. Supreme Court yesterday and heard oral arguments in Kiobel. It was, by all accounts, a long and exhilarating day. Then Tyler Giannini and Susan Farbstein capped it all off by writing a piece for The New York Times’ Room for Debate.
There are plenty of post-Kiobel perspectives out there right now; we’ll do our best over the next few days to post some of the more substantive ones here.
February 28, 2012
Posted by Cara Solomon
Just got word from Daniel Saver JD ’12: everyone on the clinical team made it into the U.S. Supreme Court for oral argument on Kiobel. Given all the buzz around this case, there were real questions as to whether that would happen. Susan, Tyler, and Marissa Vahlsing JD ’11 already had tickets. But it took several hours of waiting for Daniel, Yonina Alexander JD ’12, Poppy Alexander JD ’12, and Russell Kornblith JD ’12, to get theirs.
According to an email from Daniel, the group settled into line last night around 11:30 pm. Minutes later, by chance, they ran into Meghan Morris JD ’08, whom Daniel described in the email—with exclamation points, of course—as an HRP legend. Nobody slept last night, he said—they were huddled together for warmth.
Stay tuned for more Kiobel updates.
February 28, 2012
Posted by Tyler Giannini and Susan Farbstein
We’re in Washington DC, in front of the U.S. Supreme Court, with our team of clinical students. The Kiobel oral argument will take place this morning. The blogs and op-eds have been busy over the last week in anticipation of the argument. If you want to catch up, some links are below.
February 27, 2012
This Week: A Talk by Amnesty International’s Secretary General; a Discussion on Clinical Law Teaching
Posted by Cara Solomon
This week is packed with substantive events. For full descriptions, see our our events page. Meantime, here’s the lineup:
Tuesday: “Responsibility to Protect: The Promise of Stopping Mass Atrocities in our Time?” with Jared Genser, Founder of Freedom Now.
Wednesday: “Clinical Law Teaching” with Tyler Giannini, Clinical Director of the International Human Rights Clinic, and Ron Sullivan, Director of the Criminal Justice Institute.
Thursday: “Ending Double Standards: Human Rights in the World Today” with Salil Shetty, Secretary General of Amnesty International.
Also Thursday: “Can Israel be Both Jewish and Democratic” with HLS Professors Duncan Kennedy and Noah Feldman.
Friday: “Under a Headscarf, a Turkish Lawyer Fighting to Wear it” with Turkish lawyer Fatma Benli.
February 24, 2012
Posted by Cara Solomon
Last week, we were privileged to host Mike Bochenek, Director of Law and Policy at Amnesty International, for a series of fascinating discussions. Mike, who is based in London, flew in to Boston from Los Angeles, where he met with colleagues who work on juvenile justice issues; before that, he was in Strasbourg, attending a strategy meeting with Amnesty’s European lobbyists; before that, in Vienna at a UN Office on Drugs and Crime meeting reviewing the UN Standard Minimum Rules for the Treatment of Prisoners; and before that, he was in Geneva to meet with Human Rights Watch colleagues. All in the space of two weeks.
He came to HRP last week primarily to talk to Fernando’s “Human Rights Advocacy and the Criminal Justice System” seminar about his work on juvenile justice issues, and the implementation of Amnesty’s Demand Dignity campaign, which frames anti-poverty advocacy as a human rights issue. But he also—no surprise here—managed to squeeze in a career talk on human rights, plus two student interviews.
Below, Zainab Qureshi, LLM ’12, interviews Mike about the amicus brief Amnesty International recently filed in two juvenile life without parole cases joined before the U.S. Supreme Court.
Zainab: What is the status of juvenile life sentencing without parole under international law?
Mike: Well, the amicus brief is arguing there’s an emerging consensus against it. We think the brief has made the argument that the United States is effectively the only country that’s doing it; that there are a few isolated exceptions, but there is the overall conclusion that this is no longer a sentence that is really effectively used anywhere in the world except the United States. There are some countries that still use detention “at her majesty’s pleasure,” and so on, but limitations have been placed on those kinds of sentences in practice.
Zainab: How is the amicus brief arguing against the constitutionality of juvenile life sentencing without parole, based on what you said about international law?
Mike: It’s an interesting approach, precisely because U.S. courts have not been particularly welcoming to the idea that international treaty obligations, or customary international law, applies directly to issues in the U.S.—with some limited exceptions about things like torture and piracy. And then there’s the approach in U.S. law that most treaties aren’t self-executing—even though the constitution declares that all treaties are part of the “supreme law of the land”—meaning that Congress has to pass implementing legislation before those treaties can be invoked. So the brief isn’t addressing the direct applicability of specific treaty obligations. What it’s saying instead is that the United States has, in fact, a long tradition of looking at international practice to inform the way it interprets the domestic law. There’s a scholarly approach that calls for the infusion of international law and practice into domestic law. It’s essentially an infusionist approach that says: when you look in particular at things that relate to fundamental rights, international practice is a relevant consideration.
The brief cites the Declaration of Independence’s invocation of a “decent respect for the opinions of mankind,” and the idea that respect for the opinions of the practice of the world is something that, we’ve argued in the brief, has always been a feature of U.S. legal thinking—of the foundation of the United States, in fact. And should continue to be with respect to this particular issue.
So I think it’s not a departure from previous practice; there’s nothing about it that raises the flags that you sometimes hear about “we’re giving up U.S. sovereignty to allow foreign authorities to dictate the course of U.S. law”; but it appropriately takes into account what international practice is, as well as domestic practice is, to judge: is this accepted in 2012? Or, as the brief has concluded, is it an isolated, extreme practice that only a few jurisdictions in the world actually have on the books, and that only one country actually implements?
Zainab: Are there any examples where the Supreme Court has, in fact, accepted arguments relying on international practice?
Mike: It’s historically done so—perhaps to a limited extent in recent decades, but it has looked at to a significant extent with regard to Eighth Amendment jurisprudence. There’s certainly the recent example of the Court’s decision on the juvenile death penalty [in Roper v. Simmons (2005)], which devotes a section to the arguments advanced by human rights groups in their amicus brief, that there is an international consensus against the death penalty for juvenile offenders. The court said in the end, essentially, we don’t regard international law as dispositive, but we regard it as a relevant consideration. (See note 1 below for more explanation.)
Similarly in the opinion on the last case on life without parole for juvenile offenders, [Graham v. Florida (2010)], the Court did the same thing. It did look at the international legal arguments as a relevant factor in the decision, and it spent some time on the brief submitted by Amnesty International and other human rights organizations. What the majority said was: we’re not buying the argument that there’s an international legal norm prohibiting life without parole for juvenile offenders that has risen to the level of jus cogens [a peremptory norm of international law that binds all states]. We’re not going to address that argument. It doesn’t matter, because what we’re doing is just looking at international practice as an indication of where the world is at now—rather than resolving the question of whether it rises to the level of a binding obligation, and what kind of binding obligation. So they didn’t take on board the entire legal argument, but they certainly used the international authorities to be able to resolve the issue. (See note 2 below for more explanation.)
And I think going farther back, there’s been a practice at the U.S. Supreme Court of looking in a limited respect to international sources of law to resolve other issues.
Zainab: Given that the U.S. Supreme Court did rule favorably in the previous cases you outlined, do you think there will be a favorable ruling in this case as well?
Mike: It’s always difficult to predict what the outcome will be. The Court has joined two cases and presented a number of questions, some of which suggest that it would be looking for a narrow basis on which to rule, and some of which suggest that it might be prepared to consider some of the broader arguments that were raised. It’s significant that the Court has taken on another case on life without parole so soon. And it’s significant that it’s taken one that clearly would allow it to issue a much broader ruling. But I can’t really say with any certainty whether it’s going to be a narrow ruling or a broad ruling; I can only express the hope that it’s a favorable ruling.
Zainab: One other question generally about children getting involved in the criminal justice system in the United States. Why do you think it’s happening, and is it happening at an increasing rate?
Mike: I don’t know that it’s happening at an increasing rate. We were talking in the human rights class yesterday about the extent to which there was this myth bandied about in the 90s about the “coming storm of ‘super predators.’” How that was misused to drive public policy. And the fact is that we haven’t had that storm; the super predators never arrived. What we do know is that a lot of the reasons we have kids in detention have to do with the overuse of criminal approaches, as opposed to alternatives to the juvenile and adult criminal justice systems.
February 23, 2012
Posted by Tyler Giannini and Susan Farbstein
NO CORPORATE EXEMPTION: SUPREME COURT TO HEAR MAJOR CORPORATE HUMAN RIGHTS CASE
February 22, 2012
Next Tuesday, the Supreme Court will hear oral arguments in Kiobel v. Royal Dutch Petroleum Co. Kiobel is the most important human rights case the Court will consider this term, raising fundamental questions about corporate accountability. The Plaintiffs allege that Royal Dutch/Shell was complicit in the Nigerian government’s torture and killing of their relatives in the 1990s. The Supreme Court is reviewing a lower court decision that created a corporate exemption from liability under the Alien Tort Statute (“ATS”), concluding that corporations cannot be sued even when they facilitate genocide, crimes against humanity, or war crimes.
The ATS, a 1789 law passed by the First Congress, permits non-U.S. citizens to hold perpetrators accountable in U.S. courts for violations of international law. In the fall of 2010, however, the Second Circuit Court of Appeals in New York created the corporate exemption now under review. Since the Second Circuit’s decision, every other appellate court to consider the issue has rejected Kiobel’s approach. Recognizing the importance of this question and the split among the lower courts, the Supreme Court agreed to hear the case.
Yesterday, the Plaintiffs filed their final brief before the oral argument. They noted the profound ramifications of the lower court’s holding:
The implications of the decision below are shocking. When I.G. Farben exploited slave labor at Auschwitz and supplied the Zyklon B poison to facilitate mass murder in its death chambers, that corporation violated international law. [Defendants’] construction of the ATS means that even a modern-day I.G. Farben could not be sued under the ATS. Nor could a “Pirates, Inc.” engaged in contemporary piracy, or an entity incorporated to engage in slavery.
Given the significance of blanket immunity for corporate human rights abuse, it is no surprise that the U.S. government has weighed in with an amicus curiae brief in support of the Plaintiffs. The U.S. government noted that corporations are certainly capable of violating international law, and found “no good reason to conclude that the First Congress would have wanted the suit to proceed only against the potentially judgment-proof individual actor, and to bar recovery against the company on whose behalf he was acting.” The government’s brief further observed that “[c]orporations have been subject to suit for centuries, and the concept of corporate liability is a well-settled part of our ‘legal culture.’”
For fifteen years before Kiobel, the statute enabled survivors of corporate human rights abuse to pursue accountability here, when it was otherwise unavailable. For example, Plaintiffs sought redress for corporate complicity in forced labor in Burma, apartheid in South Africa, and extrajudicial killings in Nigeria. While only cases against companies involved in such egregious human rights violations moved forward, no court contemplated a corporate shield from liability. With Kiobel, the Supreme Court has an opportunity to reaffirm the U.S. commitment to provide justice to survivors of egregious human rights abuse. Relief from suffering should not depend on whether an individual or a corporation is responsible for the violation.
February 16, 2012
Posted by Bonnie Docherty
The International Human Rights Clinic’s newest publication—on the legal foundations for “making amends”—has its origins in a friendship formed 10 years ago on the dusty streets of Kabul.
In early 2002, just out of Harvard Law School, I traveled to Afghanistan for Human Rights Watch to investigate civilian casualties from the U.S. air campaign. There I met Marla Ruzicka, an idealistic young activist who seemed to know every civilian victim in the capital city. She served as our guide, taking us to mud house after mud house to interview the families of survivors, each of whom she treated with compassion and respect.
Marla would go on to found the Campaign for Innocent Victims in Conflict (CIVIC), a nongovernmental organization dedicated to advocating for civilian victims of war. In my capacity as a researcher in Human Rights Watch’s Arms Division, I continued to work with Marla at home and in Iraq, until she was killed by a suicide bomber in Baghdad in 2005.
In the year that followed, I joined the Clinic at Harvard, and Sarah Holewinski took the helm at CIVIC, upholding and expanding its mission admirably. We initiated a partnership shortly thereafter. While I had previously investigated why civilians are killed during war, this work allowed me to deal with what can be done to help victims afterward.
CIVIC pioneered the concept of “making amends,” which calls on warring parties to recognize and provide assistance to civilian victims for harm caused by their lawful conduct. In the Clinic’s first project with the organization, a team of students contributed to designing and drafting the organization’s “Making Amends Guiding Principles.”
Since then, the Clinic-CIVIC collaboration has generated a series of projects and helped inspire several of our students to pursue careers in the field of international humanitarian law. To date, 10 clinical students have done work produced with CIVIC or related to its mandate.
The publication released today—“Legal Foundations for ‘Making Amends’ to Civilians Harmed by Armed Conflict”—builds on CIVIC’s idea and exemplifies the Clinic’s legal advocacy. Because making amends fills a gap in international law, there is no direct precedent for it; in this paper, however, we argue that individual elements of the concept are grounded in established practice and precepts. Clinical students Andrew Childers, J.D. ’11, and Anna Lamut, J.D. ’10, researched and co-wrote the paper.
In addition to legal advocacy, the Clinic has done fieldwork in association with CIVIC. In 2010, I led a team of three students on a fact-finding mission to Nepal to investigate the needs of civilian victims of the country’s decade-long armed conflict and how those needs are—or are not—being addressed.
We interviewed dozens of individuals who had experienced or witnessed horrific events. A man described how Maoist rebels broke his legs over a log and beat him to the point his mother thought he was dead. A woman told us in tears how government forces inexplicably executed her husband, a state-employed postman, and left him on the side of the road. This trip made us better appreciate Marla’s close, on-the-ground engagement with victims of war.Continue Reading…
February 13, 2012
Posted by Fernando Delgado
UPDATE: Spain’s Supreme Court (Tribunal Supremo) convicted Judge Baltasar Garzón of abuse of authority (prevaricación) in the “Gürtel” case last Thursday in connection with wiretapping ordered during a corruption investigation involving the current ruling party of Spain. The sentence subjects Garzón to an 11-year ban from the judicial bench. Following the court’s pronouncement, a poll commissioned by leading Spanish daily El País showed a whopping 61% of the Spanish public thought Garzón was being subjected to persecution (“[e]sta siendo objeto de una persecución”), compared with only 36% who felt there were legitimate bases upon which to judge him (“[h]abia motivos suficientes para juzgarle”).
Yesterday, some 2000 protestors gathered in front of the Tribunal Supremo chanting “Shame! Justice!” Garzón’s legal team raised the possibility of bringing a case before the European Court of Human Rights in light of the Gürtel ruling.
Under Spanish law, Garzón has no right to appeal the Gürtel decision, except on limited constitutional grounds in an amparo filing. Spain’s failure to provide for a regular appeals process in certain criminal cases has previously been found to be a violation of its obligations under the International Covenant on Civil and Political Rights (ICCPR) (see paragraph 47 of General Comment 32 of the United Nations Human Rights Committee).
Today, the Tribunal Supremo dismissed the remaining charges against Garzón in a separate case involving bribery allegations. The court has yet to rule on the most notorious case of the bunch, in which Garzón is being prosecuted for investigating Franco-era human rights violations. The same poll commissioned by El País showed 77% of the Spanish public felt Garzón’s investigation of crimes by Franco agents “could not be considered a crime,” (“no puede ser considerado un delito”) contrasted with only 18% who thought Garzón should be convicted in that case as well.Continue Reading…
February 13, 2012
February 15, 2012
“Careers in Human Rights”
A Lunch Discussion with Mike Bochenek, Director of Law and Policy at Amnesty International
12:00- 1:30 pm
In his role as Director of Law and Policy at Amnesty, Mike Bochenek participates in policymaking and programmatic review at the highest levels of the organization. He is also an expert in children’s rights and economic, social, and cultural rights, having worked on the implementation of Amnesty’s Demand Dignity campaign, which frames anti-poverty advocacy as a human rights issue.
Previously, Bochenek was Deputy Director of the Children’s Rights Division at Human Rights Watch, where he researched, authored, and oversaw numerous reports on issues relating to juvenile justice, education, child labor, and police abuse, among other topics. Bochenek will speak about his start in the field of human rights, his work at Amnesty and HRW, and his current projects, which include advocacy around the upcoming US Supreme Court oral argument on the issue of life without parole (LWOP) sentences for juveniles.
This will be an informal discussion, so students are encouraged to bring questions about careers in human rights.
February 8, 2012
Post-Graduate Fellowship Opportunities with the Human Rights Program:
An Informational Session
Please join us for PIZZA and an informational session about the post-graduate fellowships offered through the Human Rights Program. We’ll fill you in on the Henigson, Satter and Global Human Rights Fellowships- all of which have application deadlines in March.
Hope to see you there!
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