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April 27, 2016
Since the 2013 Snowden revelations, media and civil society groups have closely scrutinized U.S. surveillance and intelligence sector law and policy, generating wide-ranging domestic and international debates on privacy, security, and the limits of state power. Less scrutinized, however, are the surveillance and intelligence sector policies and practices of countries that wield little international influence, but whose governments exercise significant control over citizens’ ability to communicate privately and speak freely.
Two such countries, Venezuela and Zimbabwe, are the subject of reports the International Human Rights Clinic and its partners recently submitted to the United Nations Office of the High Commissioner for Human Rights (OHCHR). The joint reports document serious challenges to the right to privacy in both countries, including inadequate legal and policy frameworks on surveillance and intelligence gathering that are compounded by the absence of a strong and independent judiciary. These reports will ultimately help the United Nations Human Rights Council evaluate the human rights situation in both countries through the Universal Periodic Review (UPR).
The Clinic report on Venezuela, co-authored with Privacy International and Venezuelan non-profit Acceso Libre, notes a number of concerning developments since the country’s human rights situation was last assessed through the UPR in 2011: for example, the government has encouraged the emergence of “patriotas cooperantes” (cooperating patriots), anonymous informers who feed information to government officials about the activities of perceived government opponents. In a striking example of this practice, in February 2016 Reuters reported on the case of Rodolfo Gonzalez, who was arrested in April 2014 by intelligence agents and accused of masterminding protests against Venezuela’s President. The arrest was allegedly based on an audio recording provided by a cooperating patriot, in which Gonzalez discussed “destabilising actions” against the government. For nearly a year, Gonzalez was held in a facility operated by Venezuela’s major civilian intelligence agency while he waited for trial; he hanged himself in March 2015.
Similarly, in Zimbabwe, although the country’s new constitution (enacted in 2013) explicitly protects the right to privacy, the Clinic report, co-authored with Privacy International, the Zimbabwe Human Rights NGO Forum, and the Digital Society of Zimbabwe, finds this promise has not translated into protection for privacy in law or practice since Zimbabwe’s last review through the UPR in 2011. Zimbabwe’s President, Robert Mugabe, presides over a notoriously partisan and secretive intelligence sector that is virtually unconstrained by law. Government officials have, in fact, boasted about the intelligence sector’s vast and unchecked surveillance capabilities: in 2014, a senior government Minister stated that the government “sees everything . . . No-one can hide from us in this country,” adding, “we will visit your bedrooms and expose what you will be doing.” Leaked documents released by Al Jazeera last year showed that Zimbabwe’s most significant intelligence agency, the Central Intelligence Organisation, developed a “joint action plan” in 2011 with a South African intelligence agency that included as one of its objectives “to monitor activities aimed at subverting [the] constitutional order,” a task that involved the “identification, profiling, and assessment of NGOs engaged in subversive activities.”
The Clinic reports also find that the laws governing communications surveillance in Venezuela and Zimbabwe fall short of international human rights standards articulated in the International Principles on the Application of Human Rights to Communications Surveillance, principles developed primarily by a coalition of civil society organizations, including Privacy International, in 2013. Additionally, the reports note the establishment of extensive databases containing personal information and a variety of other data collection activities that threaten the right to privacy in both countries. For example, both countries require cellphone companies to collect an array of personal information about their customers and the communications flowing through their networks, measures that are becoming commonplace across the globe, but which facilitate surveillance and undermine individuals’ ability to communicate anonymously.
In their reports, the Clinic and its partners offer a variety of recommendations, including, in both countries, to strengthen the independence of the judiciary and reform the legal frameworks governing surveillance and the intelligence sector. Venezuela and Zimbabwe will be reviewed through the UPR in Fall 2016.
An unofficial translation of the Venezuela report is here in Spanish.
Note: Fabiana Pardi Otamendi, LL.M ’16, Josiah Kollmeyer, JD ’17, Amanda MacFarlane, JD ’17, and MacKennan Graziano, JD ’17, worked on the reports in the Clinic in Fall 2015.
April 25, 2016
Posted by Melinda Kuritzky, JD’13 and Nick Renzler, JD’12
When it comes to tobacco, twenty-first century America is very different from the smoke-filled haze that seemed to define much of the twentieth. In today’s United States, smoking rates are at an all-time low, teenagers are no longer confronted with positive messaging about smoking from the adults or advertisements around them, and “smoking sections” at restaurants are all but obsolete.
As millennials growing up in this era, and in this country, we thought the war against tobacco was won, thanks to the tireless efforts of activists, lawyers and public health experts who came before us.
Then we joined a team of lawyers led by Paul Reichler at Foley Hoag LLP seeking to defend Uruguay’s tobacco control regulations against claims brought by Philip Morris International, a multinational tobacco company. That’s when we realized tobacco companies were active as ever: they had simply shifted their marketing focus away from the U.S. and toward exporting the addiction elsewhere—primarily to low and middle-income countries.
To a certain extent, they have succeeded: tobacco consumption kills roughly six million people every year. It remains one of the biggest threats to global public health. But the public health community has fought back, most visibly with a 2003 global tobacco control treaty passed under the auspices of the World Health Organization (WHO). The treaty encourages countries to enact tough new tobacco control measures to protect their citizens’ right to health—measures the tobacco industry has challenged at every turn, using international trade and investment law to sue governments that seek to limit their marketing power.
Such is the case with Uruguay, which historically has struggled with some of the highest smoking rates in South America. After it ratified the WHO treaty, Uruguay became one of the most progressive governments in the tobacco control arena, instituting a marketing ban on brand variants, a deceptive tool used by tobacco companies to falsely suggest that certain variants are less harmful than others. The government also required large, graphic warning labels on every package—80% of the front and back of the package.
True to form, Philip Morris hit back hard with a claim against the government, arguing that Uruguay’s ban on brand variants and its requirement of larger warning labels violated a 1991 treaty that provides certain protections for investments between Uruguay and Switzerland, where the company is headquartered. Philip Morris also claimed that, in cases related to tobacco control measures, Uruguay has denied the company justice in its domestic courts.
After a lengthy exchange of written pleadings and documents, Uruguay presented its oral arguments in this bellwether case last October during a two-week arbitral hearing. Responding to Philip Morris’ claims, we argued, among other points, that there is a human right to health, enshrined in instruments to which both Uruguay and Switzerland are party, and that Uruguay, as a sovereign State, has both the right and duty, in the exercise of its police powers, to protect public health by adoption of reasonable regulatory measures, like the ones challenged by Philip Morris.
From our perspective, the right to protect public health argument seemed uncontestable: tobacco is the only legal consumer product that kills half of its regular users when used exactly as intended by the manufacturer. Indeed, we asserted, it is Uruguay’s duty to enact bona fide, non-discriminatory measures to protect the public against these harms. Given the tobacco epidemic and its damage, it would be irresponsible for governments to do otherwise.
Moreover, because of Big Tobacco’s well-known tactics to obstruct meaningful and effective tobacco regulation (including pursuing the very case we are defending, and others like it), governments should take this right and duty seriously, enacting strong regulation that untangles the web of harm created by decades of tobacco industry deceit.
As Harold Hongju Koh, a member of our legal team, made clear in a recent Harvard Law School talk with his brother, Dr. Howard Kyongju Koh, tobacco control must be viewed as a public health and human rights imperative. Now it is up to the World Bank ICSID Tribunal, which is expected to release its decision in the Uruguay case later this year, to weigh in.
VIDEO BELOW: The Koh brothers’ talk, “Global Tobacco Control as a Public Health and Human Rights Imperative,” on April 4, 2016 at Harvard Law School. For an incisive take on the Uruguay case, and others like it, see comedian John Oliver’s segment on tobacco industry tactics using international trade and investment law that aired last year.
April 21, 2016
April 21, 2016
“No Más Bebés”:
A Film Screening and Discussion with Renee Tajima-Peña
4:00- 7:00 p.m.
The event is free and open to the public, but registration is required here.
Please join us for a film screening and discussion of No Más Bebés, which tells the story of a landmark event in reproductive justice, when a small group of Mexican immigrant women sued county doctors, the state, and the U.S. government after they were pushed into sterilizations while giving birth at the Los Angeles County-USC Medical Center during the 1960s and 70s.
This screening will be followed by a discussion with Harvard University alumnus and Director, Renee Tajima-Peña. Professor Tajima-Peña is an Academy Award®-nominated filmmaker whose films on immigration, race and social issues include Who Killed Vincent Chin?, My America…or Honk if You Love Buddha, Labor Women, The New Americans, and Calavera Highway. She is currently the Director of the Center of EthnoCommunications at UCLA, where she is a professor and holds an endowed chair in Japanese American Studies.
This event was organized by the Asian American Studies Working Group and the Latina/o Studies Working Group in EMR, and co-sponsored by Observatory of the Instituto Cervantes, The Human Rights Program at Harvard Law School, Committee on Degrees in Studies of Women, Gender, and Sexuality, The Latino Medical Student Association, and The Harvard Chan Women, Gender and Health Interdisciplinary Concentration
April 20, 2016
TODAY, April 20: “Human Rights, UN Millennium Development Goals, and Federal Prosecutions in Brazil”
April 20, 2016
“Human Rights, UN Millennium Development Goals,
and Federal Prosecutions in Brazil”
A talk by Raquel Ferreira Dodge, Subprosecutor-General of the Republic, Federal Prosecutor’s Office, Brazil
12:00- 1:00 p.m.
What if prosecutorial priorities were expressly oriented toward the promotion of human rights and development? Might that alter the typical targets of law enforcement? Please join us for a discussion with Raquel Ferreira Dodge, Subprosecutor-General of the Republic, Federal Prosecutor’s Office, Brazil, on the efforts of the Coordination and Review Chamber on Crime and Police Oversight of the Brazilian Federal Prosecutor’s Office (Ministério Público Federal) to link prosecutions more clearly to human rights promotion and the attainment of the United Nations Millennium Development Goals.
Organized by the Brazilian Studies Association at Harvard Law School, La Alianza, the Women’s Law Association, Students for Inclusion, and the Human Rights Program.
April 15, 2016
Posted by Deval Desai, LLM '09
The following piece, co-authored with Rebecca Tapscott, reflects on a recent roundtable at the International Studies Association in Atlanta with four experts in conducting qualitative research in fragile contexts: clinical director Tyler Giannini; peace and conflict specialists Alain Lempereur and Mareike Schomerus, and development policy expert Alex Berg. The piece originally ran on April 11 on the World Bank’s blog.
For policymakers, fragility and conflict are one of the 21st century’s key development challenges. Fragility is by definition heterogeneous and contextual—which is why qualitative research is such a good tool to help us understand exactly why “there” is so messed up, and what we could or should do to fix it. And so, perhaps logically, we—primarily young, western, tertiary-educated men and women—are doing more and more research. The more research we do, the more professional we become, as we build a core set of skills (i.e. methodologies) to explain the complexity of “there”—its war, crisis, and corruption—to the policymakers who want to fix (i.e. govern) it.
But what if the simple act of doing such research is also an act of governance? What if, when we go there to ask people to tell us their stories, they understand that our questions about security, or health, or livelihoods are just a step in a chain that ends with recommendations for—or against—blue helmets, food aid, or regime change? What if our power to ask questions of research subjects is predicated upon the inflexible idea that “there” is deviant and must be fixed?
These are not new issues. But their context has changed, and thus so have the ways we must think about them. As research has intensified, the practice of doing research has professionalized. At the same time, its ethical norms have not. When it comes to ethics, we continue to vest power in the individual researcher and her sense of what is right: she decides how much to focus on researcher positionality; how much of her research she should bring back to her research subjects; how and when to use her research to speak truth to power. If she is stymied, she can rail against the individual policymakers who haven’t listened to her work, or she can critique them with a theoretical lament about global structures of knowledge and power. These trade-offs allow the researcher to remain simultaneously noble and unaccountable. They are sometimes described as “dirty little secrets”, a phrase which reflects their individual and back-stage nature.
However, as “we” become more professional, there is precedent to revise the terms of these questions. The language of individual choice and structural critique could be replaced by something more systemic, committing us to our role within a class of people who actively participate in processes that govern fragile states. What might this alternative look like?
A few weeks ago, we discussed these very questions in a roundtable at the International Studies Association in Atlanta, with four experts in conducting qualitative research in fragile contexts: peace and conflict specialists Alain Lempereur and Mareike Schomerus, development policy expert Alex Berg, and human rights lawyer, Tyler Giannini. All shared a sense that the relationship between research and politics is hard, and requires a researcher to be self-reflexive about his or her role in the exercise of power in fragile states without succumbing to navel-gazing inaction.
Alain, Mareike, and Alex highlighted many of the challenges inherent in the relationship between the policymaker and the qualitative researcher. They discussed how they’ve decided when to play the role of researcher, and when to don the policymaker’s hat; how to balance the need to tell important stories with the concomitant costs to the stories’ characters (for example, the sunk costs of participating in research, or in some circumstances, political or social costs incurred from associating with a western researcher); and negotiating whether, as a researcher, we are using our subjects—or they are using us.
Tyler presented another view. He told us about how the field of human rights has evolved over the past two decades:
“Human rights names and shames as its core methodology. There is a lot of qualitative storytelling, which has moved onto social media… Increasingly, there’s a call for data and evidence… But our methods [as lawyers] are [sometimes] constrained by [the legal profession’s ethical code]. Above all, we have to first work for the client; and second, we have to have a good faith complaint [for cases]. This is very different from “research mode”. [In a recent project] we had no [plausible] venue to bring a complaint. [Yet] we compiled 1,000 pages of affidavits. These are formal documents—it’s above and beyond taking notes from interviews—the standard is higher. 1,000 pages seemed like a lot, we thought it would make an impression. We wouldn’t have done that 20 years ago.”
April 14, 2016
Myanmar: Investigate Use of Excessive Force Against Letpadan Protesters
Hold perpetrators accountable, amend peaceful assembly law
(Yangon, April 14, 2016)—While welcoming the Government of Myanmar’s recent release of political prisoners, Fortify Rights and the Harvard Law School International Human Rights Clinic urged authorities today to open a formal investigation into the violent police crackdown against protesters in March 2015 in Letpadan.
The Letpadan protesters were among nearly 200 political prisoners that the recently elected Government of Myanmar—led by the National League for Democracy (NLD)—either pardoned or dropped charges against on April 8. State Counsellor Aung San Suu Kyi announced on her second day in office a plan to free political prisoners, activists, and students in the weeks surrounding the Buddhist New Year holiday. According to human rights groups, more than 100 political prisoners remain behind bars.
“After spending more than a year in prison for exercising their right to freedom of peaceful assembly and expression, the Letpadan protesters are finally free,” said Matthew Smith, Executive Director of Fortify Rights. “Their courage and tenacity is an example to human rights defenders across the world. We commend the government for prioritizing their release and urge the authorities to take swift action to hold perpetrators accountable.”
In October 2015, Fortify Rights and the Clinic at Harvard Law School published an 81-page report documenting how Myanmar police officers punched, kicked, and beat unarmed protesters with batons on their heads, backs, and legs at Letpadan on March 10, 2015. Hundreds of photographs and dozens of videos from journalists and other witnesses show police officers beating unarmed protesters. Still, more than a year later, the authorities have failed to hold anyone responsible for the use of excessive force.
In January 2016, the All Burma Federation of Student Unions (ABFSU), the Letpadan Justice Committee, and Justice Trust released a briefing paper detailing how Myanmar authorities repeatedly delayed the trials of students arrested at Letpadan and denied them access to adequate medical treatment while in prison.
In addition to investigating the abuses, Fortify Rights and the Clinic at Harvard Law School called for the government to hold police officers responsible for using excessive force against protesters. The government should investigate commanders and officials who gave orders to use excessive force or failed to take reasonable measures to prevent such conduct.
“Releasing these protesters and dropping the charges against them is a positive and historic step,” said Tyler Giannini, Director of the Clinic at Harvard Law School. “We look forward to the government upholding its promise to follow the rule of law by investigating and holding perpetrators to account.”
The October 2015 report makes clear that not all police officers at the scene in March 2015 participated in violence. Some police officers used riot shields or their own bodies to protect protesters from attack by other police officers, providing further evidence of the unjustified use of force by some officers. Fortify Rights and the Clinic urged the authorities to highlight commendable police action in any investigation.
The protests in Letpadan stemmed from the September 2014 passage of the National Education Law, which critics said failed to protect the right to form unions and failed to accommodate ethnic communities, among other alleged shortcomings. Protesters in Myanmar took to the streets in January 2015 and continued to march in various locations throughout the country over the next several months.
Many of the Letpadan protesters faced charges under the Peaceful Assembly and Peaceful Procession Law, which requires prior authorization or consent for assemblies and provides penalties of fines and imprisonment for failure to comply, infringing on the rights to freedom of peaceful assembly and expression. Fortify Rights and the Clinic at Harvard Law School encourage the NLD Government to repeal or amend the Peaceful Assembly and Peaceful Procession Law to bring it in line with international standards and to prevent it from being used to target human rights defenders.
For more information, please contact:
Tyler Giannini, Director, Harvard Law School International Human Rights Clinic: +1-617-496-7368,
[email protected]; Twitter: @HmnRghtsProgram
April 13, 2016
When Deborah Alejandra Popowski, J.D.’08, was just beginning her studies at Harvard Law School (HLS), she learned a powerful lesson about the value and import of the law.
An American attorney representing a Guantanamo detainee spoke at an HLS event. The lawyer told of her client, a Saudi citizen in his early 20s, and of the regimen of inhuman treatment that he endured at the hands of U.S. military forces. For Popowski, the lawyer’s testimony brought home the human dimension of torture.
“Everybody in law school was talking about concepts and the rule of law regarding torture,” Popowski said. “That was the first time that I had ever heard somebody talking about people.”
Ever since, she has tried to follow that example and tend the people.
Since 2009, when Popowski began working as a fellow at the HLS International Human Rights Clinic, she has advocated for torture survivors as part of a movement to seek accountability for U.S. torture through both state and international courts.
Popowski, who became an HLS clinical instructor in 2011, has focused on the role that psychologists played in the U.S. torture program authorized by the Bush administration and implemented as part of its “war on terror.”
As is widely known, psychologists helped design the CIA’s “enhanced interrogation techniques,” which included water-boarding, sleep deprivation, forced nudity, and religious and sexual humiliation of Muslim men and boys detained by U.S. intelligence and military agencies. Psychologists also participated in interrogations as advisers.
Popowski recalled an internal military report that documented an interrogation session in which a detainee was repeatedly slammed onto the floor and ended up spitting up blood, with a loose tooth, bruises, and rib pain.
“The psychiatrist who was present didn’t say, ‘You shouldn’t be slamming him at all.’ He recommended the slamming,” said Popowski. His “protection” of the man, she said, was to tell the interrogator to move chairs out of the way before slamming him again.
Examining the controversial participation of psychologists in the U.S. torture program, Popowski will take part in a panel on Wednesday with David Luban of Georgetown University Law Center.
“The official narrative was that psychologists were there to keep interrogations safe and ethical,” Popowski said. “But they were there not to protect detainees; they were there to calibrate harm.”
Widespread public criticism of the American Psychological Association (APA) for endorsing the U.S. program led the group last summer to prohibit its members from taking part in interrogations by military or intelligence services. Shortly afterward, the Pentagon announced the withdrawal of psychologists from Guantanamo Bay.
For Popowski, both decisions are reasons to celebrate because they represent a landmark in the movement for reform and prevention within the association, whose call is to heal and do no harm.
An independent report last year commissioned by the APA concluded that the association had colluded with the Department of Defense inappropriately by aligning its ethics policies with military directives to protect the role of psychologists during interrogations they had reason to know were abusive. According to Popowski, this collusion enabled torture and cruel, inhuman, or degrading treatment in violation of human rights and humanitarian law.
Although the report validated Popowski’s position, she still worries about what she calls the U.S. government’s unwillingness to hold accountable the military and civilian officials who were responsible for the program. She represented a group of Ohio residents — including psychologists, lawyers, a minister, and a veteran — who filed a complaint with that state’s licensing board against Dr. Larry James for his role in Guantanamo. Other advocates presented evidence relating to Dr. James and other psychologists, alleging their involvement in torture, to licensing boards in Texas, New York, Louisiana, and Alabama.
In no case did a state board bring formal charges. Popowski said they offered “opaque, implausible, or seemingly pretextual justifications for their decisions” and “seemed to turn a blind eye” to credible evidence. All this, she said, highlights the lack of accountability for those who designed and implemented policies condoning torture. So for Popowski, the struggle is not over.
In her HLS classes and clinic, Popowski strives to teach students the effects of the legal practice on people’s lives, an aspect that she believes is somewhat overlooked in law schools across the country. As part of the International Human Rights Clinic, she took students to Geneva, where they, along with Trudy Bond, a psychologist from Toledo, Ohio, presented the UN Committee Against Torture with the 2014 shadow report that they helped write. The committee concluded that the U.S. government should investigate senior officials, lawyers and other civilians responsible for their role in the program.
Students also participated in litigation and in other advocacy work that accompanied the legal action.
“We want lawyers and advocates who are compassionate and empathetic people,” she said. “They have to be able to understand the tremendous impact their policies, rules, and actions can have on people. It’s an ethical question students have to wrestle with — what responsibilities they have as lawyers.”
Popowski feels optimistic about the future.
A granddaughter of Holocaust survivors, Popowski was born in Argentina during a military dictatorship. She likes to tell her students that in 1999, when she was writing her bachelor’s thesis on collective memory in Argentina, prospects for justice in cases of torture and human rights violations committed by the military junta were dim. Nearly a decade later, when she came back to HLS, Argentina had become an example of accountability for crimes of torture and forced disappearance.
“That’s the way I like to think about this work,” she said. “You have to be ready to challenge your concept of what’s possible and have a long-term imagination.”
April 12, 2016
April 13, 2016
“American Torture and Institutional Corruption: Law, Society and the Power of Professional Complicity and Resistance”
12:00- 1:00 p.m.
Please join HLS Advocates for Human Rights for a panel discussion of a recent independent investigation that found collusion between the American Psychological Association and the U.S. government in relation to interrogation policies that enabled the torture of Muslims by American officials. Panelists Deborah Popowski, Clinical Instructor with the International Human Rights Clinic at Harvard Law School, and David Luban, Professor at Georgetown University Law Center, will discuss the findings of the so-called Hoffman report and its implications for psychologists and also for the legal profession.
Popowski has been working at the intersection of human rights and professional ethics in the context of U.S. counterterrorism law and policy for the past decade. Luban has written extensively on the role of professionals in the U.S. torture program; his most recent book, “Torture, Power, and Law,” won the American Publishers Association PROSE Award for excellence in philosophy.
Lunch will be provided. Sponsored by the Muslim Law Students Association, the National Security and Law Association, the Human Rights Program, and Students for Inclusion
April 11, 2016
“Killer Robots: The Case for Human Control”
Nations Convene to Discuss Fully Autonomous Weapons
(Geneva, April 11, 2015) – Countries should retain meaningful human control over weapons systems and ban fully autonomous weapons, also known as “killer robots,” Human Rights Watch and the Harvard Law School International Human Rights Clinic said in a report issued today. The concept of meaningful human control will be a centerpiece of deliberations at a week-long multilateral meeting on the weapons, opening April 11, 2016, at the United Nations in Geneva.
The 16-page report, “Killer Robots and the Concept of Meaningful Human Control,” discusses the moral and legal importance of control and shows countries’ growing recognition of the need for humans to remain in charge of the critical functions of selecting and firing on targets.
“Machines have long served as instruments of war, but historically humans have directed how they are used,” said Bonnie Docherty, senior clinical instructor at the International Human Rights Clinic and the report’s lead author. “Now, there is a real threat that humans would relinquish their control and delegate life-and-death decisions to machines.”
Fully autonomous weapons would go a step beyond existing remote-controlled drones as they would be able to select and engage targets without human intervention. Although these weapons do not exist yet, the rapid movement of technology from human “in-the-loop” weapons systems toward “out-of-the-loop” systems is attracting international attention and concern.
Human Rights Watch and the Harvard program also examined the rules requiring control in various areas of international law, including disarmament, and how they could provide insight into the use of the term in the context of autonomous weapons. Bans on mines, biological weapons, and chemical weapons show the value disarmament law has placed on control of weapons. A requirement for meaningful human control over lethal force would in effect prohibit the use of fully autonomous weapons and thus achieve a preemptive ban on fully autonomous weapons, the organizations said.
The report will be distributed at the third international meeting on lethal autonomous weapons systems at the UN in Geneva from April 11 to 15. Many of the 122 countries that have joined the Convention on Conventional Weapons are expected to attend this meeting of experts on the subject, which Germany is chairing. The meeting continues deliberations on the matter held in April 2015 and May 2014.
Human Rights Watch coordinates the Campaign to Stop Killer Robots, which believes that work in the Convention on Conventional Weapons forum should lead to new international law prohibiting fully autonomous weapons. The Convention on Conventional Weapons preemptively banned blinding lasers in 1995.
“Humans should retain control of weapons systems and individual attacks, not only of overall operations,” said Docherty, who is also senior arms division researcher at Human Rights Watch. “Mandating human control would help avoid threats to the fundamental moral principles over the decision to use force.”
Fully autonomous weapons would lack the human capacity to feel empathy, which can act as a key check on killing, the organizations said. Ceding human control over decisions about who lives and who dies would also deprive people of their inherent dignity, as inanimate machines can neither truly comprehend the value of human life nor the significance of its loss.
Mandating meaningful human control would close the accountability gap that would be created by the use of fully autonomous weapons. It would ensure that someone could be punished for an unlawful act caused by the use of the weapon. With a legal requirement for human control, a commander could be held criminally liable for using any weapon without such control.
Meaningful human control over the use of weapons is also consistent with and promotes compliance with the principles of international humanitarian law, notably distinction and proportionality. Distinction requires the ability to understand an individual’s behavior and proportionality requires human judgment to weigh civilian harm and military advantage. Human control is also crucial to upholding human rights law. Two UN special rapporteurs said in February that: “Where advanced technology is employed, law enforcement officials must remain personally in control of the actual delivery of use of force.”
Since the international debate over full autonomy in weapons systems began at the Convention on Conventional Weapons meeting in 2013, almost 30 countries have specifically addressed the concept of human control in their statements, largely characterizing it as meaningful, appropriate, or effective. Many of these countries explicitly support requiring human control and most have called for more in-depth discussions of the topic.
The concept of meaningful human control is also gaining currency outside of the Convention on Conventional Weapons. For example, a 2015 commentary on the right to life issued by the treaty body of the African Charter of Human and People’s Rights found that: “Any machine autonomy in the selection of human targets or the use of force should be subject to meaningful human control.”
Countries participating in the Geneva meeting will not make any formal decisions. The meeting aims to build a common base of knowledge about technical, ethical, legal, operational, security, and other concerns relating to the weapons. However, they “may agree by consensus on recommendations for further work for consideration” by the treaty at its Fifth Review Conference, a multilateral meeting held every five years, in December 2016.
Human Rights Watch is a co-founder of the Campaign to Stop Killer Robots. Mary Wareham, advocacy director for the Human Rights Watch arms division, serves as the campaign’s global coordinator. The international coalition of more than 60 nongovernmental organizations is working to preemptively ban on the development, production, and use of fully autonomous weapons.
“Countries should not only dedicate more time to considering concerns about killer robots but also commit to pursue a timely and tangible outcome,” Docherty said. “Substantive work will only be possible if countries adopt policy and legislative measures to retain human control of weapons before the technology advances too far.”
The following International Human Rights Clinic students helped research and write the report under Docherty’s supervision: Anna Joseph, JD ’16; Josiah Kollmeyer, JD ’17; Lan Mei, JD ’17; and Kristen Zornada LLM ’16. Docherty, Mei, and Zornada are at the United Nations in Geneva this week to participate in the Convention on Conventional Weapons meeting and to present their paper.”
April 7, 2016
Posted by Keaton Allen-Gessesse, JD '16
Yesterday, it was my great honor to present Fernando Ribeiro Delgado, my former clinical instructor, with the Shatter the Ceiling Award for Excellence in Integrating Critical Race Theory into the Curriculum. The annual award, given by Students for Inclusion and the Shattered Ceiling Committee of the Harvard Women’s Law Association, is based on feedback from a student survey. Below are the comments I prepared for the ceremony, followed by the complete list of faculty honorees:
“The first time I thought ‘there may actually be a place for students like me here’ was during my 2L year in the International Human Rights Clinic. Deborah and Tyler’s human rights seminar was intellectually engaging in ways I had never experienced at HLS and I was sure none of my other classes could compare. But my developing clinical education with Fernando was not just comparable; it was the ultimate practical supplement.
Team meetings were my oasis amid an exorbitant education generally void of critical analysis. Our clinical project – using human rights law to advocate for a moratorium on private prison expansion in Brazil – facilitated an evolution of my social and legal imagination. As expected, we learned international case law and how to compose persuasive legal arguments. More importantly, Fernando encouraged us to embrace our curiosity and creativity as we investigated the laws’ capacity to maintain or dismantle oppressive regimes.
Fernando takes a similar approach to his teaching in the classroom, as illustrated by the following quote from a current student:
‘The central premise of critical race theory in the legal context is how the law is used as a tool in maintaining white supremacy and how we can transform the relationship between the law and racial power. In our institution, we see a curriculum that fails to view the law through this lens with almost no emphasis on critical race theory. But its central premise is taken up by Fernando in his Human Rights and Criminal Justice class. Fernando examines how the prison industrial complex, from Brazil to Baltimore, is used as a tool to oppress communities of color and encourages his students to think critically about how the law is used to disenfranchise minority communities. His students appreciate his carefully curated readings, which aside from breaking with Harvard Law tradition in being short, collect voices which are typically not heard within our school, including works by Angela Davis on prisons, Michelle Alexander on mass incarceration as the new Jim Crow, and Makau Matua on how our system of international human rights preserves an international legal order of white colonialism.
Fernando is a living example and inspiration of how we can use our power as human rights advocates to elevate the voices of marginalized causes and groups and to never forget that this is not about us but about liberation. For so many of us disillusioned by humanity, Fernando’s class is a sanctuary in which we as imperfect advocates can fight for racial justice in a system where we don’t even know what that means or looks like.’
I thought Fernando was one of the best-kept secrets at HLS, but this award demonstrates that it was foolish to think that I alone recognized his magic. If anything, I am now discovering the significant community of students he has inspired and transformed throughout the years.
Fernando, I am so very honored to present you with this award. Without that formative semester in the Clinic and in your seminar, I would never have been able to envision a better legal system, nor a better Harvard Law School. So I thank you deeply – more than I can adequately articulate – for modeling the type of human rights advocate that I, and so many others in this room, aspire to be. ”
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