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March 28, 2022

Another Trump Legacy That Won’t Give Up

Posted by Gerald L. Neuman

It appears that on April 1, Harvard Law School will be hosting a lecture by Peter Berkowitz, formerly the Executive Secretary of the Trump Administration’s “Commission on Unalienable Rights” (CUR), whose appalling Report has been repudiated by the Biden Administration. The lecture, entitled “Reflections on the Commission on Unalienable Rights,” is presumably part of the ongoing efforts to keep alive the CUR’s misguided project of reorienting and reducing international human rights law, like his presentation at a November 2021 conference at Notre Dame.

While the CUR Report was evidently a compromise document, its overall message was dismissive and hostile toward the current systems of international human rights law.  Secretary of State Mike Pompeo had convened the commission in order to weaken respect for human rights law, and cut it back to eighteenth-century principles.  The Report favored letting each country give treaty provisions the meaning that it prefers consistent with its own traditions. 

The project was not only inward-focused.  Pompeo’s State Department had the Report translated into the other five UN official languages (Arabic, Chinese, French, Russian and Spanish) and also into Farsi and German.  It actively promoted the report at the United Nations and in other countries, thereby encouraging autocrats and right-wing populists abroad to follow its example.  Just what the world needs at the present historical moment.

Harvard’s association with the CUR, which was chaired by a faculty member, is regrettable but the University has also been active in critique.  For a fuller set of “reflections” on the CUR Report, I can recommend the panel held by the Human Rights Program in September 2020, or this article by one of the participants.

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March 25, 2022

International Human Rights Clinic Files Supreme Court Amicus Brief on Behalf of International Scholars in Jam v. IFC

This week, Olivia Klein from the Office of Clinical and Pro Bono Programs published a feature on the IHRC clinicians and students that worked during the January term on the amicus brief submitted behalf of international scholars to the Supreme Court in Jam v. International Finance Corporation (IFC). Read about their intensive collaboration in the drafting and submission process and their hopes for what happens next: https://clinics.law.harvard.edu/blog/2022/03/international-human-rights-clinic-files-supreme-court-amicus-brief-on-behalf-of-international-scholars-in-jam-v-ifc/.

International Human Rights Clinic Team, left to right starting from back: Jayee Malwankar, Cindy Wu, Beatrice Lindstrom, Ellie Abramov, Ariella Katz, Madison Ferris

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March 23, 2022

Bonnie Docherty, Clinic’s Associate Director of Armed Conflict and Civilian Protection, testifies before Congressional subcommittee about weapons use in Ukraine

Posted by Bonnie Docherty

On March 16, 2022, Bonnie Docherty testified at a House Foreign Affairs Committee, Subcommittee on Europe hearing about early signs of of war crimes and human rights abuses committed by the Russian military during the full-scale invasion of Ukraine. She described Russia’s use of cluster munitions and explosive weapons in populated areas, highlighted the effects of the indiscriminate attacks, and called on the United States to condemn Russia’s actions and improve its own policies with regard to these weapons.

Watch Docherty’s testimony before Congress below.

To read Docherty’s written testimony, click here.

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March 23, 2022

Russia’s Use of Cluster Munitions and Other Explosive Weapons Shows Need for Stronger Civilian Protections

Posted by Bonnie Docherty

This article was first published on Just Security.

In the current armed conflict in Ukraine, Russian forces have relied heavily on two types of weapons that are notorious for the unacceptable and often unlawful harm they inflict on civilians. The weapons are cluster munitions, which have been banned by most countries in the world, and explosive weapons with wide area effects, which when used in populated areas are among the major causes of civilian casualties in contemporary armed conflict.

Attacks with these weapons have already killed and injured hundreds of civilians, turned buildings into rubble, and led to mass displacement. Judging by the experience of past conflicts, they will most likely also leave Ukraine with a legacy of harm that lingers long after active hostilities end.

Cluster Munitions

Cluster munitions, large weapons that contain dozens or hundreds of smaller weapons called submunitions, endanger civilians for two reasons. First, they have a wide area effect because they spread their submunitions over a broad footprint, commonly the size of a football field.  These submunitions cannot distinguish soldiers from civilians when used in populated areas. Second, many of their submunitions do not explode on impact, becoming de facto landmines that pose threats to civilians for months, years, or even decades after a conflict. These so-called “duds” are frequently detonated by children who think they are toys, farmers who hit them with their plows, or refugees who return home.

The immediate harm caused by cluster munitions has already been evident in Ukraine. Human Rights Watch (where I am a senior researcher) documented a strike by Russian forces near a hospital in Vuhledar in the Ukraine-controlled Donetska region on Feb. 24. A 9M79-series Tochka ballistic missile delivered a 9N123 cluster munition warhead, containing 50 submunitions. The attack killed four civilians and injured another 10, including six healthcare workers. It damaged a hospital building, an ambulance, and civilian vehicles.

Four days later, on Feb. 28, Russian forces launched 9M55K Smerch cluster munition rockets in three neighborhoods of Kharkiv, Human Rights Watch found. Each of these rockets, which are often fired in volleys of 12, carries 72 9N235 submunitions. The United Nations reported nine civilian deaths and 37 injuries in attacks across the city that day.

Russian forces launched Smerch and Uragan cluster munitions into the city of Mykolaiv on Mar. 7, 11, and 13, reportedly killing nine civilians in line at a cash machine on the last day alone, according to more recent Human Rights Watch research. Other organizations and journalists have also reported cluster munition attacks in Ukraine.

International humanitarian law (IHL)’s rule of distinction requires parties to a conflict to distinguish between civilians and combatants and between civilian objects and military objectives. The use of cluster munitions, at least where civilians may be present, violates this rule. Human Rights Watch and others argue they are inherently indiscriminate. At the time of attack, the wide-area effect of these weapons prevents them from distinguishing between combatants and non-combatants. In addition, the unexploded submunitions they leave behind makes them indiscriminate because their effects cannot be limited. Attacks using cluster munitions in populated areas may also violate the principle of proportionality, which prohibits attacks in which expected injury to civilians or damage to civilian objects is excessive in relation to anticipated military advantage.

The people who order or carry out cluster munitions attacks against civilians or civilian objects with criminal intent—that is, willfully or recklessly—are responsible for war crimes.

Due to the unacceptable harm cluster munitions cause and their indiscriminate nature, the 2008 Convention on Cluster Munitions bans their use, production, transfer, and stockpiling. Although Russia and Ukraine have not joined the treaty, 110 countries are party, including most NATO countries (although not the United States).

The convention also obligates each state party to “promote the norms it establishes and … make its best efforts to discourage States not party to this Convention from using cluster munitions.” In compliance with this provision, at least 15 states parties have condemned or expressed concern about Russia’s use of cluster munitions in Ukraine.

The president of the Convention on Cluster Munitions, which is currently the United Kingdom, along with the NATO Secretary-General, the UN High Commissioner for Human Rights, and the European Union have also condemned the use of cluster munitions in Ukraine.

Explosive Weapons in Populated Areas

While cluster munitions are especially horrific for civilians, they are just one type of explosive weapon. The broader category of explosive weapons, which encompasses artillery shells, mortar rounds, rockets, missiles, enhanced blast (aka thermobaric) weapons, and aerial bombs, among others, has caused the bulk of the conflict-related damage in Ukraine.

The use of explosive weapons in populated areas has grave humanitarian consequences both during and after attacks. Those effects are magnified when the weapons have wide area effects because: they have a large blast or fragmentation radius; they are inaccurate; they deliver multiple munitions at once (e.g., cluster munitions); or they have a combination of the above.

Russia’s bombing and shelling of Ukraine’s cities and towns has taken a physical and psychological toll on the civilian population. According to Human Rights Watch, Russian artillery shelling and airstrikes killed or injured  more than 450 civilians in the city of Kharkiv in the first 11 days of the conflict. The attacks have also leveled homes, apartment buildings, and other primarily civilian structures and infrastructure, and damaged the environment.

The costs of this method of war, however, extend beyond its direct effects. The use of explosive weapons with wide-area effects in populated areas also causes indirect and reverberating effects. The destruction of infrastructure can interfere with essential services and in turn infringe on an array of human rights.

In 2016, I co-authored an in-depth report on the effects of explosive weapons’ use on health care in the earlier conflict in eastern Ukraine, which was published by Harvard Law School’s International Human Rights Clinic (where I teach) and PAX. We found, for example, that damage to power plants and communication lines seriously affected hospitals and the provision of health care, and thus undermined the right to health. Such reverberating impacts will almost certainly be more severe in the current – much larger – conflict.

The use of explosive weapons in populated areas also exacerbates displacement. As of Mar. 18, more than three million people had fled Ukraine as a result of the conflict, according to the UN Refugee Agency (UNHCR). The attacks on urban centers with explosive weapons are one of the driving factors.

In a statement to the UN Security Council, a representative from the UN Office for the Coordination of Humanitarian Affairs (OCHA) noted that many of these effects were already being felt by Feb. 28. “As we all feared, civilians are already paying the price,” he said. “The scale of civilian casualties and damage to civilian infrastructure, even in these very early days, is alarming.”

Explicitly highlighting the dangers of the use of explosive weapons with wide-area effects, he continued, “Civilians will undeservedly suffer the most from these attacks on densely populated urban centres. . . .  And the longer this goes on, the greater the cost will be for civilians.”

Using  explosive weapons with wide-area effects in populated areas can be expected to result in indiscriminate attacks with a high loss of civilian life. The patterns of harm to civilians that these weapons cause, including their reverberating effects, are well documented and heighten concerns that attacks will also be disproportionate. In addition, the use of explosive weapons with wide area effects in populated areas is generally counter to the IHL duty to take all feasible precautions to minimize civilian harm. Those who are responsible for using explosive weapons unlawfully with criminal intent are committing war crimes.

While explosive weapons, unlike cluster munitions in particular, are not banned by any instrument of international law, countries have been working toward a political declaration that addresses the humanitarian consequences of their use in populated areas. The next round of negotiations of this Ireland-led process, which had been postponed by the Covid-19 pandemic, are now scheduled for April 6-8.

The events in Ukraine underscore how important it is for countries to include in the declaration a commitment to avoid the use of these weapons in populated areas. This political commitment, although non-binding, would set important standards for dealing with a deadly practice of modern war.

The concern regarding Russia’s use of explosive weapons in Ukraine’s urban centers from countries including Austria and Ireland, and as stated in the UN Human Rights Council resolution of Mar. 4, demonstrates the growing support for these standards.

Cease and Condemn

The horrific images and accounts emerging from Ukraine offer a glimpse of the immediate harm that Russian cluster munitions and explosive weapons are inflicting on Ukraine’s civilians. Documentation of the effects of these weapons in past conflicts suggest the harm will be long term.

To prevent furthering the humanitarian crisis, Russia should immediately cease the use of cluster munitions and avoid using explosive weapons with wide area effects in populated areas. Other countries and the United Nations should support documentation efforts to ensure domestic and international accountability for any violations of IHL and international human right law and in particular support the International Criminal Court’s Ukraine investigation.

Other states and the United Nations should also explicitly condemn the use of cluster munitions and explosive weapons with wide area effects in populated areas. Such focused criticism will not only increase pressure on Russia to change its practices in Ukraine. It will also strengthen the international norms against these means and methods of war.

It will bolster the Convention on Cluster Munitions, increasing its influence among countries that have not already joined; encourage the adoption a robust political declaration on explosive weapons in populated areas; and in so doing, help improve protections for civilians in future conflicts.

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March 2, 2022

Addameer and the International Human Rights Clinic at Harvard Law School Send Joint Submission to the UN Independent Commission of Inquiry on the Occupied Palestinian Territory and Israel

In response to a call for submissions from the United Nations Independent International Commission of Inquiry on the Occupied Palestinian Territory and Israel, Addameer Prisoner Support and Human Rights Association​, in partnership with the International Human Rights Clinic at Harvard Law School, contributed a joint submission analyzing whether the legal regime enforced by Israel in the occupied West Bank violates the prohibition of apartheid under international law.  The submission outlines discriminatory laws, policies, and practices enforced by the Israeli military in the occupied West Bank, which create a dual legal system that systematically discriminates against Palestinians and suppresses their civil and political rights. The submission finds that Israel’s actions in the occupied West Bank are in breach of the prohibition of apartheid and amount to the crime of apartheid under international law. Click here to read the submission

The Commission of Inquiry wasestablishedin May 2021 by the Human Rights Council with the mandate to investigate “all alleged violations and abuses of international human rights law leading up and since 13 April 2021” in the occupied Palestinian territory, including East Jerusalem, and in Israel, in addition to investigating “all underlying root causes of recurrent tensions, instability and protraction of conflict, including systematic discrimination and repression based on national, ethnic, racial or religious identity.” 

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