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January 18, 2023
Posted by Gerald L. Neuman
It was shocking to learn that the Kennedy School had vetoed the appointment of Kenneth Roth, a towering figure in human rights advocacy, as a fellow at the Carr Center. Roth led Human Rights Watch for three decades before stepping down in 2022. More shocking was the reported reason — retaliation for criticism of Israel by Roth and his NGO. Human Rights Watch is widely known and greatly admired for the quality of its research and its candid attention to the failings of all states. No government should be immune from such inquiry. Dismissing substantive and carefully analyzed critique as bigotry is a tactic of authoritarian regimes, unworthy of a major university. In this time of populist threats to human rights, Harvard should be supporting and welcoming human rights defenders, and letting their ideas be explained and rationally debated, not ostracizing them. In a world where human rights defenders and scholars all too often face reprisal for their work, including through the restriction of future prospects and opportunities, the action of the Kennedy School sends the wrong message to everyone in the human rights field, and to authoritarian actors at home and around the world.
Addendum on January 27, 2023: Following sustained protestations against the vetoing of Kenneth Roth’s fellowship, Kennedy School Dean Doug Elmendorf reversed his initial decision and the fellowship offer was extended to Roth on January 19. Roth accepted the offer and will be a Senior Fellow with the Carr Center for Human Rights Policy at the Kennedy School.
Gerald L. Neuman is Director of the Human Rights Program, as well as the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School. He teaches courses in international human rights law, immigration and nationality law, and U.S. constitutional law. From 2011 to 2014, he served as a Member of the UN Human Rights Committee.
December 14, 2022
At only 34 years, María Cecilia Ercole has already established herself as a seasoned human rights practitioner with over eight years of experience at the United Nations Office of the High Commissioner for Human Rights (OHCHR) under her belt. With postings in Geneva, Beirut and La Paz, Ercole’s time at OHCHR has led her to a wide range of human rights work – from monitoring and reporting of presidential elections in Bolivia, to advocacy for victims of torture and modern slavery, to investigations of human rights violations in Yemen and Sri Lanka. Her outlook on human rights was formed by the history of her home country, Argentina, where civilian opposition against the military dictatorship morphed in time to include a push for social, cultural, environmental, and economic rights.
From a young age, and before becoming a lawyer, Ercole was actively involved in community and volunteer work in Argentina. She tutored inmates who were studying law at the Devoto Prison in Buenos Aires and helped in a center for addicted adolescents fighting “paco”, a by-product of cocaine. Following law school, Ercole initially worked in the private sector in Buenos Aires on investment and commercial arbitration cases. But she quickly realized her passions lay elsewhere and left her position in order to work in human rights.
On leaving the private sector, Ercole said, “I felt relief that day while leaving the law firm building. But I was also feeling insecure. Not only was I a fresh graduate at the time, but my father’s conviction was that pursuing a human rights career was snobbish and unrealistic. I would often catch myself questioning this early career turn, swapping a lucrative career in arbitration for a human rights one.”
Her next career stop marked a major shift away from arbitration law. Ercole briefly worked with the Center for Justice and International Law in Washington, D.C., representing victims before the Inter-American Human Rights System. Following this, she accepted a coordinator position at a grassroot NGO providing legal aid to victims of domestic violence and asylum seekers living in slums on the outskirts of Buenos Aires. “The NGO office was in the small attic of an insurance company”, Ercole noted. “Despite that, we were making a difference through the legal profession. And, as a young lawyer, I also had my first experience managing a small team of lawyers and volunteers.”
From Buenos Aires, Ercole moved to Geneva, the heart of the international human rights system. Throughout the many countries she has worked in, a particular commitment has stayed with her: defending and expanding the rights of women, children, migrants and LGBTIQ+ individuals. On this, a notable victory stands out. As OHCHR gender focal point in La Paz, Ercole’s unrelenting advocacy vis-à-vis the government authorities and OHCHR’s strong alliance with a vibrant national civil society contributed greatly to the state’s recognition of the country’s first civil union of a same-sex couple in December 2020, thereby setting a precedent for the advancement of LGBTIQ+ rights in Bolivia.
As the Wasserstein Fellow in Residence at the Harvard Law Human Rights Program (HRP) and the Office of Public Interest Advising (OPIA), Ercole juggles different tasks. At HRP, she aims to bring answers to challenges Ercole encountered when investigating violations during armed conflict and beyond. A product of this scholarly interest has been a recent article about the rights of LGBTQ+ persons in armed conflict published on the blog of the European Journal of International Law. As an adviser at OPIA, Ercole assists HLS students interested in human rights careers in navigating the intricacies of the international legal arena. “Empowerment should always be the starting point with young people”, said Ercole. “All in all, advising has been my chance to give back.”
December 6, 2022
In a new article for the International Review of the Red Cross, Bonnie Docherty, lecturer on law and director of the Clinic’s Armed Conflict and Civilian Protection Initiative, examines the evolution of the concept of victim assistance and the impact of its implementation. Co-authored with Alicia Sanders-Zakre, the article analyzes the contributions of three treaties—the Mine Ban Treaty, the Convention on the Rights of Persons with Disabilities, and the Convention on Cluster Munitions—in shaping the development of victim assistance standards and practices. It also identifies lessons from these treaties for implementing and interpreting the victim assistance obligations under the Treaty under the Prohibition on Nuclear Weapons. The article “concludes that the three treaties have collectively established assisting victims as a feature of disarmament law, helped persons with disabilities realize their rights, and laid the groundwork for adapting victim assistance to new challenges.”
The full article, “The Origins and Influence of Victim Assistance: Contributions of the Mine Ban Treaty, Convention on the Rights of Persons with Disabilities and Convention on Cluster Munitions,” is available here. It is part of a special International Review of the Red Cross issue addressing persons with disabilities in armed conflict.
December 2, 2022
Lecturer on Law and Senior Clinical Instructor Salma Waheedi’s latest article in the American University in Beirut’s Al-Abhath explores constitutional review in Arab Gulf States, as part of a volume analyzing the promise of constitutionalism in the Arab Gulf. The article examines the constitutional frameworks of Kuwait and Bahrain and the main features of their judicial review models, with a focus on the legal and institutional designs elements that enable or limit the independent exercise of judicial oversight by these constitutional courts. It offers a detailed analysis of key constitutional court rulings that illustrate the broad features of each court’s jurisprudence, and concludes with reflections on the lingering political and structural challenges to their full exercise of independent constitutional review in both states. Click here for more information and to access an online version of the article.
November 28, 2022
In EJIL: Talk, the blog of the European Journal of International Law, HRP/OPIA Wasserstein Fellow María Cecilia Ercole and Associate Director Abadir Ibrahim published a comment of the newly released UN report about the effects of armed conflict on LGBTQ+ persons. The report was authored by the UN Independent Expert on Sexual Orientation and Gender Identity (IE SOGI) Victor Madrigal-Borloz, who also is a Senior Visiting Researcher at HRP.
Ercole and Ibrahim place the IE SOGI report in the context of developments in international humanitarian and human rights law regarding the rights of LGBTQ+ individuals. They conclude that despite some progress in recognizing the outsize impacts of war on queer populations, there remain significant blind spots in international law.
You can read the full article on the blog of the European Journal of International Law.
November 28, 2022
This article was first published on Just Security.
Last week, more than 80 countries endorsed a new international commitment to address one of the greatest threats to civilians during armed conflict: the use of explosive weapons in populated areas. Explosive weapons include aircraft bombs, artillery, rockets, and missiles, and their use in cities, towns, and villages causes thousands of civilian casualties around the world each year.
The political declaration, which 82 countries signed at a ceremony in Dublin Castle on Nov. 18, goes beyond calling for better compliance with existing international humanitarian law by committing the endorsing countries to take additional measures to prevent and remediate the devastating humanitarian consequences of the use of explosive weapons in populated areas.
The success of the endorsement conference warrants celebration, but it also marks the beginning of a new phase of work. Governments, international organizations, and civil society groups now need to focus on universalizing, interpreting, and implementing the document.
A New Political Declaration to Protect Civilians
While not legally binding, the declaration is a milestone for efforts to advance humanitarian disarmament and curb human suffering during armed conflict. It sets international standards for restricting the use of explosive weapons. It demands military training and changes in national policies and practices that have the potential to reduce the harm from a method of war that causes direct and indirect, or reverberating, effects. It also includes commitments on victim assistance, data collection and sharing, and follow-up meetings.
The declaration is the product of a three-year process led by Ireland. Its signatories come from every region of the world and include countries affected by armed conflict and major military powers. Six of the world’s top eight arms exporters — the United States, France, Germany, Italy, the United Kingdom, and South Korea — have joined, as well as 24 of 30 NATO Member States.
Ukraine expressed its support at the conference for the declaration’s spirit and principles, but said that it would only be able to endorse the instrument after its conflict with Russia ended and it regained sovereignty over its territory.
The Cost of Explosive Weapons
The use of explosive weapons in populated areas has high costs for civilians both at the time of attack and long after. The weapons’ blast and fragmentation cause widespread civilian casualties and inflict psychological trauma. According to Action on Armed Violence, when explosive weapons are used in populated areas, an average of 90 percent of those killed or injured are civilians.
Damage to or destruction of civilian infrastructure, including power, water, and sanitation facilities, interferes with basic services, such as health care and education, even long after the conflict ends. The lack of services in turn infringes on human rights, such as the right to education or to quality, available, and accessible health care.
The use of explosive weapons also causes harm to the environment. Bombing and shelling of industrial facilities, for example, releases toxins into the air or water sources. Explosive ordnance lingers long after conflict. The threat of immediate death and injury as well as the reverberating effects discussed above drive mass displacement.
All of these consequences are exacerbated when the explosive weapons have wide area effects, that is, when their impacts cover a broad footprint. Explosive weapons have such effects if they have a wide blast or fragmentation radius, are inaccurate, or deliver multiple munitions at once. The political declaration recognizes these factors as increasing the risk of “a devastating impact on civilians and civilian objects” (paragraph 1.2).
Human Rights Watch and other groups have documented the direct and indirect effects of explosive weapons in recent armed conflicts, including in Afghanistan, Armenia, Azerbaijan, Gaza, Iraq, Libya, Somalia, Sri Lanka, Syria, Ukraine, and Yemen.
A New Challenge Ahead: Implementing the Declaration
As countries translate the declaration’s words into actions, they should stay true to the declaration’s goal of strengthening civilian protection. Safeguarding Civilians, a recent report co-published by Human Rights Watch and the Harvard Law School International Human Rights Clinic, for which I work, examines several of the declaration’s key commitments and interprets them through a humanitarian lens. Some of its findings are presented below.
The core, and most debated, provision of the declaration calls on countries to adopt “policies and practices to help avoid civilian harm, including by restricting or refraining as appropriate from the use of explosive weapons in populated areas, when their use may be expected to cause harm to civilians or civilian objects” (paragraph 3.3). We, and others, argue it is “appropriate” for countries to “refrain from” the use of explosive weapons with wide area effects in populated areas, given that the harm of such weapons can always be expected. Countries should then “restrict” the use of all other explosive weapons in populated areas.
In addition, under paragraph 3.4, countries should take into account the direct and indirect effects of the use of explosive weapons in populated areas when planning and executing attacks because these effects meet the declaration’s threshold of being reasonably foreseeable.
Remediating the humanitarian consequences of the use of explosive weapons demands comprehensive victim assistance measures, another key element of the declaration (paragraph 4.5). Assistance should be provided to affected individuals, families, and communities and take a variety of forms. It should be integrated, inclusive, and gender sensitive.
Data collection and sharing are essential to both preventing and remediating the harm caused by the use of explosive weapons in populated areas. An accurate and in-depth understanding of effects can inform lessons learned, help identify the kinds of victim assistance needed, facilitate international cooperation and assistance, and promote monitoring and compliance.
Countries should make clear that they will collect and share operational data about weapons and targets as well as information about the range of effects of explosive weapons. Both are necessary to achieve the declaration’s goals. While the declaration says data should be collected and shared “where feasible and appropriate” (paragraph 4.2), rather than use that caveat as an excuse to avoid transparency, countries should work to ensure that data collection and sharing are feasible and presume they are appropriate unless they risk further harm.
Finally, countries should live up to their commitment to engage in follow-up work on the declaration, including through regular meetings (paragraph 4.7). Those meetings are essential opportunities to exchange views on policies, practices, and interpretations of the declaration, provide updates on progress, share collected data, and promote implementation. Maintaining the inclusiveness that has characterized this process to date will add value to the discussions.
At the Dublin conference, Norway announced that it will host the declaration’s next meeting in 2024. That date may seem far way, but the declaration’s first major test will be how much can be accomplished by then to carry out its provisions. While addressing the humanitarian consequences of the use of explosive weapons in populated areas is a challenging process, countries that signed the declaration should strive to realize their commitments effectively and efficiently with that date — and especially civilian lives — in mind.
November 16, 2022
In 2022, a youth-led citizens’ movement succeeded in ousting Sri Lanka’s all-powerful President, Prime Minister, and the Cabinet whom they held responsible for the island nation’s painful economic crash. The movement was the result of the people’s outcry for basic needs, seeking relief from economic distress and demanding justice and accountability for the crisis. The events that followed, however, saw the old political guard maneuver structures of power to cling on it.
An authoritarian constitution and legal framework
The state’s response to people’s outcry was unsurprising, given Sri Lanka’s history of a powerful executive, a constitution that failed to strengthen democracy and decades of investment in laws and policies of repression, including militarization. Unchecked executive powers saw the President, including the newly appointed Ranil Wickremesinghe, lavishly use anti-terror laws, declarations of emergency, curfews, deployment of the military and attempts to demarcate popular protest sites as high security zones.
The police resorted to tactics of provoking protestors, making sweeping arrests and intimidating crowds at protest sites by firing tear gas, water cannons and installing barricades fixed with menacing spikes. Protestors were repeatedly summoned to give statements at police stations under the threat of arrest. Their homes were raided and families threatened. Undeniably, the state responded disproportionately with violence, force and intimidation to stifle people’s discontent, anger and pleas for help.
Sri Lanka’s constitution by design lends itself readily to authoritarian rule. An all-powerful executive presidency has meant that many policy decisions rarely respond to or have been informed by people’s needs. Judicial institutions are distant from the people. For example, the judiciary has no power to declare an existing law unconstitutional and citizens are shut out of courts by impractical time-bars of one month to complain of violations of their rights. Legislative processes also fail to involve the public, are not transparent. People often find themselves ambushed by law reform.
The continuing battleground over enacting laws for the independence of institutions have resulted in the 17th, 18th, 19th, 20th and the recent 21st amendments to the constitution which seek to merely make minor changes, instead of genuine structural change. Who does the recent 21st amendment to the constitution serve? President Ranil Wickremesinghe or the people? If it was in the interest of the people, we would have seen the abolishment of the executive presidency – something that remains an unfulfilled promise of many presidents before him.
Weak legal protections for Sri Lankans
More laws have been developed to repress and control rather than protect the interest of the people of Sri Lanka. The country has failed to enact laws to address discrimination and violence against women and recognize women’s labour and their contribution to the economy. There has been inadequate legal reform to protect children and address disputes within families.
Working people’s rights to fair wages, decent working conditions, right to organize, and secure social protections are often breached by employers without consequences. No legal reforms have responded to these realities. Laws to address land disputes, housing issues, access to basic resources for living, and securing a sustainable environment are underdeveloped. Furthermore, investing in education, health and equitable development has been on the back burner since the late 1970s.
Laws have also failed to address discrimination of minorities and deliver justice and accountability for past violations. Furthermore, ethnicized electoral politics and no meaningful mechanisms for the devolution of power to the island’s provinces and local government bodies have constrained the space for democratic participation.
The lack of recognition of socioeconomic rights in the constitution leaves the people without a legal framework to find recourse for the numerous violations they encounter on a daily basis. The economic crisis exposed the interests the system is designed to serve – interests of capital and the political elite. People’s protests are a challenge to the existing economic order, authoritarian rule and in effect the deficiencies of the constitution.
Unequal impact of the crisis
The Sri Lankan Government has ensured that the most pressing needs of the middle-class, fuel and electricity, are met. Masked by the middle-class sentiment of, “things are much better now,” is the devastation of the crisis on the lives of daily-wage earners, the urban poor, women, children and marginalized communities.
Headline inflation peaked at 69.8% in September, while food inflation reached a staggering 94.9%, making essential goods unaffordable for the majority of the population. Kerosene prices have quadrupled, forcing fisherfolk to reduce their trips out to sea and a chance at earning an income. This is significant given that fish is the main source of protein on the island. Farmers are abandoning cultivation due to soaring costs of fertilizers, even as the food system was made precarious with the Executive’s drastic ban on chemical fertilizer in 2021.
Experts have warned that almost one third of the population is facing food insecurity and 86% of households have either reduced the quantity of their food intake or nutritional food items. Almost 17% of children under 5 are facing malnutrition, with signs of wasting and stunting. The long-term effects of the economic crisis are already visible. Even the unlikely scenario of a quick exit out of the debt crisis and access to external financing will not eliminate these effects.
Economic policies fail the people
The economic crisis has been long in the making. Sri Lanka’s foreign loans, half of which are sovereign bond market debt, were invested mainly in large-scale infrastructure projects., Such investments failed to realize economic benefits for ordinary Sri Lankans. The country has been experiencing a balance of payments deficit for years. Its foreign exchange reserves dwindled to less than $2 billion in July 2022, making essential imports unaffordable.
In response to the crisis, the government implemented dramatic measures such as doubling the interest rates and announcing a hurried default on all its foreign debt obligations. Having sought assistance from the IMF, a staff level agreement was reached to obtain $2.9 billion over a 48-month period subject to restructuring of Sri Lanka’s foreign debt. The conditionalities of the IMF as outlined in the staff-level report include addressing budget deficits via severe austerity measures. These measures contribute to the hardships faced by the people. Its recommendations for law reforms, including flexible labour laws and increasing female labour force participation, can pave the way for greater exploitation of cheap labour.
Sri Lanka has one of the most regressive tax systems worldwide. Instead of increasing direct taxes, the former Gotabaya Rajapaksa regime gave away generous tax breaks to corporations and the rich, which left the state coffers empty. Value Added Taxes were the first to be increased amidst the crisis, with little concern about the severe burden it imposed on the poorest households. By contrast, there is push back to recent proposals to increase income taxes affecting higher income earners. In a similar vein, introducing a wealth tax on the richest in the country continues to be fiercely resisted.
The economic responses by the current Government have further exacerbated the suffering for the people. A severe austerity agenda is condoned by the Sri Lankan elite. Economic pain on the poorest is inevitable in a crisis, they argue, while ignoring the violation of economic and social rights and the right to human dignity when communities are pushed into poverty and economic precarity. The response by the state and other (including international) actors to the economic crisis only safeguards the interests of the political elite.
It is apparent that austerity as the only solution to economic recovery is further driving the economy down the abyss. Sri Lanka’s economy is expected to contract by almost 10% of GDP in 2022. With Sri Lanka being the forerunner in the foreign debt crisis of the global South, austerity as the only solution to economic recovery must be re-examined. There is an urgent need to reevaluate the role of austerity in global economic governance.
The way forward
Sri Lanka’s economic policies and the legal frameworks are failing to secure the lives of ordinary people. The existing structure is attempting to reinvent itself by using the language of stability. It is a stability that leads to a cycle of economic hardships and repression.
In a context of human rights in peril and democracy under attack, forging a different Sri Lanka requires a vision that is people-centered. There is no better time than amidst the deep crisis to craft a vision for a new Sri Lanka that holds power to account and builds strong systems of justice. Sri Lankans must commit to building a social movement that has at its core the realities of the most affected, advances equality, democracy and an economic recovery program that does not leave anyone behind.
Ermiza Tegal is a lawyer in Sri Lanka and currently a visiting fellow at the Harvard Law School Program on Law and Society in the Muslim World. Niyanthini Kadirgamar is a PhD student in education at the University of Massachusetts Amherst. The authors are members of the Feminist Collective for Economic Justice.
This piece is based on a talk delivered by the authors on the crisis in Sri Lanka at the Harvard Law School on 27th October 2022.
Statements by the Feminist Collective for the Economic Justice:
November 15, 2022
New Report Identifies More Effective Routes to Protecting Civilians, Avoiding Insecurity
Governments should move the stalled discussions of a treaty on autonomous weapons systems, known as “killer robots,” to a new international forum, Harvard Law School’s International Human Rights Clinic and Human Rights Watch said in a new report. Such weapons systems operate without meaningful human control, delegating life-and-death decisions to machines.
The 40-page report, “An Agenda for Action: Alternative Processes for Negotiating a Killer Robots Treaty,” was released in advance of a UN disarmament meeting that will convene this this week and address the topic. The report proposes that countries initiate a treaty-making process elsewhere based on past humanitarian disarmament models, such as for the treaty banning cluster munitions.
“A new international treaty that addresses autonomous weapons systems needs a more appropriate forum for negotiations,” said Bonnie Docherty, associate director of armed conflict and civilian protection at the Clinic, senior arms researcher at Human Rights Watch, and lead author of the report. “There’s ample precedent to show that an alternative process to create legal rules on killer robots is viable and desirable, and countries need to act now to keep pace with technological developments.”
More than 70 countries as well as nongovernmental organizations and the International Committee of the Red Cross regard a new treaty with prohibitions and restrictions as necessary, urgent, and achievable. United Nations Secretary-General António Guterres called for “internationally agreed limits” on weapons systems that could, by themselves, target and attack human beings, describing such weapons as “morally repugnant and politically unacceptable.”
Talks on concerns about lethal autonomous weapons systems have been underway under the auspices of the Convention on Conventional Weapons (CCW) since 2014. Countries will reconvene at the UN in Geneva on November 16-18, 2022, for the treaty’s annual meeting, but there is no indication they will agree to negotiate a new legally binding instrument via the CCW in 2023 or in the near future.
The main reason for the lack of progress under the CCW is that its member countries rely on a consensus approach to decision-making, which means a single country can reject a proposal, even if every other country agrees to it. A handful of major military powers have repeatedly blocked proposals to move to negotiations, notably India and Russia over the past year. Both countries also attempted to block nongovernmental organizations from participating in discussions in 2022.
India and Russia, as well as Australia, China, Iran, Israel, South Korea, Turkey, the United Kingdom, and the United States are investing heavily in the military applications of artificial intelligence and related technologies to develop air, land, and sea-based autonomous weapons systems.
Given the shortcomings of the CCW forum, alternative processes for negotiating a new treaty should be explored, the Clinic and Human Rights Watch said. One option is an independent process outside of the UN, as was used for the treaties banning antipersonnel landmines and cluster munitions. Another is via the UN General Assembly, which initiated negotiations of the nuclear weapons ban treaty.
Four characteristics of these alternative processes are particularly conducive to achieving strong treaties in a timely fashion: a common purpose; voting-based decision-making; clear and ambitious deadlines; and a commitment to inclusivity, the Clinic and Human Rights Watch said.
Countries have already expressed broad support for essential elements needed to address concerns over removing human control from the use of force. A new international treaty should prohibit autonomous weapons systems that inherently lack meaningful human control as well as systems that target people. It should contain positive obligations to ensure meaningful human control in other weapons systems with autonomy. “Meaningful human control” is widely understood to require that technology is understandable, predictable, and constrained in space and time.
In October, 70 countries expressed their support for “internationally agreed rules and limits” on autonomous weapons systems in a joint statement to the UN General Assembly’s First Committee on Disarmament and International Security.
There have also been more expressions of support for regulation from industry. In October, Boston Dynamics and five other robotics companies pledged not to weaponize their advanced mobile robots and called on others to “make similar pledges not to build, authorize, support, or enable the attachment of weaponry to such robots.”
Human Rights Watch is a cofounder of Stop Killer Robots, the coalition of more than 190 nongovernmental organizations in 67 countries that advocates for new international law on autonomy in weapons systems.
“The longer the killer robots issue stays stuck in the current forum, the more time developers of autonomous weapons systems have to hone new technologies and achieve commercial viability,” Docherty said. “A new treaty would help stem arms races and avoid proliferation by stigmatizing the removal of human control.”
Bonnie Docherty co-authored and supervised the production this report. Clinic students Arnaaz Ameer, LLM ’23, Ryen Bani-Hashemi, JD ’22, Madeleine Cavanagh JD ’23, Alexa Santry, JD ’24, Elliot Serbin, JD ’24, Lisa Wang, JD ’22, and Rosalinn Zahau, LLM ’22, also contributed significantly to the research and writing of this report.
November 9, 2022
New report from Harvard Law Clinic, Opre Roma Kosovo spotlights urgent need for remedies
(November 9, 2022, Pristina, Kosovo; Cambridge, MA) —The UN has failed to implement a decision by its own human rights panel finding it responsible for remedies to Roma victims of lead poisoning, leaving them to suffer ongoing injuries, according to a report released today by Harvard Law School’s International Human Rights Clinic and Opre Roma Kosovo.
The findings reveal significant accountability gaps that the UN must close to build the organization’s legitimacy among vulnerable populations.
In 1999, while serving as de facto government in Kosovo, the UN housed over 600 Roma in camps near toxic slag heaps. The camps remained for over a decade, and the resulting lead poisoning – which produced some of the highest levels of lead ever recorded in humans – led to the death of multiple camp residents and caused serious ongoing health effects.
“These communities still suffer severe health problems today. COVID makes action even more urgent because the results of lead poisoning make the victims extra vulnerable,” said Sebastian Šerifović, Advocacy Team Lead with Opre Roma Kosovo.
After pursuing multiple legal avenues, justice still evades the victims. The report, “Toxic Injustice: Translating UN Responsibility into Remedies for Lead-Poisoned Roma,” reveals that the UN manipulated its own legal processes to avoid taking responsibility for the human rights violations.
“We found that the UN continually revictimized already marginalized Roma communities by trapping them in lengthy legal processes that promised redress but only resulted in an evasion of responsibility,” said Beatrice Lindstrom, the Clinical Instructor who supervised the project in the Harvard Clinic.
In 2016, the Human Rights Advisory Panel (HRAP), established by the UN in 2006 to decide its own responsibility for human rights violation while serving as interim administration in Kosovo, found the UN responsible for violating the camp residents’ rights and recommended a set of remedies, including a public apology and compensation. But UN Secretary-General António Guterres’ sole response was to announce a voluntary trust fund benefitting Roma communities in Kosovo generally, without any specific attention to the camp residents. In five years, the fund has received a single $10,000 donation from Qatar.
The HRAP decision came after a decade-long legal fight in which the UN hindered and delayed the victims’ access to justice at every turn, the report finds. Victims first filed for compensation from the UN in 2006, based on legal rules that require the UN to settle claims directly with victims. But the UN sat on the claims for five years, only to dismiss them without a clear justification.
Meanwhile, in 2008, the UN established HRAP with the specific aim of strengthening accountability for UN wrongdoing. But when the victims turned there, the UN again thwarted justice by changing the rules midstream, moving deadlines, and, eventually, ignoring the HRAP decision all together.
“The UN is acting like judge and jury. It defines the law on its own terms then leaves its victims with nowhere to turn,” Lindstrom added.
The report identifies concrete and feasible steps the UN could now take to finally meet its obligations to the victims and strengthen its internal accountability structures, including meeting with the community and making modest financial investments in compensation.
“The UN has the power to deliver justice in this case, and it can do so in a few simple steps. The symbolic value of those moves to the victims and to the UN itself would be immense,” Šerifović added. “At a time when the UN is facing a growing legitimacy crisis, such action could go a long way to signaling a strong commitment to human rights and accountability that starts with the UN itself,” he said.
November 8, 2022
Protect Civilians from Incendiary Weapons: Report Finds Stronger Law Needed to Govern Weapons Causing Horrific Burns
Countries concerned by the severe injuries caused by incendiary weapons should strengthen their calls for action to address the human costs, Harvard Law School’s International Human Rights Clinic and Human Rights Watch said in a report published today.
States party to the Convention on Conventional Weapons (CCW) should revisit the issue when they convene for their annual meeting at the United Nations in Geneva, from November 16 to 18, 2022. The 16-page report, “Unchecked Harm: The Need for Global Action on Incendiary Weapons,” addresses Russia and Cuba’s opposition to a widely supported proposal by Ireland to hold diplomatic talks on Protocol III to the CCW, the only international law specifically governing incendiary weapons. The inability to hold discussions of incendiary weapons has frustrated the many countries concerned by the weapons’ humanitarian consequences.
“The failure of countries to even discuss the effectiveness of existing law on incendiary weapons highlights the weaknesses of consensus-based diplomacy at the United Nations,” said Bonnie Docherty, the Clinic’s associate director of armed conflict and civilian protection and a senior arms researcher at Human Rights Watch. “Governments should urgently address the horrific effects of incendiary weapons and make addressing their humanitarian concerns a top priority.
In recent years, Human Rights Watch has documented the use of incendiary weapons in Afghanistan, Gaza, Iraq, Syria, Ukraine, and Yemen. Video and photographic evidence of strikes and remnants since Russia’s full-scale invasion of Ukraine in February 2022 identified at least 40 surface-launched incendiary weapons attacks. It is not possible to attribute responsibility for this use, but Russia and Ukraine both possess 122mm Grad incendiary rockets, which were used in the attacks. The same type of 122mm Grad incendiary rockets were used in eastern Ukraine in 2014 and in Syria in 2013 to 2019.
Incendiary weapons are among the cruelest weapons in modern warfare. They contain various chemical compounds that inflict excruciating burns, respiratory damage, and psychological trauma. The burning of homes, infrastructure, and crops causes socioeconomic harm. People who survive often experience lifelong suffering.
Convention on Conventional Weapons Protocol III on Incendiary Weapons contains two loopholes that undermine its ability to protect civilians. First, the protocol’s definition does not encompass multipurpose munitions, such as those containing white phosphorous, which are not primarily designed to set fires or burn people but cause the same horrific incendiary effects. Second, while the protocol prohibits air-dropped incendiary weapons in populated areas, it has weaker regulations for the use of surface-launched incendiary weapons in those areas under certain circumstances.
Survivors, medical professionals, and civil society groups have also demanded action, the Clinic and Human Rights Watch said. In recent years, individuals and organizations have used open letters, online briefings, joint statements, and other means to draw greater attention to the need to strengthen international law regulating incendiary weapons.
To begin addressing the serious concerns raised by incendiary weapons, CCW states parties should hold informal consultations that at a minimum assess the adequacy of Protocol III and consider ways to create stronger international standards.
“Countries should renew their calls to dedicate diplomatic time to discussing concerns about incendiary weapons,” Docherty said. “They should remain motivated by the words of survivors to advance the protection of civilians from these cruel weapons.”
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