Blog: Staff Reflections
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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.
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.
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 1, 2022
We are pleased to present HRP’s 2021-2022 Annual Report. The report showcases the global reach and impact of the Human Rights Program in its 38th year, featuring work on queer rights, indirect discrimination, and Covid-19. It spotlights the impact of visiting scholars and fieldwork undertaken by students and alumni, and details the rich assortment of HRP events.
We thank all of the partners and alumni who made the year so strong.
April 6, 2022
Posted by Kai Mueller
On April 1, the Centers for Disease Control and Prevention (CDC) ordered the termination of the “Title 42” procedure, a method originally created by the Trump administration at the outset of the Covid pandemic to deport asylum seekers without hearing on supposed public health grounds. The termination is to go into effect on May 23, 2022. The termination of the Title 42 procedure has been long overdue.
The consequence of the Title 42 process had been a circumvention of immigration laws that protect the rights of asylum seekers who face risk of persecution or torture in their countries of origin. This CDC order resulted in border agents expelling thousands upon thousands of migrants without taking into account the irreparable harm that may await them.
The Biden Administration had kept this rule in place and used it over 1.2 million times to block migrants from seeking safety in the United States despite criticism that the policy improperly relied on the Covid-19 crisis to violate legal protections guaranteed to refugees under both U.S. and international law.
On September 16, 2021, a U.S. District Judge had granted a preliminary injunction against expulsion of migrant families without any hearing, in response to a lawsuit filed by the American Civil Liberties Union and others. After a stay pending appeal, the D.C. Circuit affirmed a narrower version of the injunction on March 4, 2022, holding that the public health law did not override statutory protection against return to a country where an asylum seeker was likely to be persecuted. The injunction followed mounting pressure from immigrant rights groups and voices in academia, including amicus briefs co-submitted by Harvard Law Human Rights Program Director Gerald L. Neuman and Deborah Anker, Founding Director of the Harvard Law Immigration and Refugee Clinic, to end the Title 42 policy. The April 1 order of the CDC does not admit the illegality of the Title 42 process, but it would terminate it altogether, subject to the possibility of later reactivation.
It has long been clear that the severe violations of asylum seekers’ rights caused by Title 42 outweighed the purported health benefits related to pandemic control. Hence, the Biden administration’s repeated defense of this regressive Trump-era policy has been a disappointment to those who had hoped for a more humane and rights-based policy toward refugees and immigrants. Regrettably, the termination order itself may be challenged in other courts.
For further information regarding the litigation of the Title 42 procedure, you can watch the webinar “Abusing Public Health Powers at the Border: Litigating “Title 42” Deportations Before the Inter-American Commission on Human Rights” organized by HRP on November 8, 2021, below.
March 28, 2022
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.
February 9, 2022
By Bonnie Docherty, Harvard Law School’s International Human Rights Clinic and Human Rights Watch
From the Humanitarian Disarmament website
While the year 2021 ended on an intense and draining note, with the Sixth Review Conference of the Convention on Conventional Weapons (CCW), 2022 has begun slowly for humanitarian disarmament. The COVID-19 pandemic, which continues to affect progress in the field, has postponed planned negotiations and milestone meetings.
Nevertheless, barring further pandemic-related interference, the new year promises to advance several key humanitarian disarmament issues. It should produce a new political declaration on the use of explosive weapons in populated areas, see states parties convene for their first meeting under the Treaty on the Prohibition of Nuclear Weapons (TPNW), and mark a turning point in efforts to address the threats posed by autonomous weapons systems.
Explosive Weapons in Populated Areas
A new international instrument is on the horizon for dealing with the use in populated areas of explosive weapons, such as mortars, artillery shells, rockets, and air-dropped bombs. This method of war causes extensive civilian harm both at the time of attack and long after. That harm is exacerbated when the explosive weapons have wide area effects because they are inaccurate, have a large blast or fragmentation radius, or deliver multiple munitions at once.
Ireland initiated a process in 2019 to develop a political declaration to protect civilians from the use of explosive weapons in populated areas. Draft versions of the declaration recognized the harm this practice inflicts and included commitments for restricting the use of explosive weapons with wide area effects, providing victim assistance, and collecting data.
While the latest draft should be strengthened, the negotiations for the final version have been at the mercy of COVID-19. The consultations to conclude the document, originally scheduled for late March 2020, were the first major disarmament meeting to fall victim to the global pandemic. After at last being able to reschedule the consultations for February 2022, Ireland was compelled to postpone them once again when the Omicron variant meant that the relevant state and civil society representatives would be unable to attend an in-person meeting in Geneva.
Although a new date has not yet been set, Ireland reportedly aims to hold the negotiations in the first half of 2022. If it succeeds, humanitarian disarmament will have another instrument in its toolbox—a political commitment that addresses one of the most significant humanitarian concerns of contemporary armed conflict.
In addition to celebrating the “Banniversary” of the Treaty on the Prohibition of Nuclear Weapons, the first anniversary of its entry into force, on January 22, states and civil society have been busy preparing for the treaty’s First Meeting of States Parties (1MSP). The meeting was previously moved from January to March 2022, and Austria, president of the meeting, recently announced it will need to be rescheduled again, most likely until mid-year.
Whenever it takes place, the 1MSP will be a crucial moment in the life of the TPNW. It provides states parties the opportunity to set priorities for the years ahead and to begin the process of turning the treaty’s obligations into actions.
Discussions around the TPNW’s “positive obligations” for victim assistance, environmental remediation, and international cooperation and assistance will be particularly important for advancing the humanitarian disarmament agenda. These obligations ensure that the treaty provides a comprehensive response to the consequences of nuclear weapons, i.e., addressing the harm from past use and testing as well as preventing future harm. The 1MSP’s declaration and action plan should commit states parties to establishing an implementation framework, approving an intersessional workplan, developing reporting guidelines, and including affected communities at all stages.
A working paper from Kazakhstan and Kiribati, which Austria appointed co-facilitators of the 1MSP’s work on the positive obligations, recommended addressing these and other measures in the 1MSP’s outcome documents. Many states parties and civil society organizations expressed their support in written submissions, and consultations are ongoing.
Other important areas that the 1MSP will deal with include universalization and deadlines and verification procedures for dismantling nuclear arsenals.
For killer robots, the significance of 2022 is the opportunity it presents for supporters of a new treaty to change direction.
Weapons systems that select and engage targets based on sensor processing rather than human inputs raise a host of moral, legal, accountability, and security concerns. As a result, the majority of states at the CCW’s Sixth Review Conference called for negotiations to create a new legally binding instrument on the topic. Most called for a combination of prohibitions on weapons that lack meaningful human control, prohibitions on autonomous weapons systems that target people, and restrictions on all other autonomous weapons systems to ensure that they are never used without meaningful human control.
The failure of the conference to adopt a negotiation mandate underscored the shortcomings of that forum and the inability of this consensus body to make real progress on a matter of grave and urgent humanitarian concern. After eight years, CCW discussions on lethal autonomous weapons systems have more than run their course.
It is time, therefore, for states that support a legally binding instrument on these emerging weapons to pursue negotiations in an alternative forum. They can look for models to the origins of other humanitarian disarmament treaties, notably the independent processes that led to the Mine Ban Treaty and the Convention on Cluster Munitions, and the UN General Assembly process that led to the TPNW.
Many states said that they could not consider alternative forums until after the Review Conference, but that moment has passed and the CCW has failed to produce results. This year presents a clean slate. It is time for all supporters of a treaty to shift their sights and for champion states to step up and take the lead on a new process.
While the pandemic is likely to play a role in the timing of progress this year, humanitarian disarmament—not a global disease—should determine 2022’s developments.
Participants in the negotiations of the explosive weapons political declaration should ensure the final draft maximizes civilian protection. States, international organizations, civil society groups, and survivors should work together to produce strong 1MSP outcome documents that help the treaty live up to its humanitarian potential in practice. Finally, proponents of a new legally binding instrument on autonomous weapons systems should start fresh and focus on what process can best lead them to the strongest humanitarian outcome.
January 19, 2022
IHRC’s Bonnie Docherty Shares Thoughts on the Sixth Review Conference of the Convention on Conventional Weapons
By Sarah Foote with Bonnie Docherty
Countries party to the Convention on Conventional Weapons (CCW), a major international disarmament treaty, convened last month at the United Nations in Geneva for its Sixth Review Conference. They focused much of their attention on two topics: killer robots, which they refer to as lethal autonomous weapons systems, and incendiary weapons. Students from the International Human Rights Clinic, under the supervision of Bonnie Docherty, have contributed to civil society efforts to push for negotiations of a new treaty on killer robots, which would select and engage targets without meaningful human control. The Clinic and Human Rights Watch have also spearheaded advocacy to initiate a process to revisit and strengthen CCW Protocol III, which governs incendiary weapons. That protocol has loopholes that undermine its ability to protect civilians from the horrors of incendiary weapons, the source of excruciating burns and lifelong suffering.
In the conversation below, Bonnie Docherty reflects on the Review Conference, its outcomes, and the next steps for these critical humanitarian issues.
Q. You weren’t able to travel to Geneva for the Review Conference of the Convention on Conventional Weapons held last December due to COVID. Were you able to watch the talks?
Bonnie Docherty: I watched all of the sessions from 4 am -12 pm for two and a half weeks through the UN Web TV live stream. Delegates from some countries and organizations did attend in person. However, due to COVID and Omicron, many civil societies representatives and diplomats did not attend for safety reasons. I participated actively through text messages, What’s App, emails, and meetings via Zoom with diplomats and colleagues. I used these tools to advocate for our issues and keep up-to-date with the people on the ground.
Although I could not make remote interventions myself, a Human Rights Watch representative read a statement that expressed our position on killer robots and incendiary weapons. A colleague from Mines Action Canada also delivered a statement I wrote on behalf of eight civil society organizations regarding incendiary weapons.
Q. What were the most important takeaways from the CCW discussions?
Bonnie Docherty: With regard to incendiary weapons, the outcome of the Review Conference on paper was disappointing because Russia refused to agree to put Protocol III on the agenda for next year. CCW operates by consensus so any one state can block progress. It was very discouraging after our all efforts to put forward a reasonable request—to hold dedicated discussions of the topic next year.
That said, there were powerful and encouraging statements from many states who supported having these discussions. There were impassioned pleas to stop the cruelty that incendiary weapons can cause. These countries understood the true human impact these types of weapons have, and this was important progress. They also recognized victims and the harm they have suffered.
Regarding autonomous weapons systems, the Review Conference made clear that progress on this issue cannot be made in a consensus body. Hopefully, the failure of the Conference to agree to negotiate a legally binding instrument will inspire states to go to a different forum and adopt a new treaty to make real change.Continue Reading…
October 22, 2021
International Human Rights Clinic Statement in Support of Palestinian Civil Society and Human Rights Defenders
Posted by International Human Rights Clinic
The International Human Rights Clinic is deeply concerned by the Israeli Minister of Defense’s recent designation of prominent Palestinian civil society groups, including Palestinian human rights advocates, as terrorist organizations.
Deploying anti-terrorism legislation to criminalize and delegitimize human rights work violates internationally protected rights to free speech and free association and assembly. It marks an alarming escalation in the repression of Palestinian civil society organizations and human rights defenders, who have been instrumental in documenting human rights abuses by both Israeli and Palestinian authorities, resisting unjust policies of the Israeli occupation, and advocating to protect the rights of Palestinians living in the occupied territories.
We stand in solidarity with Palestinian human rights defenders. We call on the United States government and the international community to oppose this decision, and on the Israeli government to reverse it immediately.
June 3, 2021
Posted by Dana Walters
In Panama, Peru, and Colombia, gender-based quarantine schedules created a culture of fear and risk for transgender individuals. With men allowed out of the house on certain days of the week and women others, gender-diverse persons faced an increased threat of persecution and discrimination by the state and the public. Human Rights Watch and the Inter-American Commission on Human Rights were but some of the groups to note alarm. Just a few months after they were enacted, many of these laws were wiped from the books.
These gendered pandemic measures were an example of the practices and laws up for discussion at a February workshop hosted by the Human Rights Program (HRP) at Harvard Law School. The event, which focused on indirect discrimination resulting from the pandemic, with a particular emphasis on sexual orientation and gender identity, was one in a series of indirect discrimination workshops HRP has convened in the last year. In spring 2020, HRP hosted a virtual convening exploring indirect discrimination on the basis of religion with several former and current members of the UN Human Rights Committee. During the 2020-2021 academic year, HRP hosted two additional workshops drawing on other categories of indirect discrimination. Convened with Columbia Law School’s Human Rights Institute, the October 2020 workshop addressed indirect discrimination on the basis of sexual orientation and gender identity, laying the foundation for February’s discussion on the pandemic.
“One way to think about the purpose of indirect discrimination norms,” said one expert at the October convening, “is that they compel government, or other actors subject to the norms, to actively think about or know about the lives of people who are not like themselves.”
Indirect discrimination is a term that encompasses rules or laws whose intent may not be to discriminate against one group “on the face of it” but has the effect of doing so. In the workplace, for instance, a policy that requires employees to work on Saturdays may have severe effects for those of the Jewish faith, who observe Saturday as a holy day of rest. Indirect discrimination affects a range of protected groups on the basis of race, religion, and other factors.Continue Reading…
May 25, 2021
To the Class of 2021:
Congratulations! You are now law school graduates—always a tremendous accomplishment, but even more so in the midst of this ongoing pandemic. The last fourteen months have tested you in ways none of us could have anticipated. You persisted with compassion and commitment, through unprecedented challenges, to reach this milestone.
After you pause to celebrate the moment, we urge you to continue to look ahead. The pandemic has both laid bare and exacerbated many preexisting divides. Hundreds of millions of lives have been turned upside down, not only through the loss of loved ones but through lost health, lost education, lost opportunities, lost support networks, lost jobs, and lost income. The brunt of the pandemic has been borne by those already living at the margins or in dire circumstances. The elderly, people with disabilities, women, girls, racial and ethnic minorities, frontline workers, and those who rely on the informal economy have been especially hard hit. In less than a year, progress on gender equality was rolled back decades. Extreme poverty is on the rise for the first time in a generation. Young people are struggling, not only to access education but also to access the connections and the community needed to thrive. In some countries, the pandemic has provided pretext to crush opposition, subvert electoral processes, and crack down on human rights defenders, journalists, and activists. Worldwide vaccination efforts to date have been woefully unequal, and the virus continues to rampage across the global south.
While all of this was unfolding, we have watched in awe as you excelled in our clinic, supporting each other and persevering with extraordinary determination, intelligence, resilience, and courage. Now, as you venture out to launch your careers, you will face a new and challenging world. Solidarity and collaboration will be necessary not only to overcome the pandemic, but to meet the many human rights challenges of our time—from poverty and inequality, to climate change, to the resurgence of authoritarianism, extremism, and nationalism. Your creativity, leadership, and dedication to social justice are urgently needed.
It is daunting, but you are ready. You know how to build to community, how to lead with kindness and empathy, and how to create space for diverse voices and perspectives. We have seen you do it in our clinic, and we look forward to seeing what you will do throughout your careers. As we send you off to continue this important work, remember that you will always have a home here. We look forward to welcoming you back to the clinic, in person, one day soon.
For today, we extended our heartfelt congratulations to you, Harvard Law School’s Class of 2021!
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