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March 23, 2020
Neuman challenges arguments that roll back human rights
Professor Gerald L. Neuman, Co-Director of the Human Rights Program (HRP), filed a submission with the controversial “Commission on Unalienable Rights” of the U.S. State Department on March 18, 2020. Secretary of State Mike Pompeo established the Commission in July 2019 to advise the State Department on reformulating U.S. human rights policy. The Commission is charged with bringing policy back to “our nation’s founding principles of natural law and natural rights.” Neuman is the J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School (HLS).
The mandate of this Commission, and some of the remarks of Commission members at public meetings, have severely alarmed major human rights NGOs, who warn of serious damage to the international human rights system. Neuman’s own submission also addresses several of the concerns that the NGOs have raised. He challenges some Commissioners’ claims that there are too many human rights and argues for the protection of the rights of sexual minorities; he also questions proposals to give priority to civil and political rights over economic and social rights, as well as to privilege freedom of religious conduct over other human rights. Last, he also disputes the suggested foregrounding of the role of “natural law” at the international level.
Before HLS suspended in-person classes in response to the COVID-19 pandemic, HRP had arranged for a public panel event to discuss the Commission on Unalienable Rights. This April panel would have included Mary Ann Glendon, Learned Hand Professor of Law at Harvard University, who is also the Chair of the Commission; Martha Minow, 300th Anniversary University Professor at Harvard and the former Dean of Harvard Law School; Katharine Young, Associate Professor of Law at Boston College Law School; and Neuman.
In lieu of the April panel, you can read Dean Minow’s “Remarks before the Commission on Unalienable Rights,” Professor Young’s “Trumping Human Rights in the United States,” and Neuman’s comments. You can also learn more about the Commission on their public-facing website.
The report of the Commission is expected in the summer of 2020. HRP will convene experts for a public (in person or remote) discussion of the Commission’s report in Fall 2020.
March 13, 2020
We know it has been a difficult week, as the situation related to the COVID-19 virus changes by the minute. As decision-making around the virus evolves, we are thinking of the safety, health, and well-being of our community on campus and affected communities around the world. This is our top priority right now. We have always sought to build a supportive and inclusive space for our students, partners, and staff, and we realize that this has been an emotional and difficult time for many. We also recognize that responses to the outbreak, such as quarantines and containment, can provide undue social, emotional, and economic hardship to already vulnerable populations. We urge local and national governments to consider the human rights implications of their actions and the distribution of resources as they seek to contain the virus and mitigate its effects.
Following the guidance of Harvard University and to lower the risk of transmission, the Human Rights Program (HRP) is cancelling all public events for the remainder of the semester. We are sad to postpone these conversations, and we look forward to finding ways of engaging virtually on critical topics during this time. In line with guidance from Harvard University and Harvard Law School, the International Human Rights Clinic has transitioned to conduct classes and clinical work online for the remainder of the term. We are also postponing the application deadline to our postgraduate fellowships from March 15 to March 31. Any graduating student or recent alumni who may face obstacles submitting materials by this date should contact Dana Walters (firstname.lastname@example.org). Last, HRP faculty and staff will be transitioning to remote work over the course of the next week. Our offices will be mostly empty as we adjust to this new mode of work.
To our students, we recognize that this is not how you wanted or expected to conduct your semester and that these changes will cause serious disruptions. We understand that many of you are upset and anxious at the prospect of abruptly leaving your community at the law school. We will continue to work with you to mitigate the impact of the disruptions, and to ease potential burdens, stress, and other challenges associated with the evolving public health situation. We want to remain a resource for you. We also encourage anyone at Harvard who is facing hardship to make use of the resources that the University has made available. For more information and to find more resources, please visit Harvard Law School’s COVID-19 FAQ page and Harvard University’s COVID-19 FAQ page.
February 13, 2020
By Bonnie Docherty
Efforts to protect civilians from the harm caused by the use of explosive weapons in towns and cities took a step forward this week when more than 70 countries met in Geneva to discuss draft elements of a new political declaration.
According to a new paper co-published by the International Human Rights Clinic and Human Rights Watch, the text is a good foundation for further work, but several areas need to be strengthened in order to maximize the protection of civilians.
Explosive weapons, such as airdropped bombs, rockets, and missiles, produce a pattern of immediate and reverberating effects when they are used in populated areas. In addition to killing and injuring civilians at the time of an attack, they can damage critical infrastructure, which in turn interferes with essential services such as health care and education. The problem is exacerbated if the weapons have a wide area effect due to inaccuracy, a large blast or fragmentation radius, or the delivery of multiple munitions at once.
In their new paper, the Clinic and Human Rights Watch call on countries to commit to avoid the use of explosive weapons with wide area effects in populated areas. They also recommend that the declaration include strong commitments on assistance for victims, data collection and sharing, and follow-up meetings to review progress.
This week’s gathering, held at the United Nations in Geneva, represented the second round of consultations in an Irish-led process that began last November. Ireland plans to hold negotiations of the declaration at the next meeting on March 23-24 and to invite states to Dublin to endorse the final instrument in late May.
The Clinic has been actively involved in efforts to reduce the suffering caused by the use of explosive weapons in populated areas since 2011. Through its field research and legal analysis, it has supported the campaign for a new political declaration on the topic.
The recent Clinic-Human Rights Watch analysis of the draft text was produced by Bonnie Docherty, the Clinic’s associate director of armed conflict and civilian protection, and clinical students Jillian Rafferty, JD/MPP ’20, and Parker White, JD/MPP ’20. Docherty and White also participated in the consultations in Geneva.
February 7, 2020
Gerald Neuman, Co-Director of the Human Rights Program and J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School, recently filed an amicus curiae brief to the US Supreme Court in a case about the habeas corpus rights of refugees. The case involves the power of federal courts to review decisions about deporting recently-arrived refugees who have been refused protection and are being returned to their home countries.
Department of Homeland Security v. Thuraissigiam concerns Vijayakumar Thuraissigiam, a Tamil who fled his home country of Sri Lanka in fear for his life. Soon after arriving, Thuraissigiam was denied asylum in the United States and immigration officers ordered his removal.
The case challenges statutory limits on judicial review of “expedited removal” decisions against noncitizens who have recently entered the United States. Expedited removal – an executive procedure recently expanded by the Trump administration – provides very minimal opportunity for individuals to present their claims. The Ninth Circuit held that the denial of any judicial review of the legality of the removal decision violated the Suspension Clause of the U.S. Constitution. That clause prohibits the suspension of the writ of habeas corpus, except during invasion or rebellion. The Government seeks to overturn the Ninth Circuit holding, and more broadly to undo existing precedent on the right to habeas corpus for migrants facing removal. The Supreme Court agreed to hear the case, and a decision is expected in the spring.
The amicus brief of seven leading Scholars of Habeas Corpus Law demonstrates, on the basis of history and precedent, that the Suspension Clause protects noncitizens against unlawful detention and removal. It shows how the statutory limits on judicial review of expedited removal are radically inconsistent with the constitutional guarantee of habeas corpus.
January 30, 2020
As spring semester gets underway, we are pleased to welcome a new face to the Human Rights Program. Marie Sintim joins HRP as the new Program Assistant, supporting the International Human Rights Clinic.
Prior to HRP, Marie was the communications and outreach coordinator at Harvard Medical School’s Family Van, a mobile health clinic. A forever southerner, she holds a B.A. in Gender Studies from The University of North Carolina at Chapel Hill. She loves cooking and caring for plants, and she used to work at a kitchen store.
Marie sits in HRP’s lobby. Be sure to swing by and say hi!
January 24, 2020
January 24, 2020 — Redress and Child Rights International (CRIN) released a report yesterday, “Litigating Peacekeeper Child Sexual Abuse,” finding that courts provided little hope for those seeking justice for child victims of peacekeeper sexual abuse. The report aims to provide an analysis of a longstanding and well-known issue in the human rights world: peacekeepers meant to instill stability and security in regions where they are deployed have also engaged in sexual exploitation and abuse. Beatrice Lindstrom, Clinical Instructor in the International Human Rights Clinic and Supervising Attorney for HLS Advocates for Human Rights, was one of the more than 30 experts interviewed for the report. In her interview with the authors, Lindstrom and her former colleague, Sienna Merope-Synge, explained the particular devastation wrought by the United Nations Stabilization Mission in Haiti from 2004-2017.
As Redress’s press release states: “Almost 2,000 allegations [of sexual abuse], including 300 complaints involving children, were reported between 2004 and 2016.” These cases occurred in Haiti, the Central African Republic, the Democratic Republic of Congo, among other places. Redress adds, “Troop-contributing countries have shown themselves largely unable or unwilling to prevent abuse, prosecute the perpetrators or provide redress to the victims. The UN’s role has also been criticised, prompting extensive internal reforms.”
Furthermore, “in each of the case studies examined in the report, suspected perpetrators were not convicted or were subjected to lesser sanctions than their crimes merited. In not one of the case studies did the victims receive the full reparations to which they were entitled. Not surprisingly, the lawyers and NGOs interviewed for the research reported that their clients did not feel they had obtained justice,” the press release notes.
The report goes on to explore some of the primary obstacles preventing accountability, such as poorly-executed investigations or immunity and problems of jurisdiction.
Formerly the Legal Director for the Institute for Justice & Democracy in Haiti, Lindstrom has worked on accountability of transnational actors, obligations of international organizations, and access to remedies in Haiti for over a decade. In that vein, she has focused on path-breaking advocacy to secure accountability from the UN for causing a devastating cholera epidemic in Haiti during the same peacekeeping mission. She was lead counsel in Georges v. United Nations, a class action lawsuit on behalf of those injured by cholera.
Explaining the importance of the analysis, Lindstrom said: “This report provides the first comprehensive view of global legal efforts to hold peacekeepers accountable. It gives new meaning to the word ‘impunity’ by revealing the range of barriers to justice that survivors face.”
Lindstrom hopes that the report will serve as a call to action for the UN, policymakers, and civil society that has sought to address the problem. “So far, proposed solutions have tinkered at the edges, but what is needed is a systemic overhaul that recognizes victims’ rights to access justice for these crimes.”
Last month, Sabine Lee, Professor in Modern History at the University of Birmingham and Susan Bartels, Clinician-Scientist at Queen’s University, Ontario, published a devastating account of the toll UN peacekeepers left behind after their 13-year stay in Haiti. Drawing on interviews with 2500 Haitians, the investigation documented hundreds of fatherless children, mothers left in poverty, and sexual abuse of children.
The New York Times Editorial Board followed up with an op-ed, “The UN’s Tainted Legacy in Haiti,” which condemned the UN peacekeeper mission for the horror caused by the cholera epidemic and the discoveries unearthed by Lee and Bartels’ work. “The blue helmet of a United Nations peacekeeper represents a unique commitment by the world to assist the weakest and poorest when they are most helpless,” the New York Times wrote. “For soldiers to take advantage of that trust is revolting.”
In 2016, the UN finally admitted to its role in spreading the cholera epidemic in Haiti. The organization, as of yet, has not apologized or proposed any remedy for the pattern of sexual abuse and exploitation peacekeepers likewise caused while supposedly providing support to the country.
January 23, 2020
Posted by Yee Htun
Today is a momentous day for many of us who have longed for justice in Myanmar. The International Court of Justice (“ICJ”) unanimously imposed provisional measures on Myanmar asking that it take “all measures within its power to prevent further acts of genocide against the Rohingya and preserve all evidence related to the allegations” of genocide.
The Gambia first brought the ICJ case against Myanmar in November 2019. They are seeking to prove that Myanmar is carrying out an ongoing genocide against the Rohingya. Both states addressed the ICJ in early December with regards to the provisional measures. As a result of today’s order, Myanmar is obligated to submit a report to the Court on all measures it has taken within four months and thereafter every six months, until a final decision on the case is rendered by the Court.
For the Myanmar military, which has operated for decades with impunity while persecuting ethnic and religious minorities, this degree of scrutiny is a first. Even though the road ahead for both this ICJ case and the International Criminal Court (“ICC”) case around deportation will be a long journey, today’s decision offers a glimmer of hope for the Rohingya.
I, along with three students in the International Human Rights Clinic—Disha Chaudhari LLM ‘20, Lucy Chen JD ’21, and Emily Ray JD ‘21 —spent this Winter Term in Cox’s Bazar, Bangladesh, working alongside our Rohingya refugee partners. We conducted a series of workshops with women survivors, youth leaders, and activists in the camps, addressing the issues of international accountability, women’s rights, and best practices to ensure voluntary, safe, and dignified repatriation. In almost every meeting, we were asked repeatedly about the possibility of securing provisional measures. Our team always said that we should hope for the best, but not give up should the Court fail to grant the requested provisional measures.
These resilient women and men were on my mind as I waited for the ICJ’s decision this morning. For them, and countless other ethnic communities in Myanmar who have long languished under Myanmar military’s campaigns, today’s order is historic.
Read ICJ’s full order on their website.
Yee Htun is a Lecturer on Law and Clinical Instructor in the International Human Rights Clinic. She is a Burmese Canadian lawyer who has been working on human rights issues in Myanmar for over 20 years.
December 18, 2019
By Dana Walters
After making her mark on the International Human Rights Clinic, Program Assistant Emma Golding left her position in early December. She begins nursing school at Emory University in January. As her colleague and friend, I will miss her generous spirit, compassionate nature, and perceptive intellect. However, I could not imagine a person more suited to enter the healthcare field.
Emma was constantly a surprise, with wide-ranging interests and skills. She could take professional headshots and design websites, while simultaneously conversing about food anthropology and solving crossword puzzles. At only 24 years old, she had been an editorial assistant, faculty assistant, legal secretary, bartender, waitress, hostess, busser, catering manager, circus performer, au pair, natural history and ecology educator, and Audubon Society counselor. She graduated from UMass Amherst in three years with a double major. She was one of the most self-sufficient people I knew. Every task she approached, she did so wholeheartedly.
In the Clinic, Emma was often the first individual students and staff interacted with as they entered our wing. She generated an easy positivity and warmth, qualities that were instrumental in establishing a community-oriented spirit over the past couple years. Students were often found milling about her desk, asking for advice on schoolwork and life. She presented everyone with a friendly face, even while juggling the demands of assisting eight clinicians, three classes, and multiple reading groups. A people-person with savvy judgment, she always stayed focused and easygoing in an atmosphere punctuated by a thousand interruptions. As my collaborator in communications, she showed an intuitive and creative approach to design and editorial. Her ability to parse complicated ideas and grasp difficult concepts will serve her well as she mediates between patients, healthcare professionals, and insurance companies.
Working with Emma has been a joy and a privilege, and while we are sad to say goodbye, we at the Clinic are thrilled to see her take this next step in her professional life. There is no doubt that she will be an excellent nurse and add tremendous value to the field.
December 4, 2019
On November 26, 2019, experts in international law urged the Bolivian Government to abide by its international legal obligations to protect the freedom of assembly and prohibit the excessive use of force against civilian protesters. In a statement signed by a former president and a former executive secretary of the Inter-American Commission, two former and the current UN Special Rapporteurs on Extrajudicial, Summary or Arbitrary Executions, two former UN Special Rapporteurs on Torture and Other Cruel, Inhuman and Degrading Conditions, as well as leading scholars in international law, the experts made clear what the Bolivian Government’s obligations are under international law.
Since October 20, 2019, there have been reports of deaths and injuries resulting from Bolivia’s social conflict. “In recent weeks, however, there has been a marked increase in the number of reported deaths attributed to security forces policing protests,” said Thomas Becker, Instructor at Harvard Law School’s International Human Rights Clinic. “The escalation in the use of lethal force by the Bolivian military and security forces is extremely concerning.”
In their statement, the experts highlighted that Bolivia’s international legal obligations require it to ensure that security forces responding to protests only use lethal force to protect life and only as a last resort. Indiscriminately firing into a crowd of protesters is never allowed.
The experts also raised concerns about the Bolivian Government’s apparent attempt to institute impunity measures through Supreme Decree 4078, which was issued on November 15, 2019. The decree purports to immunize “personnel of the Armed Forces participating in the operations to reestablish internal order and stability” for all actions undertaken in response to the current protests in the country. Under international law, domestic measures that attempt to create such impunity for gross human rights violations, including extrajudicial killings, are invalid.
“The Inter-American Court has held time and again that actions seeking to create impunity for gross human rights violations are incompatible with the American Convention. Governments and their security forces should know that they are not above the law despite domestic measures attempting to immunize them, and the Supreme Decree should be rescinded,” said Claret Vargas, Senior Staff Attorney at the Center for Justice and Accountability.
Read the full statement from the Center for Justice and Accountability here.
December 4, 2019
In the classroom, Clinical Professor Susan Farbstein JD ’04 encourages students to develop personal leadership styles
By Dana Walters
Susan Farbstein JD ’04, clinical professor of law and co-director of the International Human Rights Clinic (IHRC), stands with chalk in hand under a blackboard bearing the word “inspirational.” For the third session of “Human Rights Careers: Strategic Leadership Workshop,” Farbstein has kicked off the discussion by asking students to identify qualities of effective leaders. Adjectives like “empathetic” and “selfless” are enthusiastically shouted across the room.
Throughout the conversation, students are outspoken about considering words like “nurturing”—often traditionally associated with women—along with words like “assertive” and “decisive”—characteristics traditionally coded as masculine, according to “What Makes a Leader?”, an article assigned for class that day. With Farbstein at the helm, the seminar aims to accomplish two goals: to explore the strategic considerations critical to protecting and promoting human rights across the globe, and to investigate the barriers that women face in professional settings, especially in the human rights field.
“The further along I’ve advanced in my profession, the more I’ve become aware of the ways that one’s identity can be both a huge benefit and a huge obstacle,” Farbstein said. Over a 15-year career, she has practiced and taught in the areas of transitional justice, accountability litigation, community lawyering, and economic, social, and cultural rights. Now after working her way into a leadership position at Harvard Law School, she is “trying to make a small intervention for a necessary discussion,” she says. “I want to create space for a conversation that I wish had been taking place more often when I was in law school.”
Alongside Salomé Gómez Upegui LL.M. ’18 and current S.J.D. student Regina Larrea Maccise, Farbstein curated materials on women’s leadership and considered how this topic might be integrated into existing elements of an International Human Rights Clinic seminar, “Advanced Skills Training for Human Rights Advocacy.” Farbstein previously co-taught the class with Tyler Giannini, Human Rights Program and clinic co-director and clinical professor of law. Scenarios and readings in the seminar enable students to target entrenched, structural challenges—inequality, corporate power, climate change—as they prepare to enter the workplace after graduation. The seminar has changed frequently over the years, with students’ interests informing the direction of the class. Throughout, Farbstein and Giannini have always asked students to consider leadership and its interaction with identity.
Over the last year, however, Farbstein realized that she wanted to focus more deeply on the issue of women’s leadership. “It’s so clear from a variety of recent events and public conversations—around unconscious bias, the #MeToo movement, the Kavanaugh hearings, the electability of a woman as president—that we’re struggling with how to achieve true gender parity in our society, including in the workplace,” said Farbstein. “I wanted to do something to respond to this particular moment by bringing those conversations very thoughtfully and intentionally into the classroom and into a field—human rights—where my students aspire to build their careers.”
For the third session of “Human Rights Careers: Strategic Leadership Workshop,” Farbstein kicked off the discussion by asking students to identify qualities of effective leaders.
Farbstein worked with Gómez Upegui and Larrea Maccise to develop four new sessions for the advanced seminar. An introductory session frames the idea of women’s leadership using an intersectional lens, while later classes dissect themes like workplace culture, bias and stereotypes, harassment, and microaggressions within institutional and human rights contexts.
In the first of these four new sessions, Farbstein assigned readings that address the grim statistics around harassment, diversity, and bias. McKinsey’s 2018 Women in the Workplace review, for instance, describes how microaggressions impact a woman’s ability to function in the workplace, with 40 percent of black women surveyed indicating that colleagues routinely question their judgment in their areas of expertise. A Forbes piece on the widespread gender bias faced by female lawyers notes that male law firm partners earn 44 percent more than female partners and that women are more likely to be interrupted when speaking, including at the Supreme Court, where nearly 66 percent of all interruptions are directed at the three female justices.
“To be a working woman is always an act of rebellion,” said Fabiola Alvelais JD ’20 in response, reflecting on the ways the system simply fails to support professional women.
Beyond exposing the sheer scale of the problem, the statistics serve an additional purpose: They allow Farbstein to engage with her class’s needs and approach the material flexibly, depending on students’ comfort levels. “If they need to stay at a general and abstract level, the numbers are there for them to discuss and reflect on. And if they are comfortable going deeper, which they have been, it gives students who have experienced or encountered gender discrimination in some form the feeling that they’re not the only one out there,” Farbstein said. The statistics hold personal stories within them.
Farbstein’s classroom has a casual intimacy. In part, this is a result of the relaxed tone that she sets and the deep bonds that she develops with her students. The International Human Rights Clinic itself has a community-oriented spirit, and students in the advanced seminar have all spent at least one, and often several, prior semesters together, working on clinical teams or in introductory advocacy seminars.
Student Monica Sharma JD ’20 echoed many of the same words her classmates used to define good leadership when asked to describe Farbstein, in particular noting the way she actively listens to students and lets discussions evolve naturally. Sharma described the advanced seminar as unique, a place where one can formally “consider your power as a Harvard student or as a lawyer.” The discussion, while academic, is inclusive and comfortable, allowing students to draw on their own experiences as well as the readings.
“When you’re talking about ethics or morality, personal narrative comes into play,” Sharma said. “We like to dissociate the law from human experience in a lot of ways, but this class helps you to confront both as they exist in reality and in your work.”
Early in the semester, student Daniel Moubayed JD ’20 had already found it personally enriching to be brought into the conversation on women’s leadership. “Too often those conversations happen in informal environments. It’s critical that we’re doing this inside the classroom and in a professional setting with a cross section of students,” he said.
In her own teaching, Farbstein seamlessly integrates legal expertise with lived experience. She recognizes that students are not blank slates: they have histories and subjective perspectives that contribute to the debate.
“Part of being a good human rights practitioner is sometimes being vulnerable, drawing on your own life experiences without prejudging the experiences of others, and engaging with the emotions that people carry with them,” Farbstein said. She added, “It’s good practice for students to consider: what is your comfort level when you start to enter this kind of territory?”
For Gómez Upegui, the work she did with Farbstein demonstrated how endemic and culturally rooted the difficulties are, creating situations in which women are dispersed across organizations, lack support networks, and are isolated as they attempt to confront significant challenges.
Still, the breadth of research did not adequately address the marginalization Gómez Upegui, who is Colombian, has witnessed in the legal and human rights fields. “There’s a tremendous lack of intersectional content out there,” she said. “We found endless amounts of work in the business sector and much in the corporate law sector within a white feminist context. Once we narrowed to look at the human rights and social justice fields, the literature winnowed. And we had to fight to find research addressing the lives of women of color or women of low socioeconomic status.”
In addition to the seminar, Farbstein is leading a project in the clinic that investigates gender equity in the human rights field. The team aims to unpack the barriers women human rights advocates face in their professional advancement. Over the course of the year, they will interview a variety of practitioners to provide qualitative evidence to support their findings.
Sharma, who is also a member of Farbstein’s project team, said that engaging with the movement on a self-referential level was vital. She noted that the way lawyers jump to find remedies can often lead to institutional and systemic problems.
Reflecting on the larger importance of the clinical project, Sharma said, “Sometimes in human rights, there is an idea that you sacrifice yourself to the work. Things get lost in the drive to fulfill the mission. It’s important to take a good look and ask, ‘Do organizations practice as they preach?’ I really believe that if you make an atmosphere supportive and encourage diversity of thought, then the work itself will be better.”
The clinical team has already identified factors that may impede gender equity in the human rights field—from the tightly-knit network of practitioners and organizations, to the notion that this is already a progressive space, to a mission-driven “martyr” culture that fosters a sense of selfless dedication to the cause. These initial ideas have, in turn, found their way into the classroom as students consider such obstacles as well as potential strategies to overcome them.
Farbstein hopes that her seminar will help students imagine the kinds of leaders they want to become. “Human rights practitioners talk a lot about how to make the movement more effective and inclusive, but this class is a very concrete step in the right direction,” she said. “These students are each going to be leaders in their own way, and I can already see our conversations informing their decisions and actions. Hopefully they will be inspired, and also better equipped, to create more opportunities for women leaders in human rights, and in the legal profession more broadly.”
You can also read this piece on Harvard Law Today, published December 3rd, 2019.
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