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Blog: Susan Farbstein

March 26, 2015

Tomorrow, March 26: “International Criminal Courts and Tribunals: Challenges and Successes”


We’re very pleased to co-sponsor this year’s Harvard Human Rights Journal Symposium, which takes place tomorrow, Friday, March 27. The half-day event will focus on the challenges and successes of international criminal law as a response mechanism to world crises. The event panels are as follows:


“Where Has International Criminal Law Taken Us and Where Can it Go?”

Keynote Address by Serge Brammertz, Chief Prosecutor of the ICTY
12:00 – 1:00 pm, Ames Courtroom, Austin Hall
Lunch will be served


“The Laws of War: Enforcement in Human Rights Versus International Criminal Courts”

1:30 – 3:00 pm, WCC 1015

This panel will feature Judge Robert Spano of the European Court of Human Rights (graciously brought to the Symposium by Harvard European Law Association), Nema Milaninia of the ICTY in the Appeals Division of the Office of the Prosecutor, Fergal Gaynor of the International Criminal Court Victims Division, former ICC prosecutor Professor Alex Whiting, and Vanderbilt University Professor Michael Newton. The panel will discuss the pros and cons of enforcing international humanitarian law in international criminal courts versus international human rights courts. This panel is cosponsored by the Harvard European Law Association.

Coffee with the Experts

3:00 – 4:00 pm, WCC 3038

“Prosecuting a War: Justice for Syria?”

4:00 – 5:30 pm, WCC 1023

Syria triggers critical questions for the role of international criminal law. What system of justice will best address the atrocities that have been committed and documented by various actors throughout the conflict? National courts? An international tribunal? A hybrid model? What role should local forms of justice play in such a process? How can the lessons of past justice models inform the international community’s approach to Syria? What role should the US or other Western powers play? The panel will feature Emily Hutchinson and Jim Hooper of the Public International Law and Policy Group, and Federica D’Alessandra from the Harvard Kennedy School. All three panelists have been involved in Syria fact-finding missions, and Ms. Hutchinson and Mr. Cooper have participated in negotiations with key members of the moderate coalition. Susan Farbstein from the Harvard Human Rights Program will moderate the panel.

[pageWine and Cheese Reception



WCC 1023, HLS Pub

March 10, 2015

Plaintiffs’ Victory Against Former Somali Prime Minister Allowed to Stand

Posted by Tyler Giannini and Susan Farbstein

After 11 long years of litigation, plaintiffs from Somalia learned yesterday that their $21 million judgment for damages for torture and war crimes would stand. The U.S. Supreme Court declined to take the appeal of the defendant, General Mohamed Ali Samantar, a former Somali Prime Minister and Minister of Defense who was implicated in the abuses. Samantar, who now lives in Virginia, can make no additional appeals.

Beyond the victory for the plaintiffs, counsel from the Center for Justice & Accountability noted this ruling is critically important because it preserves a Fourth Circuit Court of Appeals decision that found egregious rights violations cannot be considered “official acts” shielded by sovereign immunity.

The ruling comes amidst ongoing debate about how the United States should treat high-ranking former foreign government officials who are accused of human rights abuses and are now living in the United States. The International Human Rights Clinic and its partners have been involved since 2007 in one such case, Mamani et al. v. Sánchez de Lozada and Sánchez Berzaín, which brings Alien Tort Statute claims against the former President and the former Defense Minister of Bolivia for their role in extrajudicial killings in 2003. Last Friday, the Mamani plaintiffs filed a brief with the Eleventh Circuit opposing the defendants’ appeal, which is considering the issues of exhaustion of remedies and command responsibility.

Like Samantar, the defendants in Mamani came to the United States after leaving power, and have remained in the country ever since.

January 29, 2015

Clinic Files Opening Brief in Apartheid Litigation Appeal

Posted by Tyler Giannini and Susan Farbstein

The Clinic and our partners filed an opening brief yesterday in the Second Circuit in an appeal in In re South African Apartheid Litigation. The case, which is being litigated under the Alien Tort Statute, seeks relief against IBM and Ford for assisting and supporting human rights violations committed in apartheid South Africa.

Back in August, the district court dismissed the case when the court denied Plaintiffs’ motion for leave to file an amended complaint against these two U.S. Defendants. The lower court reasoned that the claims did not sufficiently “touch and concern” the territory of the United States, as required by the Supreme Court’s 2013 decision in Kiobel v. Royal Dutch Petroleum, which established a presumption against extraterritoriality in ATS cases.

On appeal, Plaintiffs contend that the lower court failed to undertake the necessary inquiry into the U.S. Defendants’ own conduct in the United States, and instead focused only on actions that took place in South Africa. The proposed amended complaint contains detailed new allegations about how, from the United States, both Defendant corporations aided and abetted the South African security forces and government to commit human rights violations over several decades. Defendants will file their opposition brief in the coming months.

Clinical students Ariel Nelson, J.D. ’15, Brian Klosterboer, J.D. ’16, and Peter Stavros, J.D. ’16, contributed research and drafting for the brief.

November 7, 2014

Clinic Investigation: Senior Mynamar Officials Implicated in War Crimes and Crimes Against Humanity


PRESS RELEASE


Senior Myanmar Officials Implicated in War Crimes and Crimes Against Humanity


Myanmar must decide how to address legacy of abuses by military


November 6, 2014, Yangon, Myanmar—A four-year investigation by the International Human Rights Clinic at Harvard Law School has found that the Myanmar military committed war crimes and crimes against humanity in 2005-2006, and that perpetrators, including the current Home Affairs Minister, continue to serve at the highest levels of the country’s government.

Today, the Clinic released a legal memorandum, War Crimes and Crimes Against Humanity in Eastern Myanmar, which examines the conduct of the Myanmar military during an offensive that cleared and forcibly relocated civilian populations from conflict zones in eastern Myanmar. Through more than 150 interviews with eyewitnesses, the Clinic documented how soldiers fired mortars at villages; opened fire on fleeing villagers; destroyed homes, crops, and food stores; laid landmines in civilian locations; forced civilians to work and porter; and captured and executed civilians.

“These are serious allegations that demand a determined, good faith response by the Myanmar government and military,” said Tyler Giannini, Co-Director of the Clinic. “The abuses perpetrated by the military have been too widespread, too persistent, and too grave to be ignored.”

The memorandum specifically implicates three commanders in international crimes as defined by the Rome Statute of the International Criminal Court: Major General Ko Ko, the current Home Affairs Minister; Brigadier General Khin Zaw Oo, the current commander of the Bureau of Special Operations 4; and General Maung Maung Aye, most recently the Naypyidaw Regional Commander. All three received promotions after the offensive.

As part of its investigation, the Clinic compiled more than 1,000 pages of draft affidavits from interviews with individuals in Myanmar and along the Thailand-Myanmar border, including villagers, village leaders, and former Myanmar Army soldiers. Additionally, the Clinic collected photographic evidence and solicited expert declarations from four individuals with knowledge relevant to the offensive and the Myanmar military’s structure and policies.

“In interview after interview, villagers described a pattern of military abuse—stories that have been notably absent from the national conversation about reform,” said Matthew Bugher, Global Justice Fellow at Harvard Law School and a principal researcher on the Clinic’s memorandum. “It is critical that these voices are heard, especially since a similar pattern appears to be playing out today in Kachin State and northern Shan State.”

The Clinic’s evidence is sufficient to satisfy the standard required for the issuance of an arrest warrant against these commanders by the International Criminal Court. Under international criminal law, these commanders could be held accountable for their own actions as well as for crimes committed by soldiers under their effective command and control. Although the Clinic’s memorandum uses the framework of the Rome Statute, international justice is not the only means of addressing past abuses.

“Myanmar faces profound and difficult decisions as it transitions away from military rule and towards meaningful reform,” said Susan Farbstein, Co-Director of the Clinic. “Ultimately, it is the people of Myanmar who must decide how to address the legacy of military abuse.”

Read the report in Burmese here

The International Human Rights Clinic at Harvard Law School has been working on human rights in Myanmar since 2004 and has examined international crimes in the country since 2008. Among its publications, the Clinic released Crimes in Burma in May 2009 and Policy Memorandum: Preventing Indiscriminate Attacks and Wilful Killings of Civilians by the Myanmar Military in March 2014.

For more information:

Matthew Bugher, Global Justice Fellow at Harvard Law School, in Yangon:
[email protected] or +95 094 0159 6412

Tyler Giannini, Co-Director, International Human Rights Clinic, Harvard Law School, in the United States:
[email protected] or 617-496-7368

Cara Solomon, Communications Manager, Human Rights Program, Harvard Law School, in the United States:
[email protected] or 617-495-9214

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August 11, 2014

Clinic Files Proposed Amended Complaint in the Apartheid Litigation

Posted by Susan Farbstein and Tyler Giannini

Last Friday, the International Human Rights Clinic filed a proposed amended complaint in the Apartheid Litigation against two defendants, Ford and IBM.

The amended complaint demonstrates how the claims “touch and concern” the United States as required by the Supreme Court’s Kiobel decision, as well as how the Defendants acted with the purpose to aid and abet the South African government’s violations of international law, as required by the Second Circuit’s Talisman decision. In particular, the complaint alleges that, through policies and decisions made in the United States, Defendant Ford directed and controlled the sale of specialized vehicles to the South African security forces to suppress the black population, while Defendant IBM created and maintained an identity card system to denationalize the black population.

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July 29, 2014

Susan Farbstein in the Harvard Human Rights Journal


In the latest volume of the Harvard Human Rights Journal, released last week, Clinic Director Susan Farbstein reflects on when, if ever, violence is justified in the struggles for social and political change. The article is adapted from her remarks this past spring at Harvard Law School’s memorial event for Nelson Mandela, the South African leader who died last December. Farbstein, whose work in South Africa currently focuses on the right to education, says in part:

“Ultimately, it is not enough to answer the question posed. We must ask ourselves an equally important follow-up question: If violence is sometimes justified- or resorted to–in struggles for social and political change, how might the damage inflicted on the emerging society be minimized? Mandela’s legacy of forgiveness and reconciliation offers the beginnings of an answer.”

Read Farbstein’s article in full in Volume 27 of the Harvard Human Rights Journal.

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July 2, 2014

Fourth Circuit’s Post-Kiobel Ruling Revives ATS Claims Against U.S. Corporation for Violations Committed Abroad

Posted by Tyler Giannini and Susan Farbstein

On Monday, the Fourth Circuit Court of Appeals ruled that the presumption against extraterritoriality in Alien Tort Statute (ATS) cases, established by the April 2013 U.S. Supreme Court decision in Kiobel v. Royal Dutch Petroleum, Co., does not bar claims against a U.S. contractor for torture and mistreatment of foreign nationals in Iraq.

The Al Shimari v. CACI ruling is a major decision in the ongoing battle over the meaning and interpretation of Kiobel. Kiobel  held that there is a presumption against extraterritoriality in ATS cases unless the “claims touch and concern the territory of the United States with sufficient force,” in which case the presumption can be displaced. In Kiobel, the Supreme Court found the “mere corporate presence” of the defendant in the United States did not overcome the presumption.

The Fourth Circuit compared the factual circumstances in Kiobel with those in Al Shimari, and concluded that the corporate defendant had a much more significant connection to the United States than mere presence. In so ruling, it became the first appellate court to hold that the plaintiffs’ claims sufficiently “touch and concern” U.S. territory to displace the presumption.

In the wake of the Kiobel decision, lower courts across the country have wrestled with how to interpret the new “touch and concern” standard given the limited guidance provided by the Supreme Court. Some courts have avoided the complexities of the Kiobel presumption altogether. However, the Fourth Circuit embraced the challenge:

Although the “touch and concern” language in Kiobel may be explained in greater detail in future Supreme Court decisions, we conclude that this language provides current guidance to federal courts when ATS claims involve substantial ties to United States territory. We have such a case before us now, and we cannot decline to consider the Supreme Court’s guidance simply because it does not state a precise formula for our analysis.

Continue Reading…

March 23, 2014

Clinic Calls on Myanmar Military to Reform Policies to Prevent Unlawful Attacks on Civilians


PRESS RELEASE


Myanmar: Military Must Reform Policies to Prevent Unlawful Attacks on Civilians


Longstanding policies and practices threaten the safety of civilians, the peace process, and democratic reforms

March 24, 2014, Yangon, Myanmar— The Myanmar military must reform policies and practices that threaten civilian populations in the country, the International Human Rights Clinic at Harvard Law School said in a memorandum released today.

Policy Memorandum: Preventing Indiscriminate Attacks and Wilful Killings of Civilians by the Myanmar Military describes a pattern of attacks that has unfolded over several decades. The memorandum identifies the policies and practices that give rise to such attacks and proposes a practical program of reform.

“The Myanmar military needs to publicly renounce and reverse the longstanding policies that have resulted in attacks on civilians and violations of international humanitarian law,” said Matthew Bugher, Clinical Advocacy Fellow at the Clinic. “Until problematic military policies and practices are fundamentally reformed, civilians will remain at risk wherever and whenever military force is deployed.”

The memorandum draws from the findings of an ongoing investigation by the Clinic into the conduct of Myanmar Army units during a 2005–2008 counterinsurgency offensive in eastern Myanmar. During eleven field missions to the region, the Clinic compiled more than 1,000 pages of witness statements from survivors of military attacks and former soldiers, among others.

The Clinic documented numerous “shoot-on-sight” incidents in which soldiers opened fire on civilians, including women, children, and elderly persons. Myanmar Army soldiers often shot at villagers as they fled their homes with family members. Witnesses also described executions, the deliberate placement of landmines in civilian locations, and the indiscriminate shelling of villages and agricultural fields.

In many parts of Myanmar, attacks on civilians have decreased dramatically with the signing of ceasefire agreements between ethnic armed groups and the central government. However, progress has been inconsistent, and reports of continuing abuses raise serious concerns. Notably, since the failure of a seventeen-year-old ceasefire agreement between the government and the Kachin Independence Organization (KIO), there have been persistent allegations of attacks on civilians by the Myanmar military in Kachin State and northern Shan State. These reports suggest that recent improvements in civilian security are the result of a decrease in armed conflict, rather than the reform of military policies and practices at a national level.

“The reports of attacks on civilians in Kachin State are disturbingly similar to those documented during previous military offensives,” said Tyler Giannini, Co-Director of the Clinic. “The military must prioritize civilian protection if it is to meet its stated commitment to become a modern, professional army.”

The Clinic is particularly concerned by the orders given to soldiers in military-defined “black areas.” In these regions, soldiers are often instructed that all individuals are “the enemy” and are therefore legitimate targets of attack. This practice is a per se violation of the principle of distinction, a key tenet of international humanitarian law that requires combatants to distinguish between civilian and military targets.

The Clinic calls on the military to immediately renounce all counterinsurgency policies and practices that lead to the targeting of civilians. However, this action alone will be insufficient. Protecting civilians in Myanmar will require a concerted effort to overturn entrenched norms and longstanding military practices. The Clinic’s memorandum identifies the institutional causes of civilian targeting at all levels of military authority. For example, it considers the policies formulated by senior generals, the orders given by field commanders, and the challenges facing foot soldiers on the front lines. The memorandum outlines a program of reform that aims to influence the institutional culture of the military and the decision-making processes of individual soldiers throughout the military hierarchy.

“The Myanmar military should act immediately to end unlawful attacks in black areas and conflict zones,” said Susan Farbstein, Co-Director of the Clinic. “Such failures to address the underlying institutional causes of civilian targeting will endanger communities, threaten the peace process, and undermine reform efforts.”

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March 13, 2014

Tomorrow, March 12: “Legal Feminism in Latin America” and “Honoring Nelson Mandela”


As we round the corner on Friday, here are two events we think are definitely worth your time tomorrow.

The first,  “Legal Feminism in Latin America,” is a breakfast talk by Professors Cristina Jaramillo and Paola Bergallo, who will discuss challenges the region faces with regard to reproductive rights. The talk is being organized by the SJD Association and the Harvard Women’s Law Association.

Later that day, at noon, HLS has organized a panel, “In Honor of Nelson Mandela,” which will explore the question of when, if ever, violence is justified in the fight for social change. Our very own Susan Farbstein will be on the panel, which Prof. Charles Ogletree is moderating. Details of both events below.

Enjoy!


“Legal Feminism in Latin America”


10:00 – 11:30 a.m.

WCC 3015

The SJD Association and the Women’s Law Association invite you to an informal breakfast talk by Professors Cristina Jaramillo and Paola Bergallo about legal feminism in Latin America and the challenges the region faces with regard to reproductive rights. Professor Jaramillo is an HLS alumnae and has been called upon as an expert by the Colombian Senate on issues of women’s political participation, divorce, and gender discrimination. Professor Bergallo is currently a visiting fellow at HLS and has been called as an expert by the Inter-American Court of Human Rights. Breakfast will be served. Please contact Regina Larrea if you are interested in attending.


“In Honor of Nelson Mandela”


12:00 – 1:00 p.m.

Langdell 272

Please join Harvard Law School for a discussion about when, if ever, violence is justifiable in struggles for political or social change. Panelists: Mekonnen Firew Ayano, SJD Candidate; Randall Kennedy, HLS Michael R. Klein Professor of Law; Kerry Chance, American Council of Learned Societies New Faculty Fellow, Harvard University Anthropology Department; Aminu Gamawa, SJD Candidate; and Susan Farbstein, HLS Assistant Clinical Professor of Law, Co-Director of the International Human Rights Clinic. Moderator: Charles Ogletree, HLS Jesse Climenko Professor of Law, Director of the Charles Hamilton Houston Institute for Race & Justice.

December 18, 2013

Winning on School Infrastructure, Honoring Mandela

Posted by Susan Farbstein

As South Africa and the world remember Nelson Mandela, there is perhaps no greater way to honor his legacy than to continue the struggle for social justice.  A quality education for all children must be at the core of such efforts, as Mandela himself recognized.  “Education is the most powerful weapon which you can use to change the world,” he said.  In the week before his death, real progress was made on the education front in South Africa.

Excited children protest in South Africa holding a yellow banner.
Members of Equal Education march to the Department of Education in Pretoria to demand norms and standards. (Photo courtesy of Equal Education)

After three years of sustained campaigning by our South African partners, Equal Education (EE) and Equal Education Law Centre (EELC), Minister of Basic Education Angie Motshekga finally released binding norms and standards for school infrastructure on November 29th.  The norms represent a significant victory for future generations of South African students, and for South Africa itself. 

The norms—which are legally binding—mandate substantial changes to public schools across the country, many of which must be realized on a relatively short time horizon.  Mud schools must be replaced within three years; schools that currently lack water, power, and toilets must be provided such facilities within three years; all schools must have classrooms, electric connectivity, and security measures within seven years; and all schools must have libraries and laboratories within ten years.  As a first step, provincial ministers will be required to develop school infrastructure plans within a year, and then report annually on their progress towards implementing the norms. 

There are still serious concerns.  The norms do not require provincial ministers to make either their plans, or their progress reports, available to the public.  The norms also contain a potentially worrisome legal loophole, in the form of language stating that they must only be implemented “as far as reasonably practicable.”  Equally troubling are some of the specific provisions, such as the proposed minimum number of toilets per student, which falls well short of international standards recommended by UNICEF and the WHO.  

Nevertheless, the norms carry the promise of tangibly improving the education, and therefore the lives, of millions of South African schoolchildren.  Our partners have fought long and hard to secure decent school infrastructure for all of South Africa’s students.  The norms victory would never have been possible without the advocacy work of EE student and parent members, who joined voices to ensure that their demands could not be ignored.  Their collaborative and creative efforts demonstrate that—as Mandela teaches us—while justice and equality may be a long time coming, a group of dedicated and committed people can transform a society.  Our Clinic is proud to support their work.

For more information, read Equal Education’s statement on the win, along with its statement after the death of Nelson Mandela.

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