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December 7, 2021
New Voices against Incendiary Weapons: Healthcare Professionals, Burn Survivor Groups Demand Stronger Law
Posted by By Nick Fallah, JD’23, and David Hogan, JD ’22 Harvard Law School International Human Rights Clinic From the HUMANITARIAN DISARMAMENT website
Incendiary weapons, which produce heat and fire through the chemical reaction of a flammable substance, cause grievous injury and long-term suffering for civilians. Protocol III of the Convention on Conventional Weapons (CCW) prohibits and regulates certain uses of incendiary weapons, but it contains loopholes that have limited its effectiveness.
As CCW states parties prepare to discuss these weapons and Protocol III at the CCW’s Sixth Review Conference, scheduled for December 13-17, 2021, healthcare professionals and burn survivor organizations have an opportunity to add their voices, expertise, and moral authority to the debate. They should sign an open letter that calls on states to “recognize the unnecessary human cost of incendiary weapons and initiate a process to revisit and strengthen” Protocol III.
The open letter, signed to date by more than 36 individuals and organizations from 7 countries, seeks to bring the views of those who have a unique knowledge of burn injuries to the diplomatic table. According to the letter,
Those of us who are healthcare professionals, including burn specialists, understand the human impacts of such injuries and the challenges of treating them. . . . Those of us who are burn survivors or their family members have directly or indirectly experienced the effects of burn injuries and empathize with those who suffer the immediate and lifelong consequences of incendiary weapons.
As the letter explains, the harm that incendiary weapons inflict on people is nothing short of horrific. These weapons, including those with white phosphorous, can burn people to the bone or smolder inside the body. They frequently cause severe or even fatal burns over more than 15 percent, and often more than 50 percent, of a victim’s total body surface area. The pain to survivors is so great that they often must take the maximum dosage of painkilling medication, and the burns leave victims at severe risk of infection and death. A 2013 incendiary weapon attack on a school in Syria killed several students and wounded many more. The flames burned an 18-year-old student named Muhammad, covering over 85 percent of his body including half his face, neck, back, and both legs and feet. To relieve the suffering of another boy whose throat had been scorched, a doctor intubated and sedated him, although, as the doctor expected, he died within the hour.
The impacts of incendiary weapons can last a lifetime. Thick scars cause contractures, which restrict muscles and joints, impede mobility, and can stunt the growth of children. Severe pain can linger for decades, and survivors may also suffer from skin damage, excessive dryness, either hypersensitivity or loss of sensation, and a range of physical disabilities. The trauma of an attack as well as its long-term physical effects can cause lasting psychological harm, and a survivor’s injuries and scarring can make it difficult to reintegrate into society socially and economically. Long-term harm is exacerbated by the lack of specialist medical personnel in combat zones, and the lack of adequate equipment and resources even when specialists are available.
CCW Protocol III has failed to prevent this kind of harm to civilians at least in part because two loopholes weaken its prohibitions and regulations. First, the protocol’s definition of incendiary weapons excludes most multipurpose weapons with incendiary effects, such as white phosphorus. Second, the protocol has weaker restrictions for ground-launched weapons than for airdropped ones, even though they have the same damaging effects. CCW states parties should amend Protocol III to remove these loopholes and focus the law on the weapons’ effects rather than on their primary purpose or delivery mechanism. Doing so would create stronger international norms that could influence states parties and states not party alike.Continue Reading…
September 26, 2018
International Human Rights Clinic Students Contribute Research
Human Rights Watch released a brief on Tuesday documenting illegal imprisonment and serious abuses by Yemen’s Houthi rebel forces against detainees in their custody. The brief uses investigative and legal research conducted by students of the International Human Rights Clinic on Houthi practices of hostage-taking and torture, and documents dozens of cases in which Houthis held people unlawfully and profited from their detention since 2014. It also calls on the United Nations Human Rights Council to renew the mandate of the Group of Eminent Experts on Yemen to investigate and identify those responsible for abuses.
“The Houthis have added profiteering to their long list of abuses and offenses against the people under their control in Yemen,” said Sarah Leah Whitson, the Middle East director at Human Rights Watch. “Rather than treat detainees humanely, some Houthi officials are exploiting their power to turn a profit through detention, torture, and murder.”
International Human Rights Clinic students who contributed to this research include Zeineb Bouraoui, LLM ’18, Danesha Grady (Berkeley) ’JD 18, Tarek Zeidan, HKS MPA ’18, and Canem Ozyildirim, JD ’18.
Read the full brief here: https://www.hrw.org/news/2018/09/25/yemen-houthi-hostage-taking.
April 13, 2016
When Deborah Alejandra Popowski, J.D.’08, was just beginning her studies at Harvard Law School (HLS), she learned a powerful lesson about the value and import of the law.
An American attorney representing a Guantanamo detainee spoke at an HLS event. The lawyer told of her client, a Saudi citizen in his early 20s, and of the regimen of inhuman treatment that he endured at the hands of U.S. military forces. For Popowski, the lawyer’s testimony brought home the human dimension of torture.
“Everybody in law school was talking about concepts and the rule of law regarding torture,” Popowski said. “That was the first time that I had ever heard somebody talking about people.”
Ever since, she has tried to follow that example and tend the people.
Since 2009, when Popowski began working as a fellow at the HLS International Human Rights Clinic, she has advocated for torture survivors as part of a movement to seek accountability for U.S. torture through both state and international courts.
Popowski, who became an HLS clinical instructor in 2011, has focused on the role that psychologists played in the U.S. torture program authorized by the Bush administration and implemented as part of its “war on terror.”
As is widely known, psychologists helped design the CIA’s “enhanced interrogation techniques,” which included water-boarding, sleep deprivation, forced nudity, and religious and sexual humiliation of Muslim men and boys detained by U.S. intelligence and military agencies. Psychologists also participated in interrogations as advisers.
Popowski recalled an internal military report that documented an interrogation session in which a detainee was repeatedly slammed onto the floor and ended up spitting up blood, with a loose tooth, bruises, and rib pain.
“The psychiatrist who was present didn’t say, ‘You shouldn’t be slamming him at all.’ He recommended the slamming,” said Popowski. His “protection” of the man, she said, was to tell the interrogator to move chairs out of the way before slamming him again.
Examining the controversial participation of psychologists in the U.S. torture program, Popowski will take part in a panel on Wednesday with David Luban of Georgetown University Law Center.
“The official narrative was that psychologists were there to keep interrogations safe and ethical,” Popowski said. “But they were there not to protect detainees; they were there to calibrate harm.”
Widespread public criticism of the American Psychological Association (APA) for endorsing the U.S. program led the group last summer to prohibit its members from taking part in interrogations by military or intelligence services. Shortly afterward, the Pentagon announced the withdrawal of psychologists from Guantanamo Bay.
For Popowski, both decisions are reasons to celebrate because they represent a landmark in the movement for reform and prevention within the association, whose call is to heal and do no harm.
An independent report last year commissioned by the APA concluded that the association had colluded with the Department of Defense inappropriately by aligning its ethics policies with military directives to protect the role of psychologists during interrogations they had reason to know were abusive. According to Popowski, this collusion enabled torture and cruel, inhuman, or degrading treatment in violation of human rights and humanitarian law.
Although the report validated Popowski’s position, she still worries about what she calls the U.S. government’s unwillingness to hold accountable the military and civilian officials who were responsible for the program. She represented a group of Ohio residents — including psychologists, lawyers, a minister, and a veteran — who filed a complaint with that state’s licensing board against Dr. Larry James for his role in Guantanamo. Other advocates presented evidence relating to Dr. James and other psychologists, alleging their involvement in torture, to licensing boards in Texas, New York, Louisiana, and Alabama.
In no case did a state board bring formal charges. Popowski said they offered “opaque, implausible, or seemingly pretextual justifications for their decisions” and “seemed to turn a blind eye” to credible evidence. All this, she said, highlights the lack of accountability for those who designed and implemented policies condoning torture. So for Popowski, the struggle is not over.
In her HLS classes and clinic, Popowski strives to teach students the effects of the legal practice on people’s lives, an aspect that she believes is somewhat overlooked in law schools across the country. As part of the International Human Rights Clinic, she took students to Geneva, where they, along with Trudy Bond, a psychologist from Toledo, Ohio, presented the UN Committee Against Torture with the 2014 shadow report that they helped write. The committee concluded that the U.S. government should investigate senior officials, lawyers and other civilians responsible for their role in the program.
Students also participated in litigation and in other advocacy work that accompanied the legal action.
“We want lawyers and advocates who are compassionate and empathetic people,” she said. “They have to be able to understand the tremendous impact their policies, rules, and actions can have on people. It’s an ethical question students have to wrestle with — what responsibilities they have as lawyers.”
Popowski feels optimistic about the future.
A granddaughter of Holocaust survivors, Popowski was born in Argentina during a military dictatorship. She likes to tell her students that in 1999, when she was writing her bachelor’s thesis on collective memory in Argentina, prospects for justice in cases of torture and human rights violations committed by the military junta were dim. Nearly a decade later, when she came back to HLS, Argentina had become an example of accountability for crimes of torture and forced disappearance.
“That’s the way I like to think about this work,” she said. “You have to be ready to challenge your concept of what’s possible and have a long-term imagination.”
August 24, 2015
Posted by Deborah Popowski
This post was originally published on Just Security
The image of torture in US popular culture is an intimate one: a government agent and a suspect in a dark cell, usually alone. But the reality of our state-sanctioned torture program is that it took a village, working in broad daylight, to pull it off.
This summer, all eyes are on the American Psychological Association, as they should be. An independent investigation commissioned by the APA found that the organization had, as David Luban describes here, engaged “in a decade of duplicity to permit its members to participate in abusive interrogations while seeming to forbid it.” The report, lead-authored by former prosecutor David Hoffman, tells a tale of wholesale corruption and cooptation. Among its explosive findings is that APA officials refused to act on ethics complaints against military and CIA psychologists so as to shield them from sanction.
But the APA was not the only institution asked to investigate these matters. State licensing boards in Ohio, New York, Texas, Louisiana, and Alabama also received credible, well-documented complaints against implicated psychologists, including many of the same subjects of the improperly dismissed APA complaints. As lawyer and advisor for Dr. Trudy Bond and other courageous complainants in many of these cases, I witnessed how the licensing boards, like the APA, stonewalled and refused to bring formal charges, offering opaque, implausible, or seemingly pretextual justifications for their decisions.
According to the Hoffman report, ethics director Stephen Behnke told investigators that the duty to protect the public fell not on the APA, but on the state licensing boards. The truth is that the responsibility is shared — and so is their failure.
Licensing boards are legally mandated to protect people from the unsafe practice of psychology. This includes patients, all people with whom psychologists work, and the broader public. Yet, presented with evidence that their licensees had participated in or enabled torture, these state boards seemed to turn a blind eye. To truly understand how a profession dedicated to healing came to sanction brutality, we need a full investigation into how and why these boards dismissed misconduct complaints against psychologists James Mitchell, John Leso, Larry James, and Diane Zierhoffer. Did the state boards handle these complaints properly and in good faith, or did they, like the APA, strain their reading of the law to reach conclusions that would not restrict the government’s interrogation program — even if it included torture and cruelty? To what extent did they rely on compromised APA ethics policies and the now-discredited officials responsible for them?Continue Reading…
August 7, 2015
Posted by Deborah Popowski
The American Psychological Association Council of Representatives passed a resolution today that forbids psychologists from participating in national security interrogations and aligns its policies with international law. This is a watershed moment for the movement against U.S. torture, and we owe tremendous gratitude to our partners at the Coalition for an Ethical Psychology and the many others who brought about this remarkable turnaround from the APA.
BE IT FURTHER RESOLVED that, in keeping with Principle A (Beneficence and Nonmaleficence) of the Ethics Code to “take care to do no harm,” not conduct, supervise, be in the presence of, or otherwise assist any national security interrogations working on their behalf, nor advise on conditions of confinement insofar as these might facilitate such an interrogation enforcement interrogations or domestic detention settings where detainees are afforded all of the protections of the United States Constitution, including the 5th Amendment rights against self-incrimination (“Miranda” rights) and 6th Amendment rights to “effective assistance” of legal counsel.
BE IT FURTHER RESOLVED, that … APA shall send official correspondence to the appropriate officers of the U.S. government, including the President, Secretary of Defense, Attorney General, CIA Director, and Congress, to inform them that APA has adopted policy changes to expand its human rights protections to safeguard detainees in national security settings against torture and cruel, inhuman, or degrading treatment or punishment.
1) The first of these communications will be sent as soon as possible after this amended policy is passed, and will state – It is a violation of APA policy for psychologists to conduct, supervise, be in the presence of, or otherwise assist any individual national security interrogation, nor may a psychologist advise on conditions of confinement insofar as those might facilitate such an interrogation. Furthermore, based on current reports of the UN Committee Against Torture and the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, it is also a violation of APA policy for psychologists to work at the Guantánamo Bay detention facility, “black sites,” vessels in international waters, or sites where detainees are interrogated under foreign jurisdiction “unless they are working directly for the persons being detained or for an independent third party working to protect human rights” or providing treatment to military personnel. To protect these psychologists from the consequences of violating their obligations under the APA Ethics Code, APA requests that psychologists be withdrawn from any role in individual national security interrogations or conditions of confinement that might facilitate such an interrogation. Furthermore, APA requests that psychologists working at prohibited sites, as described above, be offered deployment elsewhere.
Stay tuned for more coverage next week.
July 23, 2015
Posted by Mindy Roseman
In the last few weeks, the public’s attention has been drawn to the relationship between the American Psychological Association’s (APA) leadership and US military and intelligence operations in the wars in Iraq and Afghanistan.
The New York Times first revealed the findings of the APA’s commissioned inquiry into its own activities. The Hoffman report, as this investigation is known, found that APA officials colluded with government officials to enable psychologists to participate in torture.
APA Ethics Director Stephen Behnke was fired shortly before the the report was released to the public. He has since retained as counsel former FBI Director Louis Freeh, who issued a statement rejecting the investigation’s findings. Behnke is a lawyer-psychologist and former instructor in Harvard Medical School’s department of psychiatry.
Earlier this week, The Boston Globe reported on the Harvard ties of two former APA presidents implicated in the report: Gerald Koocher, a psychologist at Harvard-affiliated Boston Children’s Hospital, and Ronald Levant, who taught at Harvard and Boston University.
Most recently, Russ Newman, whose actions as chief of the APA’s practice directorate also came under scrutiny in the Hoffman report, resigned as provost and senior vice president for academic affairs at Alliant International in San Diego.
That there is renewed focus on this issue and finally some recognition of responsibility is testament to the persistent and incisive efforts of a national grassroots movement to hold psychologists accountable for their complicity in torture and cruel, inhuman and degrading treatment of detainees, in violation of international and US domestic law and codes of ethics. For years, our colleague, Deborah Popowski, Clinical Instructor, has played a critical role in that movement, alongside her clients, Trudy Bond, Josie Setzler, Michael Reese and Colin Bossen. Read more about their work together on professional misconduct complaints here and torture accountability here.
February 11, 2015
February 12, 2014
“The Role of Lawyers in Enabling and Justifying Torture”
7:30 – 9:00 p.m.
Dinner will be served
Please join Alex Whiting, Deborah Popowski, and Wells Dixon as they discuss the role of lawyers in authorizing the post-9/11 US torture program. The panelists will speak about their experiences litigating torture cases, explore ways in which individuals implicated in torture can be held accountable, and discuss possible institutional reforms in legal pedagogy and curriculum at HLS aimed at producing more morally-conscious and ethical leaders.
September 3, 2013
Ohio Court Rules Licensing Board Need Not Investigate Torture Allegations Against Local Psychologist
Posted by Deborah Popowski
This summer, the Franklin County Court of Common Pleas in Ohio ruled that the state’s psychology licensing board did not have a legal obligation to conduct a meaningful investigation into whether Dr. Larry James had committed grave violations of professional ethics in his role as Guantánamo senior interrogation psychologist.
The state court dismissed the case on procedural grounds, meaning that, like the Ohio Psychology Board, it did not engage with the evidence of abuse and made no finding as to Dr. James’s conduct. After almost 18 months of silence, the court issued a decision that is three pages long, and, for reasons not explained or reflected in the docket, was not written by the judge to whom the case was assigned. It offers virtually no legal or factual reasoning to support its conclusion that the people of Ohio were insufficiently harmed by torture left unexamined and unaccounted for, and that they therefore lack standing to challenge the Board’s inaction.
Our clients have decided not to appeal the decision. They made this choice not because they agree with the ruling, but because this latest chapter in their legal fight has convinced them that the courts are not where justice, accountability and truth will be found—not on this issue, not at this time. As a lawyer and teacher of law, this saddens me. But, like them, I am not surprised. In the seven years that I’ve worked on human rights violations in the U.S. counterterrorism context, the greatest victories and examples of moral courage that I’ve seen have taken place far from the courtroom, thanks to people like Trudy and Josie, Colin and Michael, whose consciences move them to action when officials charged with accountability choose to remain silent.Continue Reading…
October 26, 2012
Posted by Cara Solomon
At a packed event co-sponsored by HRP and the Harvard National Security and Law Association, Ben Emmerson, the UN Special Rapporteur on Human Rights and Counter-terrorism, announced a UN investigation yesterday into civilian deaths from drone attacks, as well as other forms of targeted killings conducted during counter-terrorism operations.
In his remarks, Emmerson took aim at the Obama administration for neither confirming nor denying the existence of the U.S. drone program- while publicly trying to justify the legality of drone strikes.
“In reality the administration is holding its finger in the dam of public accountability,” he said, according to the prepared remarks. “There are now a large number of law suits, in different parts of the world, including in the UK, Pakistan and in the US itself, through which pressure for investigation and accountability is building.”
He pointed to figures from the London-based Bureau of Investigative Journalism that suggest at least 474 civilians have been killed in Pakistan alone, and that 176 children are reported among the deaths. (For more on civilian deaths from drones, here is a joint report recently released from Stanford University and New York University, “Living Under Drones.”)
Emmerson also delved into the U.S. presidential elections, particularly around the issue of waterboarding, which Obama believes is torture. Mitt Romney has said he does not believe it is torture.
“Let us be clear on this,” Emmerson said. “Secret detention is unlawful as a matter of international law. Water-boarding is always torture. Torture is an international crime of universal jurisdiction. The torturer, like the pirate before him, is regarded in international law as the enemy of all mankind. There is, therefore, a duty on States to investigate and to prosecute acts of torture.”
Mindy Roseman, Academic Director for HRP, said she was struck by the substance of his speech. The event has already made international news.
“Emmerson’s announcement is bold and courageous, and at the very least should renew interest in holding the US government accountable for military actions, such as drone strikes, ostensibly undertaken to stop terrorism,” she said.
Here is a selection of media coverage of Emmerson’s speech:
October 10, 2012
“Doctors of the Dark Side”
A Screening and Panel Discussion
6- 8:30 pm
Langdell 225 North
Doctors of the Dark Side exposes the scandal behind the torture scandal — how psychologists and physicians implemented and covered up the torture of detainees in US controlled military prisons. The stories of four detainees and the doctors involved in their abuse show how essential doctors have been to the torture program. Director Martha Davis spent four years investigating the controversy and produced the documentary with an award-winning team.
Deborah Popowski, Clinical Instructor with the Human Rights Program, makes an appearance in the film, and will lead a panel discussion afterward with Martha Davis and Dr. Trudy Bond, an Ohio-based psychologist, of the Coalition for an Ethical Psychology.
This event is being co-sponsored by HLS Advocates for Human Rights and Harvard Law Documentary Studio.
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