Blog: Tyler Giannini
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April 27, 2021
Posted by Emily Ray JD'21 and Tyler Giannini
(Editor’s Note: This article introduces a Just Security series on the Feb. 1, 2021 coup in Myanmar. The series will brings together local and international voices on the coup and its broader context. The series is a collaboration between Just Security and the International Human Rights Clinic at Harvard Law School. The article first appeared on Just Security on April 26, 2021).
On Feb. 1, 2021, the Myanmar military – the Tatmadaw – shattered the all too brief effort to transition to democracy in Myanmar. Over the past two and a half months, the Tatmadaw has continued its illegitimate effort to undermine the democratic elections from last year and prevent the elected government from taking power. In the face of mass popular opposition and international condemnation, the military has only escalated its use of violence against its own population – systematically stripping away rights and violently attacking protestors and dissidents, reportedly killing over 700 civilians as of Apr. 20, 2021, and detaining more than 3,000.
Despite the continued threats and extreme violence, the people of Myanmar have stood their ground and refused to be silenced. On Apr. 16, opponents of the coup from across the political spectrum announced the formation of a National Unity Government (NUG) to resist the military. Just as importantly, the Civil Disobedience Movement (CDM), a grassroots movement aimed at disrupting state functions and crippling the economy in order to undermine the military’s attempt to rule, has been hugely successful in galvanizing collective action since early February. In addition to the tens of thousands of CDM participants walking out of their private and public sector positions, protests across the country have seen massive youth engagement on a scale not seen in a generation. The organizing power has been impressive. Social media platforms like Facebook, Twitter, and TikTok have been used to spread awareness and coordinate protests, strikes, and other forms of peaceful resistance. The military has taken notice of the CDM’s power, issuing threats against young people protesting and shooting indiscriminately at protestors of all ages, including children. Parallel movements have arisen in areas like neighboring Thailand, with Thai youth protesting their own authoritarian government in solidarity with activists from Myanmar.
Today we launch a Just Security series that will take a deep dive into the situation in Myanmar. The series will provide insights that put the coup and civilian response into historical and modern context, deepen unexplored angles on the current crises, and survey possibilities and ways forward over the next six months to a year. This series also aims to elevate policy discussions on a number of issues, ranging from peace and accountability to religion and democracy, asking: What is happening now and why?
Within the series, contributions from authors from Myanmar and others working closely on the situation will explore topics such as youth leadership in the CDM and protests, domestic and international solidarity, environmental concerns, the dissolution of rule of law in Myanmar, and what the coup means for ongoing international accountability efforts. Below, we offer an overview of the major themes of the series, along with a timeline of the struggle for democracy in Myanmar. The current uprising against military rule must be understood in the context of these decades-long struggles for peace, democracy, accountability, and justice.Continue Reading…
March 18, 2021
When War Criminals Run the Government: Not Too Late for the International Community to Vet Sri Lankan Officials
Posted by Sondra Anton JD'22 and Tyler Giannini
(Editor’s Note: This is the latest in a series on the spotlight placed on allegations of war crimes and other abuses in Sri Lanka during the February 22 to March 23, 2021, session of the United Nations Human Rights Council. The series includes voices from former U.N. officials, international NGOs, human rights litigators, and researchers. Find links to the full series, as installments are published, at the end of the first article, Spotlight on Sri Lanka as UN Human Rights Council Prepares Next Session.)
The United Nations Human Rights Council’s deliberations over yet another resolution on Sri Lanka this month has cast renewed attention on repeated failures to achieve any semblance of accountability for past atrocities, and on the deteriorating human rights situation over the past year following the return to power of accused war criminal Gotabaya Rajapaksa as president. The lack of accountability and concerns about future violations have rightfully received the bulk of the attention. But there is another question worth bringing to the fore – namely, how did an alleged war criminal return to power – and relatedly, should the human rights system have done more to prevent such individuals from taking official power again?
These inquiries are centered around the legal concepts known as “vetting” and “lustration,” and they deserve increased attention. It is not just the election of Rajapaksa. Since his return to power, after having served as the defense minister who commanded the violent final phase of the country’s decades-long war that killed countless civilians, he has appointed a slew of other compromised individuals who face “credible allegations” of international crimes, including war crimes and crimes against humanity.
Rajapaksa, for example, immediately appointed his brother, former wartime President Mahinda Rajapaksa, as prime minister, and named other relatives and family associates to top cabinet positions. The large number of individuals with credible allegations against them who now occupy top positions in the government raises concerns about militarization of the government. It also all but eliminates any chance that those who suffered violations will obtain justice in the near term for the crimes committed against them.
The appointments involve so many high-level positions that they have even been described by Yasmin Sooka from the International Truth and Justice Project (ITJP) as “amount[ing] to a coup by stealth.” And had efforts to vet or ban alleged war criminals from public service been robustly in place, Sri Lanka would likely look very different today.Continue Reading…
December 1, 2020
Clinic Submits Amicus Curiae Brief on Behalf of Legal Historians
Today, Dec. 1, the Supreme Court of the United States hears oral arguments in a pair of corporate human rights cases against U.S. based chocolate companies Nestlé and Cargill for their role in aiding and abetting child slavery in West Africa. The plaintiffs, six survivors of kidnapping, trafficking, and forced labor, make use of the Alien Tort Statute (ATS), a provision of the First Judiciary Act of 1789 that allows foreign nationals to pursue accountability for law of nations violations in U.S. Courts. In examining the cases, the Supreme Court will consider the question of corporate liability under the ATS for the third time – this time focusing on whether or not the ATS permits cases against U.S. domestic corporations at all.
In October, the International Human Rights Clinic filed an amicus brief on behalf of legal historians in the case against the chocolate companies. The brief includes newly uncovered historical documents from George Washington’s first administration which clearly demonstrate how the founders intended the ATS to apply to violations committed by U.S. subjects. The documents include an opinion by Thomas Jefferson and affirm that the ATS was intended for the very purpose at issue in the current cases: to provide options for redress to foreign nationals whose rights have been violated by U.S. subjects.
A clinical team – Emily Ray JD’21, Jasmine Shin JD’21, Allison Beeman JD’22, and Zarka Shabir JD’22 – under the supervision of Tyler Giannini, Clinic Co-Director worked with the amici on the brief. Amici on the brief were Professors Barbara Aronstein Black, Nikolas Bowie, William R. Casto, Martin S. Flaherty, David Golove, Eliga H. Gould, Stanley N. Katz, Samuel Moyn, and Anne-Marie Slaughter.
The International Human Rights Clinic staff have played a major role in ATS litigation for decades, including in landmark corporate cases such as Doe v. Unocal and Wiwa v. Royal Dutch Petroleum Co. Since 1980, the law has been a critical means of holding perpetrators accountable for abuses such as extrajudicial killing, torture, war crimes, and crimes against humanity when redress might otherwise be unavailable elsewhere. Still, in recent years, the law has been curtailed and challenged.
Learn more about the case in the Nestlé & Cargill v. Doe symposium on Just Security and the case preview on SCOTUSblog. Read about all eighteen amicus briefs filed in support of the survivors of child trafficking on the Corporate Accountability Lab’s blog, and dive into Daniel Golove’s article exploring the significance of the new evidence the Clinic relied on in its brief supporting plaintiffs.
September 3, 2020
Posted by Rebecca Tweedie JD'21 and Tyler Giannini
The opening blog in this series laid out two different paths MSIs could have taken:
The allure [of MSIs] was (and still is) obvious. If we bring the right players together, they can learn from each other and solve the given problem by setting up a democratic institution that can prevent future abuses and sanction violators, and governments will not have to pass hard laws and unnecessary regulations. The potential flaws were (and remain) just as obvious—the power imbalances amongst the players are acute and asking industry to voluntarily give up power and self-regulate is a fool’s errand that puts the fox in charge of the chicken coop.
August 27, 2020
Posted by Jaff Bamenjo, Coordinator of RELUFA/Cameroon
Multi-stakeholder Initiatives (MSIs) emerged in the 1990s as frameworks for engagement between governments, the private sector and civil society organizations (CSOs) to address human rights issues in business. There are currently several sector-specific MSIs around the world originally conceived to address problems, ranging from labor abuse to corruption, in agriculture, extractive industries, forests, the environment and beyond. After more than two decades, however, local communities are now questioning whether MSIs have proved relevant and effective in addressing these problems.
As a civil society actor who works closely with communities affected by resource extraction in Cameroon, I have closely followed the implementation of two MSIs: the Kimberley Process Certification Scheme (KPCS) and the Extractive Industries Transparency Initiative (EITI) for close to a decade. The KPCS and EITI were both created in the early 2000s and received with a lot of enthusiasm by some CSOs as tools to promote transparency and accountability in the extractive sector and prevent diamond-fueled conflicts, respectively. Though almost twenty years later, it is quite telling how these MSIs are oblivious to the concerns of the local communities that were the intended beneficiaries of their creation.
The Kimberley Process Certification Scheme: Sidelining civil society and not addressing key issues
Formed in 2003 by the United Nations (UN) General Assembly, the KPCS is a joint government, industry and civil society initiative aimed at eliminating the trade in conflict diamonds. The KPCS was created in response to public outcry at the end of the 1990s over diamond-fueled conflicts in certain African countries. Today, the KPCS takes credit for eliminating about 98.8% of conflict diamonds in the world.
The commonly used definition of conflict diamonds, however, is incredibly narrow: “rough diamonds used by rebel groups or their allies fighting to overthrow a legitimate government.” While it can be argued that, apart from in the Central African Republic, there are no rebel movements currently using diamonds to fund wars to overthrow legitimate governments, human rights violations and massacres have reportedly continued in diamond mines around the world. And in turn, they disproportionately impact local communities near the mines.
Per the narrow definition of conflict diamonds, KPCS pays little attention to such human rights violations. Instead, they classify them as outside their scope. But such neglect by the KPCS to include other forms of abuse committed by the military or private security agents is incomprehensible to those most affected. In the Marange diamond fields of Zimbabwe, some CSOs have reported security agents for private mining companies unleashing dogs on and shooting defenseless local artisanal miners. Yet diamonds sourced from these fields are certified and allowed to enter the international market.Continue Reading…
August 27, 2020
Q&A with Rebecca Tweedie JD’21
Last month, the Institute for Multi-Stakeholder Initiative Integrity (MSI Integrity) reflected on 10 years of trying to make the world better for workers and rights-holders in the business world in a new report, “Not Fit-for-Purpose.” MSI Integrity, an organization Amelia Evans LLM’12 and Human Rights Program and International Human Rights Clinic Co-Director Tyler Giannini co-founded in 2013, has spent the last decade dedicated to understanding the human rights impact and value of voluntary multi-stakeholder initiatives (MSIs). MSIs are collaborations between businesses, civil society, and other stakeholders that were originally piloted to give rights-holders a seat at the table with corporations. The new report explains in detail how, after years of trial and error, MSIs have failed to deliver on their promise and ensure best practices in the business and human rights landscape. The organization has promised a new way forward for their organization: exploring a world beyond corporations.
Over the years, International Human Rights Clinic students and staff have contributed dozens of hours of research and writing to projects with MSI Integrity. Rebecca Tweedie JD’21 worked closely with Giannini and Evans this year on the report and spent January Term 2020 interning with MSI Integrity. We recently spoke with her to learn more about what she learned on the project and her interest in human rights.
August 25, 2020
Posted by Dana Walters
If everything had gone according to schedule, the International Human Rights Clinic (IHRC) would have filed an amicus curiae brief in December 2019 in a case against Chiquita Brands International, the world’s largest banana company. The suit, on behalf of families who suffered mass atrocities by paramilitary groups during the Colombian armed conflict, seeks accountability for the reign of terror Chiquita aided and abetted from 1997 to 2004.
However, after several delays and further challenges caused by the pandemic, the clinic and the Center for Justice and Accountability (CJA) finally filed the brief on behalf of human rights experts on June 5, 2020. The process included dozens of drafts and memos, multiple back-and-forths with amici, and hundreds of hours of time of a dozen alumni and students in multiple time zones. The amicus brief is one small part of a larger, evolving corporate accountability litigation landscape, one in which the clinic has been involved for decades. In a globalized economy where supply chains are diffused, attorneys and affected communities have sought to use U.S. courts to stop U.S. corporations and executives from assisting in violating human rights abroad.
“Chiquita and cases like it present a central question facing U.S. courts today—whether the United States is going to become a safe haven for U.S. corporations implicated in human rights violations outside the country,” said Tyler Giannini, co-director of Harvard Law School’s Human Rights Program (HRP) and the IHRC.Continue Reading…
August 20, 2020
Posted by Harris Gleckman
Multi-stakeholder standard-setting organizations, or multi-stakeholder initiatives (MSIs), are part of a wider political push to introduce multi-stakeholderism as a legitimate component in global governance. However, they are not sufficiently democratic or accountable to external constituencies to warrant their status or standing as global governance tools.
Understanding the different types of MSIs: standard-setting, policy-setting and project-delivery
There are actually two distinct forms of MSI. One sub-class focuses primarily on enhancing social, environmental, and community goals through setting global market standards, and secondarily, on balancing these concerns with its management of conflicts between firms and sectors in a given “socially responsible” global market. The other sub-class of MSI reverses these priorities. In the case of internet governance, for example, the primary focus of the standard-setting activity is managing inter-corporate and inter-sub-sector battles, while the secondary focus is responding to calls for social access, enhanced privacy, and discounted pricing for marginal communities.
Beyond standard-setting MSIs, there are two other forms of multi-stakeholder global governance arrangements: (1) multi-stakeholder bodies that develop global policy directions; and (2) multi-stakeholder consortia which implement specific geographically and time-limited projects.
On the policy front, for example, one can look at the World Economic Forum with its effort to set global policy via their Global Future Councils, or their “offer” to take leadership of work areas traditionally occupied by the United Nations like food security and biodiversity, and their new strategic partnership agreement with the Office of the UN Secretary-General. These policy-oriented multi-stakeholder arrangements convene, usually under the leadership of a corporate body, a combination of market-oriented government figures, friendly civil society organizations, academic specialists, and corporate executives eager to develop a public policy consensus within a global market system.
Public private partnerships are an example of project-delivery multi-stakeholderism. They bring together separate categories of actors but, rather than setting standards, they seek to deliver a specific public good or service while effectively gaining a degree of governance over a specific population.
These three types of multi-stakeholder arrangements—standard-setting, policy-setting, and project-delivery—reflect the diversity of forms of multi-stakeholderism in practice and in theory. They represent a drive to shift global governance away from multilateralism and one-country-one-vote toward a multi-stakeholder form of global governance.Continue Reading…
August 19, 2020
La Clínica insta a expertos de la ONU a que evalúen violaciones de derechos humanos en Bolivia (La versión en español está abajo).
(August 19, 2020) —United Nations (U.N.) Special Rapporteurs must urgently review the human rights situation in Bolivia, Harvard Law School’s International Human Rights Clinic said in a submission to the U.N. Special Procedure system today. Widespread rights violations have been documented in Bolivia since the disputed October 2019 election, and there are grave concerns that ongoing repression will prevent upcoming elections from being free and fair.
The submission documents events since Jeanine Áñez declared an interim government on November 12, 2019. It details the killing of civilians in Sacaba and Senkata in November of last year, failures to investigate and punish those responsible, as well as state forces’ and para-state groups’ efforts to suppress dissent. The urgent need for international scrutiny was brought home this week as protests grew in response to the government decision to postpone elections again until October. News sources have reported a growing crisis in Bolivia as protests have renewed and fears of another violent crackdown intensify. The Clinic urges the U.N. rights experts to work with the Bolivian government to uphold international obligations, restore the rights owed to its citizens, and hold the fair and free elections they have promised to the Bolivian people.
“Given what I witnessed in Sacaba last November where Indigenous civilians were shot and killed by state forces, the rhetoric of the current government in response to the resumption of mass protests is extremely worrying,” said Thomas Becker JD’08 on behalf of the International Human Rights Clinic. “The people of Bolivia have the right to protest, and the international community needs to act to do all it can to prevent a repeat of last year’s violent crackdown and those horrific killings.”
The submission is a request to the U.N. Special Procedure system, which is comprised of U.N.-appointed human rights experts who are charged with reporting and advising on human rights issues worldwide. The submission builds on a recently released report from the International Human Rights Clinic and the University Network for Human Rights, which identified the period since November 2019 as one of the deadliest and most repressive periods in the past several decades in Bolivia. Over a period of six months, a Clinic team interviewed over 200 victims, witnesses, journalists, and officials. It further analyzed medical reports, autopsies, photographs, and other official documents. The report, entitled “‘They Shot Us Like Animals’: Black November and Bolivia’s Interim Government,” details how the interim government has created a climate of oppression, rife with violence, fear, and misinformation. In addition, the submission to the U.N. states, “State forces have blocked attempts to investigate and prosecute the November attacks, leading to de facto impunity to date for those responsible.”
“The current atmosphere of impunity has created an environment that is dangerous to anyone who dissents,” said Celeste Kmiotek JD’20, a Harvard Law graduate who led the drafting of the submission. “It is critical that Bolivia address the human rights abuses ahead of the upcoming elections so that they are truly fair. The Special Rapporteurs should should engage with the interim government to put an end to these violations.”
Kmiotek coordinated research and writing from other clinical teams members, including Matthew Farrell JD’21, Jasmine Shin JD’21, Sabrina Singh JD’20, Mahmood Serewel LLM’20 with supervision from Becker and Tyler Giannini, Human Rights Program and International Human Rights Clinic Co-Director.
The submission comes on the heels of a recent victory against impunity for former heads of states’ crimes against Indigenous peoples in Bolivia. On August 3, the U.S. Court of Appeals for the Eleventh Circuit vacated a trial court judgment that had been entered in favor of Bolivia’s former president, Gonzalo Sánchez de Lozada, and former defense minister, José Carlos Sánchez Berzaín, for the massacre of unarmed Indigenous people in 2003 in what is known as “Black October.” The Clinic has been litigating the case, Mamani et al. v. Sánchez de Lozada and Sánchez Berzaín, for over a decade.Continue Reading…
July 30, 2020
Posted by Manon Wolfkamp, David Ollivier de Leth, and Mariëtte van Huijstee
Between 2014 and 2019, Dutch businesses in garments and textile, banking, forestry, gold, food products, insurance, pension funds, metals, floriculture, and natural stones all entered into government-induced agreements to encourage responsible business practice. Over five years, eleven such agreements were completed. These multi-stakeholder, voluntary, sector level Responsible Business Conduct (RBC) agreements have been cornerstones of the Dutch government’s method to incentivize companies to respect human rights and the environment for years, and can be regarded as government-induced multi-stakeholder initiatives (MSIs). Inviting companies and business associations in high human rights risk sectors to enter into negotiations with civil society organizations (CSOs) and the government, RBC agreements aim to encourage companies to develop their own policies for promoting responsible business conduct. But are they effective?
The present Dutch governments’ coalition agreement agreed to evaluate this policy, which was executed by KIT Institute over the past few months and published in July 2020. The long-awaited evaluation shows that the Dutch policy promoting responsible business conduct by means of RBC agreements is insufficient.
The evaluation draws critical conclusions: only 1.6 percent of the companies active in high-risk sectors participate directly in the agreements. In addition, some sectors, such as the oil and gas sector, refuse to enter into any agreement at all. In other sectors, the share of companies reached is moderate (such as clothing and textiles and natural stone) to low (horticulture, metal). Substantial progress in the implementation of due diligence by participating companies was observed in only two out of 11 evaluated agreements (namely in clothing and textile and banking).
It is also noteworthy that various agreements lack independent monitoring (for example, food and wood), which creates a risk of greenwashing. Furthermore, there is no clear minimum standard that the agreements must meet. Commitments of companies in two RBC agreements are actually not in line with the international normative framework (wood and vegetable proteins). The evaluation also shows that the role of the Dutch government is inadequate. Especially during the negotiation phase, the business sector is in the lead: only the private sector can initiate negotiations, and critical CSOs can be replaced by more cooperative organisations in order to reach an agreement. The government can fix this imbalance by taking on a greater role itself during the negotiations, for example by not financing agreements that do not meet a set minimum standard.
The evaluation is positive about the role of the covenants as a means to connect companies to NGOs and trade unions, to facilitate exchanges and to develop a harmonized approach to due diligence.
When it comes to realizing positive effects or reducing negative impacts on adversely affected rights holders in the targeted sectors, the KIT evaluation concludes: “Across the RBC agreements, progress on due diligence is largely too limited to identify concrete impacts”( p.8) and “Overall, we have not observed a reduction in negative impacts in global value chains as a result of the RBC agreements” (p.9). Furthermore, the research reports unresolved differences in expectations between companies and CSOs on the extent to which RBC agreements should function as platforms to hold companies to account.All in all, the outcomes of the KIT evaluation show great similarity with the outcomes of MSI Integrity’s meta-analysis of MSI’s titled Not Fit-For-Purpose published in July, as is exemplified by this picture taken from the report:Continue Reading…
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