International Law: A Casualty in the War on Terror?
L to R: Gabor Rona and Marco Sassòli
On June 18, 2018, Visiting Professor Gabor Rona moderated a discussion entitled “International Law: A Casualty in the War on Terror?”with Professor of International Law at the University of Geneva Marco Sassòli.The discussion marked the end of the Third Annual Workshop, “Revisiting the Role of International Law in National Security: A Papers Workshop,” that Rona organized with the International Committee of the Red Cross. The Workshop brings together international law scholars from the U.S. and abroad to discuss emerging issues at the intersections of international law and national security.. The program was hosted by the Floersheimer Center for Constitutional Democracy, Cardozo Law Institute in Holocaust and Human Rights, the Burns Foundation and the International Committee of the Red Cross.
Rona and Sassòli discussed the flawed notion of “war on terror,” and specifics such as targeting, including drones and autonomous weapons, grounds and procedures for detention, and military commission trials being conducted at Guantanamo. The talk addressed differences between U.S. and European interpretation and enforcement of international law, in international and non-international armed conflicts, as well as in the absence of armed conflict. Sassòli noted that European states take a more restrictive view of wartime authority to kill and detain than does the United States. Sassòli also argued that civilian courts are more legitimate and more efficient than the military commissions used at Guantanamo
To view video of the discussion, click here.
Professors Getgen Kestenbaum and Rona Lead Team of Human Rights Clinic Students to Brazil
L to R: Professor Getgen Kestenbaum, Clinic Student Greta Cristini, and Professor Gabor Rona
From May 16 to 24, 2018, Cardozo Law’s Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic accompanied Professor Jocelyn Getgen Kestenbaum and Visiting Professor Gabor Rona, Chair of the UN Working Group on Mercenaries, on an unofficial visit to Brazil. The visit’s purpose was to understand the human rights concerns related to operations of private militias, as well as private military and private security contractors. The team spoke with more than 100 civil society leaders—including human rights defenders, victims and survivors of human rights violations, indigenous community leaders, Afro-descendant community leaders, members of impoverished and excluded neighborhoods—and other concerned citizens from both urban and rural contexts in Rio de Janeiro (RJ), Dourados (MS), and Belém do Pará. From these discussions, the team has made observations for possible follow up and coordinated action of various UN human rights Special Procedure mandate holders.
The team was informed of numerous acts of violence committed by members of private militias and private security contractors in both rural and urban settings. Forced evictions/forced removals, intimidation and threats to human rights defenders, assassinations of community leaders, and mass killings are among the most common concerns about which individuals spoke. In both contexts, individuals cited control over territories and occupation or demarcation of lands as motives for violence. In rural settings, land conflicts stem mainly from increasing large-scale extractive industries and agribusiness interests; in the favelas, the turf wars result largely from fights to control illegal provisions of basic services to communities (that the state fails to provide) and/or to control the illegal drug trade and its routes. Victims of these land conflicts include indigenous peoples, Afro-descendants, the poor, women and LGBT activists, human rights defenders, and men, women and children caught in the crossfire.
The team's findings will be shared with UN human rights "special procedures" experts, including the UN Working Group on Mercenaries chaired by Rona, and civil society actors. The goal is to build a strategy for bringing international scrutiny about these issues to the attention of Brazilian authorities. A coordinated response and action would support a reduction of violence and promotion of human rights. "The work we did in Brazil was a great opportunity for our terrific clinic students to get some first hand experience in human rights investigation and advocacy,” said Rona. "They're learning not just to make a point, but to make a difference."
Clinic Students Collaborate with Auschwitz Institute for Peace and Reconciliation to create National Mechanisms Booklet
Gabrielle Flaum (L) and Lori Waichmann (R) present their findings
May 15, 2018 – Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic students Gabrielle Flaum (’19) and Lori Waichman (’18) coauthored a section of the Auschwitz Institute for Peace and Reconciliation (AIPR) annual booklet on National Mechanisms for the Prevention of Genocide and Atrocity Crimes. Flaum and Waichmann undertook a comparative review of national-level draft legislation efforts, which helped to create the booklet’s third section on institutionalization. At the launching event, Flaum and Waichmann presented their research findings following a comparative study on draft legislation for the establishment of institutionalized national mechanisms for atrocity prevention.
The Uses of Truth: Truth Commission Archives, Justice and the Search for the Disappeared in El Salvador
L to R: Professor Getgen Kestenbaum, Eduardo Gonzalez Gueva, Trudy Peterson, Kate Doyle, Leonor Arteaga, Benjamin Cuellar, Cath Collins (translator) and Cecilia Gebruers Hanya (Translator)
April 23, 2018 - CLIHHR and Observatorio de Justicia Transcional UDP, supported by Open Door Society, welcomed Eduardo Gonzalez Cueva, a Transitional Justice Consultant, Trudy Peterson, Certified Archivist, Leonor Arteaga, the Senior Program Officer at the Due Process of Law Foundation, Benjamin Cuellar, a Salvadoran Human Rights Activist, and Kate Doyle, the Senior Analyst of U.S. policy in Latin America at the National Security Archive, to Cardozo Law to discuss the truth commission archives as a source for justice and search for those disappeared in times of conflict. The Panel began with an overview of the Salvadorian Truth Commission, the importance of the Commission and the arguments made against releasing Truth Commission archives. The panelist discussed specifically the origins of the Salvadoran Truth Commission archives and its mission to address a human rights violations by reporting perpetrators responsible for Human Rights violations and calls for judicial and legal reform. El Salvador’s Truth Commission is interestingly established not by national law, but through a presidential decree which can be unstable when political parties change. The panel concluded with how the United Nations could emphasize the support for Salvadoran Truth Commission archives. If you were unable to attend the event, you can find a video of the panel discussion below.
Strategies for Promoting Human Rights Through The Private Sector: The Shareholder, The Advocate, and Finding Common Ground
L to R: Josh Zinner, Irit Tamir, Michael Littenberg, Jaren Dunning and Professor Yablon
April 11, 2018- CLIHHR and the Heyman Center co-hosted a panel discussion at Cardozo Law School on strategies for promoting human rights through the private sector.
Professor Charles Yablon of Cardozo Law School, moderated the discussion. The participants included Jaren Dunning of PepsiCo, Michael Littenberg of Ropes & Gray, Irit Tamir of Oxfam America, and Josh Zinner from Interfaith Center on Corporate Responsibility.
The panelists took part in an engaging discussion, which focused on various strategies for motivating corporations to act in socially responsible ways. The panelists explained that, based on their varied experiences, some of the more successful strategies include shareholder engagement, public campaigns, education and embedding corporate social responsibility principles into corporate structure and culture. Panelists highlighted the importance of establishing trust and openness for constructive dialogue between civil society and corporations and that internally, corporations should strive to create a corporate culture where leadership and management focus on issues of human rights, sustainability and public policy. The discussion also touched on the need for shareholders to consider long-term growth and that ESG principles promote sustainability to achieve such growth.
Film Screening of "1945"
L to R: Profesor Harry Chotner, Professor Greenberg-Kobrin, and Professor Jocelyn Getgen Kestenbaum
March 28, 2018- Cardozo Law Institute in Holocaust and Human Rights (CLIHHR) and the Indie Film Clinic hosted a film screening of the movie “1945.” 1945 tells the story of an Orthodox Jewish man and his adult son returning to a village in Hungary. The villagers are suspicious, remorseful, fearful, and cunning – expecting the worst and behaving accordingly against the father and son. The town clerk fears the men may be heirs to the village's deported Jews and expects them to demand the return of the towns’ illegally acquired property. The film paints a complex picture of townspeople trying to come to terms with the recent horrors they have experienced, perpetrated, or just tolerated for personal gain.
After the film screening, CLIHHR Director, Jocelyn Getgen Kestenbaum, along with Director of Indie Film Clinic Director, Michelle Greenberg-Kobrin, and Adjunct Assistant Professor at NYU on film studies Harry Chotiner engaged in a discussion about the film and its impact.
Professor Getgen Kestenbaum discussed the aftermath of mass atrocities like the Holocaust and the ways in which society must rebuild and move forward. She also remarked that no society is immune to mass atrocities. Professor Greenberg-Kobrin spoke about her family’s history and how her own experiences resembled that of the movie. She also found it interesting that this film, unlike other films, focused on the properties after the war rather than the people affected by the Holocaust. Professor Chotiner commented on how the film director’s creative choices allowed the audience to think about the difficult themes and issues raised in the film. Lastly, audience members shared their own stories and discussed becoming reconciled to being children of Holocaust survivors.
Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic begins strategic human rights advocacy to stop abuses against Guarani-Kaiowa Peoples
Strategy meeting with the Guaraní-Kaiowá leaders on atrocity prevention
February 1, 2018 - Last week, the Human Rights and Atrocity Prevention (HRAP) Clinic traveled to Mato Grosso do Sul, Brazil to consult with indigenous communities facing forced displacement, violence, and other human rights abuses at the hands of large-scale agro-business interests encroaching onto their ancestral lands. In Mato Grosso do Sul, the Guaraní-Kaiowá peoples have been pushed onto reservations to the brink of group extinction. Harsh refugee camp-like living conditions on the reservations have left community members without adequate food, water, education, access to medical care, and other basic services. Childhood malnutrition and suicide rates have soared, and clashes with local farmers over land rights have sparked a string of assassinations of their leaders. Communities are in serious crises, and the Guaraní-Kaiowá expressed fear that they will not survive as a people. Indeed, community leader Elisa Lopes remarked, “If this continues, we will no longer exist. We will be nothing but statues in a museum.”
In light of these complex challenges, the Clinic and its partner organizations met with community leaders to discuss ways forward. Clinic Director Professor Jocelyn Getgen-Kestenbaum spoke with leaders about recognizing the risks and warning signs of atrocity crimes, the legal definition of genocide, and the importance of engaging with the UN Special Adviser on the Prevention of Genocide (UNSAPG) to help raise the international profile of the plight of the Guaraní-Kaiowá.
As Getgen-Kestenbaum observed, “the Guaraní are facing a very real threat of genocide and crimes against humanity. It is imperative that they are equipped with all tools, legal and otherwise, to draw attention to their cause and find solutions to these complex human rights issues.” Next, Clinic Fellow Diana Kearney explained the ways in which foreign corporate interests connect to local land grabs. The team detailed which multinational companies are tied to land conflicts in Mato Grosso do Sul, Brazil and advised the Guaraní on advocacy strategies to press these companies to stop contributing to land grabs, violence, and other serious human rights abuses in Brazil. The Guaraní-Kaiowá embraced both advocacy strategies, inviting the UNSAPG to visit their reservation and the Cardozo team to proceed with their human rights advocacy strategy in corporate accountability and indigenous rights. The Clinic team plans continue to engage on both of these fronts to advocate with and on behalf of the Guaraní-Kaiowá in preventing further violence.
Caroline LaPorte speaking to Cardozo Law
Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic Students Assist UN Special Rapporteur on Freedom of Religion or Belief Dr. Ahmed Shaheed
L to R: Aashini Shrivastav, Jennifer Kleinman, Dr. Ahmed Shaheed, Professor Jocelyn Getgen Kestenbaum, and Visiting Fulbright Fernanda Frizzo-Bragato
On October 25, 2017 HRAP Clinic students Aashini Shrivastav (‘19) and Jennifer Kleinman (‘19) attended the United Nations Third Committee of the General Assembly’s interactive dialogue with the UN Special Procedures mandate holders in support of the UN Special Rapporteur on Freedom of Religion or Belief, Dr. Ahmed Shaheed. The students assisted Dr. Shaheed in preparation for his country visit to Uzbekistan in October 2017 and contributed legal research and analysis for his annual report that he presented to the Human Rights Council in March 2018.
Book Discussion with Professor Amos Guiora
Professor Guiora discussing his book
On October 23, 2017, CLIHHR welcomed Professor Guiora of S.J. Quinney College of Law the University of Utah to Cardozo to discuss his book "The Crime of Complicity: The Bystander in the Holocaust." During the book discussion, Professor Guiora recounted his family's experiences in the Holocaust and how his family members had dodged death several times. After hearing his families' experiences, he decided to write a book addressing the obligations of bystanders and his experiences engaging with children of bystanders in the Holocaust.
Professor Guiora’s definition of bystanders is that they are people “who see others in distress in their height of vulnerability and turn his or her back.” Currently, there is no legal obligation for bystanders to act in these situations, but Professor Guiora argued that we should owe others a duty to act. He then continued by discussing the role of bystanders in the well-known campus sexual assault cases at Vanderbilt and Stanford Universities.
Professor Guiora ended by asking each one of us not to just say “oh my” when witnessing others in distress, but to act and dial 911. Even saving one person is better than none.
2017 Ralphael Lemkin Book Award
L to R: Professor Jacoby and Professor Madley
On October 17, 2017, CLIHHR together with the Institute for the Study of Genocide (ISG) presented this year’s Raphael Lemkin Book Award to Benjamin Madley for his book An American Genocide: The United States and the California Indian Catastrophe.The book award ceremony included a public presentation by Professor Madley, as well as a discussion led by Professor Karl Jacoby of Columbia University’s Department of History and Center for the Study of Ethnicity and Race. The Raphael Lemkin Book Award is awarded to the best nonfiction work that focuses on explanations of genocide, crimes against humanity, state mass killings and gross violations of human rights, and strategies to prevent such crimes and violation.
Professor Madley started off his presentation by explaining the severe drop in the California Indian population (from 150,000 to 30,000), that occurred between 1846 and 1870. This plunge was a result of disease, dislocation, starvation, abduction, unfree labor, mass death on reservations, and individual homicides, as well as battles and massacres, which took thousands of lives and hindered reproduction. Madley narrated the involvement of state and federal officials in supporting the violence, the indigenous resistance, and ultimately, the reasons the killings ended. Using the definition of genocide from the 1948 United Nations Genocide Convention as a rubric, he concluded that there is sufficient evidence to designate the California Indian catastrophe a genocide.
At the end of the presentation, Professor Madley focused on the bigger picture. He emphasized that examining cases using the definition set forth by the United Nations Genocide Convention will help move the discussion of genocide forward in the U.S. He remarked, “Such investigations may be painful, but they will help all Americans, both Indian and non-Indian, to make more accurate sense of our past and ourselves.” In the discussion with Professor Jacoby, Madley explained how his book title came to be. He decided to call the book "An American Genocide" because the word "An" would open up reader's eyes to exploring additional genocides.
Hate Speech and the Cultural Wars
L to R: Professor Michel Rosenfeld, Professor Robert Post, Professor Stanley Fish, Professor Ulrich Baer, Professor Susan Benesch, Professor Ekow N. Yankah, Professor Kate Shaw, and Dean Melanie Leslie
September 18, 2017 - CLIHHR, together with the Floersheimer Center for Constitutional Democracy at Cardozo Law hosted a public panel discussion at Cardozo Law School on hate speech and its impact on democracy and on current events from Charlottesville to Facebook's policies and their impact.
Professor Kate Shaw, who co-directs the Floersheimer Center, moderated the discussion. The participants included Ulrich Baer of New York University; Susan Benesch of Harvard University; Robert C. Post, former Dean of Yale Law School; and Cardozo's own faculty members, Professor Stanley Fish, Professor Michel Rosenfeld and Professor Ekow N. Yankah.
The panel covered issues such as how the rise of the Internet has impact free speech, who is responsible for creating free speech rules on the Internet and how private companies and academic institutions can deal with speech issues in classrooms and throughout the culture. Much of the discussion on how various constitutional democracies regulate speech and whether the American system, with its First Amendment guarantee of free speech, can deal differently with hate speech in the context of the current political climate and the magnifying effect of social media. Susan Benesch, who oversees the Danger Speech Project at Harvard, pointed out that the rules of free speech on the Internet are opaque and asked, "who makes the rules?"
Robert Post commented, "We are all struggling with how to understand the Internet." He and conference organizer University Professor Michel Rosenfeld sparred over definitions of hate speech and whether the United States with its First Amendment protections actually does or does not restrict speech. Cardozo Visiting Professor Stanley Fish argued that there is no such thing as hate speech, that it is merely definitional and determined by the speaker.
Professor Yankah's commentary at the end of the panel focused on the bigger picture: "Things that I know well are the ways in which the law can stop crises to democracies... where we all agree is that there are many things that the law can't fix. Much of this is just the work we have to do to keep our norms healthy. They are the work of civil society, not civic society. My worry is that I look at a country where the only thing that shocks is Charlottesville."
See the recording of the discussion here.
CLIHHR hosts public panel event: "Justice for the Yazidi Genocide"
L to R: Sareta Ashraph, Patricia Sellers, Ambassador Stephen Rapp, Pari Ibrahim, and Scott Gilmore
On September 11, 2017, the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR), together with the Human Rights Center at UC Berkeley School of Law and The Center for Justice and Accountability (CJA), hosted a public panel discussion at Cardozo Law School. The important and timely discussion followed on the heels of the third anniversary of the ISIS attack on the Yazidi population on Mount Sinjar in northern Iraq on August 3, 2014.
In the course of those three years, not one perpetrator has stood trial for the international crimes inflicted upon the Yazidi people. “This is the challenge for us today,” began Scott Gilmore, Staff Attorney for CJA and moderator of the panel event. “How do we achieve justice and accountability for a mass atrocity where, despite the fact that the perpetrators have no allies and no safe harbor, the system of international justice has not been able to prevent or punish the occurrence of genocide?”
Panelists included Founder and Executive Director of the Free Yazidi Foundation Pari Ibrahim, Former Chief Analyst of the United Nations Commission of Inquiry on Syria Sareta Ashraph, Special Advisor on International Criminal Law Prosecution Strategies, International Criminal Court Office of the Prosecutor Patricia Viseur Sellers, and Former Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice Stephen J. Rapp.
The public event followed a two-day high level meeting bringing together many of the organizations collecting evidence and seeking justice and accountability for the Yazidi victims-survivors of war crimes, crimes against humanity and genocide.
CLIHHR's Professor Gabor Rona delivers the UN Working Group Annual Report to the Human Rights Council in Geneva
Visiting Professor Gabor Rona is Chair of the UN Working Group on Mercenaries, which is mandated by the UN Human Rights Council to study and report on, among other things, the effects of mercenarism, mercenary-related activities (such as 'foreign fighters') and private military and security contract operations on the enjoyment of human rights, in particular, the right of peoples to self-determination. On Wednesday, September 13, Rona delivered the Working Group's Annual Report to the Human Rights Council in Geneva and engaged in an interactive dialogue with interested States and civil society organizations. The Re port focused on the Working Group's now completed four year-long global studies of national legislation regulating the private military and security industry. The study found significant legal gaps in accountability of private military and security operators for violations of human rights and in the availability of enforceable remedies for victims. The Report recommends measures to close these gaps under both domestic and international law. It also addresses the Working Group's recent mission to the Central African Republic.
Report Release: Respecting Rights? Measuring the World's Blasphemy Laws, co-authored by Professor Jocelyn Getgen Kestenbaum
August 10, 2017- Today, the United States Commission on International Religious Freedom (USCIRF) released a report co-authored by Assistant Clinical Professor Jocelyn Getgen Kestenbaum, Director of the Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic and Faculty Director of the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR), and Joelle Fiss entitled Respecting Rights? Measuring the World’s Blasphemy Laws. The groundbreaking Report analyzes 71 of the world’s 195 countries with laws prohibiting blasphemy, examining and comparing the content of the laws.
Blasphemy is defined as “the act of insulting or showing contempt or lack of reverence for God.” Penalties for blasphemy in these countries can range from public censure and fines to imprisonment and death. Blasphemy laws are actively enforced in many countries throughout the world. Many governments deem repeal not feasible or desirable and justify the prohibition and criminalization of blasphemy as necessary to promote religious harmony.
This study evaluates the content of blasphemy laws to understand what aspects adhere to—or deviate from—international and human rights law principles. A better understanding of the laws’ compliance with these principles may assist in developing clear, specifically tailored recommendations for areas for reform.
According to the study:
· Blasphemy laws are astonishingly widespread. Seventy-one countries, spread out across many regions, maintain such statutes.
· Every one of these blasphemy statutes deviates from at least one internationally recognized human rights principle. Most of these laws fail to respect fully the human right of freedom of expression.
· All five nations with blasphemy laws that deviate the most from international human rights principles maintain an official state religion.
· Most blasphemy laws studied are vaguely worded, as many fail to specify intent as part of the violation. The vast majority carries unduly harsh penalties for violators.
· Most blasphemy laws are embedded in criminal codes and 86 percent of countries with blasphemy laws prescribe imprisonment for convicted offenders. Some blasphemy statutes even impose the death penalty.
The authors are grateful to the students and staff of the Benjamin B. Ferencz Human Rights and Atrocity Prevention Clinic, including Susan Braden, Sophie Duffy, Afrodite Fountas, Phyllis Kaufman, Ryan Lavigne, Sharon Montazeri, Amit Noor, Anna Shwedel, Séhzad Sooklall, and Angel Sutjipto, who contributed significantly to the research and analysis of findings of the Report.
CLIHHR's Professor Gabor Rona quoted in "James Mattis, A Warrior in Washington"
May 29, 2017 Posted from The New Yorker
The following is an exerpt from the complete article, found at the link included above.
(...) When the Marines moved in, they provoked what amounted to a popular uprising. As footage of the battle aired across the Arab world, Iraq's civilian leadership rebelled, threatening to withdraw its support of the occupation. President Bush abruptly ordered commanders to stop the operation. Mattis was furious; he thought that the order made his men look simultaneously brutal and ineffectual. In a meeting with General John Abizaid, his boss, he quoted Napoleon: "If you start to take Vienna, take Vienna!" But the Administration thought the operation too costly to continue.
In the aftermath of the fighting, the extent of the Marines' ferocity became clear. "About a thousand civilians were killed," Saad Manthor, a senior Iraqi police officer and an ally of the American forces told me; other estimates suggest at least seven hundred. The city's cemeteries were so full that the main football stadium was converted to a burial site. Warzer Jaff, a Times photographer who was there, told me, "I saw entire families inside the graves, the bodies of women and children, along with small pieces of paper that had their names. Everywhere in the city you smelled bodies."
When I asked Mattis about this, he didn't dispute the numbers, but suggested that they were relatively low compared with Falluja's population of three hundred thousand. In any case, he said, the Marines went to great lengths to spare innocents, allowing them to leave the city before and during the attack. "This enemy didn't give a damn about them," Mattis said. "We went out of our way to take care of the civilians."
Other eyewitness accounts suggested that ambulances had been fired on and passengers killed, that snipers shot Iraqis as they tried to pull the dead off the streets, and that marines blocked military-age males from leaving the city, often separating fleeing families in order to keep the men inside. All those actions are banned by international treaties, to which the United States is a signatory. There were also widespread reports that the Americans had attacked Falluja with white phosphorous, a chemical agent that burns through human skin.
Gabor Rona, a professor of law at Cardozo and a legal adviser to the International Committee of the Red Cross during the battle, told me that he regarded the claims of harsh tactics as credible. "There is plenty of evidence that either the U.S. was targeting civilians or that the U.S. was conducting indiscriminate attacks withotu knowing, or taking sufficient precautions to determine, whether individuals were combatants or civilians," he said.
International Law and National Security: A View from Abroad on Current Trends in Targeting, Detention, and Trials
L to R: Beth Van Schaack, Noam Lubell, Joanna Harrington, Marko Milanovic, and Kevin Jon Heller
May 25, 2017- CLIHHR, together with the International Committee of the Red Cross, the Floersheimer Center for Constitutional Democracy at Cardozo Law, and the Jacob Burns Institute for Advanced Legal Studies, hosted a public panel discussion at Cardozo Law School on May 18, 2017. The above titled discussion explored international experts' perspectives on the applicability of international law to national security issues in the United States. Panelists included Joanna Harrington, Professor of Law at The University of Alberta; Kevin Jon Heller, Professor of Criminal Law at SOAS, University of London and University of Amsterdam; Noam Lubell, Professor in the School of Law at University of Essex; and Marko Milanovic, Associate Professor at The University of Nottingham School of Law. The discussion was moderated by Beth Van Schaack, Leah Kaplan Visiting Professor in Human Rights at Stanford Law School. If you were unable to attend the event, you can find a video of the panel discussion below.
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