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

Via the International Human Rights Clinic

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 the full story here.

LL.M. Student Reflects on her Experience with the International Human Rights Clinic

Philippa Greer, LL.M. '14

Philippa Greer, LL.M. ’14

By Philippa Greer, LL.M. ’14

I was both extremely eager and fortunate to enroll in the International Human Rights Clinic (IHRC) at the Harvard Law School during fall semester, an opportunity that enabled me to begin my legal studies with a practical outlook throughout my time at HLS.

My interest in IHRC stemmed primarily from the variety of ongoing projects within the clinical hub of the law school, and the opportunity to combine my theoretical studies of the law with practical engagement that could make a real impact. In addition, the opportunity to undertake a component clinical seminar on Human Rights Advocacy, alongside my enrollment, afforded me with an invaluable avenue through which to explore the ethical implications of international rights advocacy.

Learning under the guidance of a clinical fellow, I worked in a small team with two other students, focusing on human rights advocacy related to the ongoing Syrian conflict and the plight of Palestinian Syrian refugees fleeing the civil war.

The unique autonomy of IHRC facilitates an immersive approach to advocacy that transcends beyond traditional legal casework. From the outset, my team was afforded a platform to explore the boundaries of our project and to discuss and define the parameters of our advocacy.

Arriving at the decision to document the ongoing plight of Palestinian Syrian refugees through non-traditional fora, we were able to utilize interview material from a clinical expedition to the region, to project narratives portraying common practical and legal obstacles facing Palestinian Syrian refugees attempting to seek refuge in neighboring countries in the Middle East.

As part of this work, I had the privilege of interviewing directly a Palestinian Syrian refugee. The experience was immensely informative and moving. By undertaking work on this project, I learned how to actively reflect upon advocacy goals, and strategies and nuanced ethical considerations related to different methods of advocacy.

Now, working within the field of international law and human rights, beyond the walls of Harvard, I am grateful for the exposure I received, the skills I developed, the personal goals I accomplished, and the outlook I obtained through participation in the clinic.

Maryum Jordan ’14 Wins CLEA’s Outstanding Clinical Student Award

Maryum Jordan ’14

Maryum Jordan ’14

By Caroline Parker, Intern, Harvard Immigration and Refugee Clinic

Congratulations to Maryum Jordan, J.D. ’14, for winning the Outstanding Clinical Student Award from the Clinical Legal Education Association (CLEA). The award is presented annually to one student from each law school for his/her outstanding clinical coursework and contributions to the clinical community. Maryum was nominated by Clinical Professor of Law Tyler Giannini, Assistant Clinical Professor of Law Susan Farbstein, Lecturer on Law and Clinic Assistant Director Sabi Ardalan, and Clinical Professor of Law Debbie Anker, for her work with both the Harvard Immigration and Refugee Clinic (HIRC) and the International Human Rights Clinic (IHRC). Over the course of her three years at Harvard Law School, she logged over 1000 pro bono hours in service to the community.

Maryum has distinguished herself in many capacities. At IHRC she collaborated with other students to produce a briefing paper on transitional justice in Burma, where she later traveled to conduct research on human rights violations committed near the Taiwan border. As a 3L, Maryum returned to the clinic to work with a student-led reading group on sex-trafficking in Boston. She also worked diligently to prepare asylum cases for traumatized clients from Honduras and Uganda. Her clinical mentors call her “a skilled and extremely conscientious advocate,” who is “intelligent, humble, personable,” and “sensitive to the ethical dimensions of her work.”

“Working with both the International Human Rights Clinic and the Immigration and Refugee Clinic has been part of my best experiences at Harvard Law School and I am grateful for the mentorship, knowledge, and personal growth I have gained as a clinical student. I am deeply honored to receive this award and be recognized by clinicians whom I hold in great esteem,” Maryum said.

This fall, she will be moving to Lima, Peru to work as a fellow for Earth Rights International. Eventually, she plans to continue her work with international and gender-based human rights and pursue a career in clinical teaching.

New HRP Book: The International Rule of Law Movement: A Crisis of Legitimacy and the Way Forward

Capture22Via the International
Human Rights Clinic

By David Marshall, HRP Visiting Fellow 2012-2013, and UN Staff Member, Office of the High Commissioner for Human Rights

In 2011-2012 I was deployed to South Sudan to lead the UN’s development of the justice and prisons system. It was a startling experience. Though the international community has been engaged in rule of law reform since 2005 there was a profound deficit in knowledge about the justice ‘system,’ its actors and processes. Moreover, there appeared little interest in understanding, and learning from, years of international rule of law programming in the country – what worked, what did not, and why, or applying lessons learned from similar contexts. Much of the assistance focused on ‘law and order’ issues, with most support going to police and prisons. The international community’s rule of law assistance seemed trapped in an ‘impoverished’ view of the rule of law, with little, if any, impact in actually addressing injustices in the country.

The experiences in South Sudan are replicated in other post-conflict and fragile states, where unprecedented international attention is placed on state-building, with a primary focus on rule of law reform. Enormous amounts of money and effort have gone into rebuilding and often changing entire justice systems, with modest success. This attention raises profound questions about the objective, approach, methodology, and consequences of these efforts. The evidence suggests that trying to change such legal systems is an unproductive endeavor.

Continue reading the full story here.

Taking on “Killer Robots”

CaptureVia the International Human Rights Clinic

By Bonnie Docherty
Senior Clinical Instructor & Lecturer on Law

New weapons that could revolutionize killing are on the horizon. Lethal autonomous weapons systems, also called fully autonomous weapons or “killer robots,” would go beyond today’s armed drones. They would be able to select and fire on targets without meaningful human intervention. In other words, they could determine themselves when to take a human life.

Representatives from 87 countries gathered at the United Nations in Geneva last week to discuss concerns about this technology and possible ways to respond. The conference was the first multilateral meeting dedicated to lethal autonomous weapons systems. It represented a crucial step in a process that should result in a ban on these problematic weapons before it grows too late to change course.

Human Rights Watch and Harvard Law School’s International Human Rights Clinic are calling for a pre-emptive prohibition on the development, production, and use of these weapons. The Campaign to Stop Killer Robots, a global coalition of 51 nongovernmental organizations coordinated by Human Rights Watch, is making the same call.

Continue reading the full story here.

All Ford Fellows Participated in Clinical Education

Last month, three graduating students, Samuel Weiss ’14, Catherine B. Cooper ’14, and David Baake ’14, received Ford Foundation Law School Public Interest Fellowships. The fellowship is designed to identify and help develop new leaders in social justice. All three students participated in the Clinical and Pro Bono Programs. Here is what they had to say about their experiences:

Catherine B. Cooper ’14

Catherine B. Cooper ’14

“My clinical experience at HLS was instrumental in preparing me to be a Ford Fellow at the Center for Reproductive Rights. Through the International Human Rights Clinic, I gained skills in litigation, documentation, and human rights advocacy that are essential for both my fellowship and long-term career.  But I am particularly grateful for the incredible people I have had the opportunity to work with.  Through the International Human Rights Clinic, the Harvard Immigration and Refugee Clinic, and Harvard Immigration Project, I found brilliant mentors who were both inspiring and challenging and a community of public interest students who were mutually supportive and extremely dedicated to clinical work.”

Catherine will serve as a legal fellow at the Center for Reproductive Rights. She will be advocating for reproductive freedom both domestically and globally.

David Baake ’14

David Baake ’14

David Baake, who participated in the Emmett Environmental Law and Policy Clinic said “My experience… was one of the highlights of my time in law school. I was able to work on a variety of interesting and important projects, including a memorandum for a Massachusetts state representative, a Supreme Court amicus brief, and a white paper on offshore drilling. These experiences allowed me to develop practical skills that were not emphasized in other aspects of the law school curriculum. They also allowed me to develop a relationship with Professor Jacobs, who has been an excellent teacher and mentor.”

David will be working as a legal fellow in the Natural Resources Defense Council’s Climate Center in Washington, D.C. He will be supporting the Obama Administration’s Climate Action Plan through advocacy and litigation.

Samuel Weiss ’14

Samuel Weiss ’14

Samuel participated in the Capital Punishment Clinic and the Crimmigration Clinic. “While the idea of focusing immigration enforcement on folks with criminal convictions has intuitive appeal, in the Crimmigration Clinic we got to see how often good people faced devastating consequences for trivial crimes,” he said. “The statutes most relevant to crimmigration are extremely punitive, especially to people with drug convictions, and often suck discretion out of the system so that immigration judges are left to rubber stamp removal orders. The poor drafting of these statutes makes them confusing but also means that there is room for advocates to be creative in trying to win their clients’ relief. The fact that immigrants facing deportation have no right to counsel creates a huge opportunity for students to help folks navigate an incredibly complex and punitive system. As an experienced practitioner in exactly these types of cases, Phil Torrey was able to closely mentor us as we tried to help folks find some avenue for relief.”

Samuel will work as a legal fellow at the American Civil Liberties Union’s Center for Justice, in Washington, D.C. During his fellowship he will seek to end the use of prolonged solitary confinement through class-action litigation and policy advocacy.

Please read more about the students in the HLS News article Three from HLS named Ford Fellows; Harris is keynote speaker

 

Giannini Receives 2014 Sacks-Freund Teaching Award

Tyler Giannini, Clinical Professor of Law

Tyler Giannini, Clinical Professor of Law

Via HLS News

Clinical Professor Tyler Giannini was selected to receive the prestigious Albert M. Sacks-Paul A. Freund Award for Teaching Excellence. He was selected by the Class of 2014 in recognition of his teaching ability and general contributions to student life at the law school.

“Tyler Giannini challenges… students to grapple with difficult and complex issues while supporting them along the way, employing tools of collaborative learning and encouraging students to be constantly reflective about their work,” said one student. “He also manages to mix healthy outrage at the injustices that his work seeks to address while also maintaining his cool and managing the many things that are on his plate.”

Giannini is co-director of Harvard Law School’s Human Rights Program and the International Human Rights Clinic. His work focuses on Alien Tort Statute litigation, business and human rights, human rights and the environment as well as communities and human rights. He has extensive experience with Myanmar and South Africa and a strong interest in social entrepreneurship and clinical pedagogy in the human rights context. Previously he was a founder and director of EarthRights International, an organization at the forefront of efforts to link human rights and environmental protection. After receiving an Echoing Green fellowship to start EarthRights in 1995, Giannini spent a decade in Thailand with the organization conducting fact-finding investigations and groundbreaking corporate accountability litigation. He holds a B.A. from the College of William and Mary and a J.D. and M.A. from the University of Virginia.

Established in 1992, the Sacks-Freund award is named in honor of the late Harvard Law School Professors Albert Sacks and Paul Freund. The other finalists for the 2014 award included Professors Richard Lazarus, Robert Sitkoff, Jeannie Suk, Alex Whiting, and Mark Wu.