PILAC report finds doctors may risk prosecution for treating alleged terrorists

Doctors who provide medical assistance to people labeled terrorists are increasingly vulnerable to prosecution in the United States and other Western democracies, according to a law briefing by the Harvard Law School Program on International Law and Armed Conflict (PILAC).

Credit: U.S. Navy/Shantece Gonzalez

The 236-page report highlights the prosecution of an American physician who offered to work as an “on-call” doctor for wounded members of al-Qaida in Saudi Arabia. The report also details the prosecution of a Peruvian doctor who cared for members of the Shining Path guerrillas, and of a physician who provided medical and surgical services to insurgents in Colombia.

The cases underscore the effects the global war on terror can have on the international humanitarian law that protects doctors who tend enemy combatants from punishment or prosecution.

Released earlier in September, this is the first comprehensive report to examine how counterterrorist policies threaten to erode international humanitarian law protecting medical care for wounded combatants in armed conflicts.

Credit: Evgenia EliseevaGabriella Blum, Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School, is faculty director of PILAC and co-author of the program’s law briefing released earlier in September.

Those safeguards have been around since the establishment of the Red Cross in 1863, said Gabriella Blum, one of the report’s authors and the Rita E. Hauser Professor of Human Rights and Humanitarian Law at Harvard Law School.

But the new report’s authors contend that the law has been weakened by the war on terror and the United Nations Security Council’s antiterrorist directives.

“The whole raison d’etre behind the establishment of the ICRC [International Committee of the Red Cross] was to make sure that those who are injured and no longer fighting are not left without medical treatment,” said Blum. “This is the fundamental principle we should focus on.

“And the fact that you then label that person a terrorist, at that moment, it shouldn’t matter,” she said. “At the time he’s injured and is in need of medical care, it doesn’t — at least, it shouldn’t — matter.”

Blum, who is also the PILAC faculty director, co-authored the report with Dustin Lewis, program senior researcher, and Naz K. Modirzadeh, program director and lecturer on law.

Titled “Medical Care in Armed Conflict: International Humanitarian Law and State Responses to Terrorism,” the report criticizes the U.N. Council, which in the late 1980s spearheaded the global war on terror.

PILAC founding director Naz K. Modirzadeh is a lecturer on law at HLS and co-author of the report.

The Security Council, the report says, moved without “due public consideration” in legislating global antiterrorism measures that contradict international humanitarian law. The council, for instance, requires member states to take action against terrorist threats but fails to demand that states exempt impartial wartime medical care even when such care may be protected under international humanitarian law.

The report says there are gaps in the law that allow states to make their own rules to fight terrorism. Also, international humanitarian law lacks protection for all aspects of medical care, and its measures are not universally applicable to all armed conflicts or followed by all countries.

“We’re left today with a somewhat fragmented normative landscape, where different countries have different obligations,” said Lewis. “Today, with few exceptions, the United States can prosecute any physician, whether she is American, French, or Somalian, who knowingly provides medical assistance to terrorists.”

Since 1949, when the First Geneva Convention ruled that no one could be convicted for having nursed the wounded or sick, regardless of his nationality or conduct, no major directive addressing protections for medical care in the war on terror has been issued.

Credit: Kris Snibbe/Harvard Staff Photographer“Today, with few exceptions, the United States can prosecute any physician, whether she is American, French, or Somalian, who knowingly provides medical assistance to terrorists,” said Dustin Lewis, senior researcher at Harvard Law School and one of three authors of a law briefing by the Harvard Law School Program on International Law and Armed Conflict.

For the authors, there is an urgent need for a ruling in favor of impartial medical care for all of the wounded and sick — military and civilians, terrorists and non-terrorists alike — in all armed conflicts.

It’s the right thing to do, they said, to preserve the foundational ethic of international humanitarian law, which places medical personnel above the conflict.

“We don’t expect readers to have a lot of sympathy to ISIS or al-Qaida,” said Blum. “What we’re concerned about is the erosion of the principle. We want people to make a value judgment on how dangerous a counterterrorism strategy is in potentially undermining a much broader ethical and legal commitment that goes way beyond the question of al-Qaida, or ISIS.”

This article originally appeared in the Harvard Gazette on September 25, 2015.

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After ‘Baby Bella’: Bartholet indicts systemic failures to protect at-risk children

Credit: Martha Stewart Professor Elizabeth Bartholet ’65

The Boston area was riveted this summer to the story of an unidentified child who washed up in a trash bag on a Boston Harbor beach. When the two-and-a-half-year-old girl was identified three months later, the public learned that her mother and her mother’s boyfriend were heroin addicts and that Massachusetts Department of Children and Families had previously investigated the home. Public concern intensified over how at-risk children are monitored and when they should be placed in foster care or put up for adoption.

Elizabeth Bartholet ’65, the Morris Wasserstein Public Interest Professor of Law at Harvard Law School, has been at the center of many public conversations following the discovery of the child, once known as Baby Doe, but since identified as Bella Bond. Bella’s mother’s boyfriend was charged with her murder, and her mother has been charged as an accessory to her murder.

A nationally renowned child welfare advocate, Bartholet is the founding Faculty Director of Harvard Law School’s Child Advocacy Program. Several recent news stories and interviews elucidate her views on child protection issues and her recommendations on how to reform the broken system.

A recent study by the New England Center for Investigative Reporting reported by The Boston Globe and New England Cable Network investigated the kinds of mistakes at all levels of the child-welfare process that put children at risk. The study found that between 2009 and 2013, 110 children died from abuse and neglect in Massachusetts, and one-third of those were under DCF care. Several case studies examined in the report “scream[ed] out” that social workers were often more concerned with keeping families together than ensuring children’s safety, Bartholet said in The Boston Globe. “Best interest of the child is clearly not the standard,” especially for children in the lower risk category, she said.

Bartholet was interviewed on TV and radio programs discussing whether child welfare agencies could have taken steps to prevent Bella’s death. Bartholet has long criticized a “two-track” system used in Massachusetts and other states that puts children either on a track where they are closely monitored by child-welfare agencies or puts them on a second “low-risk” track, in which parents have a choice of whether to accept state services.

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Harvard Law instructor David Deakin ’91 will prosecute “Baby Bella” case

David Deakin ’91, chief of the Family Protection and Sexual Assault Bureau and Senior Counsel to the District Attorney in the Suffolk County District Attorney’s Office in Boston, was recently profiled in The Boston Globe. He will prosecute the defendant charged with the murder of Bella Bond. Deakin has been a guest speaker in Elizabeth Bartholet’s “The Art of Social Change” course at Harvard Law School and an instructor in the school’s Trial Advocacy Workshop. Read The Boston Globe profile here: http://www.bostonglobe.com/metro/2015/09/20/prosecutor-david-deakin-will-seek-justice-for-baby-bella/ndJzOHel5X4RaijQLAf0HO/story.html

“Even on the traditional track, there is not enough intervention, there is not enough surveillance, there’s not enough protection for kids,” she told WRKO. “I think we ought to be moving in the direction of beefing up that traditional track. And to move in this other direction is simply a matter of a deliberate policy of putting children at greater risk. We have a system that does not value the child’s welfare even though it keeps claiming to.”

“The basis of our system is parents’ rights and valuing parent autonomy,” she continued, adding that she hoped these recent cases would “move our governor and our legislators to say we really should take kids’ safety and welfare seriously.”

A needed reform that Bartholet advocates is expanding outreach to families to become foster parents. Currently, middle class families are not typically recruited for foster care. Instead, recruitment is usually from welfare roles and in a child’s neighborhood. She said there is an “enormous population of people who would love to foster and adopt kids if they had a chance. But we have a system that pushes those people away.”

Interviewed on WGBH, Bartholet expressed her concern that Bella had been born drug-affected and sent home with a drug-addicted mother, who had already had two children removed by DCF. She said the problem is as much about ideology as it is about limited funds for child-welfare agencies, because foundations are pushing agencies to be “yet more family-preservation oriented.”

Bartholet said, “The legal system treats kids as if they belong near 100 percent with the biological parent. In fact, part of what we need to do is intervene more readily and take some of these high-risk kids away from the parents.”

One of the HLS courses Bartholet teaches is called “The Art of Social Change.” The class examines strategies for changing law and policy, focusing on the areas of child welfare (abuse and neglect, foster care, adoption), education, and juvenile justice.

***

Related reading

Parental custody? Not if they’re addicts (The Boston Globe)

DCF Shift Puts Children’s Safety At Risk (Hartford Courant)

Faculty Director Elizabeth Bartholet Awarded 2015 Pro Humanitate Child Advocacy Award

Bartholet receives award from the National Human Rights Committee of Qatar

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Undermining Injustice, One Prison Visit at a Time

There is no marker in Aníbal Bruno prison that speaks to home. In some cells, there are only dozens of men, sleeping on floors stained with feces, eating out of plastic bottles cut in half. But when he stands at the bars, Fernando Ribeiro Delgado pauses, as he would at the doorstep of any stranger’s house.

He offers a handshake to every man inside. He looks them in the eye. He calls each prisoner “Sir.” And though Delgado already has official permission to enter, he asks, because asking matters: Would it be all right if I came in?

“It’s the kind of respect that is obviously required, but that they are denied regularly by nearly everybody,” said Delgado, a clinical instructor in the International Human Rights Clinic at Harvard Law School.

Credit: Dana Smith

Over the course of the years, as an expert on prison conditions in Brazil, Delgado has argued before the inter-American human rights system; negotiated with government officials; and nurtured relationships with prisoners’ families, prison officials, and members of the national press. But it all begins, for Delgado, in the cell blocks and hallways of Brazil’s most overcrowded prisons, listening to the people who live there.

Born in Brazil, fluent in Portuguese, Delgado has worked in these prisons for years, challenging his clinical students to think through the complications that come with mass incarceration and neglect. Inside Aníbal Bruno, they watch him closely: the calm, firm way he negotiates with officers for access; the undivided attention he gives to prisoners; the deference he shows to his local partners, whom he considers the undisputed experts in the rhythm of the place.

Fernando’s work in detention centers in Brazil is unparalleled by anything being done by any clinic or NGO outside Brazil. He’s documented the most serious abuses in the most dangerous centers in the country.

James Cavallaro, Vice Chair of the Inter-American Commission on Human Rights

“I was really impressed to see him being so respectful, being so collaborative in his efforts, and not the Harvard professor who knows all,” said Colette van der Ven ’14. “He was a role model for so many of us.”

Any praise that comes his way, Delgado deflects to his mentors, in particular his clinical professor, James Cavallaro, former executive director of the HLS Human Rights Program and current vice chair of the Inter-American Commission on Human Rights. Over the years, Cavallaro has tracked Delgado’s career: Fearless, rigorous and dedicated are the words that come to his mind.

“Fernando’s work in detention centers in Brazil is unparalleled by anything being done by any clinic or NGO outside Brazil,” said Cavallaro. “He’s documented the most serious abuses in the most dangerous centers in the country.”

José de Jesus Filho, a Brazilian human rights lawyer, saw the potential when Delgado was an HLS student investigating the high-profile prison and police violence that hit São Paulo in May 2006. Delgado kept at it until 2011, when the HLS clinic released a joint report that exposed widespread police corruption and, according to de Jesus Filho, changed the way the Brazilian public viewed the sequence of events.

To de Jesus Filho, who monitored prisons for 20 years with Pastoral Carcerária (Catholic Prison Ministry), that kind of commitment stood out.

“When Fernando starts with something, he goes to the end,” he said.

***

In the field of prison rights advocacy, litigation before the inter-American human rights system is a powerful tool. When the court orders emergency measures, it binds all levels of government to the promise of protecting the life, safety and health of the persons at that facility. This, in turn, triggers a system of monitoring and reporting.

One of the clinic’s closest partners, Justiça Global (Global Justice), was at the forefront of this litigation, helping to secure protective measures at Urso Branco, one of the country’s most notorious prisons, back in 2002. It’s a case Delgado worked on as a fellow with Justiça Global and is still litigating today.

The work on Aníbal Bruno began years later, when a group of Brazilian rights organizations looked at mass incarceration patterns across the country and found another focus: the state of Pernambuco, where a new policy provided bonuses to police for every arrest they made.

Soon enough, they honed in on Aníbal Bruno, one of the largest prisons in Latin America, and among the most abusive. Since then, the clinic has worked with Serviço Ecumênico de Militância nas Prisões (Ecumenical Service of Advocacy in Prisons), Justiça Global, and Pastoral Carcerária to secure precautionary measures for all persons at Aníbal Bruno—including prison staff and the families of prisoners.

Credit: Wilma MeloIn Aníbal Bruno—a prison designed for fewer than 2,000 men, now holding 7,000—gangs of prisoners force payment from anyone who wants a designated place to sleep.

“I like this word Fernando uses: coalition,” said Wilma Melo, of Serviço Ecumênico de Militância nas Prisões, a longtime advocate and the family member of a former prisoner. “Each step we take, we take it together, and I believe this is the strength of our work.”

Years of monitoring have led to clear wins: a camera ban lifted, a punishment cell dismantled, medical help for the critically ill. Hundreds of illegally detained prisoners have had their cases reviewed and then have been released—including a forgotten man who was kept incarcerated 10 years beyond his original sentence.

Credit: RENATO SPENCER/GETTY IMAGES Wilma Melo, a longtime advocate in the Aníbal Bruno prison, is a member of one of the organizations with which Delgado and his students collaborate. “Each step we take, we take it together,” Melo said, “and I believe this is the strength of our work.”

But for every individual violation reported and remedied, there are thousands more. In a prison designed for 1,819 men, the population recently hit 7,000. At best, there might be one officer on shift for every 100 prisoners.

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In a prison designed for 1,819 men, the population recently hit 7,000. At best, there might be one officer on shift for every 100 prisoners.

With so few officers on duty, gangs of prisoners take on, or are given, the power of policing. Their leaders, known as “Chaveiros” or “locksmiths,” have keys to the cells and use them to govern an economy of beds, forcing payment from anyone who wants a designated space to sleep. On Delgado’s first visit to Aníbal Bruno, he met with a Chaveiro whose personal cell was furnished with a full-sized mattress and a meeting table. A cellphone lay on the tabletop. A knife hung from his belt.

“It’s chaos,” said de Jesus Filho.

Credit: Wilma Melo

At the very least, advocates say, the monitoring has forced a kind of reckoning on prison officials. They’ve gone from denying the depth of the problems at Aníbal Bruno to acknowledging many of them, and working with others to address them. This may be why, at one public meeting, a representative from the prison officers’ union put the question to the clinic and its partners:

“Can we get precautionary measures for every other prison in the state?”

***

When Delgado, his students and his partners walk through the entrance to Aníbal Bruno, they hear the same thing every time. First, the call goes out, from one cell to another: “Human rights!”

Then come the arms, reaching out from behind the bars, too many to count: “Over here!” “Over here!” “Over here!”

Some days, the team will interview more than 100 people. The students will pair off with Delgado and then settle into a space the prisoners have cleared for them. In the presence of women, some prisoners will put on their shirts. They’ll offer what water they have on hand. And then the stories will start.

Months of picking through international law could not have prepared James Tager ’13 for the pressure. At one point, he took down all the details that made up one man’s story and then realized, as he was leaving the cell block: He had forgotten to ask for the man’s name and ID number.

“It’s not like you can call back next week and double-check the facts,” said Tager, who later got the man’s name. “I was literally shaking—this idea that after talking to someone, because I hadn’t gotten his name, he wouldn’t be helped.”

The learning for students is intense, said Clara Long ’12, who now visits detention centers as an immigration and border policy researcher with Human Rights Watch. She trained under Cavallaro and Delgado, working with them on the Urso Branco case.

“You have a very compressed time period to build trust with someone, figure out how to keep them safe while they’re talking, figure out the right questions and get the most accurate information possible,” said Long.

Credit: Colette van der Ven

Nerve-racking is a good word for it. Before going through the metal detectors, van der Ven took a picture of a badly beaten man, only to hear a prison official’s warning about the camera ban inside. The ban had been in place for months, but there, in the moment, Delgado had an idea: Can anyone here draw?

Van der Ven had taken a few art classes in high school. That was enough.

“Just draw what you see,” he told her.

As she sketched a warehouse where hundreds of men ate and slept, some of the prisoners organized themselves so she could better see the space. Others gathered around, looking over her shoulder.

“It was like a unifying moment,” said van der Ven, now an associate in trade litigation at Sidley Austin. “We were all working toward justice for them.”

---

Credit: Colette van der Ven

Credit: Colette van der Ven

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When the prisoners spotted a friend of theirs in her sketch, they joked that he was headed to the U.N. Instead, the coalition presented a slideshow of the sketches during a public hearing with the prosecutor’s office. The next time the team visited Aníbal Bruno, the camera ban was no longer in place.

Courtesy of Colette van der VenThis swan was given to Colette van der Ven ’14 by a prisoner in Aníbal Bruno prison.

There are many days when the question comes to Delgado’s mind: Are we making a difference?

Sometimes, the answer is clear and yes. Last spring, in response to repeated concerns the coalition raised, the court ordered a ban on strip searches of prison visitors. Several months later, prison administrators had passed their own statewide ban.

Number of people affected: 30,000 families every week.

But in prison work, there are constant reminders of the limits of legal advocacy. Recently, after the coalition created an online archive of thousands of pages of evidence, the state put the camera ban back in place.

So Delgado tries to remember: Small victories matter. The human barrier he forms with his students and partners, so that a prisoner suffering knife cuts can talk to medical staff privately, without the scrutiny of an officer. The extra time a team stands by the gate of the warehouse, refusing to leave until each prisoner gets bread they’ve been denied.

With their actions, they are undermining injustice in the moment. They are sending a message to all who are watching that every person is equal—deserving of dignity, protection and privacy.

“It’s not enough to report on the problems,” said Melo. “You have to make an impact there in the moment in order to produce the change.”

***

Take cell number 5. Melo had reported it before: a tiny, dank punishment cell, where Chaveiros would dump prisoners they had beaten. A long metal sheet was welded to the bars of the cell, perforated with small holes for air and light.

“The only thing comparable would be hell,” said Celina Beatriz Mendes de Almeida LL.M. ’10, who trained under Delgado and went on to become a professor at the Fundação Getulio Vargas School of Law’s Human Rights Clinic in Rio de Janeiro.

The team interviewed the 16 men inside, photographed their injuries, took down their names and then walked to the warden’s office, where Melo announced that she had “discovered” a punishment cell.

Nearly an hour later, after the prisoners had been removed, the warden stood in front of it, surrounded by a gang of Chaveiros, their arms folded across their chests. Hundreds of prisoners watched in silence behind them. Melo had insisted the metal door come down.

The warden examined it again, then finally turned to a nearby prisoner, and ordered him to find a tool that could remove it.

From somewhere in the crowd of prisoners, there came a suggestion: “A hammer?”

Yes, Melo said, a hammer. And so it came to be, that late one October afternoon, in one of the worst prisons in the country, the warden called for a hammer, and a prisoner proceeded to swing it, and together they brought the metal door down.

Even now, it is hard for Delgado and Melo to describe the emotion of the moment. To comprehend the ripple effects it had—for the prisoners, the warden, the Chaveiros, and beyond.

It was not the kind of victory that would make the newspaper. But it spread the spirit of possibility within the system, so that years later, when a prisoner told Melo about another punishment cell, he asked her to dismantle it, just like she did with cell number 5.

***

Since this article was written, the Inter-American Court on Human Rights has taken the rare step of summoning the state of Brazil to a public hearing on Aníbal Bruno. That hearing, on Sept. 28, will be broadcast live from Costa Rica here.