Thus, the IBAHRI is gravely concerned about the news from Equatorial Guinea of the execution of four alleged coup plotters just an hour after they were sentenced. By denying them leave to appeal, the military tribunal violated a human right enshrined in Article 14(5) of the International Covenant on Civil and Political Rights: 'Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.' As a party to the ICCPR, Equatorial Guinea has therefore put itself in breach of its obligations under international law.
The IBAHRI is also concerned by reports that the executed people were subjected to torture whilst held at Black Beach prison after their abduction. Torture is universally regarded as a violation of international law. It is condemned by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [PDF], a treaty to which Equatorial Guinea acceded on 8 Oct 2002. This practice must stop and those responsible for ordering these crimes punished for Equatorial Guinea to achieve concord with international law.
The IBAHRI notes that the abduction of the four from Benin in January 2010 violates the sovereignty of Benin. The forerunner of the International Criminal Court, the Permanent Court of International Justice, set forth a basic rule: 'the first and foremost restriction imposed by international law upon a State is that - failing the existence of a permissive rule to the contrary - it may not exercise its power in any form in the territory of another State.' (Case of the S.S. "Lotus" (France v. Turkey), P.C.I.J. Series A, No. 10, at p. 18) Agents of one State who abduct someone in another State are exercising State power. There is no general rule of international law permitting that kind of State power in the territory of another State. Benin did not consent to the exercise of such power.
In the view of the IBAHRI, confessions or evidence obtained under torture, denial of right to appeal a conviction, and abduction without extradition all constitute serious violations of the human rights of persons subjected to criminal proceedings, which are if anything more exacting when applied in capital cases.
The executions put Equatorial Guinea at odds with current legal standards and guidelines on the death penalty, including but not limited to the right to life guaranteed by Article 3 Universal Declaration of Human Rights (UDHR), Article 6 of the ICCPR, and UN General Assembly Resolutions 62/149 (2007) [PDF] and 63/168 (2008) that call for a moratorium on the death penalty. On 15 May 2008, the Council of the IBAHRI passed a Resolution calling for an end to the death penalty worldwide. The Resolution commits the IBAHRI to actively promote the abolition of the death penalty and to recommend that all states take immediate steps towards imposing a moratorium on capital punishment in the interim. The IBAHRI urges Equatorial Guinea to address its responsibilities to uphold the right to life, and in so doing, readdress its use of the death penalty."
]]>At the June hearing in District Court, testimony was provided from witnesses that their original testimony implicating Davis was built on lies. Four witnesses admitted in court that they lied at trial and that they did not know who shot Officer Mark MacPhail. Another four witnesses implicated another man as the one who killed the officer - including one who says he saw the shooting and is related to the alternate suspect by marriage. Three original state witnesses described police coercion during questioning.
In his August 24th ruling, Judge Moore himself noted problems with the evidence proffered by the State of Georgia in their efforts to implicate Davis, stating that "[W]hile the State's case may not be ironclad, most reasonable jurors would again vote to convict Mr. Davis of Officer MacPhail's murder. A federal court simply cannot interpose itself and set aside the jury verdict in this case absent a truly persuasive showing of innocence." If a state's case against Troy Davis is not "ironclad," shouldn't that trouble those seeking his execution?
Troy Davis' case illustrates that U.S. courts simply cannot provide the certainty necessary to impose an irreversible punishment; therefore the death penalty must be abolished. Far too many cases, as in Davis' case, rely solely on eyewitness testimony, which is the number one source of wrongful convictions. This, along with other prevalent factors such as racial bias and inadequate representation, has created a system that cannot be entrusted with human life.
Across the nation states are moving away from the death penalty because of growing concerns about innocence, unfairness, discriminatory application, lack of efficacy, and other reasons. The death penalty was intended to be reserved for the worst offenders, but in practice, it is arbitrary and unfair. The system is fraught with error, plagued by poor legal representation, and discriminates on the basis of income, race and geography - with the majority carried out in the South - among many problems that leave it too broken to be fixed.
By choosing to deny Mr. Davis' claims, Georgia state courts have ostensibly declared that it is permissible to execute a convicted person who is likely innocent. It will be a travesty of justice for Georgia and our nation if an innocent person is executed. Proceeding with the execution of Troy Davis is callous, careless and irreversible."
]]>Amnesty's critique is simple. The state has an obligation to protect its citizens, but this should be done without violating their human rights. Amnesty feels that despite Britain's efforts to protect their citizens' liberties, they are violating the European Human Right Convention.
Amnesty's suggestion is that terrorism should be handled by the ordinary criminal justice system.
It's worth noting that their suggestion is just as flawed, if not worse. In their report they state that over 200 people (now over 280) have been convicted of terrorism related offenses in the UK. They don't mention that in that time, there have been over 1,700 terrorism arrests: a conviction rate of about 6%. This means that over 90% of those arrested for terrorism by the criminal justice system, were arrested for no reason. Either that, or the criminal justice system is not capable of handling terrorism.
Meanwhile, there are currently about a dozen control orders in force. The Muslim community has been affected much more by the normal measures taken by the ordinary criminal justice system, such as stop-and-searches, surveillance cameras and anti-terrorism community initiatives.
Every citizen should be concerned when a government allows itself special powers which infringe on his liberty. At the same time, citizens should be just as concerned when a government does not take the necessary steps to protect their most basic human right to life. Amnesty's take on this is expected, though simplistic. The terrorist suspect can sue for his human rights. The terrorism victim can't.
Amnesty points out that one of the flaws of this system is the legal costs of the frequent court challenges. This is not a flaw. It shows that Britain's legal system is functioning as it should, trying to deal with the very complex challenge of terrorism. Such challenges should be encouraged, in order to allow the courts to do their job: supervise the executive."
]]>The word "historic" gets bandied around quite a bit in Washington, but it fits here. After all, the bill repeals a mandatory minimum sentence - for simple crack possession - for the first time since the Nixon Administration. Put another way, half of the staff at FAMM had not yet been born when Congress last reversed a mandatory minimum. And for those of us who have been engaged in the sentencing reform fight for a couple decades, bipartisan reform has been rare. This is the first overwhelming, bipartisan victory on an issue like this in the past 15 years, especially so close to a contentious election.
Members of Congress from both political parties deserve enormous credit for casting aside the politics of fear that mark so many debates over criminal justice reform. Some of us hope that this victory signals the beginning of a new spirit of bipartisanship that will lead to even more success for commonsense sentencing reforms. The first test, in my view, is whether Congress will finish the job on crack reform by applying the provisions of the new law retroactively.
The reason why the crack reform bill sailed unanimously through both chambers of Congress was that there was no legitimate basis - public safety or otherwise - to maintain the disparity. Congress was not saying that times and circumstances change and thus so should the crack law. Rather, the members, including those members serving in 1986 when the disparity was created, were quite candid in saying the law was a mistake, a blunder forced by the fear of a crack epidemic, following on the heels of the cocaine overdose of a nationally-recognized basketball star, Len Bias.
Congress should be commended for fixing its 1986 mistake, but its correction will be incomplete if it is not applied to those whose lives were most directly impacted by the error. When an auto company discovers a dangerous defect in its cars, it corrects the flaw in future models and recalls the defective cars. Our government rightly expects corporations to fix their mistakes so that no one is unnecessarily harmed.
The government should hold itself to the same standard, at least in situations where the harm to individuals and families is so great, and the government error is so clear. There will be those who say that applying the new law retroactively will consume significant law enforcement and judicial resources. Of course this is true - especially if done right, i.e. requiring a separate judicial review for every offender to ensure that only those who are not violent or otherwise do not represent a threat to society are let go.
We know this is possible because it's happening right now. Beginning in March 2008, roughly 20,000 crack cocaine offenders became eligible to receive a reduction in their sentence because of changes made in the sentencing guidelines. Their cases are now being reviewed and MANY offenders are being released. You might not have noticed because the sky is not falling.
The amount of time that will be needed for U.S. Attorneys and federal courts judges to review all of these cases is not de minimis. District court caseloads are already high, and U.S. Attorneys have new threats to address. But when these costs are compared with those borne by the individuals, families, and communities affected by 24 years of a ruinous and indefensible sentencing policy enforced and administered by these same U.S. Attorneys and judges, the costs seem relatively small.
Congress was right to ditch the 100:1 crack-powder disparity. It now must finish the job by applying this overdue reform retroactively."
]]>I was sure that most House Republicans would fight this legislation. I doubted that the participation of Senator Jeff Sessions (R-AL) and Senator Orrin Hatch (R-UT) in crafting the Senate bill -- carefully developed and brilliantly shepherded by Senator Richard Durbin (D-IL) -- would stifle the temptation for House Republicans to attack what was fundamentally a civil rights, civil liberties, criminal defense, drug policy reform bill, as a soft-on-drugs, soft-on-crime bill, as Rep. Lamar Smith (R-TX) did so characteristically in his floor speeches. I was dumbfounded when former Judiciary Committee Chairman James Sensenbrenner (R-WI) spoke for of the bill, and realized when Rep. Dan Lungren (R-CA), former California Attorney General, spoke for the bill, that I had been completely wrong.
I had been wrong about the House Democratic leadership. I would have bet money that they would never risk a potential GOP attack, along the lines made by Rep. Smith, upon Democrats who would vote for the bill, and therefore would not bring the bill to the floor. But with a voice vote and no roll call, Democrats are free from such attacks. I would love for a good journalist or investigative political scientist to dig out the story of what really happened among the key players. Who actually spoke to whom? Was the letter from the 11 Senators (including 6 conservative Republicans) enough to defuse House Republicans? Did Senators call House Members? Did the Democratic leadership, in essence, do a whip check of the GOP? Where were Rep. Boehner, Rep. Cantor and other GOP conference leaders? At what point did Lungren and Sensenbrenner get on board the compromise and why and for whom?
For this long-awaited Act to be meaningful, we must see something in the U.S. Attorneys Manual or a memorandum from the Attorney General to the U.S. Attorneys that will change the practices of federal agents and prosecutors in choosing defendants and cases to investigate. My fear is that there will be no change. I believe informants -- those cutting deals and the paid professionals -- will simply change their stories about the quantities that were involved. Or perhaps agents will simply direct that there be another controlled buy or two. The egregious racial disparity among defendants will not change unless Justice changes its policies. We will not know if this law has any positive effect until the U.S. Sentencing Commission issues its FY 2011 report federal sentences.
In addition, we need both retroactivity and resentencing to relieve thousands of Federal prisoners -- clearly minor offenders -- of the injustice they are enduring, and the immediate and complete reorganization of the Pardon Attorney's Office so that the President can quickly begin making the many grants of commutation of sentences that justice demands, and that reflect the political cover the GOP has extended to him. The ball has been tossed to the President and the Attorney General. Will they change the practices of the Justice Department or will they content themselves with speeches? The record of the Drug Enforcement Administration and U.S. Attorneys in flouting the Attorney General regarding the October 19, 2009 memorandum on medical marijuana prosecutions in states with medical marijuana laws is very discouraging."
]]>The Court annulled the provisions that would have prevented members of the high judiciary from voting for more than one candidate in their selection to HSYK and the Constitutional Court. The provision that would have allowed the president to assign political science and economics academics or senior executives to the HSYK was also annulled. Apart from these very minor changes the package still preserves its content. The decision is very interesting in terms of the votes. While discussing the motion, 39 claims were rejected with different votes of which only 7 decisions were taken unanimously and the rest was decided by majority of votes. However, 7 annulment decisions were decided unanimously.
The decision was immediately and heavily criticized. The main argument is that the Court exceeded his authority (again!) by reviewing the amendments in respect to substance even though it is not empowered to do so according to the 1982 Constitution. (Article 148 of the Constitution stipulates that "Constitutional amendments shall be examined and verified only with regard to their form ... the verification of constitutional amendments shall be restricted to consideration of whether the requisite majorities were obtained for the proposal and in the ballot, and whether the prohibition on debates under urgent procedure was complied with".) The reasoned judgment of the Court has not been published yet but as far as it's learned from the media, the Court annulled those clauses by finding them contrary to the principle of "democratic... [S]tate governed by the rule of law" provided in the Article 2 of the Constitution. Therefore it's not possible to decide the constitutionality of the amendments without a substantial review in this respect.
This is not the first time the Court reviewed the compatibility of constitutional amendments with respect to the Constitution. Under the 1982 Constitution, there have been four times (1987, 2007, 2007, 2008) in which the Court made the judicial review of the constitutional amendments. The most controversial one was the decision on June 5, 2008 which annulled the amendments to the Article 10 and 42 of the Constitution relating to removing the ban on headscarves at universities. This was the only time the Court annulled a constitutional amendment under the 1982 Constitution until the decision of July 7, 2010. Since that decision, the Court is said to be in violation of the Constitution because it does not have a competence for judicial review of constitutional amendments in respect to substance. Today in 2010, the Court is said to be in violation of the Constitution again by deciding partial annulment of the current constitutional amendment package.
Under Turkish constitutional system, the Constitutional Court does not have the power to review laws that have not completed its enactment process. Likewise, these constitutional amendments are not valid and unenforceable because their enactment process is not yet completed. The package will be subject to a referendum on September 12, 2010 because it did not receive enough votes in the Assembly to enter into force immediately. Therefore, this referendum will be both on the validity and the enforcement of the amendments. Consequently this law amending the Constitution has not become a "law" yet. The Constitutional Court has no power to make a preventive review of legislation. The 1982 Constitution allows the Court only to make a posteriori review of laws. In other words, the Court cannot review a law even amending the Constitution which has not finished its procedure to become valid. However, the Court invalidated constitutional amendments by reviewing them while they are on their way to referendum.
Nowadays both the opposition party and the current heads of high judicial bodies are not satisfied with the decision because they believe that the rest of partly annulled articles are contrary to the separation of powers and judicial independence. The opposition parties in the Parliament started campaigns for saying "no" in referendum while the government is trying to persuade people to say "yes". On the other hand, although the supporters of the constitutional change censure the decision because the Court exceeded its powers by reviewing the substance of the amendments they are pleased with the decision and seem to ignore it because the decision did not affect the main idea of the constitutional change and abolish the whole package."
In the unanimous decision, liberal and conservative alike agreed that the amendment did not violate the single subject rule. Our highly politicized Supreme Court had the opportunity to use this case to make a statement, to undermine our 2009 domestic partnership victory and do irreparable harm to the fight for equality, but they did not.
Conservative Justice Michael Gableman was tasked with writing the opinion. While many of us disagree with the court about whether or not civil unions are the equivalent of marriage, Gableman's words were clear: "...the question before us is not whether the marriage amendment is good public policy or bad public policy, nor its interpretation or application..."
These statements signal that the court was not weighing in on the merits of the amendment. They did not interpret the amendment. They did not discuss or include commentary on whether the amendment was the right step for our state or not. The justices took care to not legislate from the bench. The outcome was not what we at Fair Wisconsin had hoped for. When we joined with the ACLU and Lambda Legal to file an amicus brief in the case, it was for the express purpose of preventing the court from doing irreparable harm to our current legislative victories and our future priorities.
So, where do we go now?
This decision is not a step backwards; it rather confirms the status quo. It does not change the amendment or domestic partnerships. Couples who have registered as domestic partnerships are not affected and couples can continue to register at their county clerk's office. Some have said that this decision may bolster the confidence of the anti-fairness conservatives who see an opportunity to challenge the domestic partnership registry. To those people I say, "Been there, done that." The Supreme Court threw out the first challenge before they even decided the McConkey case. And if our opposition brings the case to a lower court, we are ready to once again swiftly and effectively defend the critical protections that so many couples are enjoying around the state.
What this decision does is clarify the path to full equality.
We're going to have to push up our sleeves and do it the old-fashioned way. Putting boots on the ground, continuing to elect leaders who will stand with us in the fight for equality, educating people about the harms the amendment inflicts on caring, committed same-sex couples across the state every day. Repealing a constitutional amendment is no easy process. Two consecutive sessions of the legislature need to pass the repeal measure and then we go back to the ballot with another statewide referendum. I have no doubt that we will accomplish these goals and more. This is a marathon, not a sprint. It will take time to get the right elected leaders in office. It will take time to change the hearts and minds of our friends and neighbors, to gain their support for lesbian, gay, bisexual and transgender equality.
So, we'd better get a move on."
]]>Presented with two opportunities to do so, the Court declined to indicate that reasonable regulations of guns - and in particular handguns - would violate the individual right to bear arms that the Court has now established . This is critical to our ability to continue to pass laws that will make everyone safer.
These decisions will, however, cause an endless stream of challenges to gun control laws. Resisting these challenges will absorb large amounts of vital resources that could be much better spent elsewhere. This is unfortunate. We remain resolute in our determination to reduce gun violence in its many forms. These two decisions do not diminish that resolve. We are undeterred."
]]>Even though the U.S. is averaging one execution per week, no one pays much attention to such events because they are not news. They are not the first or the last, the most or the least of anything. Gardner's execution was news because it was the first use of the firing squad in 14 years and probably one of the last such executions in U.S. history. We just don't do things like that any more. The firing squad, like the electric chair, the gas chamber, and the gallows, is more appropriately found in museums and old movies, not in modern civilized society. We don't shoot or hang people because such actions are repulsive to our sensibilities, demeaning to human life, and accomplish nothing worthwhile.
But while the firing squad is clearly on the way out, executions by lethal injection continue under a cloak of antiseptic obscurity. The death penalty is winding down, as overwhelming evidence in this country and around the world demonstrates. Death sentences, executions, and the number of states with the death penalty have dropped sharply in the past decade. The U.S. is now one of a very small number of countries to carry out executions annually. The strong stream of progress in human rights implies that capital punishment itself will eventually be relegated to the same history as slavery, apartheid, and torture. Even as vestiges of these practices remain, they are clearly condemned in the world community. We continue to execute people in this country not because such actions are necessary but because we have not yet figured out how to extricate ourselves from this practice. In the meantime, people like Ronnie Gardner are chosen from among thousands on death row and killed because their number has come up. Occasionally they "go out in a blaze of glory," but as retiring Justice John Paul Stevens recently concluded, it is the pointless and needless extinction of life."
]]>In investigating this issue, many have sought to demonstrate that Islam does not require this practice and that most Muslims practice their faith without FGM. Others have countered with the reverse, claiming that FGM forms an essential part of traditional culture. This debate about whether or not FGM is "cultural" obscures a fundamental reality: culture alone explains very little. It provides a context but does not serve as a useful explanation for harmful practices against women.
Like all behavior, FGM has a cultural dimension, but its prevalence is equally shaped by social and economic factors (like poverty) and discourses (like women's rights) that can be deployed to either combat or promote FGM. Once we recognize the conditions and discourses that advance women's rights, we can also see how a legacy of US sanctions, invasion and occupation has undermined progress for women. War invariably constricts the civil society spaces where discussions on women's rights could occur.
The work to end the practice of FGM must happen in concert with an effort to re-open and expand spaces for progressive discussion on women's human rights that have been shut down by the reality of war and violence. The Kurdish Regional Government must take a strong stance, but we must also work to eliminate the conditions that hamper the progress of a women's rights movement against FGM and all human rights violations."
]]>It is unfortunate that the UK has yet to comply with the 2008/50 directive [PDF]. Given the amount of research done, the effects of pollution - PM 10 (particulate matter smaller than 10 micrometers) included - are devastating. By reducing emissions, we have the power to save lives and prevent debilitating illnesses. Saving lives should not be negotiable.
To underscore the impacts of air pollution, a study conducted by the California Air Resources Board found that PM 2.5 alone is responsible for 5,400 premature deaths in the South Coast Air basin, a four-county area in Southern California with an approximate population of 16 million people. These are people dying from the air they breathe.
With the advancement of technology and pollution control devices, there is no longer an excuse to keep functioning the way we have. Thousands of deaths attributed to air pollution is unacceptable. It is time for us to start cleaning up our act - which means it is imperative that companies, cities, states and nations comply with regulations and strive to reach emission reduction targets."
]]>The most surprising aspect of the trial was the acquittal of other two accused, Fahim Ansari and Sabauddin Ahmed for lack of evidence. Both of them are Indian nationals and accused of having surveyed Mumbai and drawn maps of the targets at the behest of Pakistan based Lashkar-e-Taiba.
Though the death sentence was widely expected, many in India believe that the actual execution might be delayed due to number of legal factors. For example, Kasab can appeal in the High Court and the apex court subsequently which is obviously time consuming. Even if he gets nothing from these courts, he still has one last chance - the Presidential pardon.
Consider the example of Afzal Guru, the prime convict in the December 13, 2001 Parliament attack case, who was sentenced to death way back in 2006, and is still awaiting execution due to the archaic legal system prevalent in India. There are nearly 25 such cases awaiting Presidential approval.
To recollect the horror, Mumbai terror incidents took nearly 170 lives including the nine terrorists affiliated to the Pakistan based Lashkar-e-Taiba. Kasab was involved in the railway platform shooting in that fateful night.
Special Judge M. L. Tahaliyani who handed out the verdict said Kasab has lost the right to any humanitarian benefits.
However, the verdict serves two strategic purposes, besides pleasing the domestic clamor for capital punishment for Kasab. By giving the death penalty, India's judicial system proves that strong action can be taken against any killers, motivated, brainwashed or otherwise. Also, it aims to be a deterrent for any terrorists sitting across the border. Plausibly enough, any leniency towards Kasab would have sent a wrong signal to jihadis in Pakistan and their homegrown brethren in India.
Whether swift death or a delayed execution, the end of Kasab might not help India to get all the masterminds of Mumbai carnage who are still moving freely in Pakistan. A living Kasab can give a better bargaining option against Pakistan and for the first time ever Kasab's capture caught Pakistan on a back foot since it adopted a proxy war strategy against its eastern neighbor."
]]>RLUIPA defines "institution" as "any facility or institution...(B) which is...(ii) a jail, prison, or other correctional facility" or "(ii) a pretrial detention facility." The majority on the Ninth Circuit panel ultimately held that the court holding facility didn't constitute a pretrial detention facility because detainees could not "reside" there. However, the clear language of RLUIPA states in its opening provision that the statute is intended to protect any person "residing in or confined to an institution." As Chief Judge Kozinki put it in his dissenting opinion, "If Congress had meant to include only institutions with beds, there would have been no point in adding 'or confined to' following residing." In fact, nowhere in RLUIPA does Congress indicate a residency requirement for the statute to apply. What Congress did do, however, was expressly instruct adjudicators to interpret the statute "in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution." That clearly did not happen here.
Chief Judge Kozinski said it best in his dissent when he stated, "Can we honestly say that a mammoth facility in the bowels of the Santa Ana courthouse, whose main purpose is to hold inmates while awaiting trial, cannot possibly be a pretrial detention facility?" The answer is no, we cannot honestly say that. The decision rendered in the Ninth Circuit was not honest at all. It was, at best, a shallow legal interpretation that needlessly permitted a government-run institution to impair the religious exercise of an individual entitled to that right. Unless successfully appealed, this decision will set a crack in what is otherwise a solid body of jurisprudence designed to uphold one of this nation's most dearly-held rights.
Regardless of the improvements that have been made to conditions at Guantanamo or to the military commission trials once again underway, closing the prison remains a national security imperative. Guantanamo is a symbol of American lawlessness and hypocrisy that has played into the hands of our enemies. President Obama accurately described the net negative impact of the prison for US national security when he said last May that it "created more terrorists around the world than it ever detained." Any plan to close Guantanamo must include dozens of transfers to third countries because international law restricts sending detainees to countries where they face the
prospect of torture.
Spain has accepted this responsibility and has consistently stepped up to the plate to help remove this terrorist recruiting tool. It originally pledged to resettle two detainees - the second of which arrived Tuesday - but recently upped their pledge to five as it became clear that more help would be needed to find homes for detainees released from Guantanamo. Spain's increased assistance is commendable because it comes in the face of outright refusal on the part of the US Congress to accept any detainees for resettlement into the United States.
Spain's leadership is also essential to bring other countries, particularly major European countries like Germany, into the effort to close Guantanamo. Germany had previously refused to accept Guantanamo detainees but reports out last month indicate that they are close to agreeing to resettle some detainees. Such a move from Germany could induce France to add to its one detainee and others could follow suit, moving the Obama administration closer to its objective to close the prison.
The Obama administration has never wavered in its commitment to close Guantanamo, even in the face of political opposition in the United States. It now relies more than ever on its allies to keep making progress toward that goal and Spain has consistently been willing to do its part and more. Spain and many other countries realize the danger that flows from increased terrorist recruitment and incitement is not only directed at the United States, it threatens us all. Let's hope that the US Congress can learn from that enlightened approach and finally put this tragic episode in US history behind us."
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