November 2008 Archives


India PM pushes tougher anti-terrorism measures after Mumbai attacks
Steve Czajkowski on November 30, 2008 11:06 AM ET

[JURIST] Indian Prime Minister Manmohan Singh [official website] on Sunday convened a meeting of all political parties in order to gather national support for a plan to strengthen security in the country after terrorist attacks in country's financial capital of Mumbai [BBC backgrounder] killed over 180 and injured more than 300. Singh told the gathering that the country would set up a Federal Investigating Agency, strengthen air and maritime security, and use the National Security Act (NSA) [text] to combat terrorism. He also said the National Security Guard (NSG) [Globalsecurity backgrounder], the country's leading anti-terrorism force, would grow in size and be given more facilities, particularly four new hubs throughout the country. The meeting was convened shortly after Home Minister Shivraj Patil, the cabinet member responsible for security affairs, resigned [PTI report] his position, claiming moral responsibility for the attacks. Zeenews has more. The India Times has additional coverage.

The attacks in Mumbai started on Wednesday last week, and were carried out at ten locations across the city including the landmark Taj Mahal Palace hotel [hotel website]. Members of the Mumbai police force believe [AP report] that members of a Pakistani militant group called the Lashkar-e-Taiba [ADL backgrounder] were responsible for the killings. In a statement [press release] to the nation a day after the attacks started, Singh said the country "will take the strongest possible measures to ensure that there is no repetition of such terrorist acts... [and will] take whatever measures are necessary to ensure the safety and security of our citizens." The attack was the worst the city has seen since a group of bombings killed over 250 people in 1993.






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Civil rights complaint filed over subprime credit ratings
Steve Czajkowski on November 30, 2008 10:14 AM ET

[JURIST] The National Community Reinvestment Coalition (NCRC) [advocacy website] has filed [complaint, PDF; press release] a federal civil rights complaint with the US Department of Housing & Urban Development (HUD) Office of Fair Housing & Equal Opportunity (FHEO) [official websites] claiming that two leading credit rating agencies, Moody's Investor Services and Fitch Inc. [corporate websites], caused significant damage to African-American and Latino communities during the current foreclosure crisis. The complaint alleges the two agencies facilitated, encouraged, and profited from discriminatory lending by making public misrepresentations about the soundness and reliability of subprime securities’ ratings. John Taylor, president and CEO of NCRC, said in a statement:

The complaint alleges that Moody’s and Fitch issued false and inflated ratings for securities backed by problematic high-cost loans. Reckless and irresponsible lending has restricted housing opportunity for countless African-American and Latino families who have already lost their home or are now in jeopardy of foreclosure... The rating agencies put their highest rating on hundreds of billions of dollars of securities backed by subprime mortgages. The Emperor had no clothes, and yet the rating agencies continued to say he was dressed in his Sunday’s finest.
The NCRC seeks a declaratory judgment, permanent injunctive relief, and damages against the two agencies for the "direct disproportionate adverse injury" to African American and Latino communities across the country. The NCRC also said it will consider federal litigation if HUD does not address the complaint. The Washington Post has more.

In September, the Federal Bureau of Investigation [official website] was reported to be investigating Fannie Mae, Freddie Mac, Lehman Brothers, and AIG [corporate websites] along with 22 other financial institutions for possible mortgage fraud [FBI backgrounder]. In June, the FBI announced that more than 400 people had been indicted [press release; JURIST report] in connection to what has been termed the US "sub-prime mortgage collapse." The vast majority of the indictments involved fraud related to individual mortgages, with the FBI focusing on lending fraud, foreclosure rescue scams and mortgage-related bankruptcy schemes, which account for more than $1 billion in losses.





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Argentina court formally charges ex-president Menem in arms deals
Jake Oresick on November 29, 2008 4:58 PM ET

[JURIST] Former Argentine President Carlos Menem [official website] was formally charged Friday with illegally trafficking arms to Croatia and Ecuador, contrary to a 1991 UN embargo [text] against Croatia and a 1995 Organization of American States (OAS) ban on selling arms to Ecuador. Defense lawyers contend the then-president authorized legal arms shipments to Venezuela and Panama which were then diverted, without Menem's knowledge, to Croatia and Ecuador. A Buenos Aires-based court charged Menem by videolink with his home town in Argentina's northern La Rioja province as Menem said health problems precluded his attendance. BBC News has more.

Menem, on trial with 17 co-defendants, began trial in October [JURIST report], although parties in Argentina are formally charged individually. If convicted, Menem could face up to 12 years in prison, although his senate seat affords him temporary immunity [AP report]. In May, prosecutors sought Menem regarding an alleged cover-up of the 1994 bombing [JURIST report] of a Buenos Aires Jewish community center.






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Africa regional court rules white Zimbabwe farmers illegally deprived of land
Leslie Schulman on November 29, 2008 10:42 AM ET

[JURIST] The Namibia-based Southern African Development Community Tribunal [official website] on Friday ruled that 78 white Zimbabwe farmers whose land was seized by the Zimbabwe government under its farm redistribution program [JURIST report] were owed compensation and that the seizures were racially motivated, discriminatory and contrary to the treaty [DOC text] setting up the Southern African Development Community [official website]. The farmers, many of whom had been found guilty [JURIST report] in Zimbabwe courts for failing to obey state-sponsored eviction orders, had argued that that the program did not further a public purpose and that the government did not provide fair compensation within a reasonable time. Although Zimbabwe is one of 14 states party to the SADC treaty it has rejected the Tribunal's jurisdiction over this case and it is not expected to defer to the ruling. AP has more. From Zimbabwe, the Herald has local coverage.

Zimbabwean President Robert Mugabe [BBC profile; JURIST news archive] has been harshly criticized [Guardian report] for his farm program, which since 2000 has sought to redistribute white-owned land among the nation's indigenous farmers. In February 2006, the Zimbabwean land minister said that, following controversial constitutional reforms that took effect in 2005, there are no longer any white farmers operating legally in Zimbabwe [JURIST reports]. The government has appropriated some 4,000 farms through the program, and has traditionally argued that any compensation owed white farmers should be paid by the British government, Zimbabwe's former colonizer. Many observers attribute Zimbabwe's disastrous economic circumstances - including an inflation rate exceeding 231,000,000 percent [Guardian report] - to the policy, under which as previously productive farms have become barren under new inexperienced owners.






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UN rights chief says accountability necessary for Congo peace
Leslie Schulman on November 29, 2008 10:01 AM ET

[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Friday urged [statement text] accountability for abuses as a prerequisite to quelling six years of fighting and restoring peace in the Democratic Republic of Congo (DRC) [JURIST news archive; ICC materials]. Speaking at the opening of a Special Session on the Congo crisis at the UN Human Rights Council (UNHRC) [official websites] in Geneva, Pillay said:

Parties to the conflict must be held accountable for the atrocities committed by their forces. The United Nations Mission in the Democratic Republic of Congo (MONUC) must be provided with political backing and unhindered access to conduct investigations into allegations of serious abuses. The findings of such investigations must be fully taken into account by parties involved in diplomatic and political efforts to respond to the crisis....

The periodic cycles of bloodshed and destruction that have for so long affected the DRC will keep recurring unless the perpetrators of human rights violations are brought to justice, and unless the illegal exploitation of natural resources is adequately and comprehensively addressed.

The DRC runs the risk of becoming a case study in how peace processes can go awry without the will to make justice and accountability an integral part of these processes . . . Past peace agreements have enabled well-known perpetrators of atrocities to be integrated into the army and police. This has exacerbated the current climate of impunity in the DRC, empowered human rights violators and further endangered the Congolese population.
An estimated 500 people have been killed and another 1,000 detained and possibly tortured by Congolese security forces since the disputed 2006 elections [JURIST report]. The Special Session will continue [UPI report] Monday. The UN News Centre has more.

Earlier this month, the International Criminal Court reasserted jurisdiction [JURIST report] over local war crimes issues in the Congo in the wake of renewed fighting [BBC report] in the Congolese provinces of North and South Kivu. UN officials on the ground have also warned [JURIST report] of possible war crimes and genocide being committed by militias attacking civilian populations.





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UN Hariri tribunal could start prosecutions March 1
Jake Oresick on November 29, 2008 8:01 AM ET

[JURIST] The UN Special Tribunal for Lebanon [official website] could begin prosecuting suspects in the 2005 assassination of former Lebanese Prime Minister Rafiq Hariri [JURIST news archive] on March 1, 2009 with its prosecutor's scheduled arrival at The Hague, according to a report from Secretary-General Ban Ki-moon to the Security Council [official websites]. The Special Tribunal will consist of 11 international and Lebanese judges, be based at The Hague and have a budget of $51 million for its first year [JURIST reports]. The report was made Wednesday. Reuters has more. From Beirut, the Daily Star has local coverage.

While no indictments have been issued, Daniel Bellemare [Ya Libnan profile], the Canadian prosecutor who heads the International Independent Investigation Commission (IIIC) [authorizing resolution; UN materials], believes a criminal network was behind the plot [JURIST report]. The investigation has increased tensions between Lebanon and Syria as several IIIC reports have implicated Syrian officials in Hariri's death [JURIST report].






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Thailand PM demotes police chief as anti-government protests continue
Steve Czajkowski on November 28, 2008 1:28 PM ET

[JURIST] Thai Prime Minister Somchai Wongsawat [official profile; Nation backgrounder] demoted Police Chief Gen. Patcharawat Wongsuwan to an inactive position within the Prime Minister's office, according to media reports Friday. Patcharawat's removal comes a day after the Prime Minister declared a state of emergency [Financial Times report] because of continuing political protests [Bangkok Post materials] at two airports, Suvarnabhumi and Don Muang [official websites], in the capital Bangkok. The People's Alliance for Democracy (PAD) [advocacy website, in Thai; advocacy statement, in English] initiated the protests at the airports earlier this week as part of an ongoing effort to bring down Somchai's government. No reason was given for Patcharawat's removal, but it is believed that he was not cooperating with the government's efforts to end the protests. The Thai News Agency has more. China Daily has additional coverage.

PAD protests have been ongoing throughout the year, based on its disapproval of former Prime Minister Thaksin Shinawatra [BBC backgrounder; JURIST news archive]. Somchai is the brother-in-law of Thaksin, who was ousted in military coup in 2006. Somchai took over as prime minister earlier this month after the Constitutional Court of Thailand [official website] ruled that then-prime minister Samak Sundaravej [BBC profile] had violated the constitution [JURIST report] by accepting payment for his appearance on a television cooking program. Critics claim that Somchai is just a proxy for Thaksin, who remains in exile while being tried in absentia for corruption.






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Germany must make more changes to VW anti-takeover law: EU
Steve Czajkowski on November 28, 2008 12:32 PM ET

[JURIST] The European Commission (EC) [official website] Thursday called on Germany [press release] to modify its Volkswagen anti-takeover law within two months or else face referral of the matter to the European Court of Justice (ECJ) [official website]. The law, created in 1960 in order to privatize Volkswagen AG (VW) [corporate website], was aimed at protecting the automaker from hostile takeovers by giving public authorities automatic representation on the VW board, instituting a 20 percent voting cap, and allowing a 20 percent blocking minority. The law was revised [JURIST report] in May, but the provision allowing the 20 percent blocking minority was left in place. The EC disputes the clause as it allows the German state of Lower Saxony [official website], which holds a 20.1 percent stake in VW, to block major business decisions. Also on Thursday, a German court upheld [AFP report] the 20 percent blocking minority provision against a challenge by Porsche SE [corporate website, in German]. The ruling is seen as setback to Porsche's attempted takeover of Europe's largest automaker. Deutsche Welle has more. Xinhua has additional coverage.

The EC initially challenged the law in 2005. The ECJ ruled [JURIST report] in October 2007 that a previous version of the law was illegal because it limited "the free movement of capital" and discouraged foreign direct investment in Germany. The EC has filed or has threatened to file similar suits against Spain and its energy companies, Italy and highway company Autosrade SpA, and Poland for intervening in Italy's UniCredit SpA business in Poland.






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Russia judge refuses to step down from Politkovskaya case
Ximena Marinero on November 28, 2008 9:40 AM ET

[JURIST] Moscow Military District Court judge Yevgeny Zubov Wednesday refused to recuse himself from the trial of three men accused of involvement in the murder of Russian journalist Anna Politkovskaya [BBC obituary; JURIST news archive]. The Russian Prosecutor General’s Office [official website, in Russian] had requested a new judge [JURIST report] claiming that Zubov had violated procedural rules. Last week Zubov declared the trial would be open to the public in accordance with the wishes of Politkovskaya's family, then closed it [JURIST reports] due to alleged fears by members of the jury. When these were publicly denied, he opened the trial again [JURIST report]. Under court rules, only a judge himself can make a decision to leave a case. AP has more. On Thursday, members of Politkovsakaya's family testified that she had received regular threats against her life. The trial is now in recess [RIA Novosti report] until December 1.

Sergey Khadzhikurbanov and brothers Dzhabrail and Ibragim Makhmudov, all from Chechnya, were arrested [JURIST report] in connection with the killing in August 2007. The primary suspect, Rustam Makhmudov, also from Chechnya, has yet to be captured, but Russian authorities have said he is hiding in Western Europe. On Tuesday, defense lawyers announced that court documents would show that Politkovskaya's murder was ordered by an unnamed Russian politician [RIA Novosti report]. Politkovskaya, a reporter for the Russian newspaper Novaya Gazeta [official website] widely known for her stories about human rights abuses by Russian troops in Chechnya, was murdered [JURIST report] after returning to her Moscow apartment building in October 2006.






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Mexico senate approves right-to-die law
Ximena Marinero on November 28, 2008 9:38 AM ET

[JURIST] The Mexican Senate [official website, in Spanish] on Tuesday approved [official record] a bill [materials, in Spanish] that would amend the General Law of Health [text, in Spanish] to allow terminally ill patients to refuse medical treatment. The bill passed with 84 votes in favor and only one abstention. Under the new law, a patient who has an incurable, irreversible disease and a life expectancy prognosis of less than six months may exercise the right by raising the case in front of a hospital bioethics committee. The patient’s family may alternatively assert the right if the patient is incapacitated. The law’s provisions ensure that the patient will receive palliative treatment that does not delay or speed death, but will ease physical and emotional pain and discomfort. Although the treatments described by the law are known as passive euthanasia, the senators were careful to distance themselves from the term by characterizing [AP report] the law as one respecting patients’ dignity and autonomy. La Jornada has local coverage, in Spanish.

The initiative for the law stems from the Mexican Health Department's 2007 proposal [text, DOC, in Spanish] that measures should be created to respect patients' autonomy about treatment when they are terminally ill. In November 2007, the Mexico City Legislative Assembly (ALDF) [official website, in Spanish] approved a similar measure called the Law of Anticipated Will, which allows patients to determine in advance the treatment they wish to receive if terminally ill or incapacitated. The present initiative was supported [El Observador report, in Spanish ] by the Catholic Church in Mexico from its initial stages in the ALDF, in contrast to a law decriminalizing abortion [JURIST report] that was passed last year.






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Iraq parliament passes US Status of Forces Agreement with referendum rider
Kayleigh Shebs on November 27, 2008 3:37 PM ET

[JURIST]The Iraqi parliament [official website] on Thursday approved a Status of Forces Agreement (SOFA) [draft text; CFR backgrounder] that sets a 2011 deadline for the withdraw of US troops but also passed an additional law calling for a national referendum on the pact in July 2009. The vote on the SOFA had been delayed several times while majority Shia and minority Sunni factions negotiated over the Sunni-favored referendum [JURIST report] and other provisions. The SOFA itself will take effect on January 1st, 2009, a day after the current UN mandate authorizing the US presence in Iraq expires. The International Herald Tribune has more. Aswat al-Iraq has local coverage (in English and Arabic).

The SOFA was approved [JURIST report] by the Iraq cabinet on November, 16 2008. In addition to the official deadlines for troop withdraw, it gives Iraqi courts limited jurisdiction [JURIST report] over American military personnel and eliminates immunity [JURIST report] for US defense contractors working within Iraq.






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HRW says Greece, Turkey mistreating Iraqis and other migrants
Ximena Marinero on November 27, 2008 9:38 AM ET

[JURIST] Human Rights Watch [advocacy website] said Wednesday in a new report [text; HRW press release] that Greece and Turkey are according inhumane treatment to migrants and possible asylum seekers from Iraq and elsewhere attempting to enter the EU. The report describes the migrants as trapped in a "revolving door" because the EU's Dublin II Regulation [text] stipulates that the state of first entry is responsible for evaluating an asylum claim. Greece nonetheless blocks migrants’ entrance into that country by disabling vessels and secretly and forcefully deporting would-be asylum seekers back across Turkish borders. For those who make it to Greek territory, the government blocks access to asylum procedures, and denies 98 percent of all asylum claims. Turkey in turn deports Iraqis to their home country "without giving them a meaningful opportunity to seek protection." The report recommends that the EU reevaluate the Dublin II Regulation and suspend transfers of asylum seekers back to Greece, examining asylum claims itself. It also calls on Greece to make a public commitment to ensure a fairer asylum process and to stop forceful deportation practices.

The UN has been urging [official statement] the EU to revise the Dublin II Regulations to ensure the rights and protection of refugees and asylum-seekers since 2006. In 2005, Amnesty International concluded in a report [text, PDF] that Greece was not meeting international rights standards for asylum seekers.






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Israel attorney general considering indictment of PM Olmert
Ximena Marinero on November 27, 2008 9:38 AM ET

[JURIST] Israeli Attorney General Menachem Mazuz [official website, in Hebrew] said Wednesday that he is considering indicting Prime Minister Ehud Olmert [official profile] following police recommendations in connection with his alleged double billing [Haaretz report] of state and charitable donors for travel expenses in 2002-2006 while serving as a government official. Olmert allegedly accumulated over $100,000 in an account handled by the same agency to fund his own and his family’s travel. In the face of the Attorney General’s formal statement Olmert has the right to defend himself [Haaretz report] at a hearing. Pursuant to that, the Attorney General may or may not decide to indict Olmert. If Mazuz moves to indict, Olmert would be the first PM to be indicted in Israeli history [AP report].

The double billing case was one of the reasons [JURIST report] why Olmert officially resigned in September, but he is currently continuing to serve as caretaker PM until a new PM is elected on February 10, 2009. Olmert maintains his innocence on all charges, and refuses to step down by declaring himself incapacitated or taking an extended leave, despite critical pressure [BBC report] from his own Kadima [official website, in Hebrew] party.






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Israel top court ruling on targeted killings disregarded by military: report
Eric Firkel on November 26, 2008 11:22 PM ET

[JURIST] Members of the Israel Defense Forces (IDF) have killed Palestinian terror suspects in defiance of a 2006 Israeli Supreme Court [official website] ruling [JURIST report; MJIL analysis] on targeted killings, according to Haaretz Wednesday. The 2006 ruling set up guidelines for targeted killings [BBC backgrounder] which include a direction that if possible, suspects should be arrested, and that "every effort must be made to minimize harm to innocent civilians." Haaretz said IDF documents it obtained [Haaretz report] indicate that since 2006 Israeli Defense Forces have generally made little effort to arrest suspects before killing them. In June 2007, for example, the IDF made no attempt to arrest Jenin Islamic Jihad head Ziad Malaisha before killing him [IDF press release]. Israeli Chief Military Advocate Brigadier General Avichai Mendelblit [IDF backgrounder] rejected the newspaper's report [Haaretz report], saying all IDF actions, including targeted killings, are in compliance with the law.

In 2006 the Israeli Supreme Court ruled that although some targeted killings were not legal, not all are prohibited by international law [JURIST report]. It outlined four factors that would determine whether a particular targeted killing was justified. Two Israeli human rights groups filed a petition in 2002 seeking a ban on the Israeli policy, which Israeli government officials have defended as the most effective method of stopping Palestinian terrorists from bombing Israel targets. The court's consideration of the case had been put on hold after Israeli security officials said in January 2005 that targeted killings of Palestinian militants would be suspended [JURIST report], but the court resumed deliberations later that year after the IDF resumed the practice.






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Russia upper house approves presidential term extension amendments
Andrew Morgan on November 26, 2008 1:15 PM ET

[JURIST] Russia's Federation Council [official website, in Russian], the upper house of parliament, voted 144-1 on Wednesday to approve amendments to the Russian Constitution [materials] that would extend presidential terms [Article 81(1) text] from four to six years and terms for members of the Duma [Article 96(1) text], or lower house, from four to five years. The Duma passed [JURIST report] the amendments last week, after expediting their consideration [JURIST report]. The amendments must now be supported by two-thirds of regional parliaments before they take effect. RIA Novosti has local coverage.

Critics fear that the term extensions are designed to orchestrate a longer third term for former president and current prime minister Vladimir Putin [official website, in Russian; BBC News report] should current president Dmitri Medvedev [official website; JURIST news archive] step aside. Medvedev proposed the changes in his first state of the nation address [text; JURIST report] to the Federal Council earlier this month. These would be the first amendments to the Russian constitution since it replaced its Soviet-era predecessor [text, in Russian] in 1993.






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Czech court finds EU reform treaty constitutional
Andrew Morgan on November 26, 2008 12:17 PM ET

[JURIST] The Czech Constitutional Court [official website] on Wednesday ruled unanimously [judgment text] that the European Union (EU) reform pact formally known as the Treaty of Lisbon [official website; text] is consistent with the Czech Constitution [text]. Members of the Civic Democratic Party [official website] of Prime Minister Mirek Topolanek [personal website] had asked the court to review the constitutional compatibility of the Treaty prior to its consideration by parliament. The court rejected arguments [BBC report] advanced by Topolanek and Czech President Vaclav Klaus [official website], among others, that adoption of the treaty would undermine Czech sovereignty, holding:

[T]oday sovereignty can no longer be understood absolutely; sovereignty is more a practical matter. In this sense, the transfer of certain competences of the state, which arises from the free will of the sovereign and will continue to be exercised with the sovereign’s participation, in a manner that is agreed on in advance and is reviewable, is not a conceptual weakening of the sovereignty of a state, but, on the contrary, can lead to strengthening it within the joint actions of an integrated whole.
The ruling frees both houses of the Czech parliament [official backgrounder, in Czech] to consider adoption of the reform measures, although passage is unlikely in advance of the Czech Republic assuming the EU presidency in January.

Topolanek previously expressed doubt [BBC report] that his parliament would ratify the treaty even if it were found to be constitutional. Irish voters rejected [JURIST report] the treaty in a June referendum, prompting Polish President Lech Kaczynski [official website] to refuse [JURIST report] to sign, calling it "pointless." The treaty must be ratified by all 27 EU member states before it can take effect, though each country may choose the method of ratification. Earlier this week Sweden became the 24th EU state to ratify the charter [JURIST report]. Some polls suggest that Irish voters might now approve the treaty [JURIST report] in a hypothetical re-vote. In 2005, a proposed European constitution [JURIST news archive] failed when voters in France and the Netherlands [JURIST reports] rejected the proposal in national referenda.





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Greenland to take over local courts after self-governance referendum
Devin Montgomery on November 26, 2008 11:14 AM ET

[JURIST] Greenlanders have voted [government press release; Politiken report] for increased autonomy from Denmark in a national referendum, according to results released Wednesday. The referendum's "Self Rule" plan gives Greenland [government website] natives control over the country's courts [government backgrounder], police, and coast guard, and recognizes Greenlandic as the island's official language. The plan also gives the country more control over its oil reserves and a larger share of their proceeds. The referendum was non-binding, but was supported by the Danish Parliament [official website], which has said it will implement the changes on June 21, 2009. More than 75 percent of voters favored increased autonomy and 72 percent of the country's eligible voters participated in the referendum.

Polling before the vote predicted [survey report, DOC, in Danish] the referendum's passage, but by a smaller margin. Many Greenlanders are pushing for control of the country's oil resources to be the first issue addressed after the changes take effect, but others have called for the country to first seek official recognition [Sermitsaik reports] from the UN.






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Jamaica parliament votes to resume death penalty after 20-year moratorium
Devin Montgomery on November 26, 2008 10:22 AM ET

[JURIST] The Jamaican parliament on Tuesday voted 34-15 [JIS release; Jamaica Gleaner report], with 10 abstentions, to resume the use of the death penalty. Advocates for the measure cited the country's extremely high murder rate [BBC backgrounder] as justification for resuming executions. Opponents of the practice, including Jamaicans for Justice [advocacy website] executive director Carolyn Gomes, have argued that the country should increase efforts [Jamaica Gleaner report] to arrest and charge criminals rather than reinstate capital punishment. Before executions, which are carried out by hanging, can resume, the Jamaican senate must also approve the measure.

Jamaica's Offenses Against the Person Act [PDF text] already provides for the death penalty, but the country has had an effective moratorium on the punishment since 1988. In 1993 the Judicial Committee of the Privy Council [official website], still the former British colony's highest court of appeal, ruled [judgment text; JG backgrounder] that holding a person awaiting execution for more than five years constitutes "cruel and unusual" punishment in violation of the Jamaican constitution [text], but did not outlaw the penalty itself.






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Florida judge rules gay adoption ban unconstitutional
Safiya Boucaud on November 26, 2008 10:14 AM ET

[JURIST] A Florida trial court judge on Tuesday ruled [opinion, PDF; ACLU press release] that a Florida statute [text] preventing same-sex couples from adopting children is unconstitutional, allowing a Florida petitioner and his partner [ACLU profiles, PDF] to adopt two children previously in his foster care. Judge Cindy Lederman of the Eleventh Judicial Circuit of Florida [official website] found that the 1977 statute violated the equal protection clause of the Florida Constitution [text], citing a recent nonbinding Florida case [JURIST report] in which the trial court judge found that the same statute acted as a bill of attainder intended "to repress gay Floridians as a group" and violated the separation of powers doctrine by precluding judicial discretion. In a 53-page opinion, Lederman wrote that the Florida statute:

violates the children’s rights by burdening liberty interests by unduly restraining them in State custody on one hand and simultaneously operating to deny them a permanent adoptive placement that is in their best interests on the other.
The judge also found that the statute failed to satisfy the rational basis test.

The Florida statute had survived previous constitutional challenges. The US Court of Appeals for the Eleventh Circuit upheld it [opinion, PDF] in 2005 as being rationally related to protecting children's interests, and the US Supreme Court declined to review [Washington Post report] that decision. Until this month, Florida and Mississippi were the only US states banning such adoptions. On November 4, Arkansas voters approved [JURIST report] a ballot measure [JURIST report] prohibiting gays, lesbians, and other unmarried cohabiting couples from becoming either foster or adoptive parents.





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Russia court denies rehabilitation of Polish officers killed in Katyn massacre
Jaclyn Belczyk on November 26, 2008 8:31 AM ET

[JURIST] The Moscow City Court on Tuesday affirmed a lower court's decision not to legally rehabilitate captured Polish officers executed in 1940 during the Katyn massacre [Polish government backgrounder], in which more than 20,000 Polish Army reservists, academics and politicians were killed in the Katyn Forest in present-day Belarus, as well as other locations. Lawyers for the victims plan to appeal [Itar-Tass report] to the European Court of Human Rights [official website]. RIA Novosti has local coverage.

Russia had previously blamed the Nazis for the incident. The government of Mikhail Gorbachev [Guardian profile] admitted in 1990 that Josef Stalin had personally ordered [documents, in Russian] the NKVD, the predecessor to the later Soviet KGB, to carry out the killings. The Polish Institute of National Remembrance [official website] has long sought to convince the Russian government to apply its 1991 law "On the rehabilitation of victims of political repression" [backgrounder] to the Katyn victims, but suits have so far been unsuccessful. Russia's own 10-year investigation of the massacre ended in 2005 when the government closed its classified files and said the crime's statute of limitations had expired. In July, the Moscow City Court blocked [JURIST report] an attempt by family members of the victims to renew investigations into the killings. In 2006, the families filed a complaint [JURIST report] with the Court of Human Rights, asking it to classify the incident as genocide and compel the Russian government to disclose its information. In October the Court of Human rights agreed to hear [RIA Novosti report] a plea from family members asking that the victims of the Katyn massacre be classified as war crimes victims.






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HRW report warns of Congo war crimes
David Weber on November 26, 2008 6:49 AM ET

[JURIST] Human Rights Watch (HRW) [advocacy website] warned of possible war crimes being committed in the Democratic Republic of Congo [JURIST news archive] in a new report [report, PDF] released [press release] Tuesday. The rights group claims that since disputed 2006 elections [JURIST report], approximately 500 people have been killed by Congolese security forces, and about 1,000 more have been detained and possibly tortured. The 96-page report, titled "We Will Crush You," observed:

The 2006 presidential elections in the Democratic Republic of Congo, the first in over 40 years, raised hopes for stability and improved governance in this vast, war-torn nation. Yet in the two years following elections, there have been disturbing signs that Congo’s democratic transition is not only fragile, but that the newly elected government is brutally restricting democratic space. The government of President Joseph Kabila has used violence and intimidation to eliminate its political opponents beginning in the immediate aftermath of the election’s inconclusive July-August 2006 first round.
Earlier this month, the International Criminal Court reasserted jurisdiction [JURIST report] over local war crimes issues in the Congo in the wake of renewed fighting [BBC report] in the Congolese provinces of North and South Kivu. UN officials on the ground have also warned [JURIST report] of possible war crimes and genocide being committed by militias attacking civilian populations.





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Supreme Court takes deportation cases
Jaclyn Belczyk on November 25, 2008 4:38 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] granted certiorari [order list, PDF] in two cases Tuesday. In United States v. Denedo [docket; cert. petition, PDF], the Court will decide whether a military appellate court has jurisdiction to entertain a petition for a writ of error coram nobis [backgrounder] filed by a former service member to review a final court-martial conviction. The case involves a Nigerian national who enlisted in the US Navy and was later convicted on larceny charges. After he was discharged from the Navy, deportation proceedings began onthe basis of the conviction. Denedo sought a writ of error coram nobis from the US Court of Appeals for the Armed Forces [official website], which found [opinion, PDF] that it had jurisdiction over the case. The US Department of Justice [official website] appealed the ruling.

In Nken v. Mukasy [docket; stay application, PDF], the Court will consider what standard governs a stay of deportation request by an alien pending consideration of his petition for review. Jean Marc Nken is a native of Cameroon who fears persecution upon return to his home country. He was denied a stay of a deportation order while he pursued court review of the denial of his asylum claim. His lawyers originally asked the Court for a stay of deportation, but the court granted full review to resolve the conflict over the proper standard of review. His deportation has since been blocked, and oral argument is scheduled for January 21.






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Sixth Circuit allows clergy sex abuse class action against Vatican to proceed
Jaclyn Belczyk on November 25, 2008 3:55 PM ET

[JURIST] The US Court of Appeals for the Sixth Circuit [official website] on Monday affirmed [opinion, PDF] a lower court decision denying in part defendant's motion for summary judgment in a lawsuit alleging that officials of the Roman Catholic Church failed to warn the public of sexual abuse of children by priests. The plaintiffs, who claim to be victims of clergy sexual abuse [JURIST news archive], filed a class action suit in 2004 against the Holy See [official website]. The Vatican appealed the partial denial of summary judgment by the US District Court for the Western District of Kentucky, arguing that the district court lacked subject matter jurisdiction because the Vatican is immune from suit as a foreign state pursuant to the Foreign Sovereign Immunities Act (FSIA) [28 U.S.C. § 1602 et seq text]. Plaintiffs also appealed the partial grant of summary judgment, claiming that the FSIA does not immunize the Holy See from suit. On appeal, Judge Julia Smith Gibbons wrote:

[I]f plaintiffs believe that the Holy See acted in a private capacity, then the plaintiffs are limited to arguing that an exception to the FSIA applies; such claims cannot serve as reasons to avoid the FSIA altogether. The exceptions to FSIA capture all instances where Congress has deemed conduct, if pursued by a foreign sovereign, sufficiently private so as to eliminate foreign sovereign immunity. In turn, the alternative capacity argument can only succeed to the extent that it identifies conduct that fits within one of the exceptions outlined under FSIA.
The plaintiffs' claims for violation of customary international law of human rights, negligence, and breach of fiduciary duty survive, but the other claims, which were not based on deceit or misrepresentation, are barred. The attorney for the plaintiffs expects [AP report] the case to be appealed to US Supreme Court.

This case is one of many stemming from allegations of sexual abuse by priests in US Catholic Dioceses. In August the Roman Catholic Diocese of Providence [diocesan website] reached a settlement [JURIST report] in four abuse suits. In September 2007, the Catholic Diocese of Pittsburgh [diocesan website] announced [JURIST report] the creation of a $1.25 million fund and the Catholic Diocese of San Diego [diocesan website] announced an agreement [JURIST report] to pay $198.1 million to settle claims of sexual abuse by their clergy. A Los Angeles Superior Court in July 2007 approved a $660 million settlement [JURIST report] between the Roman Catholic Archdiocese of Los Angeles [diocesan website] and plaintiffs in 508 outstanding clergy sex abuse lawsuits. In January 2007, the Catholic Diocese of Spokane [diocesan website] agreed to settle molestation claims [JURIST report] against its own priests for $48 million as part of its Chapter 11 bankruptcy reorganization plan.





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US to transfer Hamdan to Yemen before end of sentence: reports
Devin Montgomery on November 25, 2008 12:29 PM ET

[JURIST] Former Osama Bin Laden [JURIST news archive] driver Salim Ahmed Hamdan [DOD materials; JURIST news archive] will soon be transferred [SABA report] from US to Yemeni custody, according to US military sources quoted in media reports Monday. His transfer comes approximately one month before the end of a six-month jail term [JURIST report] he received for providing material support for terrorism [charge sheet, PDF]. Commentators suggest that the transfer may signal possible future cooperation [Washington Post report] between Yemeni and US officials, as the US had previously refused to transfer detainees to Yemen's custody. Hamdan's transfer also eliminates concerns that were raised when government lawyers said they could hold him indefinitely [JURIST report] after the end of his sentence. Hamdan is expected to remain in Yemeni custody until his original release date of December 27.

In October, a US military judge denied [ruling, PDF; JURIST report] a request [motion, PDF] by prosecutors that he reconsider a decision that reduced Hamdan's sentence [JURIST report] from five-and-a-half years to six months because of credit for time already served. Hamdan was initially taken into custody in 2001, and in 2006 he successfully challenged President George W. Bush's military commission system when the Supreme Court ruled [opinion, PDF; JURIST report] that the commission system as initially construed violated US and international law. Congress subsequently passed the Military Commissions Act of 2006 [DOD materials], which established the current military commissions system.

10:03 PM ET - The Pentagon announced late Tuesday that Hamdan has been transferred to Yemen [press release], where he will serve the remainder of his sentence.






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Singapore judge finds WSJ Asia in contempt of court for articles on judiciary
Lucas Tanglen on November 25, 2008 12:07 PM ET

[JURIST] Singapore's High Court [official website] on Tuesday found the Wall Street Journal Asia [media website] in contempt of court over the newspaper's publication of three articles that allegedly undermined the country's judiciary. High Court Justice Tay Yong Kwang ruled that two editorials, "Democracy in Singapore" [text] and "Judging Singapore's Judiciary" [text], as well as a letter to the editor [text] from Singapore Democratic Party [political website] secretary general Chee Soon Juan, implied that the country's judiciary was "subservient" [AFP report] to the ruling People's Action Party [party website]. Tay fined the newspaper $16,500 plus court costs.

Earlier this month, the Singapore Attorney General's Chambers [official website] argued [JURIST report] that the case should be treated as contempt of court rather than libel, and that a contempt finding was a justifiable restriction on free speech in the public interest not contrary to Singapore's constitution [Section 14(1)(a) text]. In July, Singapore's government rejected [JURIST report] criticisms from the International Bar Association's Human Rights Institute [official website] after that group concluded that Singapore lacks an independent judiciary and fails to meet international standards of human rights by heavily regulating the international and domestic press and enforcing extreme defamation laws.






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Russian prosecutors indict Berezovsky on fraud, money laundering charges
Christian Ehret on November 25, 2008 12:07 PM ET

[JURIST] Russia's Prosecutor General's Office [official website] on Tuesday announced the indictment [press release, in Russian] of exiled business tycoon Boris Berezovsky [BBC backgrounder; JURIST news archive] for fraud and money laundering. The charges, filed under the Russian Criminal Code [Article 174 text], stem from a deal arranged between Russian car manufacturers AvtoVAZ [corporate website, in Russian] and LogoVAZ that left 5560 cars unpaid for and resulted in the unauthorized use of approximately $24 million. Prosecutors allege that Berezovsky and his associates used the money for investments in real estate, stock in media companies and other expenditures. RIA Novosti has local coverage.

A former associate of Boris Yeltsin and a political opponent of current Russian Prime Minister and former president Vladimir Putin, Berezovsky has been the target of several past criminal proceedings. In March, the Russian Prosecutor General's Office opened an investigation to determine if Berezovsky falsely claimed the country's secret service had targeted him for assassination [JURIST report]. In 2007, he was accused of plotting a coup [JURIST report] against Putin. Berezovsky currently resides in the United Kingdom as a political refugee. Britain has refused Russian extradition requests, leading a Russian court in 2007 to sentence Berezovsky in absentia to six years in prison after he was found guilty [JURIST report] of embezzling 214 million rubles from Russian national airline Aeroflot.






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Russian prosecutors urge judge's dismissal as journalist murder trial reopened
David Weber on November 25, 2008 12:01 PM ET

[JURIST] Moscow Military District Court Judge Yevgeny Zubov on Tuesday reopened to the public the trial of three men accused of murdering journalist Anna Politkovskaya [BBC obituary; JURIST news archive] amid increasing confusion and calls from prosecutors for his removal from the case. Last Monday, Zubov ordered the trial to be open [JURIST report], in accordance with the wishes of Politkovskaya's family [AFP report]. Two days later, Zubov ordered the trial closed to the public and media [JURIST report], citing concern for the safety of the jury. A juror later told a Moscow radio station that he and other jurors did not fear for their safety [Moscow Times report], and Russia's Supreme Court later announced that it would review Zubov's decision [JURIST report] to close the trial. Zubov reopened the trial Tuesday as 19 of 20 jurors signed a statement [NYT report] confirming that they had not complained to the judge. The Russian Prosecutor General's Office [official website, in Russian] subsequently requested that Zubov be replaced [BBC report] for allegedly violating procedural rules. Also Tuesday, defense lawyers announced that court documents would show that Politkovskaya's murder was ordered by an unnamed Russian politician [RIA Novosti report]. The Moscow Times has local coverage.

Sergey Khadzhikurbanov and brothers Dzhabrail and Ibragim Makhmudov, all from Chechnya, were arrested [JURIST report] in connection with the killing in August 2007. The primary suspect, Rustam Makhmudov, also from Chechnya, has yet to be captured, but Russian authorities have said he is hiding in Western Europe. Closed preliminary hearings in the case began [JURIST report] last month. Politkovskaya, a reporter for the Russian newspaper Novaya Gazeta [official website] widely known for her stories about human rights abuses by Russian troops in Chechnya, was murdered [JURIST report] after returning to her Moscow apartment building in October 2006.






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Federal judge refuses to stop Khadr military commission trial
Devin Montgomery on November 25, 2008 10:34 AM ET

[JURIST] Judge John Bates of the US District Court for the District of Columbia [official website] on Monday denied [opinion, PDF; order, PDF] a motion by Canadian Guantanamo detainee Omar Khadr [DOD materials; JURIST news archive] seeking to have the military commission trial against him stopped because he was a minor at the time of his alleged actions against the US. Lawyers for Khadr argued that the Military Commissions Act of 2006 [materials] does not grant the commissions jurisdiction over those who commit crimes as minors, that his designation as an "enemy combatant" was unlawful because the UN Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict [text] prohibits a juvenile from being considered a member of an armed group, and that his detention as an adult was also disallowed by the Protocol. In this context, his lawyers sought to have Khadr's trial stopped and have him either released or placed in a rehabilitation program for former child soldiers. Bates refused to address the first two issues, holding that the military commission had priority to consider the questions before they could be appealed to another court. Bates found that he lacked jurisdiction to consider whether Khadr could be held as an adult, holding that under the Supreme Court's ruling Boumediene v. Bush [opinion, PDF; JURIST report] he could consider whether any confinement was appropriate, but not the suitability of Khadr's "conditions of confinement," such as being held as an adult or juvenile.

In October, Khadr's trial was postponed [JURIST report] until January 26, 2009, so that he could receive an independent psychological and psychiatric examination [Globe and Mail report] to determine whether his prior statements to government investigators could be admitted as evidence in the trial. Khadr, now 22, faces possible life imprisonment if convicted of crimes he allegedly committed at the age of 15 while fighting with the Taliban in Afghanistan [JURIST news archive]. Khadr was charged [charge sheet, PDF; JURIST report] in April 2007 with murder, attempted murder, conspiracy, providing material support for terrorism, and spying.






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UK government launches identity card system
Deirdre Jurand on November 25, 2008 10:03 AM ET

[JURIST] The British government began issuing identity cards [press release; program backgrounder] Monday to foreign nationals in an effort to curb immigration abuse and to strengthen identity protection. The cards, which are being issued pursuant to the Identity Cards Act 2006 [text and notes; JURIST report], are biometric and contain the cardholder's name, date of birth, nationality, fingerprints [BBC report] and reason for being in the UK. The program is currently voluntary and is focused on students and the partners of permanent UK residents, but the cards will eventually be mandatory, and the government hopes to card 90 percent of foreign nationals by 2015. UK Home Secretary Jacqui Smith wrote [text] in a column in Tuesday's Telegraph:

ID cards for foreign nationals will bring real changes to how we control migration by locking foreign nationals to one identity – using fingerprints and facial images. Within three years everyone coming here from outside Europe for more than six months will be given a card showing they have the right to be here and work or study. The National Identity Scheme will deliver a secure and simple proof of ID for all those legally entitled to live and work in the UK – and the majority of people say they welcome identity cards and the benefits they will bring.
Other politicians and groups disagree. The Conservatives have said the cards will be expensive and ineffective, Liberal Democrats have called the cards expensive, intrusive, and ineffective, and rights group Liberty claims the cards violate freedoms and will waste government money [position websites].

The UK parliament approved approved the controversial Identity Cards Bill [JURIST news archive] in March 2006. The legislation had bounced back and forth [JURIST report] between both houses of parliament for months with the Lords objecting to a Commons provision to effectively make the cards mandatory by requiring ID registration for all British citizens applying for passports.





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Australia senate passes bills giving equal rights to same-sex couples
Jaclyn Belczyk on November 25, 2008 10:02 AM ET

[JURIST] The Australian Senate [official website] on Monday approved [Senate Daily Summary, PDF] legislation that would allow same-sex couples to enjoy most of the same rights as heterosexual couples, but would not give same-sex couples the right to marry. The Senate passed both a General Law Reform bill [text, PDF] and a Superannuation bill [text, PDF], which will amend federal laws to provide same-sex couples with equal rights. The new legislation would redefine a "de facto relationship" to include same-sex couples and would give them equal rights in terms of taxation, health care, adoption, and other areas. The bills must now go before the House of Representatives [official website] where they are expected to pass. The Canberra Times has local coverage.

In April, the Australian government announced plans [JURIST report] to end discrimination against same-sex couples in response to a 2007 report [text, PDF] by the Human Rights and Equal Opportunity Commission [official website], recommending legislative changes to 58 federal laws [JURIST report] to end discrimination against same-sex couples. A national poll released in June 2007 found that a majority of Australians also support same-sex marriage [JURIST news archive].






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Federal jury convicts Islamic charity accused of financing terrorism
Deirdre Jurand on November 25, 2008 9:18 AM ET

[JURIST] A jury in the US District Court for the Northern District of Texas on Monday convicted [DOJ press release] the Holy Land Foundation (HLF) [ADL backgrounder; LOC archived website; case materials] and five of its officials [Dallas Morning News profiles and verdicts] on a total of 108 counts [superseding indictment, PDF] including conspiracy to provide material support to a terrorist group, conspiracy to commit money laundering, conspiracy to impede and impair the IRS, and filing false tax returns. The initial case against the group and its five officials ended in a mistrial [JURIST report] in October 2007 after three jurors insisted that the verdicts of acquittal read by the court were incorrect. Government officials limited the charges and witnesses [NYT report] against the defendants for retrial and maintained that HLF and its members raised about $12.4 million in support of terrorist groups. Assistant Attorney General for National Security Patrick Rowan said of the guilty verdicts:

Today's verdicts are important milestones in America's efforts against financiers of terrorism. For many years, the Holy Land Foundation used the guise of charity to raise and funnel millions of dollars to the infrastructure of the Hamas terror organization. This prosecution demonstrates our resolve to ensure that humanitarian relief efforts are not used as a mechanism to disguise and enable support for terrorist groups.
The individual defendants, who plan to appeal, could be sentenced to between 15 years and life in prison.

Once the largest Muslim charity in the US, HLF was shut down in 2001 by federal prosecutors who accused it of financing international terrorism by supporting the Palestinian group Hamas [BBC backgrounder]. It and five of its leaders were subsequently charged [JURIST report; original indictment, PDF] in 2004 on 42 counts of conspiracy, providing support to a foreign terrorist organization, conspiracy to deal in the property of a terrorist, dealing in the property of a specially designated terrorist, money laundering, conspiracy to impede an investigation by the IRS, and filing false tax returns. The defense has argued that the charity's funds were used only to help Palestinians in need [JURIST report], while the prosecution maintains that the charity was in place only to funnel money used to support Hamas through Palestinian schools and charities.





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DC Circuit hears Uighur release appeal
Deirdre Jurand on November 24, 2008 9:19 PM ET

[JURIST] The US Court of Appeals for the DC Circuit [official website] heard oral arguments Monday on whether 17 Uighur detainees at Guantanamo Bay [Kiyemba v. Bush backgrounder and materials] can be released into the US. In early October, a judge for the US District Court for the District of Columbia [official website] ordered the release of the detainees [opinion and order, PDF; JURIST report], writing that the Constitution prohibits detention without cause and that the individual right to freedom outweighs the other governmental branches' right to deny entry to aliens. Judges for the DC circuit court stayed the order [order, PDF; JURIST report] later that month pending appeal. The government argued [appeal brief, PDF] Monday that the exclusion of aliens from the country is not a judicial government function and that the detainees have no statutory or constitutional right to enter the US, while lawyers for the detainees argued [response brief, PDF] that the executive branch cannot exclude the detainees and that US immigration law does not prevent release. SCOTUSblog has more.

The US government has determined that the Uighurs are not unlawful enemy combatants [10 U.S.C. § 948a text; JURIST news archive], but it has linked them with the East Turkestan Islamic Movement (ETIM) [CFR backgrounder], a militant group that calls for separation from China and has been a US-designated terrorist group since 2002. China has renewed its demand [JURIST report] for the Uighurs to be repatriated, and in October, Chinese authorities called on other nations [Guardian report] to arrest and extradite eight alleged ETIM members whom they suspected of plotting to attack the Olympic Games this past summer in Beijing.






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Germany court grants parole to former Red Army Faction leader
Jake Oresick on November 24, 2008 4:14 PM ET

[JURIST] A Stuttgart court on Monday granted parole for Christian Klar, a leader of the militant Red Army Faction (RAF) [advocacy website], after Klar served 26 years in prison on nine counts of murder and 11 counts of attempted murder. The court found no grounds [BBC report] on which continue to detain him, and Klar will be released in January. The RAF, commonly known as the Baader-Meinhof Gang [BBC backgrounder], was a leftist group that targeted political and financial institutions and personnel, killing 34 people between 1968 and 1998. Among Klar's victims were a federal prosecutor and the head of the Dresdner Bank [corporate website]. Klar, whom the court no longer considers dangerous, will remain on parole for five years. Der Spiegel has local coverage.

In 2007, Klar called for the defeat of capitalism [Der Spiegel report] one month before appealing for clemency. The statement created intense political pressure that ultimately forced [Der Spiegel report] German President Horst Kohler [official website] to deny him clemency [JURIST report]. Other prominent RAF members, including Brigitte Mohnhaupt and Eve Haule [JURIST reports], have also been paroled in recent years.






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Second Circuit upholds convictions in 1998 US embassy bombings
Tere Miller-Sporrer on November 24, 2008 3:40 PM ET

[JURIST] The US Court of Appeals for the Second Circuit [official website] on Monday upheld [opinion, PDF] the convictions of three men found guilty of involvement in the 1998 bombing of two US embassies [State Department backgrounder] in Tanzania and Kenya. The court held that Mohamed Sadeek Odeh, Mohamed Rashed Daoud Al-Owhali, and Wadih El Hage [GlobalSecurity profiles] had received fair trials, and that none of the US government's actions against the men constituted violations of their constitutional rights. In a separate opinion [PDF text] addressing what the judges said was a novel question, the court rejected El Hage's claim that evidence against him obtained through warrantless overseas searches should be excluded, holding that such searches need only be reasonable to satisfy Fourth Amendment [LII backgrounder] requirements:

First, there is nothing in our history or our precedents suggesting that U.S. officials must first obtain a warrant before conducting an overseas search...

Second, nothing in the history of the foreign relations of the United States would require that U.S. officials obtain warrants from foreign magistrates before conducting searches overseas or, indeed, to suppose that all other states have search and investigation rules akin to our own...

Third, if U.S. judicial officers were to issue search warrants intended to have extraterritorial effect, such warrants would have dubious legal significance, if any, in a foreign nation...

Fourth and finally, it is by no means clear that U.S. judicial officers could be authorized to issue warrants for overseas searches, although we need not resolve that issue here.

For these reasons, we hold that the Fourth Amendment’s Warrant Clause has no extraterritorial application and that foreign searches of U.S. citizens conducted by U.S. agents are subject only to the Fourth Amendment’s requirement of reasonableness. [citations omitted]
In a third opinion [PDF text], the court rejected Fifth Amendment [LII backgrounder] claims by Odeh and Al-Owhail holding that an "advice of rights" form given to the defendants combined with oral statements made by prosecutors were sufficient to satisfy the amendment's protections against involuntary confessions. The court also rejected Sixth Amendment [LII backgrounder] claims by the men, holding that a lower court's denial of defense council requests did not constitute deprivation of council. The court did, however, order the resentencing of El Hage because his original sentence was based on federal mandatory sentencing guidelines invalidated [JURIST report] by the US Supreme Court in 2005.

In March, the US also charged [JURIST report; charge sheet, PDF] Guantanamo Bay [JURIST news archive] detainee Ahmed Khalfan Ghailani [BBC profile] with several terrorism-related counts for his alleged involvement in the bombings. In 2005, Kenya dropped charges [JURIST report] against three other men charged in connection with the attack in Nairobi that killed 224 people.





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Netherlands says statute of limitations bars 1947 Indonesia massacre claims
Lucas Tanglen on November 24, 2008 3:31 PM ET

[JURIST] A lawyer for the Dutch government [official website] on Monday claimed the statute of limitations bars one survivor and nine widows of victims of a 1947 massacre in Indonesia [NRC Handelsblad backgrounder] from seeking compensation. Dutch soldiers allegedly executed more than 400 people in the village of Rawagedeh during the Indonesian War of Independence [GlobalSecurity backgrounder]. In a letter to the lawyer for the survivor and relatives, Liesbeth Zegveld [professional profile], the government lawyer said [AP report] the government was willing to meet with the group but that any claim would be barred. NRC Handelsblad has local coverage.

The village has claimed that soldiers shot 431 people as they ran away or hid in a river during the massacre, though a 1969 Dutch investigation found 150 people were killed. The government has expressed regret [RNW report] over the incident but stopped short of apologizing. Last month a Dutch parliamentary delegation visited the village [NRC Handelsblad report] to talk to survivors of the massacre.






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Felons seeking pardons before Bush leaves office: report
Christian Ehret on November 24, 2008 1:43 PM ET

[JURIST] Many convicted felons, including several well-known figures, are seeking clemency from US President George W. Bush before he leaves office, according to a Washington Post report Monday. Among those said to have applied are financier Michael Milken [Forbes profile; personal website], former congressman Randy "Duke" Cunningham [JURIST report] and former Louisiana governor Edwin Edwards [official profile]. Presidential pardons are granted under Article II section 2 [text] of the US Constitution which gives the president the "power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." The US Department of Justice Office of the Pardon Attorney [official website] accepts clemency applications for Presidential review and determines if the applicants meet the necessary requirements [Executive Clemency Rules, text].

Bush has so far granted [DOJ statistics, JURIST report] 157 applications for clemency during his term in office. In an controversial move [JURIST backgrounder], former President Bill Clinton granted pardons [materials] or sentence commutations to his brother Roger Clinton, Whitewater partner Susan McDougal, business partners Marc Rich and Pincus Green, former Director of Central Intelligence John Deutch and 135 others [AP report] just before leaving office in January 2001.






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Iraq court begins new trial for former Saddam Hussein aides
Safiya Boucaud on November 24, 2008 12:47 PM ET

[JURIST] An Iraqi court on Sunday began a new trial for 16 former Saddam Hussein-era officials, including Hussein cousin Ali Hassan al-Majid [BBC profile, JURIST news archive] - better known in the Western media as "Chemical Ali" - and former Iraqi deputy prime minister Tariq Aziz [BBC profile; JURIST news archive]. The accused are charged in connection with the killings of protesters who rioted [HRW backgrounder] in Baghdad and Amarah following the alleged assassination of Shiite cleric Grand Ayatollah Mohammed Sadiq al-Sadr - father of anti-American cleric Muqtada al-Sadr [CFR profile] - by Hussein agents. If convicted, the men could face the death penalty. AP has more.

In June, al-Majid denied his involvement [JURIST report] in the killings of Shiite civilians during the time of Saddam Hussein's regime. Al-Majid has already been sentenced to death for his role in the 1988 Anfal campaign [HRW backgrounder; JURIST news archive] against the Kurds. The death penalties in that case have yet to be carried out. Al-Majid has also been accused of the killings of Shiites during a post-1991 Gulf War riot [JURIST report]. Earlier this year, Aziz was put on trial [JURIST report] for his involvement in the 1992 murders of several merchants accused of price gouging during a period on UN sanctions. No verdict has yet been rendered in that case.






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Bolivia president lifts martial law in northern province on last day set by court
Ximena Marinero on November 24, 2008 12:03 PM ET

[JURIST] Bolivian President Evo Morales [official website, in Spanish; JURIST news archive] on Sunday lifted martial law over the the country's northern province of Pando [government website, in Spanish], more than two months after the sanction was imposed following violent regional protests against the country's proposed new constitution [PDF text; JURIST report]. Under the proposed charter, more of Bolivia's land and energy resource income would go to the country's indigenous population, but Pando is one of nine provinces that has objected to the changes, instead voting for increased regional autonomy [JURIST reports] from the central government. Earlier this month, the Bolivian National Electoral Court [official website] warned that Bolivian law requires that there be no restrictions on civil liberties during campaigning for a national vote, and set Sunday as the last day [ABI report] to lift martial law in the region in order for a national referendum on the proposed constitution to be held as scheduled on January 25.

In September, the governor of Pando was arrested on genocide charges [JURIST report] for the deaths of Morales supporters that resulted from the protests in the region. Local reports indicate there is still a strong military presence [Los Tiempos report, in Spanish] in the province.






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Malaysia high court acquits migrant rights activist
Tarah Park on November 24, 2008 10:33 AM ET

[JURIST] A Malaysian labor activist jailed for alleging police brutality against illegal immigrants in detention was acquitted by the Kuala Lumpur High Court [Malaysia courts website, partially in Malay] on Monday. Irene Fernandez [Amnesty International profile], the director and cofounder of migrant workers' rights group Tenaganita [advocacy website], was arrested in 1996. In 2003 she was convicted on a charge of violating Section 8A (1) of the Printing Presses and Publications Act [text, PDF] and sentenced to a year in prison as a result of her 1995 report exposing the living conditions of migrant workers in Malaysian detention centers, alleging sexual abuse and denial of adequate medical care. Judge Datuk Mohamad Apandi Ali set aside the conviction and sentence of the magistrate court because prosecutor Shamsul Sulaiman refused to oppose the appeal on the grounds that he had discovered "systematic errors in the records" [Malaysia Star report] which would make opposing the appeal contrary to justice. AP has more.

Fernandez received the 2005 Right Livelihood Award [advocacy website] for her work for the rights of Malaysia's poorest groups, even through her trial and appeal. Malaysia has been engaged in an ongoing effort to limit illegal immigration [JURIST report] and its dependency on foreign workers. It was named as one of the worst refugee rights violators in a 2008 report [materials, JURIST report] by the US Committee for Refugees and Immigrants (UCSRI) [advocacy website].






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US military cannot hold detainees without charge under new Iraq SOFA
Deirdre Jurand on November 24, 2008 10:33 AM ET

[JURIST] US military officials will be unable to detain people without charge under the proposed new Status of Forces Agreement (SOFA) [CFR materials; McClatchy translation] with the Iraqi government, and military officials are now investigating the cases of about 5,000 detainees they consider dangerous in anticipation of the change, according to an AP report [text] Sunday. The new SOFA will also prevent private security contractors operating in Iraq [CRS backgrounder, PDF] from claiming immunity from Iraqi laws and will give Iraqi courts limited jurisdiction over American military personnel [JURIST reports] for crimes committed off-base when the troops are not on an authorized mission. US military forces have been able to hold people without charge since the beginning of the conflict in 2003, but under the SOFA and Iraqi law, detentions will have to be based on evidence starting on January 1.

Earlier this month, the Iraqi cabinet voted [JURIST report] in an emergency session to approve a final draft of the SOFA between the US and Iraq. The SOFA, which determines the relationship between Iraqi, American and Multi-National Force Iraq (MNF-I) [official website] forces in the country, requires US and MNF-I forces to exit Iraqi cities by June 30 [UPI report], and calls for the removal of all combat troops by 2011 unless the Iraqi government requests otherwise. This extends the deadline for US troops to remain in Iraq for three years, as the UN mandate expires in December [UN press release]. The Iraqi parliament began SOFA hearings [UPI report] last week, with a final vote expected Wednesday. If approved by parliament, the SOFA is expected to take effect in January 2009.






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Indonesia province weighs bill to implant HIV/AIDS patients with microchips
Kayleigh Shebs on November 24, 2008 10:24 AM ET

[JURIST] The legislature in the Papua [official website, in Indonesian] province of Indonesia [JURIST news archive] is considering a measure mandating that certain individuals infected with HIV or AIDS be implanted [Reuters report] with microchips so the government can monitor their movements. The bill, which has yet to be passed, will attempt to monitor the activities of individuals who are infected with HIV/AIDS whom the government has deemed "sexually aggressive" or more likely to spread the virus. Local officials acknowledge that the policy is extreme but are concerned with the rapid spread of HIV throughout the Papua region. AIDS activists have sharply criticized the policy, which they see as demeaning to people who are living with HIV/AIDS. AP has more. The Jakarta Post has local coverage.

The bill comes forward as other countries have been examining or changing strict policies concerning HIV/AIDS. Indian officials are investigating the legality [JURIST report] of a ban that prohibits individuals who are HIV positive from serving in the military. China has recently relaxed [JURIST report] a ban against entering the country for any person who is HIV-positive.






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Domestic workers facing abusive treatment in Middle East and Asia: HRW
Jay Carmella on November 24, 2008 10:21 AM ET

[JURIST] Human Rights Watch (HRW) [advocacy website] said Monday in a statement [press release] in anticipation of the International Day for the Elimination of Violence against Women [advocacy website] that migrant and domestic workers still face abusive and exploitative treatment throughout Asia and the Middle East. The rights group observed that workers in several countries throughout the region, including millions of women, lack access to judicial systems, and often lack appropriate redress even when granted access. HRW added that the control that employers have over workers' visas increases the risk of abuse. Deputy director of the women's rights division of HRW Nisha Varia said:

There are countless cases of employers threatening, humiliating, beating, raping, and sometimes killing domestic workers. Governments need to punish abusive employers through the justice system, and prevent violence by reforming labor and immigration policies that leave these workers at their employers' mercy.
The United Nations Development Fund for Women (UNIFEM) [official website] also announced [press release] Monday that it will award nearly $19 million to 29 countries for the development of projects concerning gender based violence, including support of organizations promoting national laws, policies and action plans on ending violence against women.

The UN [official website] inaugurated the International Day for the Elimination of Violence against Women in 1999 in an effort to promote public awareness of the problem. In May, Amnesty International (AI) [advocacy website] flagged the issue in its latest annual report [JURIST report], concluding that despite significant efforts of governments around the world, violence against women, particularly sexual violence, continues and is believed to be playing a role in the spread of disease.





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Obama aides favoring commission on counter-terror methods: report
Devin Montgomery on November 23, 2008 4:29 PM ET

[JURIST] Some officials in the formative administration of US President-elect Barack Obama [transition website] have said they support the creation of a bipartisan congressional commission to investigate potentially abusive US counter-terrorism policies, according to a Newsweek report [text] Saturday. The officials have suggested that such an investigation should be similar to the 9/11 Commission [official website], with a focus on making public the details surrounding the development and authorization of harsh interrogation techniques and other counter-terrorism policies, rather than incriminating those involved. Both Obama and his aides have said previously said that his administration is not likely to prosecute [JURIST report] those who approved or carried out the torture or other harsh interrogation of terrorism suspects, and will instead focus on the creation of new anti-torture laws.

Earlier this month, human rights experts at the University of California, Berkeley, in partnership with the Center for Constitutional Rights [advocacy website] released a report [text, PDF] urging Obama to form an independent, nonpartisan commission [JURIST report] with subpoena powers to investigate the treatment of US detainees in Guantanamo as well as in facilities in Afghanistan and Iraq [JURIST news archives]. Their proposal, however, was more directed at establishing accountability, as the authors warned that any commission established by Obama must not be undercut by the issuance of pardons, amnesties, or other shielding measures.






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Russia top court reviewing judge in journalist murder trial
Devin Montgomery on November 23, 2008 3:21 PM ET

[JURIST] Russia's Supreme Court has decided to review the actions of a Moscow District Military Court judge presiding over the trial of three men accused in the murder of journalist Anna Politkovskaya [BBC obituary], according to a court spokesman quoted in local media reports [Moscow Times report; Russia Today report] Sunday. Judge Yevgeny Zubov on Wednesday ordered the proceedings to be closed [JURIST report] to the public citing alleged jury objections to allowing reporters in the courtroom, but the claim was denied in a Thursday statement [autotranslation] by one of the jurors on Ekho Moskvy [media website] radio. The judge had previously ordered that the trial be open [JURIST report]. Also on Thursday, the judge postponed the trial until December 1, citing scheduling conflicts for defense lawyers, but they have also denied having conflicts [BBC report] and are moving to have the proceedings reopened [RIA Novosti report] in light of the juror's statement. All three men in the case have pleaded not guilty.

Sergey Khadzhikurbanov and brothers Dzhabrail and Ibragim Makhmudov, all from Chechnya, were arrested [JURIST report] in August 2007. The main suspect, Rustam Makhmudov, also from Chechnya, has yet to be captured, but Russian authorities have said he is hiding in Western Europe. Closed preliminary hearings in the case began [JURIST report] last month. Politkovskaya, a reporter for the Russian newspaper Novaya Gazeta [official website] widely known for her stories about human rights abuses by Russian troops in Chechnya, was murdered [JURIST report] after returning to her Moscow apartment building in October 2006.






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New judge assigned to Khalid Sheikh Mohammed military commission trial
Steve Czajkowski on November 23, 2008 11:34 AM ET

[JURIST] The US military has assigned Army judge Col. Stephen Henley [DOD biography, PDF] to preside over the the war crimes trial of Khalid Sheikh Mohammed [BBC profile; JURIST news archive], the self proclaimed architect of the 9/11 attacks [JURIST report], according to a Miami Herald report [text]. Henley replaces Marine Col. Ralph Kohlmann [JURIST news archive] whose announced retirement [JURIST report] from the post of chief judge of the US military commissions [DOD materials; JURIST news archive] was effective on Monday of this past week. Kohlmann had initially announced his retirement [JURIST report] in September, but said then that it would not be effective until April 2009. Henley's first hearing is scheduled for Dec 8.

Henley was first assigned as a military judge in 1998. In August, he ordered that military commissions [JURIST news archive] legal advisor Gen. Thomas Hartmann [official profile] not be allowed to participate in the Guantanamo trial of Afghan detainee Mohammed Jawad [DOD materials; JURIST news archive]. Henley held that Hartmann had made public statements suggesting he was overly favorable to prosecutors [JURIST report] despite the purported neutrality of his role. In October, Henley ruled that a confession given by Guantanamo Bay [JURIST news archive] detainee Mohammed Jawad [DOD materials; JURIST news archive] was obtained using torture and was inadmissible at his military commission trial. Henley found that Afghan officials threatened to kill Jawad and his family unless he admitted to throwing a grenade that injured three US soldiers in Kabul in 2002. He ruled that obtaining a confession using threat of death amounted to torture, and that under Guantanamo trial rules his confession is therefore inadmissible.






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China rejects UN panel report on torture
Steve Czajkowski on November 23, 2008 10:38 AM ET

[JURIST] A spokesman for the Chinese Foreign Ministry [official website, in Chinese] Sunday called [press release, in Chinese; autotranslation] a report released [JURIST report] last week by the UN Committee Against Torture [official website] prejudiced and false. The Committee's report had expressed "deep concern" over continued allegations that China authorities carried on the routine and widespread practice of torture and ill-treatment of suspects to extract confessions. In his statement, Qin Gang accused members of the committee of being biased against China, and said that the committee used false and unconfirmed information. Qin added that China has complied with the provisions of the UN Convention against Torture [text] and that it opposes the use of torture. AP has more. AFP has additional coverage.

In its Observations [text] at the conclusion of its 41st Session [materials] released Friday, the Committee identified three "over-arching problems" with China's rights record, including the 1988 Law on the Preservation of State Secrets [text], which the Committee says has prevented a "full and impartial investigation in the suppression of the Democracy movement in Beijing in June 1989." The Committee urged China to ensure all detainees of the March 2008 unrest in the Tibetan Autonomous Region [government website] be given access to independent counsel and medical care, and be allowed to lodge confidential complaints. The Committee also welcomed positive developments, noting legislative and administrative reforms. Members of the Chinese delegation met with the committee earlier this month and said that China had provided training and enacted judicial reforms [UN press release and transcript summary; JURIST report] and asked for consideration of policy differences based on China's size, population, and culture.






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Burundi abolishes death penalty, criminalizes homosexuality
Andrew Gilmore on November 22, 2008 6:21 PM ET

[JURIST] The parliament of Burundi [government website, in French; JURIST news archive] voted Saturday in favor of laws abolishing the death penalty and criminalizing homosexuality [JURIST news archive] in the country. The elimination of the death penalty in Burundi was a requirement for establishing a UN-led truth and reconciliation committee and tribunal [JURIST report] in the country. Gay rights groups in the country condemned the criminalization of homosexuality [AFP report], and stressed the implications of the parliamentary vote for the country's struggle with HIV/AIDS [JURIST news archive].

Burundi is still recovering from a 12-year civil war [GlobalSecurity backgrounder] between the Hutu majority and the dominant Tutsi minority which began in 1993 and claimed more than 300,000 victims. Current Burundian President Pierre Nkurunziza BBC profile], an ex-Hutu rebel leader, born-again Christian, and member of the National Council for the Defense of Democracy-Forces for the Defense of Democracy (NCDD-FDD) [GlobalSecurity backgrounder], was elected in 2005 after the implementation of a UN-created peace plan, but his presidency has been marred by accusations of assassinations and torture [JURIST report]. Last month a Burundi military court sentenced a colonel to death [JURIST report] for his role in the killings of 31 civilians in the country's Muyinga province in 2006.






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Germany government drops Scientology investigation
Andrew Gilmore on November 22, 2008 4:12 PM ET

[JURIST] The German government announced Friday that it has ended its investigation into the practices of the Church of Scientology [church website]. The German Interior Ministry [official website] began a probe into Scientology [JURIST report] in 2007, calling it an "organization that is not compatible with the constitution," seeking to ban the organization. The German announcement came during a meeting of ministers in Potsdam. While the government's investigation into Scientology has ceased, the organization will continue to be under surveillance by domestic intelligence services [AP report]. Additionally, the German Office for the Protection of the Constitution (OPC) [official website] has said that it will continue to monitor Scientology [OPC backgrounder].

Scientology, founded by American science fiction author L. Ron Hubbard in 1954, has come under increasing scrutiny in Europe in recent years. Last September, a Scientology center in France faced criminal charges [JURIST report] in connection with allegations of fraud and the illegal practice of pharmacy. In September 2007, Belgian prosecutor Jean-Claude Van Espen said Scientology should be classified as a criminal organization [JURIST report] after completing a 10-year investigation into the church's activities.






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North Korea protests proposed UN General Assembly rights resolution
Michael Sung on November 22, 2008 10:54 AM ET

[JURIST] North Korea has strongly protested a proposed UN General Assembly resolution [text] calling on North Korea to "respect fully all human rights and fundamental freedoms" and put an end to its violations of human rights. The resolution, which was co-sponsored by South Korea [JURIST report], Japan, and members of the European Union, was approved [press release] Friday by the General Assembly's Social, Humanitarian, & Cultural Committee by a vote of 95 to 24, with 62 members abstaining. The North Korean delegation to the UN criticized the nonbinding resolution, characterizing it as a politicization and double standards in dealing with human rights. North Korea specifically criticized South Korea's support as a "reckless anti-national and anti-reunification move," noting that it was a reversal of prior joint declarations by the two Koreas. The UN General Assembly is expected to vote on the proposed resolution in December. Yonhap News Agency has more.

South Korea has alternated between supporting and abstaining from non-binding resolutions condemning North Korea. South Korea had previously abstained from voting on issues concerning North Korea since 2003, but joined a resolution [PDF text] in 2006, then subsequently abstained on the 2007 resolution [PDF text]. In March, the South Korean National Human Rights Commission [official website, in English] announced it was initiating an investigation [JURIST report] into alleged human rights violations by North Korea, and earlier this month it established a special committee [JURIST report] to look into alleged North Korean rights abuses.






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UK government delays telecommunications database bill: reports
Bernard Hibbitts on November 22, 2008 10:20 AM ET

[JURIST] The British government of Prime Minister Gordon Brown has decided to drop from its immediate legislative agenda a controversial security database bill that would have required telecoms to keep records of all domestic phone calls, e-mails and Internet activity, according to British press reports Friday. The Communications Database Bill [draft materials] will not be part of the Queen's Speech to be delivered to parliament at the opening of its next session next month, but instead it or some variation will be brought forward for public consultation in January [Telegraph report] with a view to introducing it to Parliament later next year. This timetable may, however, make its future uncertain [Independent report] as Brown has to call an election no later than May 2010.

Critics - including some inside the government - have already assailed the proposed measure as an Orwellian infringement [Independent report] on privacy and civil liberties. Last month, the office of Lord Carlile, the Information Commissioner, took the extraordinary step [press release, PDF] of calling the bill a "step too far for the British way of life." Also in October, outgoing UK Director of Public Prosecutions Ken Macdonald warned against the expansion of government power in gathering intelligence [JURIST report] and prosecuting suspected terrorists, saying that present decisions about how the government should use technology to protect security are likely to be permanent. Recent high-profile news stories about losses of data by British government official and agencies [Independent report] have heightened concerns over the legislation.






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UN torture panel criticizes China human rights record
Michael Sung on November 22, 2008 10:01 AM ET

[JURIST] The UN Committee Against Torture [official website] on Friday expressed deep concern over continued allegations that China authorities continued the routine and widespread practice of torture and ill-treatment of suspects to extract confessions. In its Observations [text] at the conclusion of its 41st Session [materials], the Committee identified three "over-arching problems," including the 1988 Law on the Preservation of State Secrets [text], which the Committee says has prevented a "full and impartial investigation in the suppression of the Democracy movement in Beijing in June 1989." The Committee also urged China to ensure that all individuals detained in the aftermath of the March 2008 unrest in the Tibetan Autonomous Region [government website] had prompt access to an independent counsel and medical care, and to establish a mechanism that allows detainees to lodge confidential complaints. The Committee also welcomed positive developments, noting that Chinese authorities had adopted legislative and administrative reforms explicitly prohibiting domestic abuse, guaranteeing lawyers' right to meet with criminal suspects, and prohibiting the use of torture to extract confessions. AFP has more.

Meeting with the Committee earlier this month, members of the Chinese delegation said that the Chinese government had provided training and enacted judicial reforms [UN press release and transcript summary; JURIST report] and urged the Committee to consider policy differences based on China's size, population, and culture. The UN Committee Against Torture performs periodic reviews of how state members are implementing the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.






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Nebraska state senate votes to limit controversial 'safe haven' law
Tere Miller-Sporrer on November 21, 2008 2:43 PM ET

[JURIST] The Nebraska state senate [official website] voted Friday to amend its controversial 'safe haven' law [LB 157 text, PDF], which allows parents to abandon their children at certain locations without fear of prosecution. Friday's amendments reduce the age at which children can be abandoned from 18 years and under to 30 days and under. The bill advanced [press release] to final stage Wednesday by a vote of 41-6. Nebraska Governor Dave Heineman [official website] signed [press release] the bill into law Friday afternoon.

The amendments were made in response to the frequent abandonment of teenagers under the law. The director of Nebraska's Department of Children and Family Services has been critical of the law since September, calling it too broad [press release; JURIST report]. Of the 35 children abandoned since the law was implemented in July, only six were under the age of 10. [NYT report]. On November 14, Heineman called a special session [JURIST report] of the state senate in order to deal with the loophole.






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Mexico ex-drug prosecutor detained for allegedly taking bribes from cartel
Ximena Marinero on November 21, 2008 2:41 PM ET

[JURIST] Mexican authorities on Thursday detained former Assistant Attorney General Noe Ramirez, one-time head of Mexico's anti-drug operation in the Assistant Attorney General’s Office Specializing in Organized Crime (SIEDO) [official website], accusing him of receiving monthly payments of $450,000 from the Pacifico drug cartel in exchange for confidential information regarding government anti-drug enforcement efforts. Attorney General Eduardo Medina determined that there were sufficient grounds [official statement] to detain Ramirez after questioning him Wednesday in relation to "Operation Cleaning" investigations. Ramirez, whose arrest comes as part of an ongoing investigation into drug cartels and their connections to senior law enforcement officials, had worked for 14 years [El Financiero report, in Spanish] in the Mexican Office of the Attorney General [official website].

In October, the head of the SIEDO made some of the results of the ongoing internal "Operation Cleaning" investigation public, indicating that both the agency and the US Embassy in Mexico had been infiltrated [JURIST report] by a branch of the Sinaloa drug cartel by paying officials to turn over confidential information. In November, the chief of the Federal Preventative Police, the uniformed branch of the federal police force resigned [JURIST report] in connection to the October investigation. Earlier this month, Mexico's Interior Secretary and several other high ranking anti-drug effort officials were killed in an airplane crash [JURIST report], sparking an investigation despite no obvious signs of foul play.






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Uruguay parliament fails to override presidential veto of abortion bill
Ximena Marinero on November 21, 2008 2:38 PM ET

[JURIST] The Uruguayan Parliament [official site] on Thursday failed to override the presidential veto of a bill that would have decriminalized abortion. In the special meeting of the General Assembly, Uruguayan representatives and senators failed to achieve the requisite three-fifths majority [AFP report] in each house to override a veto [JURIST report] by President Tabare Vazquez [official website; BBC profile]. The bill had passed the Senate [JURIST report] and the Representatives Chamber earlier this month, but did not receive enough votes to overcome the veto. A recent poll [TERRA report, in Spanish] by Factum consultants, made public on Friday, reported that 56 percent of the population was in favor of decriminalizing abortion, and 35 percent were against it. Nine percent declined to answer.

There have been two prior efforts to decriminalize abortion in Uruguay in recent years [MYSU chronology]. With the exception of Cuba, abortion is restricted across Latin American countries [HRW backgrounder], and only a few have passed legislation partially decriminalizing it in some, usually extenuating, circumstances.






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CIA withheld information from DOJ in 2001 shootdown of Peru plane: report
Jaclyn Belczyk on November 21, 2008 2:23 PM ET

[JURIST] The Central Intelligence Agency (CIA) [official website] may have withheld information from the US Department of Justice and other agencies regarding a plane carrying a US missionary family shot down over Peru in 2001, according to excerpts [text, PDF] released Thursday from a classified report by the CIA Inspector General dated August 25. The plane was shot down by the Peruvian Air Force after being tracked by a CIA plane as a narcotrafficker as part of the Narcotics Airbridge Denial Program [legal analysis] (ABDP). The report said that the CIA "characterize[d] the shootdown as a one-time mistake in an otherwise well-run program. In fact, this was not the case." It further concluded:

CIA did not fulfill its legal obligation to keep Congress and the NSC fully informed of significant activities concerning the ABDP. Between 1995 and 2001, the Agency incorrectly reported that the program complied with the laws and policies governing it. In the aftermath of the missionary shootdown, CIA conducted several internal examinations into the circumstances of the shootdown and the broader conduct of the ABDP that documented sustained and significant violations of required intercept procedures dating back to the first shootdown. Yet the Agency denied Congress, the NSC, and the Department of Justice access to these findings. Seeking to avoid both criminal charges against Agency officers and civil liability, OGC advised Agency managers to avoid written products lest they be subject to legal scrutiny.
Rep. Pete Hoekstra (R-MI) [official website], Ranking Member of the House Intelligence Committee condemned [press release] the CIA for actions by what he called "rogue elements" and sent letters to the CIA Inspector General and the CIA Director [letters, PDF] urging declassification of all relevant files. Hoekstra also called for the Intelligence Committee to hold hearings on the matter.

The plane, shot down in April 2001 [BBC report] over the Amazon jungle, carried a family of missionaries from Michigan. Veronica “Roni” Bowers and her daughter were killed, while her husband, son, and the pilot survived the crash. The CIA initially identified the plane as a narcotrafficker, but then began to suspect it was innocent, according to a 2001 State Department report [text]. At that point it was too late to stop the Peruvian Air Force from firing because of language problems and established procedures. The ABDP was suspended in Peru after the incident.





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Sweden parliament approves Treaty of Lisbon
Tere Miller-Sporrer on November 21, 2008 2:07 PM ET

[JURIST] Sweden's parliament [official website] on Thursday approved the European Union (EU) [official website] reform charter known as the Treaty of Lisbon [full text; JURIST news archive] by a wide margin. There were 243 votes for, 39 against, and 67 absent or abstaining votes [BBC report]. The vote made Sweden the 24th member of the EU to ratify the measure.

The Treaty of Lisbon was signed [JURIST report] by the members of the EU in December 2007 to replace the EU constitution [JURIST news archive] that failed to pass previously because France and the Netherlands did not approve it. All 27 EU nations must ratify for the treaty to take effect. Ireland voted against the treaty [JURIST report] in a referendum earlier this year, but a new Irish Times poll [report; JURIST report] suggested earlier this week that 52.5 percent of Irish voters would approve the Treaty of Lisbon if it were modified.






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Third Circuit bars individuals from suing under No Child Left Behind Act
Kayleigh Shebs on November 21, 2008 1:55 PM ET

[JURIST] The US Court of Appeals for the Third Circuit [official website] on Thursday affirmed [opinion, PDF] a district court decision that individuals cannot sue school districts to seek specific enforcement for provisions listed in the No Child Left Behind Act (NCLBA) [official website; JURIST news archive]. The Newark Parents Association brought a lawsuit [complaint, PDF] against the Newark Public Schools (NPS) [official website] system alleging that NPS had failed to comply will all provisions of the NCLBA, including notifying parents of failing school status and providing struggling students with supplementary educational materials. The Parents Association further sought an injunction compelling the NPS to comply with these provisions. Both causes of action were denied by the District Court. In affirming the decision of the US District Court for the District of New Jersey [official website], the Court of Appeals noted that the language of the NLCBA did not provide relief for individuals, but rather was concerned with the aggregate condition of groups of low-performing children. In discussing its reason for this conclusion, the Court said:

[T]he District Court found that the nature of the Act's enforcement mechanism supported the conclusion that Congress did not intend to create individual rights. The Act contains no procedures—administrative or judicial—by which individuals can enforce violations of its notice, transfer, or supplemental educational services provisions. Instead, only the Secretary of Education can enforce a State's violation of the Act.
The decision by the Court of Appeals effectively bars future individuals from seeking legal relief for failure to comply with the NCLBA, and instead leaves enforcement of the act with the Secretary of Education for the respective state. It is deemed unlikely [AP report] that the Newark Parents Association will appeal the decision to the Supreme Court.

The NCLBA, signed into law in 2002, seeks to raise educational standards in public school systems nationwide by providing federal funding to state education systems. The legislation has been criticized [Washington Post report] in the past for failing to provide adequate funding to improve school performance. In April 2008, the US Department of Education [official website] announced [JURIST report] new regulations to the NCLBA in hopes of encouraging more support for the initiative. This announcement followed closely a decision made by the Department of Education to narrow the focus [JURIST report] of the NCLBA to schools in need of "drastic intervention."





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California court says sex offender residency rules 'additional punishment'
Jay Carmella on November 21, 2008 1:51 PM ET

[JURIST] The California Court of Appeals [official website] ruled [opinion, PDF] Thursday that the residency requirements associated with Proposition 83 [text, PDF; JURIST news archive] amount to additional punishment for sex offenders [JURIST news archive]. Proposition 83, or Jessica's Law, prohibits sex offenders from living within 2,000 feet of any school or park where children regularly gather. The court did not intend to challenge the legitimacy of Jessica's Law, but it ruled that because residency requirements are an additional punishment beyond the prescribed statutory maximum, defendants have a right to a jury trial. The court stated:

Jessica’s Law survives this opinion untouched. We note only that its residency restriction increases the penalty for the underlying offense beyond the statutory maximum, and so the facts supporting sex offender registration must be found beyond a reasonable doubt by a jury. Imposing a residency restriction based on judicial factfinding violates the right to a jury trial as construed by the United States Supreme Court.
Californians voted in favor of Proposition 83 in November 2006. The law faced an immediate legal challenge [JURIST report] from unidentified registered sex offenders, and a federal judge issued a temporary restraining order [JURIST report] to prevent the enforcement of the law's residency requirements, pending a ruling on the merits. In February 2007, a federal district judge barred the law [JURIST report] from applying retroactively. By September 2007 the California Department of Corrections and Rehabilitation [official website] had notified [JURIST report] the 2,741 paroled sex offenders in the state that they were required to move under the Proposition 83 requirements.





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Rights group says Myanmar judges should be referred to ICC
Steve Czajkowski on November 21, 2008 1:50 PM ET

[JURIST] President of the Global Justice Center [advocacy website] Janet Benshoof said [press release] Thursday that judges who participated in the trials and convictions of 60 political activists [JURIST report] in Myanmar [BBC backgrounder; JURIST news archive] last week are co-conspirators of crimes against humanity and should be referred to the International Criminal Court (ICC) [official website]. In a statement, Benshoof explained that the circumstances of the hearings - in which many defendants did not have legal representation, those who did were not allowed to meet with their lawyers in private, and in which defendants could not question the prosecution witnesses - justified a referral to the ICC. She pointed out direct provisions of the ICC that she felt the judges violated:

these prison sentences are crimes under the Rome Statute of the International Criminal Court, including violations of Article 7(1)(e) 'Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law' and 7(1)(h) 'Persecution against any identifiable group or collectivity on political, racial, ethnic, cultural, religious, gender...or other grounds.'
She noted that judges in Hitler's and Saddam Hussein's regimes were found to have committed crimes against humanity for trying and then executing civilians.

Last week, dozens of activists from 88 Generation Students [BBC backgrounder], including Min Ko Naing [advocacy website], Ko Ko Gyu, and Ktay Kywe, were sentenced to 65 years in prison for their participation in pro-democracy demonstrations last year. UN Secretary-General Ban Ki-moon [official profile] voiced concern about the lengthy and severe prison terms, calling for the military junta to release [JURIST report] democracy activists and other political prisoners. Despite the September release [JURIST report] of more than 9,000 political prisoners, human rights groups estimate that more than 2,100 Burmese remain imprisoned for their religious and political beliefs.





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US security contractors losing immunity from Iraqi law under SOFA
Steve Czajkowski on November 21, 2008 12:10 PM ET

[JURIST] Private security contractors operating in Iraq [CRS backgrounder] will no longer be able to claim immunity from Iraqi laws under the new Status of Forces Agreement (SOFA) [CFR materials; McClatchy translation] with the Iraqi government, Bush administration officials said in a briefing for security firms Thursday. US and non-Iraqi contractors had been immune to prosecution under Iraqi law since 2003 under an order by the Coalition Provisional Authority [official website] directing that contractors were to be prosecuted in their home countries [LA Times report]. Government officials addressed [AP report] more than 170 of the security firms operating in Iraq, which employ approximately 174,000 operating in Iraq, including Blackwater Worldwide, KBR Inc., and Dyncorp International [corporate websites] and said that while the SOFA grants limited control over the US military and Department of Defense (DOD) [official website] employees to the Iraq government, private contractors are excluded from this arrangement. Many believe [Middle East Online report] the provisions are the direct result of incidents involving the killings of Iraqis by private security guards, most notoriously the September 16 killings of 17 Iraqi civilians [JURIST report] by Blackwater personnel.

Late last week, the Iraqi cabinet voted [JURIST report] in an emergency session to approve a final draft of the Status of Forces Agreement (SOFA) [CFR materials] between the US and Iraq. The SOFA, which determines the relationship between Iraqi, American and Multi-National Force Iraq (MNF-I) [official website] forces in the country, requires US and MNF-I forces to exit Iraqi cities by June 30 [UPI report], and calls for the removal of all combat troops by 2011 unless the Iraqi government requests otherwise. This extends the deadline for US troops to remain in Iraq for three years, as the UN mandate expires in December [UN press release]. The SOFA will also define the ongoing relationship between US and MNF-I forces and Iraqi civilian institutions, including the national police service and the Iraqi justice system. In particular, it gives Iraqi courts limited jurisdiction over American military personnel [JURIST report] for crimes committed off base when the troops are not on an authorized mission. The Iraqi parliament began SOFA hearings [UPI report] this past Monday, with a final vote expected sometime after November 24. If approved by parliament the SOFA is expected to take effect in January 2009.






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Russia lower house approves presidential term extension
Devin Montgomery on November 21, 2008 10:08 AM ET

[JURIST] Russia's State Duma [official website, in Russian] Friday approved [RIA Novosti report] amendments to the Russian Constitution [materials] that would extend presidential terms [Article 81(1) text] from four to six years and terms for Duma members [Article 96(1) text] from four to five years. The measure, which passed 392-57, was framed by supporters as a way to provide political stability in light of the country's economic difficulties, but the country's opposition Communist Party [party website] and other critics [Moscow Times op-ed] have said that less frequent elections are simply a way for a majority party to more easily maintain power. Some have speculated that the presidential term extensions have been specifically designed [AFP report] to give former president and now prime minister Vladimir Putin [official website, in Russian; BBC profile] additional time as president should current president Dmitry Medvedev [official website; JURIST news archive] step down so that Putin can again run for the presidency. Before becoming law, the measures approved by the Duma must also be approved by Russia's Federation Council [official website, in Russian], or upper house of parliament, and least two-thirds of the country's regional legislatures.

The amendments were proposed by Medvedev in his first state of the nation address [text; JURIST report] to the Federal Assembly earlier this month, and would be the first amendments to the constitution since it replaced its Soviet-era predecessor [text, in Russian] in 1993. Shortly after the changes were proposed, Duma officials said they would expedite consideration [JURIST report] of the amendments.






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US attorney general 'conversant and alert' after collapse at speech
Jaclyn Belczyk on November 21, 2008 9:11 AM ET

[JURIST] US Attorney General Michael Mukasey [official profile; JURIST news archive] collapsed Thursday evening during a speech to the Federalist Society [advocacy website]. Mukasey was rushed to George Washington University Hospital [official website], where he remained Friday morning [New York Times report]. Peter Carr, spokesperson for the US Department of Justice (DOJ) [official website] released a statement [text] early Friday, saying:

The Attorney General is conscious, conversant and alert. His vital statistics are strong and he is in good spirits. He is receiving excellent care and appreciates all of the good wishes and prayers he has received. The doctors will keep him overnight for further observations.
Carr promised to give additional updates as new information becomes available. White House press secretary Dana Perino reported [Washington Post report] that President George W. Bush spoke to Mukasey by telephone around 7AM ET Friday.

Mukasey, 67, took over the position [JURIST report] of Attorney General last November, following the resignation of Alberto Gonzales [JURIST news archive]. In his speech [prepared remarks], Mukasey addressed the success of the Bush administration in fighting terrorism since the 9/11 attacks [JURIST news archive].

- 1:40PM ET: Mukasey has been released from the hospital and is expected to return to work this afternoon. DOJ says [statement] he has been given a "clean bill of health."





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UN torture investigator calls on Europe to accept Guantanamo asylum applicants
Devin Montgomery on November 21, 2008 8:26 AM ET

[JURIST] UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment Manfred Nowak [official website; JURIST news archive] said Thursday that European countries should grant asylum to Guantanamo detainees [AP report] who are eligible for release, but who risk persecution if returned to their home countries. Nowak called on the countries to accept the estimated 50-60 detainees to allow the incoming Barack Obama administration to close the facility [JURIST report] as planned. Both Obama and current President George W. Bush have said that the potential refoulement [CW backgrounder] of uncharged detainees is a problem that must be solved [JURIST report] before the prison can be closed. In a joint statement [text] earlier this month, advocacy groups Amnesty International, the Center for Constitutional Rights, Human Rights Watch, Reprieve, and the International Federation for Human Rights [advocacy websites] made the same appeal to European countries and quoted an earlier statement by Nowak:

We are at a critical juncture. It is now possible to anticipate the closing of Guantanamo, the end to the US practice of executive detention, and the re-affirmation of fundamental human rights principles, including the prohibition of torture in all circumstances. But European engagement and support will be essential to get there. One step that European governments should take is to accept into their borders the small number of men at Guantanamo who cannot be repatriated safely. Guantanamo cannot be closed until these men have a country which will accept them, and where their lives and liberty are not in jeopardy.
European countries have so far been reluctant to accept the detainees. Earlier this month, Danish Foreign Minister Per Stig Moller rejected calls [EWN report] for the country to accept two Uzbekistani and one Lebanese national held at Guantanamo. Also this month, Switzerland rejected the asylum applications [SwissInfo report] of Libyan, Algerian and Chinese detainees. In June, Sweden also rejected an application [AP report] from a Chinese Muslim held at the base.





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ICTR recognizes Rwanda judicial improvements but denies case transfer
Devin Montgomery on November 21, 2008 7:41 AM ET

[JURIST] Prosecutors for the International Criminal Tribunal for Rwanda (ICTR) [official website] met [press release] Thursday with Rwandan prosecutor general Martin Ngoga [New Times profile] to discuss the possible future transfer of cases from the ICTR to Rwandan courts. In a decision [text, PDF; HRA report] by the court earlier this week again denying the transfer of genocide suspect Jean-Baptiste Gatete [TrialWatch profile], the ICTR commended Rwanda for taking steps to improve its judicial and penal systems, but said that it still had reservations about transferring cases to the country's courts:

The Chamber concludes that the Republic of Rwanda has made notable progress in improving its judicial system. Its legal framework contains satisfactory provisions concerning jurisdiction and criminalises Jean-Baptiste Gatete’s alleged conduct. The death penalty has been abolished. However, the Chamber is not satisfied that Gatete will receive a fair trial if transferred to Rwanda. First, it is concerned that he will not be able to call witnesses residing outside Rwanda to the extent and in a manner which will ensure a fair trial. Second, it accepts that the Defence will face problems in obtaining witnesses residing in Rwanda because they will be afraid to testify. Third, there is a risk that Gatete, if convicted to life imprisonment there, may risk solitary confinement due to unclear legal provisions in Rwanda.
Later this month, the ICTR will host a forum [briefing, PDF] addressing cooperation between international criminal tribunals and national prosecuting authorities.

In October, the Appeals Chamber of the ICTR also refused [press release] to grant Rwanda's request to have genocide suspect Yussuf Munyakazi [case materials] transferred to the country to face trial. That judgment upheld an earlier decision by the court that Ngoga had criticized [JURIST report] for claiming the Rwandan courts were not independent. In March, the ICTR signed an agreement allowing those convicted by the court to serve their prison sentences [JURIST report] in Rwanda.





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Australia police to lift control order on ex-Guantanamo detainee Hicks
Jaclyn Belczyk on November 20, 2008 4:53 PM ET

[JURIST] The Australian Federal Police (AFP) [official website] announced Thursday that they will lift restrictions [control order, PDF] on former Australian Guantanamo Bay [JURIST news archive] detainee David Hicks [JURIST news archive]. The announcement came after Hicks issued a plea by posting a video on the website of Australian advocacy group GetUp! [advocacy website], asking for members' help in lifting the restrictions so that he could "get on with [his] life." Hicks was placed under a control order [JURIST report] in December 2007 that restricted his movements by requiring him to check in with police three times a week,comply with a midnight to 6AM curfew and not leave the country. The control order is set to expire next month, and the AFP has indicated that it will not seek to renew it [AFP report].

Hicks pleaded guilty to a charge of supporting terrorism [JURIST reports] before a US military commission in March 2007 after spending more than five years in US custody following his capture in Afghanistan. He was transferred to Australia in May 2007 to serve the remainder of his nine-month prison sentence at a maximum security prison near his hometown of Adelaide, South Australia, and was released [JURIST reports] last December. The control order was relaxed [JURIST report] last February, permitting Hicks to live anywhere in the country, and requiring him to check in with police only twice a week.






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ICC chief prosecutor seeks arrest warrants for Darfur rebel leaders
Jaclyn Belczyk on November 20, 2008 4:32 PM ET

[JURIST] Chief Prosecutor of the International Criminal Court (ICC) [official website] Luis Moreno-Ocampo [official profile] on Thursday formally asked ICC judges to issue arrest warrants [ICC press release] for the leaders of rebel groups in Sudan's Darfur region [JURIST news archive]. Ocampo had said last Friday at a meeting of states party to the ICC treaty [press release; JURIST report] that he would seek the warrants. The arrest warrants sought [AP report] relate to a deadly September 2007 attack [BBC report] by anti-government rebels in Darfur against African Union (AU) [official website] peacekeeping troops. Speaking of the rebels, Ocampo told the ICC judges:

They planned, led their troops and directed the attack which killed 12 peacekeepers, severely wounded 8 others, and completely destroyed AMIS facilities and property, directly affecting aid and security for millions of people of Darfur who are in need of protection.
Darfur rebels from the Justice and Equality Movement (JEM) [advocacy website] promised [AFP report] Thursday to cooperate with the ICC, but denied that any of their leaders were the subjects of the warrants.

The warrants are the prosecutor's third line of inquiry into war crimes in Darfur, following the issuance of arrest warrants [ICC materials] last year for former Sudanese Minister of the Interior Ahmed Muhammad Harun and former militia leader Ali Kushayb [TrialWatch profiles], and the prosecutor's application last July for the issuance of an arrest warrant [JURIST report] for Sudan President Omar al-Bashir [BBC profile; JURIST news archive] for war crimes committed in Darfur.





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Federal judge orders five Guantanamo detainees released
Jaclyn Belczyk on November 20, 2008 12:37 PM ET

[JURIST] A judge for the US District Court for the District of Columbia [official website] on Thursday ordered the release [order, PDF] of five Algerian Guantanamo Bay [JURIST news archive] detainees. In the first ruling on detainees' rights since the June Supreme Court decision in Boumediene v. Bush [opinion, PDF; JURIST report], Judge Richard Leon [official profile] decided [Washington Post report] that the government's evidence was insufficient to persuade him that the men were planning to travel to Afghanistan to join al Qaeda and therefore properly classed as "enemy combatants:"

[W]hile the information in the classified intelligence report, relating to the credibility and reliability of the source, was undoubtedly sufficient for the intelligence purposes for which it was prepared, it is not sufficient for the purposes for which a habeas court must now evaluate it. To allow enemy combatancy to rest on so thin a reed would be inconsistent with this Court's obligation under the Supreme Court's decision in Hamdi to protect petitioners from the risk of erroneous detention. [emphasis in original]
Leon ordered that a sixth detainee, Belkacem ben Sayah, remain in custody because the government's evidence against him was sufficient to label him an enemy combatant. US Justice Department officials issued a statement [text] indicating that they were "pleased" with the court's decision to detain ben Sayah, but "disappointed" with the court's decision to release the other detainees.

Leon began habeas corpus hearings [JURIST report] for the six Algerians earlier this month. In October, he ruled [order, PDF; JURIST report] that in order to be validly held as "enemy combatants," Guantanamo Bay detainees [JURIST news archive] must have directly supported hostilities against the US or its allies, setting the standard which the government must use to justify their detention.

In a related development Wednesday, a military judge at Guantanamo Bay rejected [ACLU press release] evidence against detainee Mohammed Jawad [DOD materials; JURIST news archive], finding that it had been obtained through torture. Other evidence against Jawad for his pending trial by military commission was excluded [JURIST report] in October, also because it had allegedly been obtained through torture.





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France ex-PM indicted in defamation case
Andrew Morgan on November 20, 2008 12:13 PM ET

[JURIST] Former French Prime Minister Dominique de Villepin [official profile, in French; JURIST news archive] has been ordered to stand trial for "complicity in slanderous denunciation" in connection with the a long-running political scandal know as the Clearstream Affair [BBC backgrounder]. De Villepin is accused [AFP report] of having orchestrated the release of a fabricated list of government officials and business people who profited from illegal arms sales, including current French President Nicolas Sarkozy [offical profile, in French]. The allegations, which de Villepin has previously denied [JURIST report], surfaced during de Villepin's unsuccessful bid for the 2007 presidential nomination by the Union for a Popular Movement [party website, in French], which eventually went to his rival Sarkozy.

In 2006, French authorities searched de Villepin's home and questioned [JURIST reports] him for 17 hours in connection with the scandal. De Villepin's political image was tainted by the allegations as well as by his advance of an unpopular youth labor law [JURIST archive] during his time as prime minister.






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Europe rights commissioner concerned by France immigration policies
David Weber on November 20, 2008 12:02 PM ET

[JURIST] Council of Europe Commissioner for Human Rights Thomas Hammarberg [official profile] released a report [text] Thursday saying that "French detention and immigration policies risk reducing human rights protection." laying out the findings of his visit to France in May, Hammarberg expressed specific concern with overcrowding and poor conditions in detention facilities already noted in a February memo [text, PDF, in French], a high suicide rate [JURIST report], and the risk of arbitrary decisions in preventative detention. On overall immigration policy, Hammarberg said [press release] that a French quota on irregular migrant worker expulsion was improper and that a permanent solution needs to be reached regarding the situation of minority Roma [JURIST news archive]. In particular:

The Commissioner wishes to alert the French authorities to the dangers of predetermining the number of illegal migrants to be removed: the impact of such targets on the ways in which arrests are made and on administrative practices should be assessed. No further arrests should be made in schools or prefectures. The authorities are invited to allow those detained at the border or in holding centres enough time to complete asylum applications, in appropriate conditions.
In September, Hammarberg expressed similar concerns about UK asylum policies [JURIST report]. Regarding the Roma, Hammarberg issued two memoranda in 2008. One was directed at Italian policy while another focused on the adoption of a cohesive European policy [JURIST reports]. France adopted a more stringent immigration law in September 2007, implementing policies urged [JURIST report] by President Nicholas Sarkozy during his election campaign.





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Republicans target reported Obama AG nominee for 2001 Rich pardon
Benjamin Klein on November 20, 2008 11:47 AM ET

[JURIST] Media reports that Clinton-era Deputy US Attorney General Eric Holder [professional profile; JURIST report] has been selected for nomination to the position of US Attorney General by President-elect Barack Obama prompted the the Republican National Committee (RNC) [party website] to circulate an e-mail [text] Wednesday criticizing Holder for his role in the 2001 pardon of fugitive financier Marc Rich [Time backgrounder]. The email, which draws on numerous press reports, asked readers "Why does Obama want to appoint an attorney general with a long history of controversial pardons?" In 2002, the Republican-led House Government Reform Committee [official website] concluded that Holder worked with former White House counsel Jack Quinn to ensure that Department of Justice officials, especially federal prosecutors in New York who handled the Rich case, "did not have the opportunity to express an opinion on the Rich pardon before it was granted." Congressman Dan Burton, the Chairman of the Committee at the time it investigated the Rich pardon, has said that Holder met with Quinn on several occasions in which Quinn made the White House’s intentions about the pardon known. The Committee’s evidence included an e-mail in which Holder told Quinn to "go straight" to the White House and that the "timing is good" for Rich's request for a pardon. Normally, pardon requests are reviewed by career prosecutors at the DOJ Office of the Pardon Attorney [official website] before a recommendation is forwarded to the White House.

Marc Rich fled to Switzerland just before he was indicted in New York in 1983 on charges of tax evasion, fraud, and participation in illegal oil deals with Iran. His ex-wife, Denise Rich [Mother Jones report], visited the White House on more than a dozen occasions during Clinton's presidency and contributed an estimated $450,000 to his library foundation, $1.1 million to the Democratic Party, and at least $109,000 to Hillary Rodham Clinton's first bid for the Senate. Rich was officially pardoned [JURIST materials] by President Bill Clinton in 2001 on Clinton’s last day in office.






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DOJ seeks modification of Guantanamo appeals rules
Benjamin Klein on November 20, 2008 10:31 AM ET

[JURIST] The US Department of Justice (DOJ) [official website] on Tuesday filed a government motion [text, PDF] asking a federal judge to review the procedure for handling appeals by detainees being held at the US military prison in Guantanamo Bay [JURIST news archive]. The DOJ claims that the current rules, as established by US District Court for the District of Columbia [official website] Chief Judge Thomas Hogan [official profile] in a November 6 order [order, PDF], are "ambiguous in certain important respects and that it would, if excessively construed, create obligations that realistically cannot be met in the limited two-week time frame." According to the rules, the DOJ is required to file briefs justifying detention "within 14 days of the date of th[e] Order in cases in which the petitioner already filed a traverse," which account for the overwhelming majority of the some 200 men who have filed appeals contained in 113 separate cases. The government expressed further concern over the disclosure of confidential information, which would "unnecessarily burden government agencies charged with prosecuting the present war and would risk serious damage to national security." In support of its position, the Justice Department filed four additional documents: a set of proposed orders [text, PDF], a series of sworn statements [text, PDF] by US intelligence officials on the risks to national security, a sworn statement [text, PDF] on national security risks by FBI Director Robert S. Mueller, and secret statements from intelligence and military officials not disclosed to the public. AFP has more.

Hogan responded [order, RTF] to the government’s motion on Thursday by ordering the lawyers for the Guantanamo detainees to file responses to the Justice Department’s motion no later than Wednesday, November 26, 2008. The order followed a decision earlier that day by Judge Richard Leon [official profile] of the US District Court for the District of Columbia [official website] to release five Algerian detainees [JURIST report] now held at Guantanamo.






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US military prosecutors filing new charges against so-called '20th hijacker'
Eric Firkel on November 20, 2008 10:13 AM ET

[JURIST] US Army prosecutors said Wednesday they would be filing new charges against Mohammad al-Qahtani [JURIST news archive], a Saudi Arabian citizen being held at the US military prison at Guantanamo Bay [JURIST news archive]. Al-Qahtani is known as the "20th hijacker" for his alleged role in the 9/11 attacks [JURIST news archive]. This will be the second time the Department of Defense (DOD) [official website] has filed charges against al-Qahtani. DOD originally filed charges for his alleged role in the 9/11 attacks in January 2008 only to drop the charges in May [JURIST report] . The DOD did not give a reason for the dismissal in May but it is suspected that the use of aggressive interrogation methods [Time report] to obtain information from al-Qahtani would have damaged the prosecution's case in a trial. Top prosecutor at Guantanamo, Colonel Lawrence J. Morris, said [NYT report] the charges were dropped so he could review the case files, and he concluded there was sufficient independent evidence that al-Qahtani was involved in the terrorist plot to move forward with prosecution in a military commission.

Al-Qahtani was refused entry into the US at Orlando, Florida in August 2001 and was later captured in Afghanistan. Since his capture, he has been held at Guantanamo Bay, where Pentagon officials say he admitted to being sent to the US to participate in the attacks. In documents the Associated Press obtained in September 2007, he denied his involvement in, and knowledge of, the attacks [JURIST report]. Al-Qahtani also alleged that his statements were coerced by US torture [JURIST report]. A military investigation in 2005 concluded that al-Qahtani had been subjected to harsh treatment, authorized [JURIST report] by former US Defense Secretary Donald Rumsfeld because he would not crack under interrogation. The investigation revealed that al-Qahtani was forced to wear women's underwear [MSNBC report], was kept in solitary confinement for 160 days and was interrogated for 18-20 hours per day on 48 of 54 days [detainee log]. Lead investigator Air Force Lt. Gen. Randall M. Schmidt concluded, however, that he was not tortured since he was not denied food, water, or medical care, and interrogators did not inflict physical pain.






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UK Commons passes climate bill mandating drastic emissions cut by 2050
Devin Montgomery on November 20, 2008 10:01 AM ET

[JURIST] The UK House of Commons [official website] on Tuesday gave final approval [session transcript] to the Climate Change Bill [draft text; materials], which requires the country to cut its greenhouse gas emissions [AFP report] by 80 percent by the year 2050. The bill, heralded as the first binding legislation of its kind, also provides for the creation of a Committee on Climate Change to advise the government on how to cut emissions, and requires regular reporting by the government on how policies are impacting overall emissions. It also gives the government authority to enact secondary regulations designed to meet the bill's goals, including the creation of a domestic emissions trading plan. Parliament is currently considering an energy bill [materials] which includes provisions providing incentives for solar and other alternative energies designed to help the country meet its emissions goals. The Climate Change Bill must still be signed by the Queen before becoming law, but the step is a mere formality.

The Climate Change Bill was originally introduced [JURIST report] in March 2007 and initially proposed to cut the UK's carbon dioxide emissions by 60 percent by 2050. Parliament's Joint Committee on the Draft Climate Change Bill [official website] later successfully convinced the body to amend to bill [JURIST report] to cover all greenhouse gases and increase the reduction to 80 percent.






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California high court agrees to hear Proposition 8 challenges
Jake Oresick on November 20, 2008 9:19 AM ET

[JURIST] The Supreme Court of California [official website] on Wednesday agreed [order, PDF; press release] to hear challenges to Proposition 8 [text, materials], the ballot measure that amended the state constitution to ban same-sex marriage, while refusing a petition to stay [text, PDF] its enforcement. The court will begin hearing arguments in March to determine whether Proposition 8 violates the state constitution and, if not, its effect on existing same-sex marriages. Petitioners contend the initiative is a constitutional revision, not an amendment, and requires approval from two-thirds of the state legislature [official website]. AP has more. The Los Angeles Times has local coverage.

The ruling follows two weeks of protests [NYT report; JURIST report] and petitions [materials] challenging the amendment since its approval [JURIST reports] by voters on November 4. Since then, gay rights advocacy groups have especially targeted [advocacy website] the Mormon church [official website], arguing that it should lose its tax-exempt status as a religious organization for partisan activism. Yes on 8 [advocacy website] estimates that 40 percent [SF Chronicle report] of its more than $28 million [JURIST report] came from Mormons.






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First Circuit supports return of painting taken from Jewish gallery owner by Nazis
Andrew Gilmore on November 20, 2008 7:40 AM ET

[JURIST] The US Court of Appeals for the First Circuit [official website] on Wednesday upheld [opinion, PDF] a grant of summary judgment for the plaintiff by the US District Court for the District of Rhode Island [official website] in an action seeking the return of a painting confiscated from a Jewish art gallery owner in Germany immediately prior to the Holocaust [JURIST news archive; USHMM backgrounder]. The case, Vineberg v. Bissonnette, centered around a work by 19th century painter Franz Xaver Winterhalter [Getty Museum backgrounder], which was confiscated from Dusseldorf art gallery owner Dr. Max Stern and auctioned off at below-market price in 1937. In 2005, Stern's estate filed a replevin action against Bissonnette for the painting, which was to be auctioned off again after having been in the private collection of Bissonnette's family since the father of German baroness Maria-Luise Bissonnette bought it in Cologne. In affirming the district court decision, Judge Bruce Selya [official profile] wrote:

A de facto confiscation of a work of art that arose out of a notorious exercise of man's inhumanity to man now ends with the righting of that wrong through the mundane application of common law principles. The mills of justice grind slowly, but they grind exceedingly fine. We need go no further. The short of it is that the district court acted well within the realm of its discretion in refusing the defendant's tardy request to reopen discovery. By like token, the court had an appropriate rationale for granting the plaintiffs' motion for brevis disposition.
AP has more.

US federal courts have presided over several other significant Holocaust cases in recent years. In February 2007, a the US District Court for the Southern District of New York approved a proposed class-action settlement [JURIST report] between Holocaust survivors and an Italian insurance company. In April 2005, a district judge approved a $21.9 million award [JURIST report] to heirs of families whose bank holdings were allegedly concealed and stolen by Swiss banks looking to gain favor with invading Nazis, and a district judge in March 2005 approved a $25.5 million settlement [JURIST report] between Hungarian Holocaust survivors and the US government over a train seized by the US Army in 1945 that was filled with gold, art, and other property, valued at the time between $50 million and $200 million.





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Suspected Somalia pirates captured by UK charged in Kenya
Eric Firkel on November 19, 2008 8:40 PM ET

[JURIST] Eight Somalis were charged in a Kenyan court [Kenya judiciary website] for piracy on Wednesday after being turned over to Kenyan officials by the British Royal Navy [official website]. The suspected pirates were captured by the HMS Cumberland [official website] while attempting to use a hijacked Yemeni fishing boat to attack a Danish vessel on November 11 and then handed over [press release] to Kenyan police Tuesday. This marks the second time suspected Somali pirates captured by a third party have been prosecuted in Kenyan courts. In January 2006, the US Navy [official website] captured 10 Somali men 200 miles off the coast of Somalia and turned them over to Kenyan courts in Mombasa for prosecution [press release]. In November 2006, each of the 10 men were sentenced to seven years in prison. AFP has more. KBC News has local coverage.

In June, the UN Security Council [official website] unanimously approved Resolution 1838 [text, PDF; press release], condemning all acts of piracy and armed robbery off the coast of Somalia, and calling on states to "deploy naval vessels and military aircraft to actively fight piracy on the high seas off the coast of Somalia." The resolution fills a gap in the UN Convention on the Law of the Sea (UNCLOS) [text, PDF; materials], which defines piracy as "all illegal acts of violence or detention ... committed for private ends on the high seas," and does not apply to such action in the territorial waters of states. Although maritime piracy is increasingly widespread, Somalia's coast has been ranked as the most dangerous in the world [BBC report] due to a surge in attacks on ships carrying traded goods or humanitarian aid [NPR report]. Somalia has not had an effective government for 17 years. It was recently ranked as one of the world's most corrupt countries [JURIST report] and its transitional government has only a tenuous hold over the country's capital. In October 2007 the International Maritime Bureau (IMB) [advocacy website], which tracks incidents of maritime piracy worldwide [IMP materials], reported [press release] that incidents of piracy and armed attacks against ships off the Somalian and Nigerian coasts have risen 14% from 2006.






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Federal appeals court vacates Locy contempt order in anthrax reporting case
Tarah Park on November 19, 2008 8:12 PM ET

[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] has vacated [order, PDF] a district court judge's contempt order [text, PDF; JURIST report] against former USA Today reporter Toni Locy [faculty profile] in connection with her refusal to disclose sources for articles she wrote about the 2001 anthrax attacks [GWU backgrounder]. The citation, issued by US District Judge Reggie Walton [official profile], required Locy personally to pay a fine of up to $5,000 a day for not yielding information sought by former US Army germ-warfare researcher Dr. Steven Hatfill [Washington Post profile] in support of his privacy lawsuit [complaint, PDF; JURIST report] against the US Department of Justice (DOJ). In a ruling handed down Monday, the three-judge appeals panel nonetheless dismissed Locy's actual appeal against the order:

This appeal raised close questions under Fed. R. Evid. 501 and the First Amendment, including whether the appellant had a defense, which required analysis of the appellee’s efforts to obtain the information from alternate sources and need for disclosure of the appellant’s sources, as compared to the appellant’s interest in concealing her sources in order to protect the workings of the press. Because the underlying case has been settled, however, there is no longer a “pending trial in which” the appellee’s request for
disclosure “can be used.”
They also held that because the contempt order was stayed [text, PDF; JURIST report] pending appeal, Locy suffered no injury from the order which would preserve her appeal on the merits. Locy, along with the Reporters Committed for Freedom of the Press (RCFP) [advocacy website] expressed relief that the contempt order had been vacated, but also called it "unfortunate" [Washington & Lee News report] that the court did not decide the underlying appeal. AP has more.

Locy, now a journalism professor at Washington & Lee University in Lexington, VA, refused to cooperate in Hatfill's suit against the DOJ for its alleged violation of the US Privacy Act [text]. Hatfill, who was publicly identified as a "person of interest" in the government's investigation of the anthrax attacks, contended that FBI and DOJ officials provided his personal information and information about the investigation targeting him to journalists. The parties settled the suit [JURIST report] in June.

Editor's Note: Toni Locy served as a JURIST student staff member while pursuing her MSL at the University of Pittsburgh School of Law in 2006-07.





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UN experts call for retrial of Myanmar activists
Andrew Morgan on November 19, 2008 5:18 PM ET

[JURIST] A panel of UN experts on Wednesday urged [press release] authorities in Myanmar [JURIST archive; BBC backgrounder] to retry political and religious prisoners. The group, including Special rapporteur on the situation of human rights in Myanmar Tomas Ojea Quintana [official website], called for fair and open trials [Reuters report] for dozens of activists convicted [JURIST report] in judicial proceedings inside Yangyon's Insein Prison [BBC backgrounder]. The panel considered such a process to be part of general reforms necessary for moving toward multi-party democratic government, including:

a comprehensive review of national legislation to ensure its compliance with international human rights standards, the release of political prisoners of conscience, and reform of the armed forces and the judicial system.
They also urged Myanmar to release lawyers who were jailed for contempt of court after making public their clients' complaints about the proceedings.

Last week, dozens of activists from 88 Generation Students [BBC backgrounder], including Min Ko Naing [advocacy website], Ko Ko Gyu, and Ktay Kywe, were sentenced to 65 years in prison for their participation in pro-democracy demonstrations last year. UN Secretary-General Ban Ki-moon [official profile] also voiced concern about the lengthy and severe prison terms, calling for the military junta to release [JURIST report] democracy activists and other political prisoners. Despite the September release [JURIST report] of more than 9,000 political prisoners, human rights groups estimate that more than 2,100 Burmese remain imprisoned for their religious and political beliefs.





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Refugee treaty obligations served through humanitarian aid: UN official
Abigail Salisbury on November 19, 2008 4:38 PM ET

[JURIST] UN High Commissioner for Refugees (UNHCR) Public Health Officer Heiko Hering said Wednesday that the large-scale anti-malaria effort recently launched by the United Nations Foundation [official websites] is part of fulfilling the service obligations of the Convention and Protocol Relating to the Status of Refugees [text, PDF]. Hering made the comment during a conference call promoting the mission of Nothing But Nets [charity website], a grassroots campaign providing mosquito nets to African refugees. Article 23 of the Convention mandates public relief, stating:

The Contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.
Nothing But Nets and the UNHCR work with national governments to promote refugees' access to healthcare. The mosquito nets are part of an ongoing effort to eliminate malaria, the leading killer of refugees in Africa.

Just prior to World Refugee Day in June, the 60 main refugee host countries were graded [JURIST report] based on their adherence to the Convention. European nations were found to be among the worst violators of refugee rights [country list] due to their treatment of asylum seekers. The US earned low scores for its policies on physical protection of refugees. The US Commission on International Religious Freedom (CIRF) [official website] criticized [JURIST report] US practice in this area in early 2007.





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US Navy defense lawyer allowed access to restricted Guantanamo camp
Devin Montgomery on November 19, 2008 3:54 PM ET

[JURIST] Navy defense attorney Cmdr. Suzanne Lachelier was given rare access [Miami Herald report] on Wednesday to Camp Seven [Miami Herald backgrounder], a special Guantanamo camp for alleged al Qaeda members classified as "high-value detainees" at the Guantanamo Bay [JURIST news archive] military prison. Lachelier is a defense lawyer for Ramzi Binalshibh [BBC profile], who has been charged [text, PDF] with murder and war crimes for his alleged role in the 9/11 attacks [JURIST news archive]. She made the visit after convincing [JURIST report] US military judge Col. Ralph Kohlmann [JURIST news archive] that she needed to assess conditions in the camp to determine if they are worsening Binalshibh's mental illnesses, in order to argue whether he is competent to stand trial. Kohlmann, however denied requests that a defense psychologist also be allowed into the camp. Binalshibh, classified as an enemy combatant for his role in the attacks, faces the death penalty if convicted.

Prisoners in Camp Seven are isolated from other prisoners to prevent violence against those who have provided information to interrogators, and the exact location of the camp has been kept secret to prevent a terrorist attack. The existence of the camp was not known until last December when it was mentioned [New York Times report] in court papers [JURIST report] filed by lawyers for Majid Khan [GlobalSecurity profile], the first "high-value" Guantanamo Bay detainee to be allowed to meet privately with legal counsel.






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Russia judge closes journalist murder trial due to jury fears
Safiya Boucaud on November 19, 2008 1:17 PM ET

[JURIST] A judge for the Moscow District Military Court on Wednesday ordered that the trial of three men accused in the murder of journalist Anna Politkovskaya [BBC obituary] be closed to the public. This essentially reversed [RIA Novosti report] his Monday decision [JURIST report] to allow an open trial. Also on Wednesday, all of the accused pleaded not guilty [RIA Novosti report] to the charges. The decision to reverse Monday's ruling came after members of the jury refused to enter the court room citing fear of being negatively targeted with all the media attention generated by the case.

Sergey Khadzhikurbanov and brothers Dzhabrail and Ibragim Makhmudov, all from Chechnya, were arrested [JURIST report] in August 2007. The main suspect, Rustam Makhmudov, also from Chechnya, has yet to be captured, but Russian authorities have said he is hiding in Western Europe. Closed preliminary hearings in the case began [JURIST report] last month. Politkovskaya, a reporter for the Russian newspaper Novaya Gazeta [official website], was murdered [JURIST report] after returning to her Moscow apartment building in October 2006.






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Rights group calls for international probe of civilian deaths in South Ossetia conflict
Andrew Gilmore on November 19, 2008 12:30 PM ET

[JURIST] Amnesty International (AI) [advocacy website] called Tuesday for an international investigation into the deaths of civilians during the August 2008 conflict [BBC backgrounder] between Russia and Georgia over the breakaway region of South Ossetia [JURIST news archive]. A new AI report [text, PDF; AI press release] entitled "Civilians in the Line of Fire: the Georgia-Russia Conflict" faulted both Russia and Georgia, as well as South Ossetian forces, for the deaths of civilians. The report outlined possible human rights violations during the conflict, including attacks on civilians and civilian targets by both sides, the use of land mines and cluster bombs [JURIST news archive], the treatment of prisoners of war and civilian detainees, and the wide-spread displacement of civilians during and after the fighting. Amnesty observed:

The fact that information documented by Amnesty International and others indicates that serious violations of international humanitarian law have been committed by Georgian and Russian forces, and by groups loyal to South Ossetia, demands investigation and remedial action. Georgia and Russia are conducting investigations into alleged violations of international humanitarian law. Amnesty International is calling for these investigations to cover all illegal acts and omissions and to be conducted promptly, independently, impartially and thoroughly, in accordance with international standards for such investigations. The results of these investigations must be made public, and perpetrators of serious violations of international humanitarian law be brought to justice. Amnesty International further calls upon the South Ossetian authorities to ensure the independent, impartial and transparent investigation of alleged violations of international humanitarian law perpetrated by their armed forces.
The New York Times has more.

Shortly after hostilities began, the Georgian government filed a complaint with the International Court of Justice (ICJ) [official website] alleging that Russian troops had engaged in the murder, rape, and mass displacement of civilians [JURIST report]. In October, the ICJ called on both Georgia and Russia to meet their obligations under the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)[text] in respect of all persons in the conflict zone. Tensions between the two countries remain high following Russia's signing of military defense agreements with South Ossetia and Abkhazia in September, which were ratified [JURIST reports] by the lower house of the Russian parliament in October.





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Nepal Supreme Court approves same-sex marriage
Caitlin Price on November 19, 2008 11:31 AM ET

[JURIST] The Supreme Court of Nepal [official website] has directed the country's government to end sexual orientation-based discrimination and to extend equal rights to gender minorities, including same-sex marriage [JURIST news archive]. The order, made Monday, came in a lawsuit brought by several gay rights groups and follows a December 2007 ruling [BBC report] recognizing homosexuals as citizens under the classification "third sex." The latest decision requires that all gender minorities must be defined as "natural persons" under the law [UK Gay News report] and directs the Nepalese government to form a committee to draft a same-sex partnership and marriage act based on legislation in other countries. Sunil Babu Pant, Nepal's first openly gay Member of Parliament [NYT report] and an outspoken proponent of gay rights [Express India report], called the ruling a "landmark decision." The Hindustan Times has more.

Same-sex marriage is recognized in Belgium, Canada, the Netherlands, South Africa, Spain, and Norway. In October, the Portuguese parliament voted overwhelmingly against proposals to legalize same-sex marriage [JURIST report]. In the US, same-sex marriages are now permitted in Massachusetts and Connecticut [JURIST report]. Earlier this month, same-sex marriage bans passed [JURIST report] in California, Arizona, and Florida, leading to nationwide demonstrations [New York Times report; JURIST report] and a call from California's Attorney General [JURIST report] for the California Supreme Court to examine challenges to the ban's legality.






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ICJ takes Croatia genocide case against Serbia
Caitlin Price on November 19, 2008 10:00 AM ET

[JURIST] The International Court of Justice (ICJ) [official website] on Tuesday ruled [opinion, PDF; press release, PDF] that it has jurisdiction to hear a case [ICJ materials] brought by Croatia [JURIST news archive] accusing Serbia [JURIST news archive] of genocide during the Croatian War from 1991-1995. Croatia claimed in its application that Serbia had engaged in "a form of genocide which resulted in large numbers of Croatian citizens being displaced, killed, tortured, or illegally detained as well as extensive property destruction" throughout the Croatian war, during which an estimated 20,000 people were killed. Serbia objected to Croatia's claim on the grounds that when Croatia filed the application in 1999, Serbia - then the Federal Republic of Yugoslavia (FRY) - was neither a UN member nor a party to Article IX of the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 [text], the treaty upon which ICJ jurisdiction was based.

Rejecting those arguments, the ICJ noted a 1992 declaration made by the Permanent Mission of Yugoslavia to the UN, promising that the FRY would "continue to fulfill all the rights conferred to, and obligations assumed by, the Socialist Federal Republic of Yugoslavia in international relations, including its membership in all international organizations and participation in international treaties ratified or acceded to by Yugoslavia." The court found that Serbia's conduct was consistent with that declaration, and postponed for trial on the merits the consideration of whether Serbia could be subject to claims based on events that occurred before Serbian statehood was established in April 1992. The decision is binding and may not be appealed. Trial is not expected to begin before 2010, though sources speculate that the countries may first reach a settlement. Deutsche Welle has more; Reuters has additional coverage.

Serbia's foreign minister announced Wednesday that Serbia will soon bring a countersuit [AP report] in the ICJ for war crimes allegedly committed against Serbs in Croatia during the 1995 Operation Storm [BBC report], during which more than 250,000 ethnic Serbs were displaced from Croatia. Serbia was previously sued in the ICJ on genocide charges by Bosnia. In 2007, the court found that although the Serbian government was not directly responsible for genocide [JURIST report] during the 1992-1995 Bosnian war, the country failed to meet its obligations to prevent genocide under the 1948 Genocide Convention.






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First Circuit upholds prescription drug records restriction
Andrew Gilmore on November 19, 2008 9:51 AM ET

[JURIST] A three-judge panel of the US Court of Appeals for the First Circuit [official website] on Tuesday upheld [opinion, PDF] a New Hampshire law that prohibits the gathering of data from prescription drug records to target pharmaceutical sales to doctors. The Prescription Information Law [text] was enacted in June 2006 and was aimed at limiting health care costs by reducing the number of brand-name prescriptions written by doctors. The law prohibited a technique used by pharmaceutical companies in which the prescription histories of doctors in the state are used to create personalized sales pitches for brand-name drugs. The New Hampshire General Court [official website], the state's legislature, enacted the law restricting access to prescribing histories based on the belief that the practice improperly induced doctors to prescribe costly brand-name drugs in place of equally-effective but less-expensive generic medications. The First Circuit held {AP report; NYT report] Tuesday that the law did not restrict free speech, since it permissibly regulated only the conduct of data mining companies, not their speech:

The challenged portions of the statute principally regulate conduct, and to the extent that the challenged portions impinge at all upon speech, that speech is of scant societal value. We say that the challenged elements of the Prescription Information Law principally regulate conduct because those provisions serve only to restrict the ability of data miners to aggregate, compile, and transfer information destined for narrowly defined commercial ends. In our view, this is a restriction on the conduct, not the speech, of the data miners. [citation omitted] In other words, this is a situation in which information itself has become a commodity. The plaintiffs, who are in the business of harvesting, refining, and selling this commodity, ask us in essence to rule that because their product is information instead of, say, beef jerky, any regulation constitutes a restriction of speech. We think that such an interpretation stretches the fabric of the First Amendment beyond any rational measure.
The opinion also stated that the law was not impermissibly vague and did not violate the Dormant Commerce Clause. One of the plaintiffs in the case, SDI Health [corporate website], subsequently released a statement [text, PDF] expressing disappointment at the decision.

In 2007, the US District Court for the District of New Hampshire [official website] struck down the law [JURIST report]. According to an IMS press release [text, PDF], US District Judge Paul Barbadoro found that the law "unconstitutionally restricted speech without directly serving the State's substantial interests" and that "alternatives exist that would achieve the State's interests as well as or better without restricting speech."





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Roma minority in need of protection: Council of Europe Secretary General
Andrew Gilmore on November 19, 2008 8:22 AM ET

[JURIST] Council of Europe Secretary General Terry Davis [official profile] on Tuesday called [statement text; AKI report] on officials to end discrimination against Europe's Roma minority [JURIST news archive]. Davis' comments came in response to a Monday confrontation [BBC report] between Czech police and far-right protesters attempting to attack a Roma suburb near the town of Litvinov. The head of the European human rights organization said:

I congratulate the Czech authorities on their determination in stopping the violence and also express my solidarity with the policemen who were wounded by the mob. At the same time we must recognise that this incident took place against the background of increasing intolerance and violence against Roma people in Europe. All Governments across Europe also need to look urgently at the situation of the Roma communities in their countries and act decisively to protect them against discrimination, intolerance and violence. [sic]
Davis noted that last week marked the 70th anniversary of Kristallnacht [PBS backgrounder], during which German Jews' homes and businesses were attacked on the night of November 9, 1938.

The Czech incident comes amid increasing anti-Roma sentiment in Europe. In August, a UN committee urged Russia to comply [JURIST report] with anti-discrimination conventions with respect to attacks on members of minority groups, including the Roma. In early July, the Italian government began recording the fingerprints [JURIST report] of thousands of Roma, including children, ostensibly to reduce street crime and begging. Later that month, the European Parliament [official website] called on EU member states to repeal all anti-Roma laws and the Council of Europe's Commissioner for Human Rights urged Italy to change its "severe" policies [JURIST reports] on Roma people. Italy's Interior Ministry responded by announcing [JURIST report] that the government would revise plans to fingerprint the Roma, altering requirements to only include those who do not have valid identification cards. The decision was seen as a concession to intense criticism [JURIST report] of the fingerprinting plan by the international human rights community [COE statement] and Roma advocates [ERRC materials].





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Obama to nominate ex-deputy AG Holder as next attorney general: reports
Bernard Hibbitts on November 18, 2008 8:24 PM ET

[JURIST] Eric Holder [professional profile], Deputy US Attorney General [archive materials] during the Clinton administration, has been asked and has agreed to serve as US Attorney General for the incoming administration of now President-elect Barack Obama, according to media reports citing unnamed sources late Tuesday. If officially nominated and if confirmed by the Senate, Holder would be the first African-American to lead the Justice Department. Holder led Obama's VP candidate selection team during the presidential campaign. He is a partner at Covington & Burling [firm website] in Washington DC.

Before becoming Deputy US Attorney General in 1997, Holder was an Associate Judge of the Superior Court of the District of Columbia and was later nominated by President Clinton to be United States Attorney for the District of Columbia. During his tenure as Deputy Attorney General, according to Holder's Covington profile,

the Department developed and issued its guidelines on the criminal prosecution of corporations (the so called "Holder Memorandum") and issued guidelines on the use of the False Claims Act in civil health care matters. A task force he created also developed the existing regulation concerning the appointment of special counsels to investigate allegations involving high-level federal officials. He began the Department's Children Exposed to Violence Initiative and made Department priorities enforcement efforts in health care fraud, computer crimes and software piracy.
The Holder Memorandum was the first of several DOJ articulations of federal prosecutorial policy on corporations, and was later followed by the so-called Thompson Memorandum [text] and the McNulty Memo [PDF text; JURIST report]. Holder served briefly as Acting Attorney General in the early days of the Bush administration before the confirmation of John Ashcroft.




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Bosnia authorities arrest two for alleged war crimes
Tere Miller-Sporrer on November 18, 2008 4:04 PM ET

[JURIST] Two alleged Bosnian war criminals were arrested [Reuters report] Tuesday on orders from the Court of Bosnia and Herzegovina [official website]. Radivoje Lalovic and Soniboj Skiljevic are charged with war crimes allegedly committed during the 1992-1995 siege of Sarajevo [UN backgrounder], when both men worked in the Kula prison. They are accused of committing multiple ethnically-motivated crimes, including unlawful killings, detentions, torture, and inhuman treatment, among others.

Lalovic and Skiljevic are just two of the many charged by the International Criminal Tribunal for the Former Yugoslavia (ICTY) [official website] for their alleged involvement in the siege. They are low-level compared to Stanislav Galic [ICTY materials; JURIST report] and Ratko Mladic [ICTY materials; JURIST news archive], who have also been accused of participating in the 43-month-long conflict, during which an estimated 14,000 people were killed.






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ICC to resume Lubanga trial after agreement to release evidence
Devin Montgomery on November 18, 2008 1:15 PM ET

[JURIST] The International Criminal Court (ICC) [official website] on Tuesday lifted a suspension [press release; AFP report] imposed on the trial of Congolese ex-militia leader Thomas Lubanga [ICC materials; BBC profile] after prosecutors in the case agreed to share [filing, PDF] as-yet undisclosed evidence with the court. In June, the ICC had imposed an indefinite stay [order, PDF; JURIST report] on Lubanga's war crimes trial after accusing the prosecution of using confidentiality agreements as an excuse for withholding possibly exculpatory evidence. The court subsequently ordered Lubanga's release but later stayed [JURIST reports] that decision. After reviewing the documents, the court stated on Tuesday that it is no longer concerned that the information could be used in Lubanga's defense, and added that it would later issue a written decision to explain its reasoning in full. The court also denied [press release] a pending request for Lubanga's release in light of the developments. Lubanga's trial is now tentatively scheduled to begin on January 26, 2009.

Once the leader of the Union of Patriotic Congolese [GlobalSecurity backgrounder], Lubanga is charged with using child soldiers [JURIST report; BBC report] in his militia, which is believed to have committed large-scale human rights abuses in Congo's violent Ituri district [HRW backgrounder]. He became the first war crimes defendant to appear before the ICC after he was taken into custody [JURIST reports] in March 2006. Lubanga's long-delayed trial [JURIST report] is scheduled to be the ICC's first since its creation in 2002.






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California AG urges state high court to hear same-sex marriage petitions
Catherine on November 18, 2008 12:29 PM ET

[JURIST] California Attorney General Jerry Brown [official website] on Monday urged [press release] the state Supreme Court [official website] to review the petitions [materials; JURIST report] raised in reference to the recent passage [results; JURIST report] of Proposition 8 [text, materials], the voter initiative that amended the state constitution [text] to make same-sex marriage illegal in California. The filing comes after weeks of protests [NYT report; JURIST report] against the initiative. In a preliminary response [text, PDF] submitted to the Court, Brown argued that "the petitions raise issues of statewide importance, implicating not only California's marriage laws but also the initiative process and the Constitution itself." The New York Times has more. AP has additional coverage.

Advocacy groups Lambda Legal, the American Civil Liberties Union (ACLU), and the National Center for Lesbian Rights (NCLR) [advocacy websites] filed a writ petition [text, PDF] last week seeking to invalidate the Proposition 8 amendment. They argue that the new amendment is significant enough to require approval by the State Legislature [official website]. Several other petitions were also filed. The Anti-Defamation League filed a letter [text, PDF] in support of the petition, along with other advocacy groups. There is no time limit for the court in deciding whether to take the cases.






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Transfer of Iraq detainees under security pact concerns rights groups
Lucas Tanglen on November 18, 2008 12:20 PM ET

[JURIST] Iraqi human rights activists are concerned about the treatment of detainees due to be transferred from US military custody to Iraqi authorities under the proposed Status of Forces Agreement (SOFA) [CFR materials; McClatchy translation], according to an IRIN report [text] Monday. The pact, approved the Iraqi cabinet [JURIST report] on Sunday and awaiting approval from the country's parliament, calls for roughly 17,000 detainees to be turned over within 24 hours [IRIN report] of its acceptance. Iraqi Minister of Women's Affairs Nawal al-Samaraie, the only cabinet member who voted against the agreement [AP report], said detainees who are not charged with a specific crime should be released. The Iraqi parliament began SOFA hearings [UPI report] on Monday, with a final vote expected sometime after November 24.

Earlier this month, Iraqi Sunni Vice President Tariq al-Hashemi called for a national referendum [JURIST report] on the agreement. Last month, Human Rights Watch called for a provision [JURIST report] in the agreement to shield detainees from being transferred in order to prevent their torture. In August, officials for Iraq's Human Rights Ministry said they planned to prosecute [JURIST report] those suspected of torturing inmates of the country's prison system.






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Retired top military officers call for repeal of 'Don't Ask, Don't Tell' policy
Christian Ehret on November 18, 2008 12:01 PM ET

[JURIST] Over 100 retired admirals and generals of the United States military called Monday for a repeal of the "Don't Ask, Don't Tell" policy [USC text; HRC backgrounder] regarding homosexuals in the armed forces. The controversial policy requires the dismissal of openly gay or lesbian service members. The statement [text] was released by Admiral Charles Larson [professional profile] and was distributed by The Palm Center [website], a University of California Santa Barbara public policy think tank. The statement concludes that:

[R]epealing the "don't ask, don't tell" policy would not harm and would indeed help our armed forces. As is the case with Great Britain, Israel, and other nations that allow gays and lesbians to serve openly, our service members are professionals who are able to work together effectively despite differences in race, gender, religion, and sexuality. Such collaboration reflects the strength and the best traditions of our democracy.
The statement supported prior comments [Airforce Times report] in support of such an appeal by former Chairman of the Joint Chiefs of Staff, General John Shalikashvili.

The "Don't Ask, Don't Tell" policy was one of several gay rights issues [NYT report] in the 2008 US Presidential election. President-elect Barack Obama supported [policy text, PDF] the repeal of the policy while GOP candidate John McCain did not. Obama has since said that he would prefer to build a consensus [AP report] of military leaders to support the issue. In June, the US DC Circuit Court of Appeals dismissed [JURIST report] a challenge to the policy brought by twelve formerly dismissed service members. In May, the Ninth Circuit upheld [JURIST report] a challenge to the policy, holding that the military must demonstrate that the specific dismissal was necessary to further an important government interest.





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New Iraq human rights commission praised by UN envoy
David Weber on November 18, 2008 11:57 AM ET

[JURIST] UN envoy to Iraq Staffan de Mistura praised [press release; UN News Centre report] the country's new Independent High Commission for Human Rights (IHCHR) on Monday, calling it a "milestone" for human rights in the region. The IHCHR was instituted on Sunday by the Iraqi Council of Representatives [official website, in Arabic] and is mandated by the Iraqi Constitution [text]. The new body will focus on civil, cultural, economic, political and social human rights. Staffan, the Secretary General’s Special Representative (SRSG), added that:

The Independent High Commission for Human Rights...will further on-going efforts of those already involved such as the Ministry of Human Rights, law enforcing agencies, the Council of Representatives, the Judiciary and civil society organizations.
The SRSG also called on the Council of Representatives to ensure that the Commission will be responsive to the country's most vulnerable groups, including children, women and minorities. The UN Assistance Mission for Iraq (UNAMI) [official website] expressed readiness to assist the selection process of the IHCHR members and willingness to work with the Commission in the future.

In March, Amnesty International [advocacy website] called the human rights situation in Iraq "disastrous" [JURIST report]. In June, the US Committee for Refugees and Immigrants [advocacy website] declared Iraq to be one of the worst violators of refugee rights [JURIST report] in the world.





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Former senior UK judge says Iraq invasion violated international law
Devin Montgomery on November 18, 2008 10:58 AM ET

[JURIST] The UK's former senior law lord Thomas Bingham [Times profile] on Monday criticized [press release] official UK legal justifications given for the 2003 US and UK invasion of Iraq, saying it was "a serious violation of international law and of the rule of law." Bingham focused [BBC report] on legal advice [original, PDF; published text] that then-Attorney General Lord Peter Goldsmith [BBC profile] gave to the British government in March 2003, in which Goldsmith argued that Iraq's failure to comply with weapons limitations imposed by UN Security Council Resolution 1441 [text] allowed the use of force against the country under a preexisting resolution [UN Res. 678 text]. Bingham said Goldsmith's analysis was flawed [Telegraph report] because it was not clear that Iraq had violated the terms of the resolution, and said the reasoning was merely a cover used to circumvent UN authority. Bingham ventured that this, along with US decisions on the detention and treatment of detainees at Guantanamo Bay [JURIST news archive], were part of a trend by powerful countries to avoid international conventions while continuing to impose them upon others. Goldsmith has defended his earlier reasoning, saying that Bingham had not considered the full context in which the resolutions were drafted.

The memorandum containing Goldsmith's advice on the invasion has long been a subject of debate. In March 2005, the UK Bar Council began an investigation [JURIST report] into the legality of Goldsmith's advice. The British government had originally refused to release the document, but later agreed to release it after earlier releasing a redacted form [JURIST reports] of Goldsmith's reasoning.






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Obama administration not likely to charge harsh interrogators: report
Deirdre Jurand on November 18, 2008 9:47 AM ET

[JURIST] Officials from the administration of US president-elect Barack Obama [transition website] will likely not prosecute Americans who approved or actually carried out the torture or other harsh interrogation of terrorism suspects, according to an AP report [text] published Monday. The adoption of such a policy would be in line with plans [Salon report] expressed earlier in the presidential campaigns. During an April 2008 interview with a reporter from the Philadelphia Daily News, Obama said [transcript]:

[T]his is an area where I would want to exercise judgment -- I would want to find out directly from my Attorney General -- having pursued, having looked at what's out there right now -- are there possibilities of genuine crimes as opposed to really bad policies. And I think it's important-- one of the things we've got to figure out in our political culture generally is distinguishing between really dumb policies and policies that rise to the level of criminal activity.
Supporters of non-prosecution have suggested that the administration should spend its time forming and passing anti-torture laws rather than prosecuting those who already engaged in torture, while those who support prosecution have said that it is necessary to ensure such action does not happen again in the future.

Obama is already making plans to issue executive orders to reverse some of the more contentious policies [JURIST report] implemented during the Bush administration, including limitations on stem cell research and expansion of domestic drilling for oil and gas. Rights groups have already pushed for other changes and reforms. Earlier this month, the American Civil Liberties Union (ACLU) [advocacy website] launched an ad campaign [image, PDF] calling on Obama to close Guantanamo Bay and end the use of military commissions on his first day in office. Human Rights Watch (HRW) [advocacy website] has also released a report [text, PDF; JURIST report] suggesting that upon inauguration, Obama should immediately denounce the previous administration's "abusive" counterterrorism policies in order to bring US practices into accordance with the country's "basic values" and its own obligations under international law.





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Chief US military commissions judge announces immediate retirement
Deirdre Jurand on November 18, 2008 9:08 AM ET

[JURIST] US Marine Col. Ralph Kohlmann [JURIST news archive] announced Monday that his retirement from the post of chief judge of US military commissions [DOD materials; JURIST news archive] will be effective immediately. Kohlmann initially announced his retirement [JURIST report] in September, but said then that it would not be effective until April 2009. According to an AFP report [text], Kohlmann decided to step down from the military commissions cases because the trials would still not be finished at the time of his planned retirement. Kohlmann has reportedly chosen Army judge Col. Stephen Henley [DOD biography, PDF] to replace him. The American Civil Liberties Union (ACLU) [advocacy website] questioned Kohlmann's move [press release], and ACLU Executive Director Anthony Romero said:

The timing of the announcement to replace the military commission judge on the 9/11 cases is highly suspect and disturbing. We cannot allow the Bush administration to sabotage President-elect Obama's plans by ramming through these cases in its last days while the new administration is making plans to dismantle the military commission system.
The Washington Post has more.

Kohlmann has served as chief judge of the military commissions since 2007. After his appointment, the New York Times noted [report] that Kohlmann had criticized the concept of military commissions in a paper [text] he had written in 2002 as a master's student at the US Naval War College [official website]. Kohlmann wrote that US district courts would be a better venue for terrorism suspects' trials because of a perception that military commissions lack independence and credibility. In another recent personnel change at the military commissions, US Air Force Brig. Gen. Thomas Hartmann [official profile; JURIST news archive] was reassigned [JURIST report] to the newly-created position of director of operations of the Office of Military Commissions. In his former position as legal advisor to the military commissions, Hartmann had been barred from taking part in certain detainees' trials on the grounds that he was biased toward the prosecution [JURIST report].





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Ireland voters receptive to modified Treaty of Lisbon: poll
Ximena Marinero on November 18, 2008 7:33 AM ET

[JURIST] An Irish Times poll [report] published Monday suggests that 52.5 percent of Irish voters would approve the Treaty of Lisbon [text; EU backgrounder] if it were modified so that Ireland kept a European Union (EU) [official website] Commissioner and clarified Irish concerns over neutrality, abortion, and taxation. The poll has a margin of error of 3 percent, and broadly reaffirms the results of previous polls showing opinions on the European reform pact [JURIST news archive] were divided on the issue by social class. In June, 53.4 percent of Irish voters rejected the treaty [JURIST report] in a referendum. A July think tank poll showed that most Irish voters opposed a second referendum [JURIST report]. Ireland has been the only nation to hold a referendum to approve the Lisbon Treaty.

The Treaty of Lisbon was signed [JURIST report] by the 27 members of the EU in December 2007 to replace the EU constitution [JURIST news archive] that failed to pass previously because France and the Netherlands did not approve it. To date, 20 EU member nations have formally endorsed the Treaty [EU report]. All EU nations must ratify for it to take effect. Several countries, including Poland and Austria, have delayed ratifying the Treaty discouraged by the failed Ireland referendum. The Netherlands and France [JURIST report], however, have continued to push for ratification.






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Obama picks former Clinton impeachment lawyer to be White House counsel
Lucas Tanglen on November 18, 2008 7:01 AM ET

[JURIST] US president-elect Barack Obama [transition website] has reportedly selected [Washington Post report] Gregory Craig [professional profile] to serve as White House counsel. Craig, who was an adviser to Obama during the presidential campaign, led former President Bill Clinton's defense during his 1998 impeachment proceedings [PBS materials; JURIST materials]. In 2000, Craig represented the father of Elian Gonzalez [BBC backgrounder] in his successful effort to gain custody of his son and bring him back to Cuba from the US. In 1981-82, Craig defended John Hinckley [PBS profile], who was accused of an assassination attempt on former President Ronald Reagan. As White House counsel, Craig will succeed Fred Fielding [White House statement], who has served as President George W. Bush's counsel since January, following the resignation of erstwhile US Supreme Court nominee Harriet Miers [official profile] in 2007. Miers succeeded Bush's initial White House counsel, former Attorney General Alberto Gonzales [official profile].

Several high-profile legal issues await Craig at the White House. Last week, advisers to Obama emphasized [JURIST report] that he had not made a decision regarding the future of the military prison camp at Guantanamo Bay. John Podesta, co-chair of Obama's transition team, has said Obama is making plans to issue executive orders [JURIST report] to reverse some policies implemented during the Bush administration, including limitations on stem cell research and expansion of domestic drilling for oil and gas.






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Germany to extradite arrested Rwanda presidential aide to France
Deirdre Jurand on November 17, 2008 5:58 PM ET

[JURIST] German prosecutors announced Monday that they will extradite an aide to Rwandan President Paul Kagame [official website] to France on Wednesday in connection with the 1994 assassination [NYT report] of then-Rwandan president Juvenal Habyarima that led to the Rwanda genocide [HRW backgrounder]. Rose Kabuye [advocacy profile], an official in the Rwandan Patriotic Front (RPF) [HRW profile], was arrested [JURIST report] last week under a European warrant issued by French Judge Jean-Louis Bruguiere [BBC profile] in 2006. German officials said that because Kabuye entered the country on personal business, she was not protected by her diplomatic status that had previously prevented her arrest. Kagame responded [AFP report] Monday that Kabuye's arrest and extradition is in effect putting Rwanda itself on trial and that French officials issued the warrant for political reasons. AP has more. From Rwanda, the New Times has local coverage.

In October, German authorities transferred [JURIST report] Augustin Ngirabatware, a former Rwandan minister suspected of involvement in the 1994 Rwanda genocide [BBC backgrounder], from a facility in Frankfurt to a UN detention facility in Arusha, Tanzania, where he faces trial by the International Criminal Tribunal for Rwanda (ICTR) [official website]. In July, German border police arrested [press release; JURIST report] Rwandan war crimes suspect Callixte Mbarushiman as he was preparing to travel to Russia.






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Nepal assembly pledges to finish draft constitution in 18 months
Deirdre Jurand on November 17, 2008 5:22 PM ET

[JURIST] Officials from the Nepal Constituent Assembly (CA) [official website] on Monday announced [press release] that the CA will finish drafting the country's new constitution within 18 months. According to a unanimously approved timetable, the CA will approve the final version of the constitution by the end of April 2010, and it will be made public by mid-May of that year. The new constitution will replace the current interim constitution [text, PDF; materials], which provides for the dissolution of the House of Representatives and the creation of an interim parliament in which 25 percent of seats are held by former Maoist insurgents. Reuters has more. eKantipur has local coverage.

In December 2007, Nepal's interim parliament voted to abolish the monarchy [JURIST report] as part of a plan to bring members of the Communist Party of Nepal - Maoists (CPN-M) [party website] back into government. The establishment of the CA [JURIST report] in April 2008 and the abolition of the monarchy were the main parts of a 2006 peace agreement [text; JURIST report] between the CPN-M and the Nepalese government, which marked the end of a 10-year Maoist insurgency [JURIST report].






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Philippines judicial selection oversight group formed
Jake Oresick on November 17, 2008 12:32 PM ET

[JURIST] Philippines bar leaders, retired judges, attorneys, law schools and business leaders Monday formed [Philippine Daily Inquirer report] an unofficial judicial oversight group dedicated to providing transparency in the selection of seven justices to the Supreme Court of the Philippines in 2009, when current justices retire. The name of the group, Bantay Korte Suprema (BKS), translates to "Watch the Supreme Court." Candidates for the court are traditionally screened by the Judicial and Bar Council (JBC), which then submits a list of recommendations to the President. Former Chief Justice Artemio Panganiban [official profile] has called for reforms in the JBC’s confidential deliberation process, expressing concerns that the court will soon be dominated by appointees of President Gloria Macapagal Arroyo [official website].

Concerns about corruption in the Philippines judiciary [AFP report] have exacerbated calls for an open, impartial selection process. International watchdog groups and political opponents are especially wary of a court controlled by Arroyo’s partisans. Arroyo was accused of rigging her 2004 re-election bid [GMA report] and was implicated in a 2007 broadband scandal [The Philippine Daily Inquirer report]. She was also the target of coup plots in 2003 and 2006 [JURIST reports], and has been criticized for 800 alleged extra-judicial killings [JURIST report] that have occurred in the country since she came to power.






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UN rights experts concerned about Italy treatment of migrants, asylum seekers
Kiely Lewandowski on November 17, 2008 12:09 PM ET

[JURIST] The UN Working Group on Arbitrary Detention [official website] said [UN press release] Monday after an official visit to Italy that it has "significant human rights concerns" about the facilities where Italy holds irregular migrants and asylum seekers detained on suspicion of criminal activity and the legal basis for those detentions. The Working Group, a group of independent experts that reports to the UN Human Rights Council [official website], recognized that Italy is currently experiencing an influx of migrants, but maintained [UN press release] that "strength of commitment of a government to human rights – among them due process guarantees – is really put to the test when faced with a real or perceived emergency." The Working Group specifically took issue with a recent amendment to the Italian criminal code that provides that the immigration status of a foreigner should be considered an aggravating circumstances for purposes of sentencing.

The UN Human Rights Council created the Working Group to promote the observance of the international standards set forth in the Universal Declaration of Human Rights [text] with regard to the deprivation of liberty throughout the world. The Working Group recently completed official visits to Ukraine and Colombia [Working Group reports].






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Rights group urges Obama to denounce 'abusive' counterterrorism policies
Kiely Lewandowski on November 17, 2008 11:16 AM ET

[JURIST] Human Rights Watch (HRW) [advocacy website] said [HRW press release] Monday that upon inauguration US president-elect Barack Obama [official website] should immediately denounce the previous administration's "abusive" counterterrorism policies in order to bring US practices into accordance with the country's "basic values" and its own obligations under international law. HRW released a report [text, PDF] delineating the 11 measures Obama should pursue, including closing the military prison camp at Guantanamo Bay [JURIST news archive], abolishing military commissions [JURIST news archive] in favor of trying terrorist suspects in federal court, issuing an executive order banning 'all torture and cruel, inhuman, or degrading treatment' in CIA interrogations, and rejecting the 'global war on terror' as a legal justification for the indefinite detention of terrorist suspects. HRW said:

Over the past seven years, the US government’s consistent disregard for human rights in fighting terrorism has diminished America’s moral authority, set a negative example for other governments, and undermined the goal of reducing anti-American militancy around the world. The use of torture, unlawful rendition, secret prisons, unfair trials, and long-term, arbitrary detention without charge has been both morally wrong and counterproductive.

By making a high-profile, public commitment to a new course, and by taking bold steps toward reform, [Obama] can signal to the nation and to the world that his administration understands that US counterterrorism policy should be consistent with the country’s basic values and with international law.
In an interview with '60 Minutes' on Sunday [CBS News transcript], the President-elect reinforced his campaign promises, maintaining:
I have said repeatedly that I intend to close Guantanamo, and I will follow through on that. I have said repeatedly that America doesn't torture. And I'm gonna [sic] make sure that we don't torture. Those are part and parcel of an effort to regain America's moral stature in the world.
Last week, the ACLU [advocacy website] initiated an ad campaign [image, PDF] calling on Obama to close Guantanamo Bay and the use of military commissions on his first day in office. Advisers to Obama said last week that no final decisions have been made regarding closure of the Guantanamo Bay prison, despite earlier media reports [JURIST reports] that a plan was being developed.





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Basque militant leader arrested in France
Tarah Park on November 17, 2008 10:41 AM ET

[JURIST] French police on Monday arrested alleged leader of the Basque separatist group ETA [BBC backgrounder; JURIST news archive] Mikel Garikoitz Aspiazu Rubina [BBC backgrounder] near the country's border with Spain. Aspiazu Rubina is suspected of leading the group's armed operations, and was wanted in connection with the murder of a judge and two Spanish civil guard officers. Spanish Prime Minister Jose Luis Rodriguez Zapatero [NYT profile] welcomed [press release, in Spanish] Aspiazu Rubina's capture, calling the arrest a "major blow" against the organization and saying "Today, ETA is weaker and Spanish democracy is stronger." French President Nicolas Sarkozy said the arrest is a demonstration of increased collaboration between French and Spanish authorities. The Guardian has more. AFP has additional coverage.

In recent years, Spain has moved to not only capture and prosecute ETA members, but also to condemn political parties and figures that associate with the group. In October, the Superior Court of Justice of the Basque Country [official website, in Basque] announced [JURIST report] that three of the region's political leaders will stand trial for meeting publicly with members of the Batasuna party [BBC backgrounder], the alleged political arm of the ETA. They were charged [JURIST report] in connection with the meetings in October 2007. In September, the court banned [JURIST report] the Basque Nationalist Action Party (ANV) from taking part in political activities because of its alleged ties to Batasuna.






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Sudan parliament approves electoral commission created under peace deal
Kayleigh Shebs on November 17, 2008 10:36 AM ET

[JURIST] The Parliament of Sudan [official website] on Monday approved the appointment of a nine-member independent electoral commission to oversee the country's upcoming elections. Sudanese president Oman al-Bashir [BBC profile] along with vice presidents Salva Kiir and Ali Osman Taha nominated the members of the commission earlier this year and the approval finalizes its creation. The commission was formed to ensure free democratic elections in the country, and was called for as a part of the 2005 Comprehensive Peace Agreement (CPA) [PDF, text], which brought an official end to Sudan's civil war. Elections were originally planned for 2009, but some suspect that delays in constituting the electoral commission as well as a pending International Criminal Court (ICC) arrest warrant [application, PDF; JURIST report] for al-Bashir could delay or influence the polling. AFP has more.

Shortly after the vote on Monday, Sudanese police arrested more than 60 journalists [Sudan Tribune report] who had been protesting against government censorship outside the parliament building. According to the protesters, government officials have been screening newspaper reports since al-Bashir's indictment by the ICC. AFP has more.

In July, the parliament passed a long-anticipated electoral law [JURIST report] that dictates how the country's parliamentary seats will be allotted. The law reserves some seats for candidates chosen by popular vote, and some for proportional representation of political parties including seats reserved for women. Following the signing of the CPA in 2005, the country also approved of a new constitution, installed a new government, and al-Bashir lifted the country's state of emergency [JURIST reports], except in Darfur and a region on the eastern border.






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US admits more juveniles held at Guantanamo
Jay Carmella on November 17, 2008 10:32 AM ET

[JURIST] A spokesperson for the Pentagon [official website] acknowledged [AP report] on Sunday while speaking to the UN Committee on the Rights of the Child (CRC) [official website] that the US held 12 juveniles at the Guantanamo Bay [JURIST news archive] prison. The announcement came in response to a study [text] released last week by the Center for the Study of Human Rights in the Americas (CSHRA) [advocacy website]. In May, the US reported to the CRC that only eight juveniles were detained in the prison. The study was based on information available through the American military and diplomatic sources. Other sources, including former detainees, the Red Cross and international sources, indicated to the Center that the number of juveniles could potentially be higher. Eight of the 12 juveniles listed in the study have been released from the prison.

Included in the study was Omar Khadr [JURIST news archive], the 21-year-old Canadian, who has admitted [JURIST report] to being trained by al Qaeda and killing a US solider in Afghanistan. Khadr was detained by US forces in 2002 as a 15-year-old. In 2007, Khadr was formally charged [JURIST report] with supporting terrorism, conspiracy, and spying in "violation of the law of war." Khadr has filed an affidavit [JURIST report] saying he was threatened and abused as an inmate.






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Russia military judge orders open trial for men accused in killing of journalist
Safiya Boucaud on November 17, 2008 8:16 AM ET

[JURIST] A Moscow District Military Court judge ruled on Monday that the trial of three men accused in the murder of journalist Anna Politkovskaya [BBC obituary] will be made open to the public [AP report]. This decision came after the family of the slain journalist requested that the trial remain open [AFP report] despite the prosecution's fear that an open trial would expose classified security information used as evidence. The family asserts that the actual killer responsible for Politkovskaya's murder has not been found. While an open trial is a victory for the family, presiding military judge Yevgeny Zubov has threatened to close the trial again [RIA Novosti report] if there is any pressure on the jury.

Sergey Khadzhikurbanov and brothers Dzhabrail and Ibragim Makhmudov, all from Chechnya, were arrested [JURIST report] in August 2007. The main suspect, Rustam Makhmudov, also from Chechnya, has yet to be captured, but Russian authorities have said he is hiding in Western Europe. Closed preliminary hearings in the case began [JURIST report] last month. Politkovskaya, a reporter for the Russian newspaper Novaya Gazeta [official website], was murdered [JURIST report] after returning to her Moscow apartment building in October 2006.






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Jailed ex-Taiwan president taken to hospital
Devin Montgomery on November 17, 2008 6:47 AM ET

[JURIST] Former Taiwanese President Chen Shui-bian [BBC profile] on Sunday was taken to a Taipei hospital [CNA report] for treatment of dehydration resulting from a hunger strike he had staged to protest his detention [JURIST reports] in jail for corruption. While there are no official charges against Chen, the former leader of the Democratic Progressive Party (DPP) [official website, in Mandarin] was arrested Tuesday and questioned by prosecutors for some five hours. He is alleged to have committed money laundering and to have made illegal use of government funds during his presidency. He maintains his innocence, claiming he is being victimized because of his advocacy for Taiwan's independence and opposition to the ruling Nationalist Party. Doctors have said that Chen will be kept at the hospital at least overnight for observation. AFP has more.

Chen spent eight months in the same Tucheng jail twenty-one years ago for defaming Nationalist leaders. In September, he was cleared [JURIST report] on more recent defamation charges. Last year while Chen was still in power, he was tied [JURIST report] to an allegedly corrupt lawmaker.






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Iraq cabinet approves US status of forces agreement
Andrew Gilmore on November 16, 2008 5:50 PM ET

[JURIST] The Iraqi cabinet voted Sunday in an emergency session to approve a final draft of the Status of Forces Agreement (SOFA) [CFR materials] between the US and Iraq. The SOFA, which determines the relationship between Iraqi, American and Multi-National Force Iraq (MNF-I) [official website] forces in the country, requires US and MNF-I forces to exit Iraqi cities by June 30 [UPI report], and calls for the removal of all combat troops by 2011 unless the Iraqi government requests otherwise. This extends the deadline for US troops to remain in Iraq for three years, as the UN mandate expires in December [UN press release]. The SOFA will also define the ongoing relationship between US and MNF-I forces and Iraqi civilian institutions, including the national police service and the Iraqi justice system. In particular, it gives Iraqi courts limited jurisdiction over American military personnel [JURIST report] for crimes committed off base when the troops are not on an authorized mission. The SOFA must now go before the Iraq parliament for a final vote. AP has more. BBC News has additional coverage.

Last week, Iraqi Sunni Vice President Tariq al-Hashemi [personal website, in Arabic], one of two Iraqi vice presidents, called for a national referendum [JURIST report] on any proposed SOFA. The agreement has been delayed [JURIST report] by months of negotiation, and must still be approved by lawmakers in both countries.






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Ninth Circuit rules Indian tribal immunity extends to profit-making businesses
Steve Czajkowski on November 16, 2008 11:06 AM ET

[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Friday ruled [opinion, PDF] that tribal sovereign immunity [NCAI backgrounder] applies to lawsuits brought in federal court dealing with the profit-making businesses of Indian tribes. In Cook v. Avi Casino Enterprises, Christopher Cook filed suit against Avi Casino Enterprises (ACE), a tribal corporation, and its employees after he was hit by a drunk driver. The driver was an employee of the casino who had been served drinks at a function at the Avi Casino, located on the Fort Mojave reservation in Nevada. Cook argued that public policy demands that tribal corporations operating in the economic mainstream should not receive the same immunity granted to Indian tribes themselves. The court rejected that argument, and concluded that immunity applied to the corporation and its employees:

Tribal sovereign immunity protects Indian tribes from suit absent express authorization by Congress or clear waiver by the tribe. This immunity applies to the tribe’s commercial as well as governmental activities.

The Supreme Court has somewhat grudgingly accepted tribal immunity in the commercial context...[T]he settled law of our circuit is that tribal corporations acting as an arm of the tribe enjoy the same sovereign immunity granted to a tribe itself.

The final question is whether ACE’s tribal immunity extends to two of its employees...We conclude that it does...[W]e hold that tribal immunity protects tribal employees acting in their official capacity and within the scope of their authority. Cook has sued Dodd and Purbaugh in their official capacity only, and thus the district court correctly dismissed them from this suit.
The court also found that despite diversity of citizenship between the parties, tribal sovereign immunity applies. The Las Vegas Sun has more.

In 2007, the US Court of Appeals for the District of Columbia [official website] upheld [opinion, PDF] a 2004 ruling that the National Labor Relations Board (NLRB) [official website] had jurisdiction over tribunal businesses including casinos, placing the tribes under the National Labor Relations Act [text], which bars unfair labor practices and gives workers the right to organize and bargain with employers. The opinion stated that "tribal sovereignty in American law...recognizes the independence of [Indian communities] as regards [to] internal affairs...[giving] latitude to maintain traditional customs and practices [but does not confer] absolute autonomy [and] permit a tribe to operate in a commercial capacity without legal constraint."





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Israel high court gives settlers 3 days to vacate disputed West Bank house
Steve Czajkowski on November 16, 2008 10:01 AM ET

[JURIST] The Israeli Supreme Court [official website] ruled Sunday that settlers in a disputed house in the West Bank [CIA backgrounder] city of Hebron have three days to evacuate or else face eviction. The four-story home, called the House of Peace (Beit HaShalom) [Hebron Jewish Community backgrounder; advocacy materials] by Jewish settlers, was originally occupied by a group of 150 in March 2007. The settlers had presented evidence [Haaretz report] to the Court which allegedly showed they had purchased the house from a Palestinian, Faez Rajabi, but Rajabi denied selling the building. The Court did not rule on who has legal ownership of the building, stressing that the issue will be decided in a district court. The decision gives the Israeli government control over the building until the ownership issue is resolved. Many settlers groups, including the Yesha Council [Ynet backgrounder] condemned the ruling, which many believe will lead to violence if enforced. Morris Abraham, the New York-based businessman who initially bought the property, has said he will sue the State of Israel [YNet report] if the settlers are evicted. AFP has more. Haaretz has local coverage.

Ownership and occupation of land in the West Bank have been ongoing points of contention between Israelis and Palestinians, and Israeli government policy on the area has drawn international criticism. Just last week, Switzerland's Federal Department for Foreign Affairs (FDFA) condemned Israeli destruction of Palestinian homes in East Jerusalem as a violation of international humanitarian law [JURIST report] and called on Israel to stop the demolitions. In October, five Palestinians represented by Israeli rights group Yesh Din [advocacy website] filed suit [complaint, PDF, in Hebrew] against the State of Israel seeking $427,000 in damages for failing to protect Palestinian-owned land in the West Bank from trespassers and an illegal outpost. The suit, brought in the Magistrate Court in Jerusalem, alleged that the Migron [Binyamin backgrounder] community was illegally settled on the plaintiffs' land with the assistance of Israeli authorities, altering its topography and blocking the owners' access to the area. The Palestinian owners were the first to seek monetary damages from Israel in a land dispute.






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ICC chief prosecutor to seek arrest warrants for Darfur rebel leaders
Andrew Gilmore on November 15, 2008 4:17 PM ET

[JURIST] Chief Prosecutor of the International Criminal Court (ICC) [official website] Luis Moreno-Ocampo [official profile] said Friday at a meeting of states party to the ICC treaty [press release] that he would seek arrest warrants for the leaders of rebel groups in Sudan's Darfur region [JURIST news archive]. The arrest warrants sought by Moreno-Ocampo relate to a September 2007 attack [BBC report] by anti-government rebels in Darfur against African Union (AU) [official website] peacekeeping troops. The warrants would be the prosecutor's third line of inquiry into war crimes in Darfur, following the issuance of arrest warrants [ICC materials] last year for former Sudanese Minister of the Interior Ahmed Muhammad Harun and former militia leader Ali Kushayb [TrialWatch profiles], and prosecutor's application last July for the issuance of an arrest warrant [JURIST report] for Sudan President Omar al-Bashir [BBC profile; JURIST news archive] for war crimes committed in Darfur. AFP has more.

Last July, Moreno-Ocampo announced [JURIST report] that he had widened his investigation into Darfur war crimes to include activities by rebel groups. His application for an arrest warrant for al-Bashir has caused considerable tension between the ICC and the Arab world. Last week, Egypt sought to delay formal ICC charges against al-Bashir [JURIST report], arguing that interfering in the Darfur peace process would be detrimental to potential peace in the region. Last Wednesday, UN Assistant Secretary-General for Peacekeeping Edmond Mulet said issuing an arrest warrant for al-Bashir could “derail” the peace process [JURIST report]. Last month, ICC judges gave Moreno-Ocampo one month [JURIST report] to submit "additional supporting materials in relation to some confidential aspects" of his application.






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Myanmar opposition leaders receive 65-year prison terms
Michael Sung on November 15, 2008 10:59 AM ET

[JURIST] A closed court in military-ruled Myanmar [BBC backgrounder; JURIST news archive] has sentenced three top pro-democracy leaders to 65 years in prison, relatives of the leaders told AFP Saturday. Activists Min Ko Naing [advocacy website], Ko Ko Gyu, and Ktay Kywe were all sentenced along with other members of the 88 Generation Students [BBC backgrounder] arrested for their participation in anti-junta protests last year. Seventeen more democracy activists were sentenced to between two and 16 years on Friday. The judicial proceedings allegedly occurred in a court in Yangon's Insein Prison [BBC backgrounder]. It is unclear precisely how many activists have been sentenced, although activists estimate more than 60 have been sentenced during this week. AFP has more. Reuters has additional coverage.

On Wednesday, UN Secretary-General Ban Ki-Moon [official profile] voiced concern about the lengthy and severe prison terms, calling for the military junta to release [JURIST report] democracy activists and other political prisoners. The European Union (EU) and the US have also expressed concern over human rights violations in the country and the lack of investigations in the aftermath of last year's violent government suppression of pro-democracy demonstrations. Human rights groups have estimated that more than 2,100 Burmese have been imprisoned for their religious and political beliefs despite the government's release [JURIST report] of over 9,000 political prisoners in September.






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Kentucky Klan members ordered to pay $2.5 million for racially motivated attack
Michael Sung on November 15, 2008 10:14 AM ET

[JURIST] A Kentucky jury Friday ordered three members of the Imperial Klans of America (IKA), including "Imperial Wizard" Ron Edwards, to pay $1.5 million in compensatory damages and $1 million in punitive damages for a racially motivated attack against Jordan Gruver, a 16-year-old boy of Panamanian descent, during an alleged Klan recruitment event at a County Fair in Meade, Kentucky. Gruver is a US citizen. Richard Cohen, the head of the Southern Poverty Law Center (SPLC) [advocacy website; lawsuit materials], which represented Gruver in the trial that began [JURIST report] earlier this week, welcomed what he called an "historic" verdict [recorded video]. The SPLC has been successful in the past in obtaining substantial monetary judgments to cripple hate groups, such as the Aryan Nation in Idaho, and the United Klans of America in Alabama. Edwards and the other IKA defendants have denied responsibility for the attack [recorded video] on Gruver. AP has more.

Hate groups such as the KKK have recently experienced a resurgence [JURIST report] in the United States, which some observers attribute to the growing public attention to immigration. At the same time, federal and state authorities have been successful in a number of criminal prosecutions against alleged KKK members who committed hate crimes in the 1960s, although in October the Fifth Circuit vacated the conviction [JURIST report] of alleged Klansman James Ford Seale for his involvement in the 1964 deaths of two 19-year-old black teens.






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Supreme Court agrees to hear five cases including recusal, double jeopardy appeals
Devin Montgomery on November 14, 2008 10:07 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] granted certiorari [order list, PDF] in five cases Friday. In Caperton v. A.T. Massey Coal Company [docket; cert. petition, PDF] the Court will consider whether a decision by West Virginia Supreme Court of Appeals Justice Brent Benjamin [official profile] not to recuse himself from hearing a case against a financial contributor to his campaign violated the Due Process [LII backgrounder] rights of the plaintiff in the case. Opposing review, counsel for A.T. Massey argued [opposition brief, PDF] that Benjamin was not required to recuse himself because the donations were made by an officer of the company rather than the company itself and that they were made before he became a member of the court. The NYU Brennan Center for Justice and American Bar Assosciation [briefs, PDF] were among the groups which filed amicus briefs supporting review by the Court.

In Yeager v. United States [docket; cert. petition, PDF] the Court will consider whether a criminal defendant can face new prosecution for counts on which a jury did not reach a verdict but that are related to other counts of which the defendant has been acquitted. Petitioners in the case argue that the Court should determine whether such prosecution would violate the Double Jeopardy Clause [LII backgrounder] of the Fifth Amendment because federal circuit courts disagreed on the issue. Attorneys for the Justice Department opposed [opposition brief, PDF] the review.

In Abuelhawa v. United States [docket; cert. petition, PDF] the Court will consider whether a defendant who used a cellphone for the misdemeanor purchase of cocaine can be charged with felony for using a "communication facility" to facilitate the distribution of an illegal drug under 21 USC § 843(b) [text]. The defendant argues that the provision should only apply to distributors of the drugs and not who purchase them for personal use. Attorneys for the Justice Department opposed [opposition brief, PDF] the review.

In Citizens United v. Federal Election Commission [docket; cert. petition, PDF] the Court will consider whether a film critical of Senator Hillary Clinton is considered a political advertisement under the Bipartisan Campaign Reform Act of 2002 [materials]. The petitioner in the case argues that a Supreme Court ruling on what constitutes "electioneering communications" under the law was not entirely defined by a 2003 Supreme Court decision in McConnell v. FEC [opinion text]. The Federal Election Committee (FEC) opposed [opposition brief, PDF] the review.

In Dean v. United States [docket; cert. petition, PDF] the Court will consider whether the accidental discharge of a firearm during the commission of a felony crime subjects a defendant to a 10-year minimum sentence for the crime. Under 18 USC 924(c)(1)(A)(iii) [text] , the increased sentence attaches when a firearm is discharged, but the defendant argues that there must also be some showing that the discharge was intentional. Attorneys for the Justice Department opposed [opposition brief, PDF] the review, arguing that no such requirement was included in the statute.






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Mbeki seeks to join prosecution appeal in Zuma case
Tere Miller-Sporrer on November 14, 2008 2:16 PM ET

[JURIST] Former South African President Thabo Mbeki [BBC profile; JURIST news archive] on Friday asked to be joined as amicus curiae to an appeal by the National Prosecuting Authority (NPA) [official website] challenging the dismissal of all fraud and corruption charges against Jacob Zuma [BBC news profile; JURIST news archive], head of the ruling African National Congress (ANC) [party website]. The South African Constitutional Court [official website] refused [JURIST report] Wednesday to hear Mbeki's appeal. Mbeki had announced earlier Friday that he would appeal this decision to the South African Supreme Court. Charges against Zuma were dismissed because there was evidence of political interference in the decision by the NPA to bring the charges against Zuma. Mbeki contends that that decision violates his constitutional rights because it assumed he was guilty of interfering with an investigation without affording him a hearing on the allegation. From South Africa, the Citizen has more. The Mail and Guardian has additional local coverage.

Zuma defeated Mbeki for the ANC leadership in party elections held in December 2007. He was ousted [JURIST report] as the country’s deputy president in 2005 after an aide was convicted of corruption. He was also charged with rape, but ultimately acquitted and reinstated [JURIST report] as ANC deputy vice president. In late July, the South African Constitutional Court rejected a motion [opinion, PDF; JURIST report] by Zuma to exclude evidence from the corruption trial. Zuma had argued [JURIST report] that evidence seized in 2005 raids by the Directorate of Special Investigations [official backgrounder; BBC report] should be thrown out because the raids violated his rights to privacy and a fair trial. The court upheld the validity of the warrants used in the raids, confirming a November 2007 decision [JURIST report] by the South African Supreme Court of Appeal. The court also held [opinion, PDF; summary] that papers obtained by the Mauritius government [JURIST report] believed to document meetings between Zuma and arms manufacturer Thint were also admissible. Zuma has been facing corruption allegations [BBC timeline] and other charges for several years. He was first charged with corruption in 2005, but those charges were later dismissed [JURIST report] because prosecutors failed to follow proper procedures.






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Uruguay president vetoes legislation decriminalizing abortion
Jaclyn Belczyk on November 14, 2008 2:09 PM ET

Marcello Casal Jr/ABr[JURIST] Uruguayan President Tabare Vazquez [official website; BBC profile] on Friday vetoed [text, PDF, in Spanish] legislation that would have partially decriminalized abortion [JURIST news archive] in the country. The bill was passed [JURIST report] by Uruguay's Senate [official website, in Spanish] on Tuesday, after the House of Representatives [official website, in Spanish] approved it last week. Under the draft legislation, a mother would have been able to terminate her pregnancy during the first 12 weeks to prevent risks to her health, birth deformities, economic hardship, or other family problems. Vazquez wrote:

There is consensus that abortion is a social evil to be avoided. However, in countries that have liberalized abortion, they have increased. In the United States in the first ten years it tripled, and the figure remains: the custom was installed. The same thing happened in Spain.
While the measure passed the Senate by a vote of 17-13, 19 votes in the Senate are needed to overcome a veto. AP has more. From Montevideo, El Pais has local coverage, in Spanish.

Last November the Uruguayan senate passed a similar bill [JURIST report], but that measure did not survive presidential veto either. Uruguay is similar to most Latin American countries in having restrictive abortion laws. Abortion is completely illegal in Nicaragua [JURIST report], Chile, El Salvador, and the Dominican Republic [HRW reports]. Brazil [HRW report] permits abortion when a mother's life is endangered or when the pregnancy is the result of rape or incest. In countries such as Colombia [JURIST report] and Argentina [HRW report], criminal penalties may be decreased when the mother's life is at risk. Although Mexico City legalized abortion [JURIST report] in some circumstances in April, it is still illegal in the rest of Mexico [HRW report]. Cuba [ISP report] is the only country in the region in which abortion is not illegal.




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Kenya claims progress on abuse issues in response to UN torture report
Jay Carmella on November 14, 2008 2:03 PM ET

[JURIST] The Kenyan government Friday said in response to a report [press release] by the UN Committee on Torture [official website] focusing on post-election violence that occurred in the country in late 2007 and early 2008 that it was taking initiatives to eliminate torture and other inhumane treatment. CAT highlighted cases of gender-based violence and gang rapes by police and other security forces, and discussed police corruption among other rights-related problems. In a statement [text, PDF; UN press release] Kenyan Minister for Justice, National Cohesion and Constitutional Affairs Martha Karua [official profile] said that since 2003 the government has closed torture chambers, amended its criminal laws and made it easier to citizens to report abusive acts. AFP has more.

Last month, a commission established [JURIST report] by Kenyan President Mwai Kibaki [official profile] to review the events following last year's election released a report [JURIST report], recommending the establishment of an international tribunal to try those involved. Kibaki created the commission to ease the domestic and international tension that was a result of the controversial election [JURIST report], including threats from 13 nations to cut off aid to the Kenyan government [JURIST report].






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Italy court acquits majority of police charged in 2001 G8 summit raid case
Ximena Marinero on November 14, 2008 2:00 PM ET

[JURIST] An Italian court on Thursday acquitted [RAI recorded video, in Italian] 16 police officers and convicted 13 officers on charges of violence in raiding a school that protesters of the 2001 G8 summit in Genoa [official website; BBC backgrounder] were using as headquarters. In addition, the court awarded damages to some of the injured protesters. The 13 convicted officers were sentenced to 35 years and seven months, as opposed to the 108 years originally sought by the prosecution. Of the 16 acquittals, three senior officers were high-ranking officials in the anti-terrorism unit and one was in the secret service. The trial has been high-profile in Italy, and is one of three that arose in relation to alleged abuses of authority at the 2001 G8 Summit anti-globalization protests. Reuters has more. RAI has local coverage, in Italian.

On the night of July 21, 2001, police forces conducted a raid on the Diaz school, which was being used as headquarters by some of the protesters. Over the course of the summit as a whole, more than 100 protesters were injured and one was killed. Immediately after the protests and reports of abuse, Amnesty International (AI) called for a full investigation [press release] into the mistreatment. In July 2006 the group urged the Italian government to institute reforms to prevent future abuses [press release], but said that the government had not done so in the five years since the incident. In July of this year, an Italian court found 15 police force members and medical staff guilty [JURIST report] of abusing the protesters, but absolved 30 more.






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Israel destruction of Palestine homes violates international law: Switzerland
Steve Czajkowski on November 14, 2008 1:20 PM ET

[JURIST] Switzerland's Federal Department for Foreign Affairs (FDFA) [official website] condemned Israeli destruction of Palestinian homes in East Jerusalem [B'Tselem backgrounder] as a violation of international humanitarian law in a statement [press release] Thursday and called on Israel to stop the demolitions. According to the FDFA, Israel is under a duty to protect the civilians in East Jerusalem as it is part of occupied Palestinian territory. A spokesperson for the FDFA added that the demolitions violate the Fourth Geneva Convention [ICRC document] which forbids an occupying power from destroying property in an occupied territory. As a party and the depositary state for the Geneva Conventions, Switzerland has always regarded itself as having special legal obligations [FDFA backgrounder] towards the monitoring of the Conventions and international adherence to them. AP has more. WAFA has additional coverage.

Israel has been strongly criticized by the international community over its settlement and land appropriation activities, particularly in the West Bank. Since 2000 over 1,600 homes have been demolished in the West Bank, including 600 in East Jerusalem. In July, Israeli human rights group Yesh Din [advocacy website] highlighted the lack of investigations and prosecutions [JURIST report] of Israeli settlers in the Occupied Territories who commit crimes against Palestinians. In June, UN Secretary-General Ban Ki-moon [official profile] said that Israeli plans to expand settlements [Ha'aretz report] in the West Bank violate international law [JURIST report].






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Scotland court denies bail for Lockerbie Pan Am 103 bomber
Devin Montgomery on November 14, 2008 10:06 AM ET

[JURIST] A panel of Scotland's High Court of Justiciary [official website] Friday denied bail [decision text] to convicted Pan Am Flight 103 [BBC backgrounder; JURIST news archive] bomber Abdelbaset Ali Mohmed Al Megrahi [BBC backgrounder]. The plane was blown up over Lockerbie, Scotland on December 21, 1988, killing all 259 on board [victims website], including 180 Americans, making it the deadliest terrorist attack on Americans prior to 9/11. Eleven others on the ground were killed by debris. Al-Megrahi was recently diagnosed with advanced prostate cancer, and his lawyers had sought his release on bail as he appeals his conviction. They argued that because of the severity of the illness, he should be released to seek treatment. The High Court recognized the impact his continued incarceration might have on his condition, but said that he was currently not in severe pain, and that his health concerns must be weighed against the severity of the crime of which he has been convicted:

The critical question, as the court sees it, is, against the background of the atrocity of which the applicant stands convicted, whether the applicant's health, present and prospective, is such that the Court should on compassionate grounds now admit him to bail. On balance the Court is not persuaded, on the information before it, that it should. While the disease from which the appellant suffers is incurable and may cause his death, he is not at present suffering material pain or disability. The full services of the National Health Service are available to him, notwithstanding he is in custody. There is, it appears, no immediate prospect of serious deterioration in his condition... While recognising [sic] that the psychological burden of knowledge of an incurable fatal disease may be easier to bear in a family environment than in custody, the Court, having regard to the grave nature of the conviction and taking into account the fact that a reference has been made and the fact that the appeal process is likely to be protracted, is not persuaded that the stage has been reached when early release is appropriate.
The court went on to say that it may reconsider its decision if al-Megrahi's condition worsens. AP has more. The Telegraph has additional coverage.

Lawyers for al-Megrahi, a former Libyan intelligence officer, were denied access in March to a "missing document," that they had sought [JURIST reports] in appealing his conviction. The Scottish Criminal Cases Review Commission (SCCRC) [official website] granted an appeal [JURIST report] in al-Megrahi's case in June 2007 and referred it the High Court after the commission identified six grounds [press release, PDF] for a possible "miscarriage of justice" in his trial and conviction. In 2003, Libya agreed to accept responsibility [US DOS press release] for the 1988 bombing, and earlier this month made its final compensation payment [JURIST report] to a US fund for victims' families.





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Morocco court convicts ex-Guantanamo Bay detainee on terrorism charges
Kayleigh Shebs on November 14, 2008 9:22 AM ET

[JURIST] A Moroccan criminal court on Thursday convicted [MAP report] Moroccan citizen Said Boujandia of crimes associated with terrorist acts. The Sale Criminal Court sentenced Boujandia to 10 years in a Moroccan prison. Boujandia admitted his association with with a terrorist organization who sought to aid the Taliban, but has denied committing any crime. Boujandia was held in US custody in Guantanamo Bay [Global Security backgrounder; JURIST news archive] from 2001 until May 2008. AP has more. WaBayn has local coverage, in French.

The conviction of Boujandia was the first criminal conviction of a Moroccan citizen connected with the US-led "war on terror." Morocco had previously refused to pursue criminal charges against any citizen for terrorist acts that occurred outside of Morocco, and in May 2007 had released [JURIST report] without criminal charges a former Guantanamo Bay detainee released by the US into Moroccan custody. Recently, Morocco has assumed a more aggressive role in prosecuting alleged terror suspects for acts occurring beyond Morocco's borders. In January of 2008, Moroccan authorities arrested Abdelilah Hriz [JURIST report] a suspect in the 2004 Madrid bombings.




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Algeria parliament approves constitutional change dropping presidential term limits
Steve Czajkowski on November 14, 2008 8:25 AM ET

[JURIST] The parliament of Algeria [CIA backgrounder] approved a constitutional amendment Wednesday that removed the law limiting the country's president to two terms in office. In a joint vote, both houses of the Algerian parliament, the Council of Nation [official website, in Arabic] and the National People's Assembly, overwhelmingly approved the amendment 500-21 with eight abstaining, which will allow current President Abdelaziz Bouteflika [official website; BBC profile] to seek a third term in 2009. The outcome of the vote was widely predicted as Bouteflika has majority support in parliament. Opposition groups, such as Rally for Culture [advocacy website, in French], have condemned the amendment as similar to a coup, asserting that it is anti-democratic. Bouteflika has not yet confirmed whether he will run for president in 2009. AFP has more. BBC News has additional coverage. El Khabar has local coverage.

Bouteflika was first elected president of the resource-rich north African nation in 1999, during a 13-year civil war between Islamic militants and government forces that left more than 100,000 people dead. He was re-elected in 2004 and earned nationwide praise for his efforts to unify the country with his Charter for Peace and National Reconciliation [JURIST report] which provided amnesty for those involved in the civil war and reparations for families of victims. Bouteflika has spoken about reforming the Algerian constitution [text, translated from Arabic] since he first took office in 1999. While addressing a group of magistrates last month, Bouteflika said the present amendments would promote efficiency and stability [Magharebia report] in the country.






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US failing to protect undocumented minors: report
Devin Montgomery on November 14, 2008 8:06 AM ET

[JURIST] The Center for Public Policy Priorities [advocacy website] said Thursday that the US Department of Homeland Security (DHS) [official website] does not do enough to protect the rights and welfare of minors who have entered the country illegally. In a new report [text, PDF; press release, PDF] the group estimated that 43,000 undocumented, unaccompanied minors are removed from the US each year, and criticized DHS for a lack of consistent policies on removal hearings for and subsequent repatriation of the children. The group said unaccompanied minors in US custody are often mistreated by Border Patrol [official website] officers, not given sufficient access to protective services, denied access to legal counsel or their county's consulate, and are often transported back to their countries of origin in unsafe conditions. The group also said that the children often face unsafe conditions upon repatriation. It called on the US to develop stronger and more consistent policies to protect the minors, both while in the US and once returned to their home countries. AP has more.

The report comes as the US is increasing the number of undocumented aliens that it prosecutes or deports and is receiving other criticism for its treatment of the immigrants. Earlier this month, the US Immigration and Customs Enforcement (ICE) [official website], a branch of DHS, reported [JURIST report] deporting a record 349,041 immigrants during the 2008 fiscal year. In June, the Transactional Records Access Clearinghouse (TRAC) at Syracuse University reported that US immigration prosecutions hit record levels [JURIST report] early this year. In July, lawyers and professors testified [hearing materials; JURIST report] before the US House of Representatives Committee on the Judiciary [official website] that the government violated the due process rights of 389 illegal immigrants arrested [JURIST report] in a raid at an Agriprocessors Inc. [corporate website] meatpacking plant in Iowa this past May.






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China lawyers proceeding with class action lawsuit over tainted milk
Leslie Schulman on November 14, 2008 7:49 AM ET

[JURIST] Lawyers providing legal services to at least 100 Chinese children sickened by tainted milk products [BBC report] have decided to continue with a class action lawsuit against government-owned dairy farm Shijiazhuang Sanlu Group Co., the focus of recalls following the scandal, according to Thursday media reports. Lawyers providing free legal support for families had said last month [JURIST report] they had been pressured by Chinese officials to stop providing legal services to the families and leave the "political issue" to government authorities. The lawyers have discussed legal options for several weeks, and on Thursday decided to continue with the class action lawsuit, which seeks damages for medical care and trauma and compensation for families with children who have died as a result of the contamination. AP has more.

News of possible milk powder contamination by the chemical melamine first broke in September [Guardian report], following the death of an infant and reports that at least 50 other infants had fallen ill after consuming baby formula, leading to massive recalls [BBC report] of both liquid milk products and milk powders. The death toll soon rose to four, and the number of sick infants in China [JURIST news archive] later ballooned into the tens of thousands. As of Wednesday, nearly 1,300 infants remained hospitalized [China Daily report] as a result of the contamination. So far, police have arrested at least 36 people [AFP report] in connection with the scandal.






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Russia high court blacklists north Africa al Qaeda group
Leslie Schulman on November 14, 2008 7:48 AM ET

[JURIST] The Russian Supreme Court [official site, in Russian] classified northern Africa group Al Qaeda in the Islamic Maghreb (AQIM) [CFR backgrounder] as a terrorist organization in a ruling [press release, in Russian] Thursday, prohibiting the organization from conducting activities in Russia. The court ruled after the Russian Prosecutor General [official website] asked the court to ban the organization and put it on a national blacklist of terrorist groups [RFE/RL backgrounder]. RIA Novosti has more.

AQIM, previously called the Salafist Group for Preaching and Combat (GSPC), is located in Algeria and has claimed responsibility [AP report] for bomb attacks that killed six people in Algeria last year as well as for multiple suicide bombings [Deutsche Welle report] this year.






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EU urged to adopt rights benchmarks for Russia
Eric Firkel on November 13, 2008 11:54 PM ET

[JURIST] Human Rights Watch (HRW) [advocacy website] on Thursday urged [press release] the European Union (EU) [official website] to adopt a series of specific human rights benchmarks Russia should meet before moving forward with the EU-Russian Partnership and Cooperation Agreement [text and materials]. HRW said Russia must focus on carrying out judgments by the European Court of Human Rights [official website], end restrictions on nongovernmental organizations (NGOs) [JURIST report], and ensure that ethnic Georgians are allowed to return to South Ossetia [JURIST report] in safety and dignity after the recent conflict there. Lotte Leicht, EU director for HRW said:

It’s time for the EU to make human rights a priority in dealing with Russia and to insist on reforms before an agreement is signed. Russia and the EU are partners, and it’s in their mutual interest for Russia to improve its record.
Thursday's statement reiterated a memorandum [text, PDF] drafted ahead of EU-Russian Human Rights consultations in October, in which HRW outlined a series of steps Russia should take before the EU adopts a long-term strategic partnership with the Russian Federation. The EU and Russia will resume talks on renewing a partnership agreement Friday in France.

The European Court of Human Rights (ECHR) [official website] has consistently ruled against Russia in cases involving human rights violations. In October the ECHR issued two decisions [JURIST report] finding Russia in violation of the European Convention on Human Rights [text] in several cases concerning the deaths or abductions of Russian nationals in Chechnya in 2000. In May, the court ruled [JURIST report] that Russia was responsible for the disappearance of a dozen people during Russian armed raids in Chechnya in 2002 and 2003. In July 2007, the court ruled that Russian authorities were responsible for the shooting deaths of 11 unarmed Chechen civilians, and in June 2007 it held that Russian authorities were liable for the 2003 deaths of four Chechen family members [JURIST reports].





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Italy high court approves feeding tube removal
Kiely Lewandowski on November 13, 2008 11:41 PM ET

[JURIST] The Italian Court of Cassation [official website, in Italian], the country's highest court, ruled Thursday that the father of Eluana Englaro [materials, in Italian], who has been in a vegetative state for 16 years, can remove her feeding tube. Last month, Italy's Constitutional Court [official website, in Italian] rejected [JURIST report; decision text, in Italian] a parliamentary challenge to a Milan appeals court decision holding that doctors could remove Englaro's feeding tube because she was found to be in an 'irreversible' vegetative state. Catholic groups and conservative politicians opposing Thursday's decision argued [Independent report] that the court is permitting euthanasia [JURIST news archive], which remains illegal in Italy [JURIST report]. AP has more. Corriere della Sera has local coverage, in Italian.

Eluana Englaro has been in a coma since an automobile accident in 1992. Her father, Beppino Englaro, has been fighting to have her feeding tube removed since 1999. In 2005, Italy's Constitutional Court upheld [JURIST report] a lower court's ruling to keep her feeding tube in place because they could not find specific evidence on Englar's personal views of life and death. The Luxembourg Chamber of Deputies [official website, in French] last February narrowly passed [JURIST report] a bill legalizing euthanasia [text, PDF, in French], a move that could make Luxembourg the third EU country to allow the controversial practice. The Netherlands [BBC report] legalized euthanasia in 2001, and Belgium [JURIST report] followed suit in 2002.






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Fair housing groups file lawsuit over alleged Katrina program discrimination
Kiely Lewandowski on November 13, 2008 10:31 PM ET

[JURIST] State and national housing advocates filed a class action lawsuit [complaint, PDF; press release, PDF] Wednesday arguing that Louisiana's Hurricane Katrina recovery program, Road Home Louisiana [program website], discriminates against African-American homeowners. The federally-funded program awards grants to homeowners in the lesser of the following two amounts: the pre-storm value of the home or the cost of the damage. Because home values in African-American communities are substantially lower than those of similar homes in white neighborhoods, plaintiffs National Fair Housing Alliance (NFHA) and Greater News Orleans Fair Housing Action Center (GNOFHAC) [advocacy group websites] contend in the complaint:

African Americans whose property received substantial damage and who qualify for Road Home grants are more likely than white applicants to receive a grant that is based on the pre-storm value of their home. Because the Road Home formula limits grant awards to the pre-storm value of the home where that amount is less than the cost of damage, African-American recipients of Road Home grants are more likely than white grantees to have a gap between their rebuilding resources and the cost to rebuild.
AP has more. From New Orleans, the Times-Picayune has local coverage.

The US federal government has been repeatedly criticized [JURIST report] for its alleged discriminatory treatment of African-Americans in response to Hurricane Katrina. In February the UN called on [press release] the US to put a stop to discrimination against African-Americans who were being evicted from their homes or denied access to other available housing in the wake of the hurricane. A 2007 study [AP report] found that housing discrimination against African-Americans searching for rental property post-Katrina was widespread.





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Fourth Circuit dismisses challenge to bribery charges against congressman
Devin Montgomery on November 13, 2008 12:31 PM ET

[JURIST] A panel for the US Court of Appeals for the Fourth Circuit [official website] on Wednesday dismissed [opinion, PDF] an appeal by Rep. William Jefferson (D-LA) [official profile; JURIST news archive] seeking to have bribery charges against him dropped. Jefferson argued that the grand jury indictment against him was based on evidence protected by the US Constitution's Speech or Debate Clause [text; backgrounder], which makes certain information relating to legislative action privileged. Jefferson had argued that testimony by former members of his staff had been based on his legislative action, which is prohibited, but the court found that references to legislative action in the testimony were incidental, and not the basis for the indictment against him. Upholding a lower court decision [JURIST report], the panel quoted the US Supreme Court's 1972 ruling in United States v. Brewster on the scope of the clause's protection:

[I]t is well settled that the government may not introduce evidence of a Member’s legislative acts to prove an element of a criminal charge. But the government may rely on acts "casually or incidentally related to legislative affairs but not part of the legislative process itself." Put simply, the Speech or Debate Clause is not a license to commit crime.
AP has more.

In March, the Department of Justice (DOJ) said it planned to pursue [JURIST report] the case against Jefferson despite an appeals court ruling [text, PDF; JURIST report] that other evidence confiscated from his office during an FBI raid was protected by the Speech and Debate Clause. In June, Jefferson pleaded not guilty to charges [JURIST reports] under the Foreign Corrupt Practices Act [DOJ materials], including bribery, racketeering, money laundering and obstruction of justice. Jefferson is accused of accepting approximately $500,000 in bribes from numerous companies in the US and Africa and faces a maximum sentence of 235 years in prison if he is convicted on all counts. In January 2007, former Jefferson aide Brett Pfeffer pleaded guilty [DOJ press release] to bribery charges for his role in the scheme.





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Former Taiwan president on hunger strike in jail
Christian Ehret on November 13, 2008 12:19 PM ET

[JURIST] Former Taiwanese President Chen Shui-bian [BBC profile] continued a hunger strike in the Tucheng jail in suburban Taipei Thursday after being incarcerated [JURIST report] Wednesday, according to local media reports. While there are no official charges against Chen, the former leader of the Democratic Progressive Party (DPP) [official website] was arrested [JURIST report] Tuesday and questioned by prosecutors for some five hours. He is alleged to have committed money laundering and to have made illegal use of government funds during his presidency. He maintains his innocence, however, claiming he is being victimized because of his advocacy for Taiwan's independence and opposition to the ruling Nationalist Party. The court is holding Chen for up to four months to segregate him from alleged co-conspirators. AP has more.

Shui-bian spent eight months in the same Tucheng jail twenty-one years ago for defaming Nationalist leaders. In September, Chen was cleared [JURIST report] on more recent defamation charges. Last year while Shui-bian was still in power, he was tied [JURIST report] to an allegedly corrupt lawmaker.






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ICC needs more support from member states: HRW
Andrew Morgan on November 13, 2008 12:09 PM ET

[JURIST] Human Rights Watch (HRW) [advocacy website] said Wednesday that the International Criminal Court (ICC) [official website] needs more vocal support [HRW press release] from its member countries in a memorandum [text, PDF] sent to member governments in advance of their annual meeting [press release]. Citing recent efforts to convince the UN Security Council [official website] to suspend the case against Sudanese President Omar al-Bashir [BBC profile; JURIST news archive], HRW counsel Elizabeth Evenson said that the backing of member countries is necessary to insulate the ICC: "With the court’s independence and integrity at risk, ICC member states should speak out forcefully to promote the ICC’s mission. They should strongly defend the ICC’s independence from political interference." Sudan, the African Union [official website], the League of Arab States [official website, in Arabic], the Organization of the Islamic Conference [official website], and others have objected [JURIST archive] to the ICC's potential issuance of an arrest warrant [JURIST report] for Bashir. On Wednesday, Bashir declared a ceasefire [AFP report] to hostilities in Darfur and called for disarming militias. The move was dismissed by the rebel Justice and Equality Movement (JEM) [advocacy website] as "rhetoric" designed to allay the ICC charges. AP has more.

The Sudanese government has already rejected the ICC's jurisdiction and has refused to surrender two previously-named war crimes suspects [JURIST report]. Hundreds of thousands of people have allegedly been killed in Darfur by Sudanese military and janjaweed [Slate backgrounder] militia forces. The Security Council has repeatedly called on Sudan to comply with the ICC investigation [JURIST report], but Sudan has refused to do so, calling ICC prosecutor Luis Moreno-Ocampo a "terrorist" [JURIST report] and suggesting that he should be removed from office.






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Rights groups file lawsuit against ex-El Salvador president in Spain
David Weber on November 13, 2008 12:03 PM ET

[JURIST] The Center for Justice and Accountability (CJA) [advocacy website] and the Asociacion Pro Derechos Humanos de España (APDHE) [advocacy website, in Spanish] filed suit [complaint; CJA press release] Thursday in Spain's National Court [official website, in Spanish] against Alfredo Cristiani [profile], the former president of El Salvador. The groups claim that Cristiani, along with 14 others, committed crimes against humanity, citing a 1989 incident [UN Truth Commission report, PDF] in which six Jesuit priests and their housekeeper and her daughter were killed. Cristiani is accused of being an accomplice to the crime through his role as commander-in-chief. AP has more. El Faro has local coverage, in Spanish.

The organizations are filing the suit under the principle of universal jurisdiction [Princeton backgrounder, PDF], on the basis of which Spain's National Court issued an arrest warrant for former Chilean dictator Augusto Pinochet [JURIST news archive] in 1998. El Salvador passed a law in 1993 granting amnesty [JURIST report] to many individuals involved in a civil war from 1980 through 1992. Salvadoran Jesuits were accused by the government of siding with guerrilla fighters during the war.






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Germany parliament passes new anti-terror laws
Eric Firkel on November 13, 2008 10:37 AM ET

[JURIST] Germany's lower house of parliament [official website] voted Wednesday to approve a new law [materials, in German] which would expand the power of Germany's federal police agency, the Bundeskriminalamt (BKA) [official website, in German], to undertake online and telephone surveillance. Under the proposed law, a judge would be required to order an online search before BKA agents would be permitted to engage in surveillance of a suspect's computer or telephone lines. Proponents argue the measure is necessary to foil international terrorism plots, while opponents say the new law would give the BKA expansive surveillance powers when they only have a vague suspicion of terrorist activity. The bill passed by a margin of 375-168, and it is expected to pass the upper house later this month. The law could take effect in late 2008. AP has more.

In February, Germany's Federal Constitutional Court [official website] ruled that a 2006 North-Rhine Westphalia [state government website, in German] law authorizing intelligence agents to search personal computers, networks, and Internet communications was unconstitutional [JURIST report]. The court ruled [text, in German; press release, in German] that the law violated privacy rights, but said similar methods might be appropriate in limited, compelling circumstances, such as if a life was in danger or to prevent an immediate terrorist attack.






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Rights groups urge independent commission on US treatment of detainees
Benjamin Klein on November 13, 2008 10:32 AM ET

[JURIST] Authors of a new report [text, PDF] on detainees released from US detention in Guantanamo Bay [Global Security backgrounder; JURIST news archive] are urging US president-elect Barack Obama [official website; JURIST news archive] to form an independent, nonpartisan commission with subpoena powers to investigate the treatment of US detainees in Guantanamo as well as in facilities in Afghanistan and Iraq [JURIST news archives]. The report, released on Wednesday by human rights experts at the University of California, Berkeley, in partnership with the Center for Constitutional Rights [advocacy website], concludes that detainees were subjected to interrogation methods that appear to have violated domestic and international prohibitions on torture and other cruel treatment:

By adopting a “take the gloves off” approach, top US civilian and military leaders established unprecedented parameters for the treatment of detainees at US detention facilities in Afghanistan, Guantanamo Bay, and other locations. This permissive environment allowed—if not encouraged—guards and interrogators to dehumanize and, in some cases, torture detainees in their custody. The totality of this experience deeply affected the lives of former detainees—many of whom government officials believe were imprisoned in error. Stigmatized by their imprisonment, a significant number of these detainees now face difficulties finding employment, and some report lasting emotional and psychological scars.
The authors warn that any commission established by Obama must not be undercut by the issuance of pardons, amnesties, or other measures that would shield culprits from accountability. More than half of the respondents in the study characterized their interrogation sessions as "abusive," citing stress positions, prolonged solitary confinement, and exposure to extreme temperatures, loud music, and strobe lights for extended periods. Reuters has more.

Obama is reported to have made no decisions [JURIST report] as yet regarding the future of the Guantanamo Bay prison, although advisers says he is ultimately committed to closing it. Prohibitions against torture and inhuman treatment are firmly embedded in US law and include the Torture Victim Protection Act (1991), the Torture Convention Implementation Act (1994), the War Crimes Act (1996), the Detainee Treatment Act (2005) [texts], the Military Commissions Act (2006) [text, PDF], and the Fifth, Eighth, and Fourteenth Amendments of the US Constitution.





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Europe court rejects Lego trademark appeal
Jake Oresick on November 13, 2008 10:16 AM ET

[JURIST] The European Court of First Instance [official website; JURIST news archive] on Wednesday denied an appeal by the Danish company Lego [corporate website] to restore its EU trademark for its interlocking toy bricks. The decision [opinion text] upheld an Office for Harmonization in the Internal Market (OHIM) [official website] ruling that the distinctive nature of the product is its functional shape, and cannot be trademarked under EC 40/94. The court contended that the availability of the trademark for a technical solution would constitute a monopoly. Lego argued that its bricks were not a monopoly, citing the availability of other shapes which could achieve the same function. The court disagreed, writing:

That aim [of the public interest] does not therefore relate solely to the technical solution incorporated in such a shape, but to the shape and its essential characteristics themselves. Since the shape as such must be capable of being freely used, the distinction advocated by the applicant cannot be accepted.
Canadian Press has more.

The decision was the latest in a decade-long battle between Lego and Canadian-based competitor Mega Brands [corporate website], which manufactures a similar product. Lego initially obtained an OHIM trademark in 1999, which Mega Brands successfully had canceled in 2004. Wednesday’s decision was an appeal of OHIM’s final ruling in 2006. The dispute between the companies has been litigated in many jurisdictions. In 2005, the Supreme Court of Canada [official website] ruled that Mega Brands had a right to sell its product [judgment text].





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Trial of Klan group begins in Kentucky court
Kayleigh Shebs on November 13, 2008 9:57 AM ET

[JURIST] A court in Brandenburg, Kentucky began civil trial proceedings Wednesday against the Kentucky-based Imperial Klans of America over injuries sustained to then-16-year old Jordan Gruver, a US citizen of Panamanian descent, during a racially motivated beating allegedly perpetrated by members of the IKA. The lawsuit, brought on behalf of Gruver by the Southern Poverty Law Center (SPLC) [advocacy website] seeks to place responsibility for the beating on the IKA and Ron Edwards, the "Imperial Wizard" of the Klan. The beating occurred during an alleged Klan recruitment event at the Meade County Fair. According to testimony of those convicted of the battery in a separate criminal trial, Gruver was singled out because of his race. The SPLC claims in its pre-trial brief [text, PDF] that Edwards encourages violence against non-white minority populations, including Hispanics, and that Edwards' rhetoric is directly responsible for the battery committed against Gruver. The SPLC is seeking $6 million in compensatory damages for Gruver's prolonged physical injuries as well as an undisclosed amount in punitive damages from Edwards and the IKA. Settlements have already been reached with those convicted of the battery. Morris Dees, head attorney for the SPLC, said in a Q&A on the SPLC website Wednesday that the goal of the lawsuit is to "obtain justice for young Jordan Gruver. He has been scarred for life by this trauma. We also would like to obtain a crushing verdict that would put the Imperial Klans of America out of business." The SPLC has been successful in the past in winning enough in punitive damages to effectively shut down other notable hate groups, such as the Aryan Nation group in Idaho, and the United Klans of America in Alabama. Edwards has said that he will use whatever means necessary to keep the IKA alive. AP has more. The Courier-Journal has local coverage.

Hate groups like the KKK have recently been experiencing a resurgence [JURIST report] of membership in the United States that some observers connect with growing public attention to racially sensitive issues such as immigration. At the same time, federal and state authorities have been successful in a number of criminal prosecutions against alleged KKK members who committed hate crimes in the 1960s, although in October the Fifth Circuit vacated the conviction [JURIST report] of alleged Klansman James Ford Seale for his involvement in the 1964 deaths of two 19-year-old black teens.






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ACLU requests records on sex segregation in Alabama school
Eric Firkel on November 13, 2008 8:33 AM ET

[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] on Wednesday announced [press release] that it had filed an Alabama Open Records Act [text and materials] request to obtain documents related to the Hankins Middle School [official website] policy of educating students in a single-sex environment. In a letter [text, PDF] to the Mobile County School System [official website], the Alabama chapter of the ACLU argued that Title IX [text], the Equal Educational Opportunities Act (EEOA) [text], and the US Constitution prohibit the segregation of students by gender. They urged the district to abandon the policies in order to avoid litigation. WKRG News has local coverage.

In 2006, the ACLU opposed a Louisiana plan to segregate two middle schools, but the effort was abandoned when in the same year the US Department of Education [official website] changed [press release] its regulations allowing public schools more discretion [JURIST report] in providing for the separate education of boys and girls. The move changes the application of the anti-discrimination provisions in Title IX by allowing gender-segregated classes [backgrounder], grade levels, or even entire schools. The previous rules, implemented in 1975, only allowed gender distinctions in gym or sex education classes. The current rules allow school boards to segregate any course if it would offer an educational benefit, such as higher attendance or increased student comfort. Any school that segregates based on sex is required to offer a co-educational version of the course, and enrollment in a same-sex class is always voluntary. Other critics of the practice include the American Association of University Women (AAUW) and the National Organization for Women (NOW) [advocacy websites].






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UN SG concerned by 'severe' prison terms for Myanmar dissidents
Tarah Park on November 13, 2008 8:15 AM ET

[JURIST] UN Secretary-General Ban Ki-moon [official profile] voiced concern Wednesday about the lengthy and "severe" prison sentences recently issued by a Myanmar [BBC backgrounder; JURIST news archive] court against pro-democracy demonstrators. He called for the country's military junta to release the more than 30 activists, along with all other political prisoners in a statement [text] urging national reconciliation. The sentences [JURIST report], imposed in connection with peaceful anti-government demonstrations [Independent backgrounder], were issued in closed-door proceedings and have been reported to be as lengthy as 65 years in some cases. Leaders of the Association of Southeast Asian Nations (ASEAN) [official website] Inter-parliamentary Myanmar Caucus (AIPMC) [official website] also commented on the sentences and called for the UN to do more. The UN has visited the country over 40 times since 1990 in previous unsuccessful attempts at urging democratic reforms. AP has more. The Asian Tribune has local coverage.

The sentences were the latest step in what in what the UN Human Rights Council [UNHRC resolution], Human Rights Watch [HRW report], Amnesty International [AI report], and other right groups and agencies have identified as a systematic ongoing effort to repress dissenters. The European Union (EU) and the US have also expressed concern over human rights violations in the country and the lack of investigations in the aftermath of last year's violent government suppression of pro-democracy demonstrations. Human rights groups have estimated that more than 2,100 Burmese have been imprisoned for their religious and political beliefs despite the release [JURIST report] of over 9,000 political prisoners in September.






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Connecticut judge signs off on same-sex marriage
Lucas Tanglen on November 13, 2008 8:05 AM ET

[JURIST] Connecticut Superior Court Judge Jonathan Silbert signed a final order [GLAD press release; materials] on Wednesday allowing same-sex marriage in the state. Last month, the state Supreme Court [official website] ruled in a 4-3 decision [opinion, PDF] that state statutes [text] barring same-sex marriage violated the state constitution by discriminating on the basis of sexual orientation. The high court ordered summary judgment and injunctive relief for eight same-sex couples who were denied marriage licenses by the town clerk of Madison, Connecticut. The lead plaintiffs, Beth Kerrigan and Jodie Mock, obtained a marriage license in West Hartford hours after Silbert signed the order. AP has more. The Hartford Courant has local coverage.

The victory for gay rights advocates follows the passage of same-sex marriage bans [JURIST report] in California, Arizona, and Florida earlier this month. In Arkansas, voters approved an initiative [JURIST report] prohibiting gays, lesbians, and other unmarried cohabiting couples from becoming either foster or adoptive parents. In September, a judge in New York dismissed a challenge [JURIST report] to a decision by New York Governor David Paterson to recognize out-of-state same-sex marriages.






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South Africa high court refuses Mbeki appeal of Zuma ruling
Andrew Gilmore on November 13, 2008 7:40 AM ET

[JURIST] The South African Constitutional Court [official website] Wednesday refused to hear an appeal brought by former president Thabo Mbeki [BBC profile; JURIST news archive] of a lower court ruling that dismissed corruption charges against his rival, African National Congress (ANC) [party website] president Jacob Zuma [BBC profile; JURIST news archive] and suggested he Mbeki had a role in bringing them. The Pietermaritzburg High Court dismissed [decision, PDF; JURIST report] corruption charges against Zuma in September after finding that the decision to prosecute him was invalid because Zuma was not given a chance to respond to the allegations against him. The Constitutional Court's rejection of Mbeki's appeal application comes after a judge gave prosecutors leave to appeal the ruling [JURIST report] in October. The Constitutional Court said it was not appropriate to hear the appeal "at this stage." Zuma is expected to become president after next year’s elections, although he has pledged to resign if convicted. Zuma contends the charges [JURIST report] were prompted by Mbeki, and their initial dismissal in September exacerbated existing divisions within the party. Mbeki was forced to resign in the wake of the ruling last month, and his loyalists have threatened to leave the ANC to form a splinter party. BBC News has more. From South Africa, IOL has local coverage.

Zuma defeated Mbeki for the ANC leadership in party elections held in December 2007. He was ousted [JURIST report] as the country’s deputy president in 2005 after an aide was convicted of corruption. He was also charged with rape, but ultimately acquitted and reinstated [JURIST report] as ANC deputy vice president. In late July, the South African Constitutional Court rejected a motion [opinion, PDF; JURIST report] by Zuma to exclude evidence from the corruption trial. Zuma had argued [JURIST report] that evidence seized in 2005 raids by the Directorate of Special Investigations [official backgrounder; BBC report] should be thrown out because the raids violated his rights to privacy and a fair trial. The court upheld the validity of the warrants used in the raids, confirming a November 2007 decision [JURIST report] by the South African Supreme Court of Appeal. The court also held [opinion, PDF; summary] that papers obtained by the Mauritius government [JURIST report] believed to document meetings between Zuma and arms manufacturer Thint were also admissible. Zuma has been facing corruption allegations [BBC timeline] and other charges for several years. He was first charged with corruption in 2005, but those charges were later dismissed [JURIST report] because prosecutors failed to follow proper procedures.






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Bangladesh bans demonstrations following arrest protests
Devin Montgomery on November 12, 2008 4:33 PM ET

[JURIST] The government of Bangladesh on Wednesday reinstated a state of emergency banning political demonstrations in the country for two weeks. The ban had recently been lifted after being imposed [JURIST report] in 2007, but was reissued in response to violent protests [BDNews24 report] coordinated by the Jamaat-e-Islami party [party website] after party leaders Motiur Rahman Nizami and Ali Ahsan Mohammad Mojaheed were arrested on corruption charges [Daily Star report; JURIST report] related to a coal mining contract on Monday. The men have since been released on bail [New Nation report]. The Bangladeshi Ministry of Home Affairs [official website], which issued the state of emergency, said the ban on political rallies would be lifted on November 27, but that other state of emergency restrictions would stay in place at least until the country's elections are held on December 18. AFP has more. Reuters has additional coverage.

On Tuesday, two Bangladesh cabinet members arrested in 2007 [JURIST report] for other corruption charges were also released on bail [JURIST report]. They were arrested as part of the government's anti-corruption campaign [JURIST news archive] and have ties to the former Bangladeshi prime minister Bengum Khaleda Zia [UN profile]. In May, Bangladesh's Anti-Corruption Commission (ACC) [governing statute, PDF] filed formal corruption and abuse of power charges [JURIST report] against Zia for an alleged kickback related to gas contracts. Bangladesh's current anti-corruption campaign began in February 2007 as eight former Bangladeshi ministers were accused of corruption and 13 other former ministers and senior politicians were arrested in raids on their homes [JURIST reports]. Zia and her son were arrested on suspicion of corruption [JURIST report] in September.






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Supreme Court hears First Amendment, habeas cases
Jaclyn Belczyk on November 12, 2008 4:16 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF] Wednesday in two cases. In Pleasant Grove City, UT v. Summum [oral arguments transcript, PDF; merit briefs], the Court considered whether privately donated monuments displayed in public parks qualify as private speech under the First Amendment, requiring municipalities to display monuments from all other donors. Respondent Summum, a small religious sect, requested permission from Pleasant Grove City to erect a monument of the "Seven Aphorisms of Summum" next to a privately donated monument of the Ten Commandments. When this request was denied, Summum filed a suit against the city, alleging a violation of First Amendment Rights. The district court granted summary judgment for Summum, and the US Court of Appeals for the Tenth Circuit affirmed [opinion, PDF], holding that the park was a traditional public forum and that the Ten Commandments monument constituted the private speech of its donor. At oral argument before the Supreme Court Wednesday, counsel for the city argued that the Ten Commandments monument constitutes government speech because it was "selected by the Government, [is] owned by the Government, controlled by the Government, and [is] displayed on Government property. Counsel for Summum argued that the city's denial of Summum's request violated "the core free speech principle that the Government may not favor one message over another in a public forum."

Also Wednesday, the Court heard arguments in Bell v. Kelly [oral arguments transcript; PDF; merit briefs], in which the Court considered whether the deferential standard in the federal habeas statute [28 U.S.C. § 2254(d), text] should be applied to claims a state court did not consider. Edward Bell was convicted of the 1999 murder of a local Virginia police officer and was sentenced to death. Following a number of failed appeals, Bell sought a federal writ of habeas corpus, which was dismissed by the district court. The US Court of Appeals for the Fourth Circuit affirmed [text, PDF] the decision, and Bell then sought certiorari. Bell contends that his counsel was ineffective during sentencing, an argument he was not able to fully develop because of the fact-finding rules imposed in the lower courts. At oral argument, counsel for petitioner Bell argued that "[t]he State court refused to permit the full development of the evidence. And it...misled the court." Counsel for the respondent argued that there was no new claim, saying "[e]verything that he presented in Federal court was presented to the State court. There is absolutely no difference."

- 11/17/2008: The Supreme Court dismissed [order, PDF] the writ of certiorari as improvidently granted.






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Ousted Fiji PM appealing High Court dismissal of 2006 coup challenge
Andrew Gilmore on November 12, 2008 3:42 PM ET

[JURIST] Former Fijian prime minister Laisenia Qarase [BBC profile; JURIST news archive] said Wednesday that he will seek an appeal of an October decision by the Fijian High Court dismissing his challenge [JURIST report] to the country's 2006 coup. In its decision [text, PDF], the High Court held that Fijian President Ratu Josefa Iloilo [official profile] had the authority to name new leaders after Qarase was ousted by the Fijian military. Qarase originally brought suit [JURIST report] against the government in October 2007, saying that the military coup [JURIST report] was illegal because it had supplanted his democratically elected government. Rejecting Qarase's argument, the court held that Iloilo had acted within the country's constitution [text], characterizing his naming of a new prime minister as an allowable retention of authority until a new prime minister could be elected. According to the Australian Broadcasting Corporation (ABC), Qarase also called for independent international judges to hear his appeal [ABC report]. AP has more.

In September, Qarase made additional charges that current prime minister Commodore Frank Bainimarama [BBC profile] and others who participated in the December 2006 military coup [JURIST news archive] had committed treason [Fiji Daily Post report] by ousting Qarase's democratically elected government. Later that month, Qarase tried to make a statement [JURIST report] to police regarding the allegations, but they said they would not investigate the charges. Less than two days after December's coup, a previous interim prime minister installed by the military characterized the coup as "illegal" [JURIST report], but defended it as necessary. Qarase's case was heard by a three-judge panel led by Acting Chief Justice Anthony Gates, who was appointed [press release] after Bainimarama suspended former Chief Justice Daniel Fatiaki [JURIST report].






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Uruguay senate votes to decriminalize some abortions but veto expected
Eric Firkel on November 12, 2008 3:03 PM ET

[JURIST] The Uruguayan Senate [official website, in Spanish] passed a bill [press release, in Spanish] Tuesday that partially decriminalizes abortion [JURIST news archive], but it is unlikely the bill has the support needed to override a veto promised by Uruguayan President Tabare Vazquez [BBC profile]. According to the draft law, a mother may terminate her pregnancy during the first 12 weeks to prevent risks to her health, birth deformities, economic hardship, or other family problems. The bill passed the House of Representatives [official website, in Spanish] last week and will be sent to the president for signature or veto within the next 10 days. While the measure passed the Senate by a vote of 17-13, 19 votes in the Senate are needed to overcome a veto. BBC News has more.

Last November the Uruguayan senate passed a similar bill [JURIST report] decriminalizing abortion, but the measure did not survive presidential veto. Uruguay is similar to most Latin American countries in having restrictive abortion laws. Abortion is completely illegal in Nicaragua [JURIST report], Chile, El Salvador, and the Dominican Republic [HRW reports]. Brazil [HRW report] permits abortion when a mother's life is endangered or when the pregnancy is the result of rape or incest. In countries such as Colombia [JURIST report] and Argentina [HRW report], criminal penalties may be decreased when the mother's life is at risk. Although Mexico City legalized abortion [JURIST report] in some circumstances in April, it is still illegal in the rest of Mexico [HRW report]. Cuba [ISP report] is the only country in the region in which abortion is not illegal.






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Rwanda expels Germany ambassador after presidential aide arrested
Andrew Morgan on November 12, 2008 1:12 PM ET

[JURIST] The German ambassador to Rwanda was given 24 hours on Tuesday to leave the country in response to Sunday's arrest of a Rwandan presidential aide in Germany [JURIST report] in connection with the 1994 assassination of then-president Juvenal Habyarima [NYT report] that touched off the infamous Rwanda genocide [HRW backgrounder]. Rwandan Minister for Foreign Affairs Rosemary Museminali [official profile] said that the expulsion of Christian Clages [embassy website] did not mean that Rwanda had permanently severed ties with Germany. Clages' expulsion, and the recall of Rwandan ambassador to Germany Eugene Richard Gasana, were protests against the arrest of Rose Kabuye [HAF profile], an aide to Rwandan President Paul Kagame [official website] and an official in the Rwandan Patriotic Front (RPF) [HRW backgrounder]. Kabuye was arrested in Frankfurt under a 2006 European warrant [text, PDF] issued by French Judge Jean-Louis Bruguière [BBC profile]. Reuters has more. From Kigali, the New Times has local coverage. Deutsche Welle has additional local coverage.

In October, German authorities transferred [JURIST report] Augustin Ngirabatware, a former Rwandan minister suspected of involvement in the 1994 Rwanda genocide [BBC backgrounder], from a facility in Frankfurt to a UN detention facility in Arusha, Tanzania where he faces trial by the International Criminal Tribunal for Rwanda (ICTR) [official website]. In July, German border police arrested [press release; JURIST report] Rwandan war crimes suspect Callixte Mbarushiman as he was preparing to travel to Russia.






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Supreme Court rules against environmentalists in Navy sonar case
Jaclyn Belczyk on November 12, 2008 1:08 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] ruled [opinion, PDF] 6-3 Wednesday in Winter v. National Resources Defense Council [Cornell LII backgrounder; JURIST report] that the US Navy may continue using sonar as part of military training exercises, despite environmentalists' concerns for the impact this has on whales and other marine life. Chief Justice John Roberts wrote for the majority:

We do not discount the importance of plaintiffs’ ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy’s need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines.
Justice Stephen Breyer filed an opinion concurring in part and dissenting in part, in which Justice John Paul Stevens joined as to Part I. Justice Ruth Bader Ginsburg filed a dissenting opinion, in which Justice David Souter joined. Ginsburg wrote:
In light of the likely, substantial harm to the environment, [National Resource Defense Council’s] almost inevitable success on the merits of its claim that [the National Environmental Policy Act] required the Navy to prepare an [Environmental Impact Statement], the history of this litigation, and the public interest, I cannot agree that the mitigation measures the District Court imposed signal an abuse of discretion.
The decision overturns a ruling [opinion, PDF] by the US Court of Appeals for the Ninth Circuit that upheld a preliminary injunction against the Navy. AFP has more. SCOTUSblog has additional coverage.





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Bolivia officials request extradition of ex-president from US
Safiya Boucaud on November 12, 2008 1:02 PM ET

[JURIST] Bolivian officials on Tuesday formally requested that the US issue extradition orders for former Bolivian president Gonzalo Sanchez de Lozada [official profile, in Spanish; TrialWatch profile] to face genocide charges for his role in October 2003 riots [Amnesty International backgrounder] over corporate exploitation of the country's natural gas resources that left at least 60 dead. The officials have also called for the extradition of de Lozada's former defense and energy ministers under a 1995 extradition treaty with the US [text, PDF]. Sanchez de Lozada resigned amid the unrest and fled Bolivia for the US. The movement to extradite de Lozada [COHA backgrounder] has been spearheaded by the current Bolivian government and family members of those killed in the riots. AP has more. El Diario has local coverage, in Spanish.

The 2003 riots [BBC report] occurred when military forces clashed with predominantly indigenous farmers, coca growers, students, and unionists who protested de Lozada's attempts to open up the country to free trade with the US and to export gas and other natural resources. The protests were led by his former political rival and current Bolivian president Evo Morales [official profile; JURIST news archive].






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US soldier facing court-martial on murder charges in Iraqi detainee deaths
Caitlin Price on November 12, 2008 11:14 AM ET

[JURIST] US Army Sgt. Michael Leahy Jr. will face a court-martial for his alleged role in the killings of four Iraqis in April 2007 [NY Times report], after waiving his right to an Article 32 hearing [JAG backgrounder] Wednesday. In September, Leahy, Sgt. 1st Class Joseph Mayo, and Sgt. John Hatley were charged [JURIST report] with premeditated murder, conspiracy to commit premeditated murder, and obstruction of justice on suspicion that the three former members of the 1st Battalion, 18th Infantry [unit website] blindfolded and shot four Iraqis, then discarded the bodies in a canal near Baghdad. Leahy faces life in prison without parole at his as-yet unscheduled court martial. Hatley has also waived his Article 32 hearing, and Mayo's hearing date has not yet been announced. Leahy and Hatley also face murder and conspiracy charges from a separate incident in January 2007. AP has more.

Four other soldiers from that unit have been charged with conspiracy to commit murder in connection with the killings, and two have agreed in plea deals to testify against Leahy, Mayo, and Hatley. In September, Spc. Belmor Ramos pleaded guilty to conspiracy [JURIST report] and was sentenced to seven months in prison after testifying that he willingly took part in the killings as retribution for earlier deaths of US soldiers. Spc. Steven Ribordy pleaded guilty to accessory to murder charges [JURIST report] and was sentenced to eight months in prison, testifying at his court-martial that he stood at his post and watched as other members of his battalion carried out the killings. Both men were dishonorably discharged. In August, Staff Sgt. Jess Cunningham and Sgt. Charles Quigley submitted to Article 32 hearings [AP report] to determine sufficiency of evidence for courts-martial on conspiracy charges. No official determination from those proceedings has been announced.






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UN human rights chief urges end to death penalty in Afghanistan
Leslie Schulman on November 12, 2008 10:56 AM ET

[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Tuesday urged [press release] Afghan President Hamad Karzai [official website; BBC profile] to put a stop to executions and join nations calling for a death penalty moratorium. The call came after five prisoners were executed over the last four days. Pillay conceded that the prisoners were convicted of serious crimes but expressed her concern about the risk of executing innocent people. AFP has more.

In 2004, the Afghan government implemented a de facto death penalty moratorium that it continued until last October, when it resumed the death penalty [JURIST report] by executing 15 prisoners by firing squad at Pul-e-Charkhi [BBC backgrounder], the country's largest prison. Then-UN rights chief Louise Arbour had urged reinstatement of the ban, but Karzai rejected [JURIST reports] such calls in April, saying that while he prefers life sentences, he will abide by Islamic law's sanctioning of the death penalty for certain crimes, including kidnapping and murder. In December, the UN General Assembly passed [JURIST report] a non-binding worldwide death penalty moratorium [text, PDF], calling on a suspension, rather than a complete abolition, of capital punishment.






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Former Bangladesh government ministers detained since 2007 released on bail
Andrew Gilmore on November 12, 2008 10:29 AM ET

[JURIST] Two former Bangladeshi cabinet members, including a former interior minister, were released on bail Tuesday, after being arrested in 2007 [JURIST report] for alleged involvement in a corruption scandal. The two, Khandaker Mosharraf Hossain and Altaf Hossain Choudhury, were released after the Bangladesh Supreme Court [official website] refused to overturn a High Court order granting them bail. Hossain and Choudry were arrested last year as part of the Bangladesh government's anti-corruption campaign [JURIST news archive]. Both have ties to the former Bangladeshi prime minister Bengum Khaleda Zia [UN profile]. From Bangladesh, The Daily Star has more. BDNews24.com has additional coverage.

In May, Bangladesh's Anti-Corruption Commission (ACC) [governing statute] filed formal corruption and abuse of power charges [JURIST report] against Zia for an alleged kickback scheme that awarded lucrative gas contracts to Canadian oil company Niko Resources Ltd.. Bangladesh's current anti-corruption campaign began in February 2007 as eight former Bangladeshi ministers were accused of corruption and 13 other former ministers and senior politicians were arrested in raids on their homes after Bangladeshi President Iajuddin Ahmed declared a state of emergency in the country and canceled a scheduled national election [JURIST reports]. Zia and her son were arrested on suspicion of corruption [JURIST report] in September. Three additional members of Zia's cabinet were jailed [JURIST report] on Monday.






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Russia legislature expediting proposed amendments to extend presidential term
Caitlin Price on November 12, 2008 10:01 AM ET

[JURIST] Russian State Duma [official website, in Russian] officials said Wednesday they would expedite consideration of constitutional amendments submitted [press release] by President Dmitry Medvedev [official profile; JURIST news archive] that would extend presidential and parliamentary terms. The Duma's constitutional committee has recommended that the three required readings of the proposed legislation be done at one time, which would enable the legislation to be passed as early as Friday. The proposed amendments [JURIST report] would increase presidential term length under Article 81(1) [text] of the Russian Constitution [materials] from four to six years and extend Duma members' terms under Article 96(1) [text] from four to five years. A Kremlin statement said that longer terms "will increase the responsibility of the president and the Russian parliament for their respective performances," adding:

Establishing a longer term of office for the President with respect to State Duma deputies speaks to the need to ensure the stable development of the country and the continuity of government policies. The achievement of this goal is rendered more difficult when there is a virtually complete turnover of power at the federal level every four years.
Medvedev has also submitted for approval a second bill [press release] aiming to give the State Duma supervisory authority over the government cabinet and requiring the cabinet to submit annual reports of its activities to the parliament. If approved, the amendments will next be considered by the Federation Council of Russia [official website, in Russian], the country's upper house. DPA has more. RIA Novosti has additional coverage.

The term limit changes, highlighted by Medvedev in his first state of the nation address [text] to the Federal Assembly earlier this month, will only apply to future presidents. Critics fear that the proposed amendments are an attempt to orchestrate additional terms for former president and current prime minister Vladimir Putin [official website, in Russian; BBC profile], who would be eligible to serve 12 more years in the presidency under the terms as proposed. Last week, the Vedomosti newspaper reported that sources close to the presidency expect Medvedev to step down [Sydney Morning Herald report] before the end of his term to allow Putin to seek the office again, though other Kremlin insiders have denied such rumors.





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South Korea forms rights committee to investigate alleged North Korea abuses
Andrew Gilmore on November 12, 2008 9:17 AM ET

[JURIST] The South Korean government Tuesday established a committee of the National Human Rights Commission of Korea (NHRCK) [official website] to investigate alleged human rights abuses in North Korea. The formation of the new committee is expected to become a source of tension between the two countries. The human rights situation in North Korea has recently come under increased international scrutiny, with a draft UN General Assembly resolution condemning North Korea's human rights practices [JURIST report] gaining support from South Korea, Japan, and the European Union. Since assuming office in February 2008, South Korean president Lee Myung Bak [BBC profile] has taken a tougher line on North-South relations than his predecessors, leading to more confrontations with the North Korean government. Reuters has more.

Last month, the UN Special Rapporteur on Human Rights in North Korea called on [UN News Centre report; JURIST report] the country to take urgent action to improve its rights record. In March, the NHRCK announced an official investigation [JURIST report] into alleged human rights violations by North Korea. North Korea is a party to the International Covenant on Civil and Political Rights [text] and the International Covenant on Economic, Social, and Political Rights [text], among other international treaties.






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Saudi Arabia renews $34 billion lawsuit against tobacco companies
Leslie Schulman on November 12, 2008 12:43 AM ET

[JURIST] The Saudi Arabian Ministry of Health (MOH) [official website] announced [MOH news release] Tuesday that it has renewed claims and is seeking greater damages against 13 local cigarette importers in an effort to "curb the spreading of some serious health problems caused by cigarette smoking." The lawsuit, filed by MOH last year [MOH news release], seeks $34 billion in compensation, and is the first of its kind in the country. According to the Health Minister on Tuesday, "MOH has incurred great costs for treating the diseases caused by smoking" and the government intends to target local Saudi cigarette importers, as opposed to international tobacco companies, as part of a new government anti-smoking campaign. AP has more.

The lawsuit is the latest in a series of actions brought by governments against tobacco companies [JURIST news archive] for health care costs associated with the treatment of tobacco-related diseases. Similar lawsuits have been filed in Nigeria, South Korea, Japan, and Canada [JURIST reports]. The US government, 46 US states, and a number of US territories settled litigation [DOJ backgrounder] against a number of tobacco companies in November 1998 [settlement summary] for damages stemming from tobacco-related health care costs. In 2006, a federal judge ruled [JURIST report] that the tobacco industry was liable for civil racketeering charges filed against the industry by the Department of Justice in 1999.






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Egypt seeks delay of ICC charges against Sudan president
Lucas Tanglen on November 11, 2008 12:26 PM ET

[JURIST] Egyptian foreign minister Ahmed Aboul Gheit [official profile] said [SIS press release] in a Monday interview with Egyptian television that the International Criminal Court (ICC) [official website] should wait for Darfur peace efforts to play out before proceeding with a formal indictment of Sudanese President Omar al-Bashir [BBC profile; JURIST news archive] for alleged war crimes [BBC backgrounder]. ICC prosecutor Luis Moreno-Ocampo filed ten charges against al-Bashir in July for atrocities committed in the country's Darfur region and controversially sought an arrest warrant against him. Aboul Gheit cited Article 16 of the Rome Statute of the International Criminal Court [text], which requires the ICC to defer war crimes investigations for one year at the request of the UN Security Council [official website]. Aboul Gheit's comments follow Egyptian President Hosni Mubarak's [BBC profile] visit to Sudan [SIS press release], in which he met with al-Bashir. AP has more. AFP has additional coverage.

On Wednesday, UN Assistant Secretary-General for Peacekeeping Edmond Mulet said issuing an arrest warrant for al-Bashir could “derail” the peace process [JURIST report]. Last month, ICC judges gave Moreno-Ocampo one month [JURIST report] to submit "additional supporting materials in relation to some confidential aspects" of his application. Human Rights Watch has accused the Sudanese government [JURIST report] of using a domestic special prosecutor for Darfur crimes as "window dressing" to thwart the ICC investigation.






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Chile judge indicts Pinochet son, associates on tax evasion charges
Ximena Marinero on November 11, 2008 12:10 PM ET

[JURIST] A Chilean judge on Monday formally charged the youngest son, former secretary, and estate executor of former Chilean dictator Augusto Pinochet [JURIST news archive; BBC profile] for maliciously making false or incomplete tax declarations. The charges relate to multi-million dollar accounts discovered in 2004 in the US-based Riggs National Bank [BBC report]. Lawyers for Marco Antonio Pinochet deny the charges. AP has more. La Nacion has additional coverage, in Spanish.

Pinochet's relatives have faced related tax evasion charges twice before. In January 2006, Pinochet’s wife, four of five children, daughter-in-law, and former secretary and lawyer were indicted [PDF text, in Spanish; JURIST report], but a year later the Santiago Court of Appeals dropped most of the charges [JURIST report]. In October 2007, 23 family members and former associates - including Pinochet’s wife, five children, former secretary, and three retired army generals - were indicted [JURIST report] on corruption charges for aiding Pinochet in the “misuse of fiscal funds” during his regime. The following month, the Supreme Court of Chile upheld an appeals court decision to drop the charges [JURIST reports] because the accused were not government employees at the time and thus could not be charged with embezzling government funds.






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Myanmar court sentences 14 political activists to 65 years in prison
Christian Ehret on November 11, 2008 12:07 PM ET

[JURIST] A Myanmar [BBC backgrounder; JURIST news archive] court on Tuesday sentenced fourteen members of the 88 Generation Students [BBC backgrounder] pro-democracy group to sixty-five years in prison, according to media reports [AFP report; IHT report]. The sentencing was revealed by defendants' relatives after allegedly taking place in a court in Yangon's Insein Prison [BBC backgrounder]. The Thai website Irawaddy.org has published the names [Irawaddy.com report] of the convicted activists. The defendants were arrested for their participation in anti-junta protests last year regarding fuel prices in defiance of Myanmar's May 1996 anti-protest law, among others. AP has more.

The convictions are the latest in what has been criticized by the UN Human Rights Council [UNHRC resolution], Human Rights Watch [HRW report], Amnesty International [AI report], and others as a systematic ongoing effort to repress dissenters. On Monday, a Myanmar blogger was sentenced [AP report] to twenty years in prison for protest involvement. Last week, two lawyers for dissident students were sentenced [JURIST report] to four months in prison for for being "disrespectful" during their representation. In October, nine people, many of whom were members of 88 Generation Students, were sentenced [JURIST report] to six months in prison for interrupting a judicial proceeding. The 88 Generation Students have been prominent in pro-democracy campaigns since the 1988 Burmese student uprising [BBC backgrounder].






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No final decision reached on Guantanamo prisoners: Obama adviser
Catherine on November 11, 2008 11:45 AM ET

[JURIST] Advisers to US President-elect Barack Obama [official website] emphasized Monday in the wake of press reports that Obama has not made a decision regarding the future of the military prison camp at Guantanamo Bay [JURIST news archive] and its prisoners, despite an earlier Associated Press story [text; JURIST report] that Obama strategists had begun working on a plan to hold criminal trials in US courts for a large number of Guantanamo detainees. Denis McDonough, a senior foreign policy advisor to Obama, said in a statement [Reuters report] that Obama remains committed to closing the prison, but that he would not reach a decision on how to do so or where to try current Guantanamo detainees until he assembled his legal and national security teams. The Chicago Tribune has more.

A number of human rights groups are publicly seeking the end of the Guantanamo Bay prison camp. The American Civil Liberties Union (ACLU) Monday urged [ACLU materials] Obama to not only close the camp, but also to end military commissions [ACLU press release] in favor of trying detainees in traditional US criminal courts or military courts governed by the Uniform Code of Military Justice [text]. In a full-page ad in the New York Times [ad, PDF], the ACLU called on the Obama administration to close Guantanamo Bay in order to ensure “that our government will be faithful to the Constitution and to the principles upon which America was founded.” Since opening in 2002, the Guantanamo Bay prison has held more than 750 detainees, all of which have habeas corpus rights according to a ruling [opinion PDF] from the US Supreme Court [official website] this past June.






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UK top court justices should be questioned by MPs: senior judge
Devin Montgomery on November 11, 2008 11:32 AM ET

[JURIST] UK House of Lords judge Lord Neuberger of Abbotsbury [appointment release] has said that when the new UK Supreme Court [backgrounder] is constituted in 2009 replacing the current Law Lords, members of the country's Parliament [official website] should be able to question the justices because of the court's influence on British laws. Speaking last week at the annual meeting [agenda, PDF] of the Bar Council [council website], Neuberger said that the increased independence of the new body, which replaces the judicial panel of the House of Lords [official website] as Britain's highest tribunal, should be balanced by accountability to the legislature. He suggested that the process could be modeled on the US process for confirming Supreme Court justices [JURIST report]. The Times has more.

In January, it was reported that Lord Phillips of Worth Matravers [BBC profile; JURIST news archive], will probably head the new Supreme Court, statutorily created by the Constitutional Reform Act of 2005 [text]. Besides the US, Canada in 2006 began parliamentary questioning [JURIST report] of nominees for its Supreme Court. The practice remains controversial among Canadian judges.






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US transfers two Guantanamo Bay detainees to Algeria
Devin Montgomery on November 11, 2008 10:02 AM ET

[JURIST] The US Department of Defense (DOD) [official website] on Monday announced [press release] the transfer of two Guantanamo Bay [JURIST news archive] detainees to Algeria. The Department says that approximately 60 detainees at the base are eligible for release, and that it is negotiating with host countries to allow their transfer. It said the transfers were approved after a "comprehensive series of review processes," and that approximately 250 detainees remain at the base.

Earlier this month, DOD announced the transfer [press release; JURIST report] of one Guantanamo detainee to Somaliland, as well as the transfer [press release; JURIST report] of two other detainees, one to Tajikistan and one to Kazakhstan. It was reported Monday that advisers to US president-elect Barack Obama [transition website] are working on a plan to expedite the closure [JURIST report] of the base by either releasing or bringing criminal charges against the majority of remaining detainees. Earlier this month, Secretary of Defense Robert Gates [official profile] confirmed that the detention facilities at Guantanamo will remain open [JURIST report] for the remainder of President George W. Bush's administration.






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Former Taiwan president arrested on suspicion of corruption
Deirdre Jurand on November 11, 2008 9:50 AM ET

[JURIST] Taipei police arrested former Taiwanese president Chen Shui-bian [BBC profile] on Tuesday following questioning by prosecutors about possible corruption and money laundering. Prosecutors are specifically questioning [Taipei Times report] whether Chen, the former leader of the now-opposition Democratic Progressive Party (DPP) [party website, in Mandarin] who resigned the presidency in May 2008, embezzled money from the state affairs fund. Chen has maintained his innocence and has said that the investigation is a political attack by members of the ruling Kuomintang Party [party website]. Officials from the DPP have also criticized the investigation [press release, in Mandarin], claiming that it lacks necessary transparency, that it has been unfair, and that it is violating the principle of non-public investigations. State officials have not formally charged Chen, though such charges could come as early as Tuesday night. A court hearing on Chen's case was suspended Tuesday after Chen was taken to hospital [BBC report] claiming he had been injured by being pushed from behind after questioning at the state prosecutor's office earlier in the day. AFP has more. The New York Times has additional coverage.

Corruption allegations against Chen and his family began in 2006, when state officials accused Chen and his wife, Wu Shu-chen, of embezzling NT$14.8 million ($450,000 USD) from the state affairs budget between 2002 and 2006 by using 712 receipts obtained by the first lady through personal acquaintances. Chen has repeatedly denied the charges of embezzlement, saying that the funds reimbursed with the collected receipts were used for classified diplomatic purposes. Wu was indicted [JURIST report] following those allegations for embezzlement and falsifying documents. Prosecutors indicated that they had enough evidence to indict Chen also, but Chen enjoyed Article 52 [text] constitutional immunity from most criminal charges while he remained in office.






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Federal judge denies motion to dismiss lawsuit seeking White House e-mails
Deirdre Jurand on November 11, 2008 9:11 AM ET

[JURIST] A judge for the US District Court for the District of Columbia [official website] on Monday denied [opinion, PDF] a government motion to dismiss a lawsuit brought by Citizens for Responsibility and Ethics in Washington (CREW) [advocacy website] and the National Security Archive [official website] seeking access to e-mail records from the White House Office of Administration (OA) [official website] under the Freedom of Information Act (FOIA). Judge Henry Kennedy rejected the government's arguments that compliance with statutory presidential records requirements is not subject to judicial review, that the court lacked the proper jurisdiction and authority to potentially order retrieval of the records, and that the plaintiffs did not suffer actual injury that could be redressed by a favorable decision, and ruled that the case could move forward. CREW Executive Director Melanie Sloan welcomed [press release] the ruling:

The Court has rejected the administration’s argument and upheld CREW’s right to sue the White House for failing to comply with the Federal Records Act. The White House, which values secrecy above nearly all else, finally will be held accountable for the millions of missing emails.
AP has more.

The roots of the case go back to 2002 [chronology], when the White House dismantled its automated e-mail archiving system. CREW brought its lawsuit in May 2007, followed in November 2007 by the National Security Archive lawsuit [complaints, PDF], to gain access to information regarding potential lost e-mails from 2003 to 2005 at the Executive Office of the President. The issue of missing e-mails has been an ongoing controversy throughout the Bush administration, arising first during the CIA leak investigation and then again during the US Attorney firing scandal [JURIST news archives]. In February, CREW urged US Attorney General Michael Mukasey to appoint a special counsel [JURIST report] to investigate whether the White House had violated the Federal Records Act and the Presidential Records Act [texts] in failing to preserve White House e-mails. CREW has publicly alleged that White House officials may have deliberately lost or tampered with e-mail records to hide illegal conduct.





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China defends human rights record during UN periodic review
Deirdre Jurand on November 11, 2008 6:35 AM ET

[JURIST] Members of the Chinese delegation to the UN Committee Against Torture (CAT) [official website] on Monday said that the Chinese government had provided training and enacted judicial reforms [UN press release and transcript summary] to help implement its prohibitions against torture, illegal detention, and enforced disappearances, but that the committee needed to consider policy differences based on China's size, population, and culture. CAT members, who are investigating China's adherence to the Convention against Torture [text] during the committee's fourth periodic review [materials] of the country, raised particular concerns over the torture and mistreatment of detainees, as well as the rights afforded minorities, women, and children, refugee treatment, and the rights of lawyers. The Chinese delegation's committee testimony Monday mirrored the delegation's earlier written response [text, PDF] to the committee's concerns, in which the delegation insisted that "[t]he Chinese government faithfully fulfills its obligation under the Convention and respects the Committee’s recommendations, and at the same time, China’s national conditions should also be taken into full account." Regarding torture, the delegation's response Monday again tracked its earlier written response, which noted:

An analysis of the law enforcement situation in recent years shows that the overwhelming majority of prosecutions strictly abided by the Criminal Procedure Law and other relevant laws and handled cases according to law, thus ensuring the quality of case handling. However, it should be pointed out that cases of extracting confession by torture or collecting evidences by force still exist, due to lack of awareness of rule by law on the part of very few case-handling personnel. Such cases are subject to strict investigation and punishment by the Chinese government in accordance with law.
Reuters has more.

Earlier this month, the Chinese government announced a human rights reform plan [JURIST report] that will involve improving government function, expanding democracy, strengthening the rule of law, improving people’s livelihood, boosting public awareness of human rights, and protecting rights of women, children, and ethnic minorities. The announcement of the plan came amid continued international criticism of Chinese human rights violations. While the country slowly addresses some of the concerns in legislation such as the recent Labor Contract Law [backgrounder], widely considered a major advancement [Bloomberg report] in China's protection of workers' rights, critics have said that such efforts are insufficient. In September, Human Rights in China (HRIC) [advocacy website] issued a report highlighting the continued issue of torture on prisoners [JURIST report] despite domestic and international bans.





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UK parliament panel pushing for reporting restrictions on security issues
Deirdre Jurand on November 11, 2008 5:30 AM ET

[JURIST] Members of the UK parliament's Intelligence and Security Committee (ISC) [official website] are pushing for legislation to limit the ability of the media to report on matters affecting national security, according to an Independent report [text] Monday. Under the current system, news editors may seek guidance from Defence Advisory Notices (DA-Notices) [official website] when considering whether to publish information that could affect national security, though such guidance is voluntary and the decision whether to publish rests solely with the editor. The ISC's desired legislation would restrict the power of publication by banning publication of matters the government deems dangerous to national security. According to the ISC's 2006-2007 Annual Report [text, PDF]:

The current system for handling national security information through DA-Notices, and the Agencies’ relationships with the media more generally, is not working as effectively as it might and this is putting lives at risk. We recommend that the Government engage with the media to develop a new, effective system, with a view to protecting intelligence work, operations, sources and criminal prosecutions, whilst ensuring that the media continue to report on important matters of public interest.
The ISC will reportedly solidify its plans and request that a committee investigate its proposals in its next annual report at the end of 2008.

British laws that could effectively limit the media's ability to report have recently drawn international criticism. In August, the UN Human Rights Committee [official website] criticized British libel laws [JURIST report] for stifling freedom of speech. In a report [text linked under "Concluding Observations"] issued after its 93rd session in Geneva, the Committee said restrictive laws may encourage media agencies and scholars to abandon reporting on serious public issues, especially in cases involving the Internet. The Committee also expressed concern that the Official Secrets Act 1989 [text] has been used to prevent former government officials from bringing issues of public interest to light.





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Supreme Court hears sentencing, gun law, testimonial evidence cases
Jaclyn Belczyk on November 10, 2008 3:16 PM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF] Monday in three cases. In Chambers v. United States [oral arguments transcript, PDF; merit briefs], the Court will consider whether failure to report to prison constitutes a "violent felony" for purposes of sentence enhancement under the Armed Career Criminals Act (ACCA) [18 USC § 924(e), text]. Petitioner Deondery Chambers pleaded guilty to being a felon in possession of a firearm. At sentencing the state of Illinois argued that he was subject to a 15-year mandatory minimum sentence under the ACCA, based in part on a prior conviction for escape when he failed to report to prison. Relying on Seventh Circuit precedent, the District Court held that this type of escape constituted a "violent felony" under the ACCA. The US Court of Appeals for the Seventh Circuit court affirmed [opinion, PDF]. There is a circuit split on this issue with the Ninth and DC Circuits holding that failure to report is not a violent felony and the other 10 circuits holding that it is. At oral argument, counsel for petitioner argued that "[f]ailure to report is not a violent felony...because it presents neither a serious potential risk of injury to others nor involves violent and aggressive conduct," while counsel for the state argued that "[f]ailure to report...is similar in kind to burglary because it's purposeful, violent, and aggressive in the same way as burglary."

The Supreme Court also heard arguments in the case of United States v. Hayes [oral arguments transcript, PDF; merit briefs], in which the Court will consider whether a federal gun law [18 USC § 922(g)(9), text], which prohibits anyone convicted of a misdemeanor crime of domestic violence from possessing a firearm, requires that a domestic relationship between an attacker and victim be a specific element of the crime. Respondent Randy Edward Hayes was convicted in 1994 under a West Virginia battery statute for battering his wife, but a domestic relationship between the victim and the attacker was not a specific element of that statute. Hayes was indicted by a federal district court for possessing a firearm in violation of § 922(g)(9). On appeal the US Court of Appeals for the Fourth Circuit reversed [opinion, PDF], holding that § 922(g)(9) requires a domestic relationship element, even though nine other circuits have held that no such element is required. At oral arguments, counsel for the US argued that Hayes's conviction for battery is a misdemeanor crime of domestic violence because "the statutory text is most naturally read that way...[and] a contrary reading would defeat Congress's purposes. Counsel for respondent argued that the government's argument "describes a statute that Congress considered but did not pass."

Finally, the Court heard arguments Monday in the case of Melendez-Diaz v. Massachusetts [oral arguments transcript, PDF; merit briefs], in which the Court will consider whether a forensic analyst's laboratory report is testimonial evidence under the Confrontation Clause, giving criminal defendants a right to cross-examine the analysts. In the 2004 case of Crawford v. Washington [opinion, PDF] the Court held that testimonial evidence could not be admitted unless the defendant had an opportunity to cross-examine the witness. Since then, courts have struggled to determine what constitutes "testimonial evidence." Counsel for the petitioner argued that forensic laboratory reports "are crafted purposefully for the express purpose of proving a fact that is an element of a criminal offense" and are "quintessentially testimonial evidence." Counsel for the state of Massachusetts argued that such reports are not testimonial evidence, but rather are a "report of a scientist test."






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Lawyers for 'Bali bombers' filing suit against Indonesia AG for rights violations
Kiely Lewandowski on November 10, 2008 12:13 PM ET

[JURIST] The Muslim Defender Team (TPM), the group of lawyers representing the three men executed Saturday [JURIST report] for the 2002 Bali bombings [BBC backgrounder], said Monday that it will file charges against Indonesia's attorney general, alleging that the execution process violated the bombers' human rights. TPM argues [Jakarta Post report] that Indonesia violated human rights standards when authorities denied the families final visits with the convicts [BBC report] and refused access to the bodies after the execution. In a related development, critics of the Indonesia government insisted [Jakarta Post report] Monday that the government's indecisiveness about how to handle the execution caused undue public sympathy for the convicts. The Indonesia Attorney General initially postponed the execution in August [JURIST report], and critics contend that delay allowed the media to profit from the public's increased interest. AFP has more.

The three men executed, Mukhlas, Imam Smudra, and Amrozi Nurhasyim [BBC profiles], were members of the Southeast Asian terror group Jemaah Islamiyah (JI) [CFR backgrounder; JURIST news archive]. They had called on Islamic militant groups to carry out retribution attacks, which resulted in stepped-up security in Jakarta and a warning [text] issued by the US embassy in Indonesia. Thousands of supports turned out late Sunday at the funerals of the bombers [AP report] in their home villages. Last Monday, the Indonesian Supreme Court rejected last-minute appeals [JURIST report] filed by relatives of the men because they had exhausted their rights of appeal.






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Supreme Court rejects 'victim impact' evidence cases
Jake Oresick on November 10, 2008 11:58 AM ET

[JURIST] The US Supreme Court [official website; JURIST news archive] denied certiorari [order list, PDF] Monday in the capital cases of Kelly v. California (07-11073) [docket; cert. petition, PDF] and Zamudio v. California (07-11425) [docket; cert. petition, PDF]. Petitioners in the cases were seeking new guidelines for "victim impact" evidence presented to juries during sentencing. Petitioners Douglas Kelly and Samuel Zamudio sought to remand the sentencing phases of their murder convictions on the grounds that emotional videos created by their victims’ families and shown to jurors were overly prejudicial. Justices Stephen Breyer, David Souter, and John Paul Stevens [official profiles, PDF] favored review, but four votes are required to grant certiorari. In a separate dissent [dissent, PDF], Stevens criticized impact evidence for its failure to speak to the defendant’s character, writing:

Although the video shown to each jury was emotionally evocative, it was not probative of the culpability or character of the offender or the circumstances of the offense. Nor was the evidence particularly probative of the impact of the crimes on the victims’ family members: The pictures and video footage shown to the juries portrayed events that occurred long before the respective crimes were committed and that bore no direct relation to the effect of the crimes on the victims’ family members.
Breyer also issued a dissent. AP has more.

In the 1991 case of Payne v. Tennessee [opinion, text], the Supreme Court overruled two prior decisions in holding that victim impact evidence was admissible. The National Center for Victims of Crime [advocacy website] contends that victim impact evidence humanizes the consequences of criminal acts.





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Bangladesh court jails former cabinet ministers on corruption charges
Kiely Lewandowski on November 10, 2008 11:16 AM ET

[JURIST] A Bangladeshi court on Monday ordered three members of the cabinet of former Prime Minister Begum Khaleda Zia [profile] to jail on corruption charges. Matiur Rahman Nizami, Ali Ahsan Mohammad, and Saifur Rahman, who served as industry, social welfare and finance ministers respectively, allegedly ignored lower bidders when they awarded a Chinese company a contract to operate a coal mine in northern Bangladesh. Nizami, leader of the Jamaat-e-Islami, and Rahman, leader of the Bangladesh National Party (BNP) are important allies of Zia who have threatened to boycott parliamentary elections [BBC report] scheduled for next month. Hearings in the case against the three detained men will be held later this week. The International Herald Tribune has more. BDNews24 has local coverage.

In May, Bangladesh's Anti-Corruption Commission (ACC) [governing statute] filed formal corruption and abuse of power charges [JURIST report] against Zia for an alleged kickback scheme that awarded lucrative gas contracts to Canadian oil company Niko Resources Ltd.. Bangladesh's current anti-corruption crackdown began in February 2007 as eight former Bangladeshi ministers were accused of corruption and 13 other former ministers and senior politicians were arrested in raids on their homes after Bangladeshi President Iajuddin Ahmed declared a state of emergency in the country and canceled a scheduled national election [JURIST reports]. Zia and her son were arrested on suspicion of corruption [JURIST report] in September.






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Germany detains Rwanda presidential aide for 1994 assassination
Kayleigh Shebs on November 10, 2008 10:32 AM ET

[JURIST] German officials on Sunday arrested an aide to [KBC report] Rwandan President Paul Kagame [official website] in connection with the 1994 assassination of then-president Juvenal Habyarima [NYT report] that touched off the infamous Rwanda genocide [HRW backgrounder]. Rose Kabuye [advocacy profile], an official in the Rwandan Patriotic Front (RPF) [HRW profile], was arrested under a European warrant issued by French Judge Jean-Louis Bruguiere [BBC profile] in 2006. German officials said that because Kabuye entered the country on personal business, she was not protected by her diplomatic status that had previously prevented her arrest. Rwandan officials have condemned [AP report] Kabuye's arrest, accusing France of issuing the warrant for political reasons. BBC News has more. AFP has additional coverage.

In October, German authorities transferred [JURIST report] Augustin Ngirabatware, a former Rwandan minister suspected of involvement in the 1994 Rwanda genocide [BBC backgrounder], from a facility in Frankfurt to a UN detention facility in Arusha, Tanzania where he faces trial by the International Criminal Tribunal for Rwanda (ICTR) [official website]. In July, German border police arrested [press release; JURIST report] Rwandan war crimes suspect Callixte Mbarushiman as he was preparing to travel to Russia. In recent months, Rwanda has unsuccessfully sought [JURIST report] to have some of those indicted by the ICTR transferred to Rwanda to face trial by domestic courts.






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Obama advisers planning Guantanamo prison closure: report
Jay Carmella on November 10, 2008 10:31 AM ET

[JURIST] Advisers to US President-elect Barack Obama [official website] have begun working on a plan to hold criminal trials in US courts for a large number of Guantanamo Bay [JURIST news archive] detainees, according to a Monday report [text] by the Associated Press. Under the plan, which would also entail the end of Guantanamo-based military commissions [JURIST news archive], the majority of detainees would either be released or brought to the US to face criminal charges. Cases that involve the use of particularly sensitive evidence would be tried in special courts designed to protect the information. The plan has already faced criticism from those who either argue that the detainees should not be brought into the country at all, or that they should all be tried in traditional criminal courts. Meanwhile Monday, the American Civil Liberties Union (ACLU) [advocacy site] began an ad campaign [PDF image] and started a petition [advocacy website] calling on Obama to close the prison [press release] and end the use of military tribunals on his very first day in office. In the wake of Sunday comments by Obama transition chief John Podesta on using executive authority [JURIST report] to ensure early reversal of various contentious Bush administration policies, the ACLU also called on him to issue an executive order banning the use of torture during interrogations.

If carried out, it is not clear what effect the plan will have on previous convictions of detainees by the military commissions or the habeas corpus petitions others now have before federal district courts [JURIST reports]. Last week, a judge for the US District Court for the District of Columbia [official website] began [JURIST report] habeas hearings for six Algerians challenging their detention at Guantanamo Bay. The US Court of Appeals for the DC Circuit [official website] recently suspended its review of a detainee's case because it held it may lack jurisdiction [JURIST report] over the case.






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Serbia judges critical of draft judicial reforms sent to parliament
Tarah Park on November 10, 2008 10:21 AM ET

[JURIST] The Judges Association of Serbia (JAS) [official website, in Serbian] has criticized [statement] a set of proposed judicial reforms slated for debate in the country's parliament beginning Tuesday. The Serbian Ministry of Justice and the Organization for Security and Cooperation in Europe (OSCE) mission to Serbia [OSCE report, PDF] have been working with the judges on the Draft Law on Judges of Serbia [text] since the drafting of the Constitution of Serbia [text, PDF; JURIST report] in 2006. JAS maintains that the version of the draft law being sent to parliament was never shared with it and did not receive the necessary public discussion. JAS also objects to several specific provisions, including those related to judicial appointments. The association asserts that the proposed appointment of lower judges by a parliament appointed High Judicial Council is violative of judicial independence. B92 has local coverage.

In order for Serbia to remain a candidate [JURIST report] for induction into the EU in 2009, EU authorities have said it must continue to make progress in forming an independent judiciary, along with fighting corruption, and complying fully with the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website]. Serbia has received praise [JURIST report] from the Council of Europe's Parliamentary Assembly for reforms already made.






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Obama planning to use executive orders to reverse some Bush policies: Podesta
Safiya Boucaud on November 10, 2008 8:24 AM ET

[JURIST] John Podesta [CAP profile], former White House Chief of Staff under President Bill Clinton and now co-chair of the transition team for US president-elect Barack Obama [transition website] said in an interview [transcript] on Fox News Sunday over the weekend that Obama is making plans to issue executive orders to reverse some of the more contentious policies implemented during the Bush administration. At the top of the list for review are the limitations on stem cell research and expansion of domestic drilling for oil and gas. Podesta said:

There's a lot that the president can do using his executive authority without waiting for congressional action, and I think we'll see the president do that to try to restore...a sense that the country is working on behalf of the common good, that we're going to try to restore wages, give people the right kind of ways that they can build on their own lives, and when they work hard that they'll be rewarded for it.
The New York Times has more.

In July 2006, President Bush vetoed the Stem Cell Research Enhancement Act [JURIST report] which was passed by the Senate to remove restrictions on embryonic stem cell research. Bush's drilling policy, which entailed the use of approximately 360,000 acres of Utah public land for oil and gas drilling, has received criticism from environmentalist groups who fear that the infrastructure could impact local wildlife, calling for increased research into energy conservation and renewable resources instead. In January 2007, Bush lifted a moratorium on drilling [JURIST report] imposed by Clinton in parts of Alaska and the Gulf of Mexico.





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UN officials warn of 'war crimes' and 'genocide' as Congo killings continue
Devin Montgomery on November 9, 2008 3:46 PM ET

[JURIST] UN Peacekeeping Mission to the Democratic Republic of Congo (MUNOC) [official website] head Alan Doss [appointment release] on Saturday condemned [UN News Centre report] recent killings of civilians by militias in the country as war crimes. Doss made the statement after MUNOC announced [press release] that it had received "credible reports" that civilians had been targeted by militia groups the National Congress for the Defense of the People (CNDP) [official website], the Democratic Liberation Forces of Rwanda (FDLR) [GlobalSecurity backgrounder], and the Armed Forces of the Democratic Republic of Congo (FARDC), during fighting over control of the town of Kiwanja last week. UN Secretary General Ban Ki-moon [official website] on Friday called [statement; UN News Centre report] for the militias to recognize a cease-fire agreement in the conflict and urged regional leaders to take "historic responsibility" by supporting UN efforts against the violence. Also on Friday, Ki-moon advisor Francis Deng [appointment release] said that those who encouraged or supported acts of genocide in the country would be held accountable [AP report] for their actions.

Last week, ICC Chief Prosecutor Luis Moreno-Ocampo [official profile] reasserted [ICC press release; JURIST report] that the ICC has jurisdiction over war crimes, crimes against humanity, and genocide committed in the Congolese province of North and South Kivu in the wake of renewed fighting there [BBC report] and that his office intends to punish those responsible. Tensions have recently increased between rebels and the pro-government militia, with talks intended to help hundreds of refugee civilians recently breaking down [AP report]. The ICC president has urged all parties, including regional and international organizations, to support and work together with the Democratic Republic of the Congo (DRC) [JURIST news archive; ICC materials] authorities, particularly in the execution of the arrest warrant [JURIST report] issued by the ICC against Bosco Ntaganda, who is accused of committing war crimes in the DRC from July 2002 until December 2003.






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Demonstrators protest California same-sex marriage ban
Devin Montgomery on November 9, 2008 3:01 PM ET

[JURIST] Thousands of demonstrators in San Diego and Los Angeles on Saturday protested [Union-Tribune report] the passage [unofficial results; JURIST report] of Proposition 8 [text and materials], an amendment to the California constitution [text] making same-sex marriages illegal in the state. The proposition, approved by about 52 percent of California voters last week, provides that "[o]nly marriage between a man and a woman is valid or recognized in California." Earlier in the week, similar protests [AP report] were held in San Francisco, and also in Utah, where protesters picketed outside of the headquarters of the Mormon Church [religious website], which had supported the proposition [press release]. Also last week, advocacy groups American Civil Liberties Union (ACLU), Lambda Legal and the National Center for Lesbian Rights filed a writ petition [PDF text; JURIST report] with the California Supreme Court [official website] seeking to invalidate the amendment. An estimated 2.7 million not-yet-counted provisional and absentee ballots on the measure are not expected [LA Times report] to change the result of the vote on the proposition. AP has more.

Proposition 8 was a response to the California Supreme Court's decision in May striking down [JURIST report] a statutory ban on same-sex marriage as violating the equal protection and privacy provisions of the state constitution. The measure generated more than $60 million in contributions [JURIST report] to committees representing both sides of the issue - a figure believed to be a US record. Voters in Arizona [Proposition 102 text, PDF] and Florida [Proposed Constitutional Amendment 2 text, PDF] also approved [JURIST report] similar measures last week. More than half of US states have adopted constitutional amendments [NCSL list] limiting marriage to opposite-sex couples, while most of the remainder have defined marriage by statute. Massachusetts and Connecticut [JURIST reports] are now the only US states that sanction same-sex marriages under decisions by their highest courts.






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UK revokes visa of Thailand ex-PM convicted of corruption
Steve Czajkowski on November 9, 2008 11:14 AM ET

[JURIST] The British government has revoked the visa of former Thai prime minister, Thaksin Shinawatra [BBC profile; JURIST news archive], and his wife Pojamarn Shinawatra according to media reports Saturday. The couple had been residing in Britain prior to Thaksin's conviction [JURIST report] last month on corruption charges [JURIST report] related to a 2003 purchase of land by his wife from the government-controlled Financial Institutions Development Fund [official website]. It is unclear where Thaksin is currently located, but members of the ruling People Power Party (PPP), who support Thaksin, have said that they are not concerned about the rejected visas as there are there are many other countries that would welcome him. AFP has more. The Bangkok Post has local coverage.

Thaksin, who was ousted as Thailand's prime minister in a military coup in 2006, has seen a long series of corruption actions brought against him and his wife. In August, Thai prosecutors asked the Supreme Court to seize over $2 billion [JURIST report] from the Shinawatras' frozen accounts and holdings in relation to the charges. In July, the Thai Attorney General's Office filed corruption charges [JURIST report] against Thaksin for his role in a 2003 resolution reducing fees paid by mobile phone companies to state telecommunications agencies. Later that month, Pojamarn, as well as her step-brother and secretary, were convicted of tax evasion [JURIST report] for transferring $16.3 million worth of stock she transferred to the two. Also that month, the Supreme Court agreed to hear additional charges against Thaksin and 47 other for alleged misconduct [JURIST reports] related to the country's lottery system.






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Indonesia AG confirms execution of 3 'Bali bombers'
Steve Czajkowski on November 9, 2008 9:28 AM ET

[JURIST] The Indonesian attorney general's office Sunday confirmed that three men convicted for the 2002 Bali nightclub bombings [BBC backgrounder] which killed 202 people were executed by firing squad just after midnight Saturday local time. The executions were carried out after the Indonesian Supreme Court rejected [JURIST report] last-minute appeals filed by relatives of Mukhlas, Imam Smudra, and Amrozi Nurhasyim [BBC profiles], with a judge saying the men had exhausted their rights of appeal. The three men, members of of the Southeast Asian terror group Jemaah Islamiyah (JI) [CFR backgrounder; JURIST news archive], had called on Islamic militant groups to carry out retribution attacks, which resulted in stepped-up security in the capital Jakarta and a warning [text] issued by the US embassy in Indonesia. Thousands of supporters turned out later Sunday at the funerals of the bombers [AP report] in their home vilages. The Jakarta Post has local coverage. Xinhua has more. The International Herald Tribune has additional coverage.

Last month, Indonesia's Constitutional Court rejected [JURIST report] bid by the convicted bombers to have the executions carried out by beheading rather than firing squad. The court ruled that any difference between the methods was immaterial.






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Federal court rules against part of terrorism finance law
Michael Sung on November 8, 2008 10:48 AM ET

[JURIST] A judge for the US District Court for the District of Oregon has ruled that the US Treasury Department's freezing of the assets of the Al-Haramain Islamic Foundation [JURIST news archive] violated the organization's due processes rights because it failed to provide any basis for designating it a "Specially Designated Global Terrorist" (SDGT) organization. The seizure of the organization's assets was authorized by Executive Order 13224 [DOS backgrounder], which allows the Treasury's Office of Foreign Assets Control (OFAC) to block the assets of individuals or entities designated to be SDGTs. Judge Garr King said Thursday that the definition of providing "material support" to terrorism as a criterion for designation was unconstitutionally vague. He did not overturn the designation, however, as it has yet to be decided whether the due process violation was harmless error. From Oregon, the Mail Tribune has more.

The now-defunct Al-Haramain Islamic Foundation is also involved in ongoing litigation [JURIST report] involving whether it was the subject of an illegal wiretap by the National Security Agency (NSA). The foundation alleges that the NSA illegally taped several conversations between the charity and its lawyers.






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Myanmar court sentences opposition lawyers to prison
Michael Sung on November 8, 2008 10:03 AM ET

[JURIST] A court in military-ruled Myanmar [BBC backgrounder; JURIST news archive] on Friday sentenced two lawyers from the National League for Democracy (NLD to four month prison terms for being "disrespectful" while representing dissident students. The US Department of State condemned the prosecutions [press release], calling for the military regime to "cease harassing and arresting citizens for peacefully exercising their internationally recognized human rights." Myanmar criminalizes participation in demonstrations, speeches, or written statements that could undermine stability. AFP has more.

Last Wednesday, a court sentenced nine student activists to six months in prison [JURIST report] for complaining that their trials were being held in secret. The court ruled that the activists had interrupted a public servant at a judicial proceeding. Last Monday, six members of the NLD were sentenced to between two and 13 years in prison [JURIST report] for their involvement in the abortive 2007 Saffron Revolution [Independent backgrounder]. The NLD's leader, Aung San Suu Kyi [BBC profile; JURIST news archive] has been in house arrest for over thirteen years.






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Malaysia court refuses to transfer Ibrahim sodomy trial to high court
Jaclyn Belczyk on November 7, 2008 3:09 PM ET

[JURIST] A judge in Malaysia's Kuala Lumpur Sessions Court on Friday ruled [opinion text] that the sodomy trial of Malaysian opposition leader Anwar Ibrahim [BBC profile; JURIST news archive] will not be transferred to the country's High Court. The application seeking the transfer of the case was signed by Malaysian Attorney General Tan Sri Abdul Gani Patail, who is being sued by Anwar relating to his 1998 arrest on similar sodomy charges. Anwar argued that the attorney general was seeking the transfer because of bias. In his ruling, Judge Komathy Suppiah wrote:

It is clear...that the AG was in fact exercising a quasi-judicial power when he signed the transfer certificate. Accordingly, the rule against bias would disqualify him from issuing the certificate.
AP has more. From Kuala Lumpur, the Star has local coverage.

Anwar pleaded not guilty in August to sodomy charges [JURIST report] based on allegations by a former aide. Anwar has denied the accusations, saying that they are part of a government campaign to upset his political aspirations, including a parliamentary by-election he won [BBC report] in August. Anwar was Malaysia's Deputy Prime Minister under former Prime Minister Mahathir bin Mohamad [BBC profile] until he was fired in 1998 following earlier sodomy charges of which he was initially convicted but later acquitted. He only recently reentered Malaysian politics following the expiration of a ten-year ban [JURIST report] against him for unrelated corruption charges. In August the Federal Court of Malaysia ruled he could challenge the constitutionality [JURIST report] of his original dismissal.





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Colorado ballot measure banning affirmative action fails
Jaclyn Belczyk on November 7, 2008 1:52 PM ET

[JURIST] A ballot measure [Amendment 46 text and materials] to prohibit governmental agencies from discriminating or granting preferences on the basis of race and sex [JURIST news archive] has been narrowly rejected [No campaign website] by voters in Colorado, according to results available Friday. The unofficial tally [text] on Amendment 46 with 96% of polls reporting was:

Yes – 1,033,865 – 49.3% percent
No – 1,061,396 – 50.6% percent

AP has more.

A nearly identical measure passed [JURIST report] Tuesday in Nebraska. In 2006, Michigan voters approved a similar state constitutional amendment, which was upheld [JURIST report] in March by a federal district judge in a lawsuit alleging that such an affirmative action ban violated the US Constitution.






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US deporting record levels of undocumented immigrants: ICE
Tarah Park on November 7, 2008 12:24 PM ET

[JURIST] The 2008 fiscal year led to record deportations of undocumented immigrants in the US according to US Immigration and Customs Enforcement (ICE) [official website] reports Thursday. Nationwide, ICE deported 349,041 immigrants during the 2008 fiscal year ending September 30, as opposed to the 288,663 reported as removed in the 2007 fiscal year [ICE report, PDF] and 2004's 174,000 deportations. The reports [Denver ICE release, PDF], released by local ICE offices throughout the country, also cited local deportations which have gone up as well. About a third of the deported immigrants had criminal records. The Pew Hispanic Center [official website] recently released a report [text, PDF] showing a decreased number of undocumented immigrants in the US from 2005 to 2008. While not identifying a specific a reason for the decrease, that report noted increased enforcement of immigration laws. The Miami Herald has more. AP has additional coverage.

The increase in deportations comes despite ICE's recent abandonment of its voluntary deportation program [JURIST report]. ICE maintains a wide range of other initiatives [facts sheets] to combat illegal immigration, including raids. The Transactional Records Access Clearinghouse (TRAC) at Syracuse University reported this summer that US immigration prosecutions hit record levels [JURIST report] early this year. TRAC attributed the increase in prosecutions to Operation Streamline [WP backgrounder], a joint federal program under which federal prosecutors levy minor charges against illegal immigrants crossing the US-Mexico border. "Reentry of a deported alien" is by far the most common charge in immigration prosecutions.






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Malaysia judge frees blogger arrested under controversial security act
Lucas Tanglen on November 7, 2008 12:20 PM ET

[JURIST] Malaysian High Court Justice Syed Ahmad Helmy Syed Ahmad ordered the release of blogger Raja Petra Kamaruddin on Friday, finding insufficient grounds for his arrest under the country's Internal Security Act (ISA) [text, PDF; HRW backgrounder], which allows for indefinite detentions. Raja Petra, the editor of anti-government website Malaysia Today [political blog], had been in a detention camp since September, when he was accused of causing ethnic tensions by writing articles that allegedly insulted Islam. Malaysian Bar [profession website] President Ambiga Sreenevasan praised the ruling [press release], saying:

At a time when public confidence in the independence of the judiciary has taken a beating from one judicial crisis to another, and at a time when promised judicial reforms have yet to take place, the decision of the learned high court judge in the habeas corpus application of Raja Petra Kamaruddin gives us hope that our judiciary has acted and will act with courage, integrity and independence when the liberty of an individual is threatened by the arbitrary use of power under the Internal Security Act 1960.
After his release, Raja Petra called for the abolition of the ISA. AP has more. The New York Times has additional coverage.

In June, Malaysian rights group Suaram cited the continued use of the ISA in saying that human rights conditions in the country had worsened [JURIST report] in the past year. In May, the Federal Court of Malaysia [official website] rejected an appeal [JURIST report] by five ethnic Indian protesters being detained by Malaysian authorities under the ISA. In January, the International Federation for Human Rights (FIDH) [advocacy website, in French] called for Malaysia to lift the ISA [JURIST report], saying the law was being used to stifle peaceful dissent.





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Federal court begins habeas hearings for Guantanamo detainees
Devin Montgomery on November 7, 2008 11:34 AM ET

[JURIST] Judge Richard Leon [official profile] of the US District Court for the District of Columbia [official website] on Thursday began habeas corpus hearings for six Algerians challenging their detention at Guantanamo Bay. The hearings are the first to be held since the Supreme Court [official website] granted detainees at the facility the right to challenge their captivity in Boumediene v. Bush [opinion, PDF; JURIST report] in June. The government has not brought criminal charges against the men, but has said that they planned to join al Qaeda in hostilities against the US. Lawyers for the men challenged the sufficiency of the government's evidence, and criticized Leon's decision to close the hearing to the public after he found that some of the evidence used against the six should be kept classified. His ruling on the petition is expected later this month. AP has more. The New York Times has additional coverage.

Also Thursday, DC District Court Chief Judge Thomas Hogan [official profile] issued an order [order, PDF] establishing rules for the habeas hearings that have been put under his jurisdiction. In the order, Hogan specified that the government must show "by a preponderance of the evidence" that it can justify holding the detainees, and that it must define "enemy combatant" in order to hold the men under the designation. SCOTUSblog has more.

Earlier this week, a panel of the US Court of Appeals for the DC Circuit [official website] suspended [opinion, PDF; JURIST report] its review of another detainee's status as an "enemy combatant," saying it may lack authority to review the case because of the district court's authority over the habeas petitions. In October, Leon ruled [order, PDF; JURIST report] that in order to be validly held as an "enemy combatants," Guantanamo Bay detainees [JURIST news archive] must have directly supported hostilities against the US or its allies setting the standard which the government must use to justify their detention.






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New ICJ judges include UK professor who asserted legality of Iraq war
Jaclyn Belczyk on November 7, 2008 10:29 AM ET

[JURIST] The UN General Assembly and Security Council [official websites] on Thursday elected [ICJ press release, PDF; UN press release] five new judges to the International Court of Justice (ICJ) [official website]. Judges Awn Shawkat Al-Khasawneh of Jordan, currently the vice president of the court, and Ronny Abraham [ICJ biographies] of France were re-elected. Antonio Augusto Cancado Trindade of Brazil, Christopher Greenwood [faculty profile] of the United Kingdom, and Abdulqawi Ahmed Yusuf of Somalia were newly elected [ICJ biographies]. Their nine-year term will begin on February 6, 2009. Greenwood's nomination had been somewhat controversial [Guardian report] in light of his authorship of a 2002 memo to the British government [text] saying that an invasion of Iraq by the US and UK was legal under existing UN resolutions. AFP has more.

The ICJ is composed of 15 judges, and one third of the membership is elected every three years. The court was established in June 1945 as the judicial branch of the UN. Its role is "to settle, in accordance with international law, legal disputes submitted to it by States and to give advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies."






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UK approves new constitution for disputed Falklands
Devin Montgomery on November 7, 2008 10:06 AM ET

[JURIST] The British and Falkland Islands governments announced [press release] Thursday that they have agreed on a new constitution for the disputed South Atlantic Islands, a British territory also claimed by Argentina. Under the new constitution, primary governing power is vested in the Falkland's local government [official website], but the British governor to the territory retains the power to veto its actions "in the interests of good governance," as well as authority over certain sectors including defense, security, and the judiciary. It also includes rights provisions designed to comply with the European Convention on Human Rights and the International Covenant on Civil and Political Rights [texts]. Both governments praised the agreement, with Falkland Islands Councilor Mike Summers saying:

The new constitution more accurately describes the relationship between the Falklands and the United Kingdom, and formally establishes the degree of internal self-government. We have been pleased with the co-operative nature of our negotiations, reflecting a maturing partnership and a continuing commitment to security, social and economic development. The right of the people of the Falkland Islands to determine their political future has been freely exercised through the democratic process.
The constitution was contained in an order issued by the the UK's Privy Council [official website] on Wednesday and will take effect on January 1, 2009. Argentina, which also claims sovereignty over the islands, criticized the order [MercoPress report], saying that both the Falkland and British governments have no authority over the territory. AFP has more.

In August, the British Foreign and Commonwealth Office (FCO) [official website] announced plans [JURIST report] to seek exclusive harvesting rights to an area of the seabed surrounding the Falklands and other oceanic territories from the UN Commission on the Limits of the Continental Shelf (UNCLCS) [official website]. In April 2007, a group of Argentine veterans of the 1982 Falkland Islands conflict [UK MOD backgrounder] filed a lawsuit [JURIST report] alleging that the Argentine military tortured and killed its own troops during the brief war with Britain that followed its surprise invasion of the islands.





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Peru PM declares state of emergency in south after protests over new mining law
Eric Firkel on November 7, 2008 7:57 AM ET

[JURIST]Peruvian Prime Minister Yehude Simon [official website, in Spanish] has declared a state of emergency [press release, in Spanish] for Tacna province [official website, in Spanish] in southern Peru where violence broke out last week after the government passed a law reducing the province's share of revenue from mining operations in the region. The new law levies taxes based on how much mineral wealth is produced, whereas taxes under the old law were based on how much earth was moved at a mine. The emergency declaration issued Tuesday is intended to restore security to the region where rioters have destroyed public buildings and at least 89 have been arrested. The order will ban public gatherings, limit travel, suspend personal privacy, and increase police presence in the region for 30 days. The government defended the constitutionality of the declaration [El Peruano report, in Spanish], arguing the measure is necessary to secure the safety of its citizens. On Wednesday Simon announced [press release, in Spanish] that there would be no talks with Tacna until the violence stopped. UPI has more.

In August, the government of Peru instituted a state of emergency [Peruvian Times report] in the northern region of the country, in response to large protests held by indigenous groups who oppose a new law [JURIST report] reducing the majority by which a tribe must agree to sell communal land to oil and natural gas companies. The new law is part of a trade agreement negotiated with the Bush administration designed to make it easier for energy companies to acquire land from US trading partners.






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India government warns on illegal real estate sales to foreign buyers
Leslie Schulman on November 7, 2008 7:48 AM ET

[JURIST] The government of India issued a warning [statement text] Thursday on illegal land sales to foreigners in the country, especially in the state of Goa [official website]. Located in the western part of India, Goa is known for its seaside views and inexpensive housing, which attract many foreigners. The statement by the Ministry of Finance [official website] said:

It has come to the notice of the Central Government that foreign nationals are buying immovable property illegally in some parts of the country, particularly in Goa, which has raised concerns . . . [A]ll, including the authorities concerned in the State Governments, are hereby advised to be extra vigilant in such matters and satisfy themselves about the eligibility under [the Foreign Exchange Management Act] before registering a sale or purchase of immovable property in India. The enquiries [sic] may include both the intending buyers and sellers. The relevant travel documents and the nature of visa may also be verified before registering such sale / purchase.
Reuters has more. The Calcutta Telegraph has local coverage.

Under India's Foreign Exchange Management Act (FEMA) [text], a foreign national is permitted to purchase land only after he or she has resided in India more than 182 days. Additionally, the buyer must file income tax in India and any investments must remain in the country. The Goa government in March amended India's Registration Act of 1908 [text], banning the sale [Indian Realty News report] of all land to foreigners unless the Reserve Bank of India granted clearance.





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Sri Lanka urged to probe death threats against lawyers defending terror suspects
Kiely Lewandowski on November 7, 2008 7:48 AM ET

[JURIST] The International Bar Association's Human Rights Institute (IBAHRI) [profession website] Thursday called on [letter text] Sri Lankan President Mahinda Rajapaksa [personal website] to open a probe into death threats allegedly sent by a group called Mahason Balakaya [Lanka eNews report] to the Sri Lankan human rights lawyers who represent suspected terrorists. IBAHRI said the government's failure to initiate an investigation violates both the country's constitution [text, PDF] and its international obligations under the International Covenant of Civil and Political Rights (ICCPR) [text]. IBAHRI asked that Sri Lanka review the UN's Basic Principles on the Role of Lawyers [text], stating:

[The guidelines] provide standards by which lawyers worldwide should be treated. According to principle 16, 'governments shall ensure that lawyers are able to perform all of their professional functions without intimidation, hindrance, harassment or improper interference’. In addition, article 18 states that ‘lawyers shall not be identified with their clients or their clients’ causes as a result of discharging their functions.’
The International Commission of Jurists [profession website] has also criticized the Sri Lankan government's failure to act, arguing [press release, PDF] that in order to "uphold the rule of law and protect the independence and security of the legal profession...a prompt, impartial, and transparent investigation" must be initiated soon.

The Sri Lankan government has been sporadically fighting the separatist Liberation Tigers of Tamil Elam ("Tamil Tigers") since 1972 and has been widely criticized for ignoring basic human rights in the process of countering what it characterizes as a terrorist group. In July, Human Rights Watch (HRW) [advocacy website] accused Sri Lanka of creating a de facto internment camp [HRW press release; JURIST report] for those fleeing areas controlled by the LTTE. In January, the country's Supreme Court [official website] ordered the government to stop [JURIST report] the practice of detaining and searching large groups of civilians in LTTE-controlled areas. The same month, UN High Commissioner for Human Rights Louise Arbour urged the government to continue to respect rights [JURIST report] in the region after the expiration of a 2002 ceasefire. In August 2007, HRW accused the Sri Lankan government of being responsible for a dramatic increase in unlawful killings and other human rights violations [JURIST report].





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Federal appeals court rules law mandating DOD minority contracts unconstitutional
Kayleigh Shebs on November 6, 2008 10:06 PM ET

[JURIST] The US Court of Appeals for the Federal Circuit [official website] ruled [opinion, PDF] that a statute [10 U.S.C. § 2231, text] mandating that five percent of Department of Defense (DOD) [official website] contract spending be awarded to minority companies, is unconstitutional. The opinion, written by Chief Judge Paul Michel [official profile] and issued Tuesday, found that the evidential standard of determining who is a minority violated the Equal Protection and Due Process clauses of the Fifth Amendment because it failed to meet the strict scrutiny test. Citing six studies that Congress used to determine who qualified as a minority, the Court determined that there was a lack of “strong-basis in evidence” to effectively show that the DOD had discriminated against minorities in the past.

The statute, enacted in 1986, has been reauthorized by Congress on several occasions, most recently in 2006. The lawsuit, brought by the Rothe Development Corporation [official website], was filed after a DOD contract was awarded to a company owned by two minorities, despite Rothe submitting the lowest bid. The decision by the Court continues a recent trend [JURIST report] moving away from affirmative action initiatives.






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Campaign funding limits passed in Colorado, rejected in South Dakota
Leslie Schulman on November 6, 2008 4:22 PM ET

[JURIST] A ballot measure to prohibit holders of government contracts totaling more than $100,000 from contributing to political parties or candidates appeared to win narrow approval from Colorado voters Tuesday, while a similar measure in South Dakota was easily rejected. In Colorado, Initiative 59 [text, PDF] (also called Amendment 54) amends the state constitution to ban such "pay to play" practices. The official results Thursday (with 95 percent of precincts reporting) were:

Yes - 1,050,049 - 51 percent
No - 994,366 - 49 percent

Opponents of the measure say the amendment violates freedom of speech because it broadly extends campaign contribution prohibition to include family members and union members. Rocky Mountain News has more.

In South Dakota, Initiated Measure 10 [text] would have banned government funds from being used for campaigning or lobbying, and also would have limited political donations for some people holding state contracts. With 100 percent of precincts reporting, the official results were:

No - 232,631 - 65 percent
Yes - 127,042 - 35 percent

Opponents of the measure said it limited free speech and would have wasted taxpayer money. AP has more.

As of Thursday, it was still too soon to tell whether Oregon voters passed Measure 64 [text, PDF], which would prohibit public resources, including money collected by public employee unions from payroll deductions, from being used to collect money being used for a political purpose. The measure was gaining nominal support on Thursday, with results as follows:

Yes - 78,3090 - 50%
No - 79,7066 - 50%

Those opposing the measure say public employee unions would be unfairly harmed. The Register-Guard has more.






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US voters split on election reform ballot measures
Joe Shaulis on November 6, 2008 2:07 PM ET

[JURIST] An amendment to the Maryland Constitution [text] to permit early voting was among several election-reform ballot measures approved by voters in Maryland and other states Tuesday. Question 1 [text and materials] authorizes the Maryland General Assembly to allow voters to cast ballots outside their election districts or wards, to vote as much as two weeks before an election and to request absentee ballots regardless of whether they could vote in person on Election Day. As of 2 PM EST Thursday, unofficial results [text] for Question 1 (with 1,804 of 1,829 polls reporting) were:

Yes – 1,574,480 – 71.6%
No – 623,220 – 28.4%

In Arkansas, voters likewise favored a legislative referendum [Proposed Constitutional Amendment 1 text, PDF; unofficial results] to remove obsolete voting language from the state constitution. The amendment states that all US citizens who are residents of Arkansas, at least 18 years old and lawfully registered may vote, repealing provisions that tied the right to vote to previous registrations of a voter's name and denied voting rights to "idiot[s] and insane person[s]." In Connecticut, a ballot measure [Constitutional Amendment Question 2 text, PDF; unofficial results, PDF] to allow any person who will be 18 years old on or before a general election to vote in the preceding primary election won approval. In California, voters appeared to narrowly support an initiative [Proposition 11 text and materials; unofficial results] amending the state constitution to authorize a 14-member nonpartisan commission, rather than the state Legislature, to establish legislative district boundaries.

Several election-related measures in other states failed. In South Dakota, voters overwhelmingly defeated a measure [Constitutional Amendment J text and materials, PDF; unofficial results] to lift term limits for state legislators. In Nevada, a legislative referendum [Question 1 text and materials, PDF; unofficial results] to amend the state constitution by removing a six-month residency requirement for voting also was defeated. The US Supreme Court ruled in 1972 that a similar durational residency requirement violated the Equal Protection Clause [Dunn v. Blumstein opinion text] of the US Constitution. Finally, in Oregon, voters soundly rejected an initiative [Measure 65 text and materials; unofficial results] to establish a single primary election for partisan offices in which the two candidates receiving the most votes would advance to the general election.






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COE rendition investigator testifies in Italy CIA abduction trial
Kiely Lewandowski on November 6, 2008 1:46 PM ET

[JURIST] Parliamentary Assembly of the Council of Europe (PACE) [official website] rapporteur Dick Marty [official profile, in French; JURIST news archive] testified Wednesday at the trial of American and Italian intelligence officials for the 2003 abduction and rendition of Egyptian cleric Hassan Mustafa Osama Nasr [JURIST news archive], also known as Abu Omar. Recalling the findings of his own investigation [JURIST report], Marty said that the illegal transfer and detention of Omar was not an isolated incident, but rather an element of a larger CIA scheme, in violation of the European Convention on Human Rights [text]. He went on [COE press release]:

As in the US and Germany, the doctrine of ‘state secrecy’ has been invoked by the Italian government to try and block the judicial procedures aiming to establish the truth about serious human rights violations committed under its responsibility. This is unacceptable and unworthy of a state governed by law. Let justice take its course!...State secrecy is not being invoked to protect secrets – because the facts in question are largely known – but rather to protect the civil servants and politicians responsible for these abuses...

The Abu Omar affair is one of the rare cases where the alleged perpetrators of kidnapping carried out as part of the CIA’s ‘extraordinary rendition’ programme [sic] are facing justice. The trials in the US and Germany, involving the El-Masri affair, have run into the sand after the ‘state secrets’ doctrine was invoked. Parliamentary enquiries [sic], such as the one carried out by the German Bundestag’s committee of enquiry [sic], have also come up against the executive’s refusal to provide certain information requested by the parliamentarians.
AKI has more.

Earlier last month, a judge on the Constitutional Court of Italy [official website, in Italian] suspended [JURIST report] the trial to consider whether it was legal to compel a witness to answer questions that might implicate state secrets. Italian intelligence agents Guiseppe Scandone refused to respond [AP report] when defense lawyers for the former Italian Intelligence and Security Service (SISMI) [official website] chief asked whether the chief ever ordered his subordinates to carry out the extraordinary rendition of a terror suspect. Omar was seized in Milan by CIA agents and Italian operatives, then allegedly transferred to Egypt and tortured by Egyptian intelligence before being released [JURIST reports] in February 2007.





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Europe court overturns EU ruling rejecting Netherlands automobile emissions law
David Weber on November 6, 2008 12:14 PM ET

[JURIST] The European Court of Justice (ECJ) [official website; JURIST news archive] Thursday ruled [opinion text] that the European Commission (EC) [official website; JURIST news archive] should not have overturned a Dutch law requiring all new diesel-fueled vehicles to be equipped with a soot filter. The Netherlands wanted to require the filters in an attempt to reduce particulate matter emitted by passenger vehicles. The ECJ found that expert testimony provided by the Netherlands demonstrated positive benefits of the policy that the EC court did not properly take into account, saying:

In fact, while the Court of Justice has recognised [sic] that the Commission, as part of its assessment of the merits of a request for derogation under Article 95(5) EC, may have to have recourse to outside experts in order to obtain their advice on new scientific evidence adduced in support of such request (see Land Oberösterreich and Austria v Commission, paragraph 32), the primary responsibility for making that assessment rests on the Commission, which must itself, if appropriate on the basis of the experts’ advice, properly take account of all the relevant evidence and explain, in its final decision, the essential considerations which led it to adopt that decision.
DutchNews.nl has more.

The European Court of First Instance ruled in June 2007 that the regulation would negatively impact the free market [opinion text] in the EU. Article 95 of the European Community Treaty [text] requires member states to notify the EC of environmental protections. The EC then has the authority to review the proposed policy, and can strike it to protect economic concerns. Member states have the right to appeal to the ECJ if a policy is overturned.





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Russia president proposes constitutional amendments extending terms
Andrew Morgan on November 6, 2008 12:10 PM ET

[JURIST] Russian president Dmitry Medvedev [official profile; JURIST news archive] Wednesday proposed constitutional amendments extending the presidential term from four to six years, and the term of members of the State Duma [official website, in Russian] from four to five years. The proposed amendments would change Article 81(1) [text] and Article 96(1) [text] of the Russian Constitution [text], the first changes to that document since it replaced its Soviet-era predecessor [text, in Russian] in 1993. Medvedev made the proposals during his first state of the nation address [text] to the Federal Assembly, saying that they would promote the effective implementation of necessary reforms. He cast the term extensions as "clarifications":

We are not talking about constitutional reform but about a correction to the constitution; about important, but refining amendments that do not touch the political and legal essence of the existing institutes.
Fearing that the proposed amendments are an attempt to orchestrate a third term for former president and current prime minister Vladimir Putin [BBC profile], a group of Russian opposition figures, including Garry Kasparov [personal site; JURIST news archive] of the United Civil Front (UCF), a former Union of Right Forces [official website] leader, and leaders of the Yabloko Party [official website], announced plans [RIA Novosti report; UCF statement] to form a new party to protect the Constitution and oppose the initiatives. The Moscow Times has more.

Medvedev, the former head of Russian gas company Gazprom [corporate website], was elected to the Kremlin after Putin served two consecutive terms, the constitutional term limit. Concerns about the fairness of the election were sparked by free speech restrictions prior to the election, the last minute disqualification [JURIST reports] of former prime minister and Putin critic Mikhail Kasyanov [BBC profile], and concerns about Putin's continued influence in the new administration.





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New Pakistan law sets death penalty for cyberterrorism crimes
Christian Ehret on November 6, 2008 12:06 PM ET

[JURIST] Pakistani President Asif Ali Zardari [official profile] on Thursday promulgated the Prevention of Electronic Crimes Ordinance [text] which allows certain acts of "cyber terrorism" to be punishable by death. The ordinance covers a variety of cyber crimes, including unauthorized data access, malicious code, unsolicited mass mailings, and fraud. It focuses on acts of terrorism caused by a person or organization with terroristic intent that accesses computer or electronic systems and "knowingly engages in or attempts to engage in a terroristic act." Such acts include altering electronic information that leads to injury, transmission, or attempted transmission of a malicious program to a government or public entity, aiding in the commission of acts of violence, and stealing or copying classified data necessary to manufacture weapons of mass destruction. According to the ordinance, these criminal offenses that cause the "death of any person shall be punishable with death or imprisonment for life." Reuters has more. APP has local coverage.

In 2006 the US adopted and ratified the Council of Europe's Convention on Cybercrime [text; JURIST report] which, among other goals, aimed to combat terror networks. Earlier this year Human Rights Watch (HRW) [advocacy website] called for the abolition of the death penalty in Pakistan [JURIST report] due to the country's high number of executions and executable offenses and the lack of adequate counsel.






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California backs victims rights measure, Oregon approves sentencing reforms
Benjamin Klein on November 6, 2008 11:44 AM ET

[JURIST] Crime victims gained a higher profile in California’s criminal justice system on Tuesday with voter approval of Proposition 9 [text, PDF], also known as the Victims’ Rights Protection Act of 2008. The only winner among three criminal justice initiatives, Proposition 9, championed by Friends of Marsy's Law [advocacy website], places into the California state constitution 17 rights for victims, their families and their representatives. Written by crime victims, the proposition creates a constitutional Crime Victims’ Bill of Rights, streamlines the parole system, and prevents release of dangerous inmates solely to alleviate prison overcrowding. With all polls reporting, the final results for the Proposition were:

Yes - 53.5% - 5,089,419
No - 46.5% - 4,427,094

By 59.9 percent to 40.1 percent [official results], California voters rejected Proposition 5 [text, PDF], a measure that would have diverted an increasing number of drug addicts and non-violent offenders from overcrowded prisons to rehabilitation programs. Proposition 6 [text, PDF], an initiative that would have toughened penalties for gang and gun crimes, failed 69 percent to 31 percent. The Los Angeles Times has more.

In Oregon, Measure 57 [text, PDF] prevailed over Measure 61 [text, PDF] in Tuesday's election between dueling proposals to crack down on convicted drug dealers and property crime offenders with tougher sentences. Measure 61 sought to extend mandatory minimum prison sentences to first-time identity thieves, burglars and drug dealers while punishing repeat offenders with tougher sentences. Measure 57, an alternative measure sponsored by the state legislature and the Better Way to Fight Crime Committee [advocacy website], proposed to increase prison terms for repeat offenders but also required more comprehensive drug and alcohol treatment for such inmates. The Oregon legislature included a provision on the election ballot stating that the measure capturing the most votes would prevail. Former Oregon state legislator Kevin Mannix, the sponsor of Measure 61, has said that if both measures pass he will go to the courts seeking to “blend” them together. As of Thursday, Measure 57 is ahead by a decisive 61 percent to 39 percent; Measure 61 also appears to be passing by a 51 percent to 49 percent margin. The Eugene Register-Guard has more.






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Rights groups challenge California same-sex marriage ban
Joe Shaulis on November 6, 2008 11:01 AM ET

[JURIST] Rights groups filed a writ petition [PDF text; case materials] with the California Supreme Court [official website] on Wednesday seeking to invalidate a state constitutional amendment prohibiting same-sex marriage. Proposition 8 [text and materials], which was approved [unofficial results] by about 52 percent of California voters Tuesday, provides that "[o]nly marriage between a man and a woman is valid or recognized in California." The writ petition, filed by attorneys for the American Civil Liberties Union (ACLU), Lambda Legal and the National Center for Lesbian Rights on behalf of Equality California [advocacy websites] and six same-sex couples who want to marry, asks the court to stay enforcement of the amendment until the litigation is resolved. The petition alleges that Proposition 8 is not a valid amendment but rather a constitutional revision, which under provisions of the California Constitution [text] must be approved by the state Legislature [official website]. In a press release [text], Lambda Legal attorney Jenny Pizer said:

If the voters approved an initiative that took the right to free speech away from women, but not from men, everyone would agree that such a measure conflicts with the basic ideals of equality enshrined in our constitution. Proposition 8 suffers from the same flaw – it removes a protected constitutional right – here, the right to marry – not from all Californians, but just from one group of us. That's too big a change in the principles of our constitution to be made just by a bare majority of voters.
The ACLU noted that the California Supreme Court invalidated a constitutional amendment initiative in 1990. California Attorney General Jerry Brown [official website] has said he would defend the legality of Proposition 8 as well as the validity of thousands of same-sex marriages already performed in California should they be challenged by proponents of the amendment [advocacy website]. AP has more. The Los Angeles Times has local coverage. The San Francisco Chronicle has additional local coverage.

Proposition 8 was a response to the California Supreme Court's decision in May striking down [JURIST report] a statutory ban on same-sex marriage as violating the equal protection and privacy provisions of the state constitution. The measure generated more than $60 million in contributions [JURIST report] to committees representing both sides of the issue - a figure believed to be a US record. Voters in Arizona [Proposition 102 text, PDF] and Florida [Proposed Constitutional Amendment 2 text, PDF] also approved [JURIST report] similar measures Tuesday. More than half the states have adopted constitutional amendments [NCSL list] limiting marriage to opposite-sex couples, while most of the remainder have defined marriage by statute. Massachusetts and Connecticut [JURIST reports] are now the only US states that validate same-sex marriages, in light of decisions by their highest courts.





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Saudi activists launch 48-hour hunger strike for legal reforms
Kayleigh Shebs on November 6, 2008 10:01 AM ET

[JURIST] A collective of Saudi citizens [Google group] began a 48-hour hunger strike Thursday to protest what it called the illegal detention of 11 political reformists and to call for judicial reform. The protesters, who include Saudi lawyers, scholars, and activists, hope to call attention to Saudi legal and criminal procedures, which they say are not offering full protection to political prisoners. In particular, they point to Article 114 of the Saudi Criminal Procedure and Detention Law [text], which states that the aggregate detention of prisoners shall not extend past 40 days from the day of arrest without a trial. Several of the 11 political reformers have been in prison for close to 18 months with no trial. The hunger strike is controversial in part because of a Saudi law that bans public gatherings, protests, and political parties. Many of those participating hope to avoid a legal backlash by observing the strike within their own homes so as not to create a public gathering. Instead, participants are seeking a “virtual” gathering by calling for support through blogs and social networking sites such as Facebook [Support for Saudi Hunger Strike Facebook group]. AP has more. From Abu Dhabi, The National has additional coverage.

Human Rights Watch (HRW) [advocacy website] has previously criticized [JURIST report] Saudi Arabia’s criminal procedure as arbitrary in its enforcement and violative of due process rights. Last month Amnesty International [advocacy website] issued a report calling the Saudi justice system flawed and linking these problems to the high rate of executions in the country.






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ICC arrest warrant for Sudan president could 'derail' peace process: UN official
Benjamin Klein on November 6, 2008 9:55 AM ET

[JURIST] An arrest warrant for Sudanese President Omar al-Bashir [BBC profile; JURIST news archive] on charges of genocide in Darfur could “derail” the peace process in Sudan according to a statement by Assistant Secretary-General for Peacekeeping Edmond Mulet on Wednesday. Reporting [press release; recorded video] to the UN Security Counsel [official website] on the status of the implementation of the Comprehensive Peace Agreement (CPA) [text, PDF] in Sudan, Mulet said that while the overall security situation in Southern Sudan remains relatively calm, an ICC indictment “could have serious security and other implications,” including the targeting of UN peacekeepers, which he said some had described as an "uncontrolled reaction." The UN has a 9,200-strong peacekeeping force deployed in semi-autonomous southern Sudan to enforce the CPA as well as a joint UN-African Union force in Darfur now totaling about 11,500 troops. Mulet also expressed concern over statements by Sudanese government officials that UN staff thought to have cooperated with the ICC would be expelled. AP has more.

Last July, ICC Chief Prosecutor Luis Moreno-Ocampo [official profile; JURIST news archive] applied for an arrest warrant [application, PDF; JURIST report] for Bashir on charges of genocide, crimes against humanity, and war crimes for atrocities committed in the country’s Darfur region. On October 16, the ICC gave Moreno-Ocampo one month [JURIST report] to submit “additional supporting materials in relation to some confidential aspects” of his application. The Security Council continues to call on Sudan to comply with the ICC investigation, but Sudan has refused to do so, calling Moreno-Ocampo a "terrorist" [JURIST reports] and suggesting that he should be removed from office.






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Vietnam considers reducing number of capital crimes
Jake Oresick on November 6, 2008 9:33 AM ET

[JURIST] Vietnamese Justice Minister Ha Hung Cuong on Monday asked the country's National Assembly [official website] to consider reducing the number of crimes subject to the death penalty. Cuong’s proposal, which would eliminate the death penalty for crimes like bribery and producing counterfeit drugs, comes in response to strong international criticism of the country’s human rights abuses. Le Thi Thu Ba, chair of the legislature’s judicial committee, opposed the plan. The committee cited public health and economic consequences related to the production and smuggling of counterfeit drugs. AP has more. Thanh Nien has local coverage.

Amnesty International [advocacy website] reports that at least 83 people were sentenced to death in Vietnam last year. Capital crimes range from land fraud to economic mismanagement of state resources [BBC report]. Foreign governments and advocacy groups have also condemned Vietnam for persecution of journalists, religious groups [JURIST reports] and ethnic minorities. International pressure proved fruitful in 2005, when Vietnam agreed to publish its court decisions [JURIST report] as a condition for membership in the World Trade Organization (WTO) [official website].






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Bosnia police arrest two suspected in Srebrenica killings
Eric Firkel on November 6, 2008 8:00 AM ET

[JURIST] Law enforcement officials from Bosnia and Herzegovina (BiH) Wednesday arrested [press release] Momir Pelemis and Slavko Peric on suspicion that they committed genocide by engaging in the capture and execution of 1700 Bosnian Muslims in Srebrenica [BBC backgrounder; JURIST news archive] during July 1995. The Special Department for War Crimes of the Prosecutor's Office of BiH [official website] directed the State Investigation and Protection Agency (SIPA) to arrest the two men, who were apprehended in the northeast town of Zvornik. From 1992-1995 Pelemis and Peric served in the Serb Zvornik brigade first battalion as deputy commander and assistant commander, respectively. The prosecutor's office is expected to charge the two men with genocide for violating Article 171 of the Criminal Code of BiH [text, PDF]. Reuters has more. From Sarajevo, the Federal News Agency has local coverage.

The arrests of Pelemis and Peric are the latest in a series of arrests stemming from the 1995 Srebrenica massacre. Last week, the Court of BiH [official website, in Bosnian] sentenced former Bosnian Serb special police officer Vaso Todorovic [Court of BiH materials] to six years in prison [JURIST report] for committing crimes against humanity in the Srebrenica massacre. Todorovic was previously charged with genocide before accepting a plea agreement reducing the charge to crimes against humanity. As part of the agreement, Todorovic agreed to testify in related cases.






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Former US border agent sentenced for violating civil rights of illegal aliens
Jay Carmella on November 6, 2008 7:40 AM ET

[JURIST] Judge Nancy Atlas of the US District Court for the Southern District of Texas [official website] sentenced former US Customs and Border Protection (CBP) [official website] agent Santiago Perez to one year and one day in prison for civil rights violations Wednesday. Perez pleaded guilty in August to assaulting two men during separate incidents in 2006 and 2007. The charges stemmed from an investigation led by the Department of Homeland Security Office of Professional Responsibility [official website] into Perez’s use of excessive force against two undocumented illegal immigrants [JURIST news archive] in his custody. Perez admitted to striking a Guatemalan man with a pistol in 2006 and to assaulting, battering, and threatening to kill a Mexican man in 2007 after driving him to a remote South Texas ranch. In a statement [press release], US Attorney Donald DeGabrielle [official profile] said that Perez would remain under supervision for three years at the conclusion of his prison sentence. The Houston Chronicle has more.

In July, the US Court of Appeals for the Fifth Circuit [official website] upheld [opinion, PDF] several charges against two other US border patrol agents found guilty of shooting of an illegal immigrant [JURIST report]. The controversial decision received national attention after members of Congress called upon President George W. Bush to pardon Ignacio Ramos and Jose Alonso Compean [advocacy website]. Many local residents fear that the prosecution of Border Patrol agents limits their ability to do their job properly.






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Michigan, Massachusetts approve marijuana measures
Eric Firkel on November 5, 2008 11:46 PM ET

[JURIST] Michigan became the thirteenth US state to legalize marijuana for medicinal use Tuesday after voters passed Proposition 1 [PDF text] by 63 percent to 37 percent [official results]. The Michigan Medical Marijuana Act urged by the Michigan Coalition for Compassionate Care [advocacy website] will go into effect 10 days after the election results are certified later this month. The new law will permit "physician approved use of marijuana by registered patients with debilitating medical conditions including cancer, glaucoma, HIV, AIDS, hepatitis C, MS and other conditions as may be approved by the Department of Community Health" [official website]. The act also permits qualifying individuals to grow limited amounts of marijuana and sets up a system of registry identification cards for qualifying patients and primary care givers. The Detroit Free Press has more.

Meanwhile, voters in Massachusetts approved decriminalizing possession of small amounts of marijuana with the passage of Question 2 [text and materials] by 65% to 35% [Boston Globe report]. The new law championed by the Committee for Sensible Marijuana Policy [advocacy website] replaces criminal penalties for possession of one ounce or less with a system of civil penalties. Under the new system those over age 18 possessing an ounce or less of marijuana would be subject to forfeiture of their marijuana and a civil penalty of $100. Offenders under 18 would be subject to forfeiture, a $100 penalty, and will required to complete a drug awareness program within one year of the offense. The Boston Globe has more.






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Nevada restricts eminent domain, Ohio recognizes private property water rights
Steve Czajkowski on November 5, 2008 9:17 PM ET

[JURIST] Voters in Nevada Tuesday approved [unofficial results] a ballot initiative that would restrict the state's ability to use eminent domain law to acquire private property. The initiative [Question 2 text, PDF] includes amendments to the Nevada State Constitution [text] which provides that all property rights are fundamentally constitutional, that property transfers between private parties is not public use, that property must be valued at the use which yield the highest value, and other provisions which deal with the process of taking and valuing property for eminent domain. The ballot measure was originally voted on in 2006 [JURIST report] in the wake of the US Supreme Court 2005 ruling in Kelo v. New London [opinion text; JURIST report] that private redevelopment conferring economic benefits on a community qualifies as a "public use" allowing local governments to expropriate private property under the Takings Clause of the Fifth Amendment. In Nevada's system for approving ballot measures an initiative must be approved in two consecutive elections in order for it to be enacted.

Meanwhile in Ohio, voters Tuesday approved [unofficial results] a ballot initiative [Issue 3 text, PDF] approving an amendment to the Ohio Constitution [text] explicitly saying that a private property owner has a property right in the reasonable use of the ground water underneath such property owner's land, and in the reasonable use of lakes or watercourses located on or flowing through such property owner's land. The amendment is set to take effect on December 1, 2008.






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