[JURIST] Italy formally agreed to abolish the death penalty for all purposes by ratifying Protocol 13 [text] to the European Convention on Human Rights [text], the Council of Europe (COE) [official website] announced [press release] Tuesday. Italy is the 41st of the COE's 47 member states to adopt the provision, following France, which adopted [JURIST report] it in 2007. The remaining six states have instituted moratoria on executions.

Italy has been a leading opponent of the death penalty, having banned capital punishment for most purposes since 1948. In September 2007, Italian Prime Minister Romano Prodi urged all nations to institute a moratorium on capital punishment in an address [text, PDF] delivered to the UN General Assembly. In January 2007, Italy received the support [JURIST report] of UN Secretary-General Ban Ki-moon when it launched a new push against the death penalty [JURIST report] following the execution of Saddam Hussein. In May 2007, more than 300 Italian prisoners serving life sentences sent a letter [JURIST report] to the Italian president asking that the death penalty be reinstated.

[JURIST] Chairman of the US Senate Judiciary Committee [official website; JURIST news archive] Patrick Leahy (D-VT) [official profile; JURIST news archive] called for the creation of a truth commission to investigate the national security policies of the George W. Bush [JURIST news archive] administration at a hearing [video; materials] Wednesday. Leahy said a nonpartisan inquiry [statement] "could focus on the issues of national security and executive power in the government's counterterrorism efforts, including the issues of cruel interrogation, extraordinary rendition, and executive override of laws." Leahy said a commission would not be focused on preparing criminal indictments, but it should have subpoena powers. Ranking Republican on the committee Arlen Specter (R-PA) [official profile; JURIST news archive] opposed the formation [transcript] of a commission, saying the Department of Justice (DOJ) [official website], under a new administration, was equipped to handle any such investigation. The committee heard testimony in favor of a commission from former ambassador to the UN Thomas Pickering [official profile], Retired Vice Adm. Lee Gunn, former 9-11 [JURIST news archive] commission member John Farmer [professional profile] and attorney Federick A.O. Schwarz Jr. Former DOJ official David Rivkin and George Mason University professor Jeremy Rabkin [faculty profile] testified in opposition to a truth commission.

The hearing came two days after the DOJ released [JURIST report] Bush-era documents in support of that administration's controversial counterterrorism tactics. Leahy announced [JURIST report] the hearing in February, saying the panel's primary focus would be interrogation tactics, extraordinary rendition [JURIST news archive], and Bush's broad use of executive authority. Leahy first called [JURIST report] for the creation of such a commission earlier in February. Members of the House Judiciary Committee [official website] have also called for an investigation into the actions of Bush administration officials, and Obama has said that he would not rule out such an investigation [JURIST reports]. The Senate Armed Services Committee [official website] has alleged [report, PDF; JURIST report] that top Bush officials, including former Defense Secretary Donald Rumsfeld [JURIST news archive], "bore major responsibility" for abuses committed by US interrogators in military detention centers.

[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; briefs] in two criminal procedure cases Wednesday. In Abuelhawa v. United States [oral arguments transcript, PDF] the Court heard arguments on whether a defendant who used a cellphone for the misdemeanor purchase of cocaine can be charged with a 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. The US Court of Appeals for the Fourth Circuit disagreed, ruling [opinion, PDF] that the defendant could be charged with a felony. At oral argument, counsel for the defendant argued:

A person who purchases a small quantity of drugs for his own personal use commits a misdemeanor, not a felony. The language of section 843(b) does not transform that person into a felon if he uses a phone in obtaining his drugs, rather than doing so strictly face to face.

Section 843(b) prohibits the use of a communication facility in causing or facilitating the commission of any act constituting a felony under the Controlled Substances Act. The court of appeals correctly held that the statute is violated when a person uses a communication facility such as a telephone to purchase controlled substances unlawfully. A call to order drugs both causes and facilitates a felony distribution of drugs.

[JURIST] Sudan and other African countries on Wednesday criticized the International Criminal Court (ICC) [official website] for issuing an arrest warrant [text, PDF; ICC release] for Sudanese President Omar al-Bashir [ICC materials, PDF; JURIST news archive], while Sudan's opposition leaders, the UN, and various Western countries urged Bashir's government to cooperate with court. In Sudan, Information and Communication Minister Kamal Ebeid rejected [Xinhua report] the court's authority to issue the warrant, thousands protested in Darfur, and several aid agencies were expelled from the country. Spokesmen for both the African Union [official website] and Egypt warned that the warrant could disrupt peacekeeping efforts in the country, but Sudan opposition SPLM Party member Ezekiel Lol Gatkuoth said that actions by the ICC should not interfere [VOA report] with country's Comprehensive Peace Agreement (CPA) [UN backgrounder]. UN Secretary General Ban Ki-moon [official website] urged Sudan to cooperate with the court [press release] and said that UN peacekeepers would remain in the country. The US State Department [official website] said that the US supported peace in Sudan and that those responsible for atrocities there should be held accountable [press release].

The warrant for Bashir, issued [decision, PDF; JURIST report] earlier on Wednesday, charged him with seven counts of war crimes and crimes against humanity, but did not include genocide charges. The controversial arrest warrant [JURIST news archive] had been sought by ICC prosecutor Luis Moreno-Ocampo [official profile], who in July filed preliminary charges [text, PDF; JURIST report] against Bashir alleging genocide, crimes against humanity, and war crimes committed in the Darfur region in violation of Articles 6, 7, and 8 of the Rome Statute [text]. The ICC announced last week [JURIST report] that they would decide whether to issue an arrest warrant on Wednesday. The announcement came after the New York Times reported [NYT report] last month that the warrant had been issued, leading a court official quickly to issue a denial [JURIST report].

[JURIST] A court under the European Rule of Law Mission in Kosovo (EULEX) [official website, JURIST news archive] reached its first verdict [EULEX report] Tuesday, sentencing Kosovo Albanian Gani Gashi to 17 years in jail for murder, attempted murder, and grievous bodily harm. A three-judge panel, composed of two EULEX judges and a judge from Kosovo, found Gashi guilty [Reuters report] of crimes committed during the Kosovo-Serbian conflict in 1998-1999. The sentence is a milestone [B92 report] for the EULEX court, which is charged with aiding the restoration of the rule of law in Kosovo. In a statement issued by Chief EULEX prosecutor Theo Jacobs, the verdict was heralded as symbolic for the future of the EULEX court in Kosovo: "This trial shows that EULEX is serious about investigating and prosecuting war crimes cases whenever they took place, as long as we have enough evidence for a successful prosecution to proceed."

The court has had a difficult beginning since the EULEX formally began operations [JURIST report] in December. On Tuesday, the trial of two Serbian defendants was derailed [JURIST report] by hundreds of Serbian protesters and postponed indefinitely. Kosovo controversially seceded from Serbia [JURIST report] in February 2008, and its new constitution [text] went into effect [JURIST report] in June. Kosovo's Declaration of Independence from Serbia was met with support from the EU, the US, and from many other countries. Serbia formally condemned the secession [text, JURIST report], citing its illegality under UN Security Council Resolution 1244 (1999).

[JURIST] The Federal Constitutional Court of Germany [official website, in German] on Tuesday ruled [decision, in German; press release] that the use of electronic voting machines in elections is unconstitutional. The ruling comes after a challenge to the use of the machines in the 2005 Bundestag election. Plaintiffs had argued [DW report] that electronically counted votes could easily be tampered with. In reaching their decision, the court acknowledged the potential for fraud and electronic errors, and further examined the protection of voter rights, ruling that voters must be able to know that their votes will be accurately counted. Although the court did not ban the use of all voting machines, only ones that did not comply with constitutional standards, the decision will likely jeopardize [AP report] the use of electronic voting machines in future elections.

Electronic voting has faced constitutional controversy in the US for several years. In September, a Georgia court granted summary judgment [JURIST report] to the State of Georgia against a state constitutional challenge to the use of electronic voting machines. Similar challenges in Maryland, New Jersey, and Florida [JURIST reports] to the legality of paper-free voting systems have also been unsuccessful. In December 2006, a draft report [text, PDF; JURIST report] from the US National Institute of Standards and Technology (NIST) [official website] and the Election Assistance Commission (EAC) [official website] concluded that software-dependent electronic voting machines "are not viable for future voting systems" and "in practical terms cannot be made secure."

[JURIST] The US Supreme Court [official website; JURIST news archive] ruled [opinion, PDF] 6-3 Wednesday in Wyeth v. Levine [Cornell LII backgrounder; JURIST report] that the drug labeling requirements under the Federal Food, Drug, and Cosmetic Act (FDCA) [text] do not preempt state products liability laws. The case was initiated by a Vermont woman who brought a negligence and failure-to-warn products liability suit against pharmaceutical company Wyeth [corporate website], arguing that the company's failure to indicate the dangers of intravenously injected migraine and anti-nausea drug Phenergan eventually led to the amputation of her arm. Wyeth argued that any state-requested changes to the drug label would have violated Food and Drug Administration (FDA) [official website] requirements because FDA approval is based partly on the label, and that allowing state-requested changes to drug labels would contradict legislative intent by allowing an agency other than the FDA officially to determine drug safety. Writing for the majority, Justice John Paul Stevens said that a drug manufacturer and not the FDA bears primary responsibility for product labeling, and that a manufacturer may itself initiate strengthened warning labels to comply with state and federal requirements. Stevens concluded that:

If Congress thought state-law suits posed an obstacle to its objectives, it surely would have enacted an express preemption provision at some point during the FDCA's 70-year history. ... Its silence on the issue, coupled with its certain awareness of the prevalence of state tort litigation, is powerful evidence that Congress did not intend FDA oversight to be the exclusive means of ensuring drug safety and effectiveness.

[JURIST] The New York State Supreme Court Appellate Division [official website] ruled [opinion, PDF] Tuesday that the parents of a 23 year-old, who donated semen prior to his death from cancer in 1998, were not entitled to possession of the specimens. Mary and Antonio Speranza sought their son Mark's semen specimens, which he donated in 1997 so that he could have children after if he survived his battle with cancer, from Repro Lab, Inc. [corporate website] in order to have a grandchild. The court relied on regulations from the New York State Department of Health [official website] in its ruling, finding that Mark was considered a "directed donor" under New York law. As a result, Speranza was only entitled to direct his semen to a specific recipient, and had chosen to have his semen destroyed upon his death. Mark's parents argued that they had not had the opportunity to perform discovery and that the contract between Mark and Repro Lab had been violated. The court found:

Also implicit in plaintiffs' presentation is the suggestion that the balance of the equities weighs in their favor. However, although plaintiffs' plight elicits sympathy, we can find no legal basis for allowing the ultimate relief plaintiffs seek, and there are substantial grounds upon which it must be denied. Although as between the parties, defendant will not be harmed if plaintiffs prevail, other broader interests preclude giving plaintiffs possession of the specimens for purposes of engendering Mark's biological child, their grandchild, with the sperm he left behind.

[JURIST] The International Criminal Court (ICC) [official website] on Wednesday issued [decision, PDF; video, MP4 download] an arrest warrant [text, PDF; ICC press release] for Sudanese head of state Omar al-Bashir [ICC materials, PDF; JURIST news archive], charging him with seven counts of war crimes and crimes against humanity, but declining to charge him with genocide. The controversial arrest warrant [JURIST news archive] had been sought by ICC prosecutor Luis Moreno-Ocampo [official profile], who in July filed preliminary charges [text, PDF; JURIST report] against al-Bashir alleging genocide, crimes against humanity, and war crimes committed in the Darfur region in violation of Articles 6, 7, and 8 of the Rome Statute [text]. This is the first time the ICC has issued an arrest warrant against a sitting head of state.

The ICC announced last week [JURIST report] that they would decide whether to issue an arrest warrant on Wednesday. The announcement came after the New York Times reported [NYT report] last month that the warrant had been issued, leading a court official quickly to issue a denial [JURIST report]. In an effort to promote Darfur peace talks, Egypt called on the ICC last week to postpone its decision [JURIST report] on the arrest warrant. Sudan and the African Union [JURIST reports] have also called for the proceedings against al-Bashir to be delayed. UN Secretary-General Ban Ki-moon has previously urged al-Bashir to comply [JURIST report] with any ICC decision, but al-Bashir has said that that he and his government will disregard [Al Jazeera report] the ICC's ruling. Al-Bashir is accused of systematically targeting and purging the Fur, Masalit, and Zaghawa, three Arabic-speaking ethnic groups, under the pretext of counterinsurgency since 2003.

[JURIST] The Zimbabwean attorney general's office on Wednesday appealed to the nation's Supreme Court a Tuesday High Court ruling ordering the release of Movement for Democratic Change (MDC) [party website] party treasurer general and cabinet member-designate Roy Bennett [JURIST news archive]. Bennett faces charges under Zimbabwe's Public Order and Security Act [materials] for "attempting to commit terrorism, banditry and sabotage." Judge Tedias Karwi rejected a state appeal seeking to deny Bennett bail [TGZ report], finding that the conditions of Bennett's release, set last week [The ZimDaily report], were adequate and that the heightened bail requirements proposed by the state, including surrendering his passport, were unnecessary. The attorney general's office appealed the decision [Zimbabwean report], calling Bennett a flight risk. Bennett is scheduled to remain in prison for two weeks during the appeal, though his lawyers have indicated plans to file their own application with the Supreme Court if the state refused to acknowledge the High Court's decision.

Bennett, who was arrested last month shortly before he was scheduled to be sworn as deputy agriculture minister in the new power-sharing coalition government [BBC report] led by MDC head Morgan Tsvangirai, is accused [JURIST report] of funding the purchase of fire arms and explosives intended to be used as part of an insurgency. It is feared that Bennett's arrest could pose a threat to the power-sharing agreement [JURIST report] between the MDC and the African National Union-Patriotic Front (ZANU-PF) party of President Robert Mugabe [BBC profile; JURIST news archive]. Bennett was originally sought for questioning [JURIST report] in relation to the allegations in 2006, but he had been seeking asylum in South Africa until recently [IOL report]. Treason charges against him were dropped [Times report] in favor of the terrorism and other charges.

[JURIST] Preliminary hearings began Tuesday in the new trial of former Russian oil executive Mikhail Khodorkovsky [defense website; JURIST news archive] in a Moscow courtroom. Khodorkovsky and his former business partner Platon Lebedev [defense website] are facing new charges [JURIST report] of embezzling and laundering nearly $20 billion during their tenures at the Russian energy firm OAO Yukos Oil Co. [TIME backgrounder]. During Tuesday's proceedings, the Moscow court rejected a request [Moscow Times report] by Khodorkovsky's lawyers to remove two Russian state prosecutors who were involved in his 2005 trial [JURIST report] for fraud and tax evasion. The court also rejected a defense request to move Khodorkovsky [NYT report] from the glass and steel enclosure where defendants are normally kept, which many Russian lawyers believe violates international law. Khodorkovsky's lawyers have said that they believe his trial will last for more than six months [Interfax report].

Critics have claimed that the charges against Khodorkovsky and Lebedev are politically motivated due to Khodorkovsky's opposition of former Russian president Vladimir Putin [JURIST news archive]. The transfer of the two from prison to Moscow to stand trial on the new charges was ordered [JURIST report] two weeks ago by a judge for the District Court in Moscow. Khodorkovsky is currently serving an eight-year sentence for his 2005 conviction on the fraud and tax evasion charges, although he maintains his innocence. He requested early release last July, but his application was rejected [JURIST reports] in August because he disobeyed guards at the Krasnokamensk penal colony [Guardian backgrounder], refused to participate in a training program, and faced the possibility of additional charges. Khodorkovsky has appealed [JURIST report] that decision.

[JURIST] A group of Massachusetts plaintiffs who are or have been married under the state's same-sex marriage [JURIST news archive] law filed a lawsuit [complaint, PDF; GLAD press release] against the US federal government Tuesday in the US District Court for the District of Massachusetts [official website], challenging the federal Defense of Marriage Act (DOMA) [text]. The plaintiffs in the suit, which was filed against the Office of Personnel Management (OPM), United States Postal Service (USPS) [official websites], and other departments and officials of the US federal government, are seeking declaratory and injunctive relief as well as review of a number of agency actions. The lawsuit is a direct challenge to DOMA, which the plaintiffs claim violates their Fifth Amendment [text] right to equal protection as it applies to several federal laws and administrative rules. The lawsuit also asks the court to declare DOMA unconstitutional, and "enjoin the defendants from continuing to discriminate against the plaintiffs by treating them differently from similarly situated individuals who are married to persons of the opposite sex." In the compliant, the plaintiffs argue that DOMA:

as applied to plaintiffs, violates the United States Constitution by refusing to recognize lawful marriages for purposes of the laws governing benefits for federal employees and retirees, the Internal Revenue Code, the Social Security laws and the laws and regulations governing issuance of passports. The result of these violations of the Constitution is that each of the plaintiffs has been denied, and will continue to be denied, legal protections and benefits under federal law that would be available to them if their spouses were of the opposite sex.

[JURIST] Former Bosnian Serb leader and war crimes suspect Radovan Karadzic [ICTY materials; JURIST news archive] refused to enter pleas on Tuesday to 11 amended charges [indictment, PDF] including genocide and crimes against humanity in a hearing before the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website]. Last month, the ICTY granted in part [JURIST report] the prosecution's motion [text, PDF; JURIST report] to amend the indictment against Karadzic. When asked by Judge Iain Bonhomy whether he pleaded guilty or not guilty on the first charge of genocide, Karadzic responded that he would not enter pleas [video] because he believes the court has no right to try him. Bonhomy then entered on Karadzic's behalf not guilty pleas for all 11 charges.

Karadzic has previously refused to enter pleas [JURIST report], with the judge issuing not guilty pleas on his behalf. Karadzic faces 11 charges including genocide, murder, persecution, deportation, and "other inhumane acts," for war crimes allegedly committed during the 1992-1995 Bosnian war, including the 1995 Srebrenica massacre [BBC backgrounder; JURIST news archive]. Karadzic was originally indicted [text] by the ICTY in 1995, but had been in hiding under an assumed identity until his arrest last year [JURIST report].