JURIST - Paper Chase: Sunday, April 11, 2010

[JURIST] Human Rights Watch (HRW) [advocacy website] Sunday accused both Israel and Hamas [JURIST news archives] of failing to conduct meaningful, credible investigations into accusations of war crimes during the January 2009 Gaza conflict [GlobalSecurity backgrounder; JURIST news archive]. In a 62-page report [text, PDF; materials] HRW described the alleged law of war violations committed during the combat, along with the deficient responses from both sides:

More than one year after the conflict, neither side has taken adequate measures to investigate serious violations or to punish the perpetrators of war crimes, leaving civilian victims without redress. Israel’s investigations have fallen far short of international standards for investigations, while Hamas has conducted no credible investigations at all.

States responsible for violations of the laws of war are required to make reparations, which includes providing fair and adequate compensation to victims and their relatives, and establishing the truth about what happened. ... States also have an obligation to investigate war crimes allegedly committed by their armed forces, and if appropriate, to prosecute those responsible.

The report also called on the UN and members of the international community to pressure both Israel and Hamas to conduct "thorough and impartial investigations" into the war crimes allegations.

In February, HRW criticized [JURIST report] Israel for failing to demonstrate that it would conduct a thorough and impartial investigation of the alleged war crimes. Just prior to that, UN Secretary-General Ban Ki-Moon [official website] said [JURIST report] that it was unclear [BBC report] whether Israel and Palestine have fully met UN demands [JURIST report] to set up a commission to investigate war crimes that may occurred during the conflict. The UN General Assembly [official website] adopted a resolution [JURIST report] last November giving Israel and Palestine three months to complete an investigation into war crimes allegations.

[JURIST] US Senate Judiciary Committee chairman Patrick Leahy (D-VT) [official website] predicted Sunday that President Obama will nominate a replacement for retiring [press release; JURIST report] Supreme Court Justice John Paul Stevens [official profile; Cornell LII materials] in time for hearings to be concluded over the summer. In an appearance [transcript] with Ranking Member Jeff Sessions (R-AL) [official website] on NBC's "Meet the Press" discussed the coming confirmation battle over the replacement for Stevens, who announced Friday that he would retire at the end of the court's 2009 term this summer. Leahy said "I think we're going to hear [a nomination] soon enough so that we can wrap this up this summer." Sessions would not rule out the possibility of a Republican filibuster of the nominee, however, saying:

[I]f we have a nominee that evidences a philosophy of "judges know best," that they can amend the Constitution by saying it has evolved, and effectuate agendas, then we're going to have a big fight about that because the American people don't want that.

Senator Jon Kyl (R-AZ) [official profile] expressed similar sentiments in an appearance [transcript] on ABC's "This Week" Sunday where he would not rule out the possibility of a filibuster against a nominee that "com[es] to the bench with an ideological position," but described the filibuster as "unlikely."

In a letter [text, PDF] to Obama explaining is retirement, Stevens wrote, "it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next Term." There had been much speculation about Stevens's possible retirement, and leading candidates for his replacement reportedly include Solicitor General Elena Kagan [official profile] and federal appellate Judges Merrick Garland and Diane Wood. Stevens, 89, was nominated to the Supreme Court by President Gerald Ford and was seated in December 1975. He previously served on the US Court of Appeals for the Seventh Circuit. Stevens is the court's oldest and most senior member and has served as the leader of the court's liberal bloc. His retirement gives Obama his second opportunity to nominate a Supreme Court justice, following last year's retirement of Justice David Souter and confirmation of Justice Sonia Sotomayor [JURIST reports].

[JURIST] The US District Court for the District of Columbia [official website] late last week made public two previously unreleased rulings relating to habeas corpus claims by Guantanamo detainees. In a decision ordering the release of Mohamedou Ould Slahi [NYT materials], Judge James Robertson held that the government had to release Slahi because it was unable to prove that he was part of, or provided support to, al-Qaeda [GlobalSecurity backgrounder] at the time of his capture. Applying a test articulated by Judge John Bates in Hamlily v. Obama [decision, PDF; JURIST report], which limited the detention of terrorism suspects who are not actual members of terrorist groups under the 2001 Authorization for Use of Military Force (AUMF) [text, PDF], and rejected the Obama administration's "substantial support" standard, Robertson explained:

[A] habeas court may not permit a man to be held indefinitely upon suspicion, or because of the government's prediction that he may do unlawful acts in the future - any more than a habeas court may rely upon its prediction that a man will not be dangerous in the future and order his release if he was lawfully detained in the first place. The question ... was whether, at the time of his capture, [Slahi] was "part of" al-Qa[e]da. On the record before me, I cannot find that he was.

The government plans to appeal [WP report] the decision. On Thursday, the court released the decision [text, PDF] of another judge in the habeas petition of Guantanamo detainee Muktar Yahya Najee al Warafi [NYT materials]. The court rejected Warafi's claim that his detention violated the AUMF and Article 24 of the Fourth Geneva Convention [text]. The court found that the government did have enough proof to hold him under the AUMF, and that the Geneva Conventions may not be invoked in a habeas proceeding. Also on Thursday, a third district court judge rejected [order, PDF] the habeas petition of Yasin Qasem Muhammad Ismail [NYT materials], but the full decision has yet to be released.

The court originally ordered the release [JURIST report] of Slahi in March. Slahi was once considered a key al-Qaeda leader and prosecutors had sought the death penalty against him [WSJ report]. A prominent government prosecutor stepped down from the case [PBS interview] because he did not support the alleged abusive treatment used against Slahi, which was investigated in a 2008 Senate Armed Services Committee report [text, PDF]. Last May, Judge Gladys Kessler applied the "substantially supported" standard [JURIST report] for reviewing habeas petitions filed by detainees, making no reference to the "enemy combatant" [JURIST news archive] classification used previously. Last April, Judge Reggie Walton adopted [JURIST report] the "substantially supported" standard for authorizing and reviewing the detention of terrorism suspects at Guantanamo.