June 2010 Archives


UK court allows appeal of terrorism charges based on torture claims
Hillary Stemple on June 30, 2010 4:31 PM ET

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[JURIST] A London appeals court on Wednesday granted convicted terrorist Rangzieb Ahmed the right to appeal his conviction [JURIST report] based on his claims of torture and recent reports of UK complicity in torture. Ahmed was convicted and sentenced to life in prison in 2008 on charges of directing terrorism under the UK's Terrorism Act of 2006 [text, PDF]. The trial court found that he was a high-level al Qaeda member with ties to some of the organization's leaders. He was convicted of setting up a terrorist cell [BBC report] in Manchester, and he boasted of meeting Khalid Sheikh Mohammed, the man accused of planning the 9/11 attacks [JURIST news archives]. Ahmed alleges that he was beaten and tortured [BBC report] by members of the Pakistani Inter Services Intelligence and then questioned by representatives of MI5 and MI6 [official websites], making the UK government complicit in his torture. Ahmed's counsel argued that he should be given the right to appeal based on the government's complicity in his torture. Ahmed was held for 13 months in Pakistan before being deported to the UK to stand trial.

The court's decision comes two days after the British government indicated it will issue a new set of guidelines [JURIST report] regarding the use of information obtained via torture. The announcement came as part of the government's defense against a lawsuit filed by the human rights group Reprieve [advocacy website], which has been seeking a review of the country's torture policy. Similar claims of complicity were made against the government by a new report [materials] released Monday by Human Rights Watch (HRW) [advocacy website]. Last month, UK Foreign and Commonwealth Affairs Secretary William Hague [official profile] said that the UK will launch an investigation [JURIST report] into allegations that overseas UK operatives were complicit in torture. Hague stated that the new coalition government will initiate a judge-led inquiry into the allegations, but no details were outlined in the legislative program [text, PDF] published by Prime Minister David Cameron [official profile].




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Kagan addresses political bias, First Amendment as confirmation hearings continue
Sarah Miley on June 30, 2010 4:07 PM ET

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[JURIST] US Supreme Court [official website] nominee Elena Kagan [JURIST news archive] addressed the effect of political bias on the bench as the Senate Judiciary Committee [official website] entered its third day of confirmation hearings [materials]. Kagan stated that the nation suffers when the court is split and appears to be politically driven but stopped short of criticizing the Roberts Court [Oyez backgrounder]. Senator Sheldon Whitehouse (D-RI) [official website] chided the Roberts Court for its numerous 5-4 decisions, claiming the the rulings are based on political leanings instead of the constitution:
The court can exercise discretion wisely, but to do so it must balance competing constitutional values, not just apply a favored ideology. And the court can bring truly justice, but only if it approaches each case without predisposition or bias. Unfortunately, the conservative wing of the current Supreme Court has departed from those great institutional traditions. Precedents, whether of old or recent vintage, have been discarded at a startling rate. Statutes passed by Congress have been tossed aside with little hesitation, and constitutional questions of enormous import have been taken up hastily and needlessly.
Kagan told Whitehouse that she did not agree with his suggestion that the current court is politically motivated, holding that the opinions of all nine justices are made in "good faith." While Kagan skirted addressing the ideologies of the Roberts Court, she did address the importance of not bringing politics to the bench. "Every judge has to do what he or she thinks the law requires. But on the other hand, there's no question that the court is served best and our country is served best when people trust the court as an entirely non-political body." Kagan later discussed the balancing test she deems necessary in resolving First Amendment [text] lawsuits. Answering an inquiry from Senator Amy Klobuchar (D-MN) [official website], Kagan stated:
Even as we understand the absolute necessity for protection of speakers from libel suits, from defamation suits, we should also appreciate that people who did nothing to ask for trouble can be greatly harmed when something goes around the Internet, and everybody believes something false about a person...That's a real harm, and the legal system should not pretend that it's not.
Senators expected to conclude questioning on Wednesday, and they will hear from several outside witnesses Thursday.

Kagan's confirmation hearings began Monday [JURIST report] with Democratic and Republican senators offering contrasting interpretations of Kagan's judicial philosophy and lack of experience on the bench. On Tuesday, Kagan defended her decision to restrict military recruiter access [JURIST report] to Harvard Law School [academic website] while she was dean. Obama nominated Kagan [JURIST report] in May to replace Justice John Paul Stevens [official profile; JURIST news archive], who announced his retirement [JURIST report] in April. Kagan became the first woman confirmed as Solicitor General [JURIST report] in 2009.




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Spain constitutional court to hear challenge to new abortion law
Hillary Stemple on June 30, 2010 3:51 PM ET

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[JURIST] The Spanish Constitutional Court [official website, in Spanish] on Wednesday agreed to consider whether recently-approved changes [JURIST report] to Spain's abortion [JURIST news archive] laws are constitutional. Under the new law, abortions performed in the first 14 weeks of gestation are declared a right [CP report], and abortions are allowed until 22 weeks if the mother's life is in danger. Spain's conservative Popular Party (PP) [party website, in Spanish] filed the challenge [JURIST report] earlier this month, contending that the new law violates Article 15 of the Spanish Constitution [text, PDF] which states, "Everyone has the right to life and to physical and moral integrity, and under no circumstances may be subjected to torture or to inhuman or degrading punishment or treatment." They argue that the fetus is entitled to the same rights as the mother, which includes the right to life, and that right can only be taken away in cases of rape or when the mother's life is in danger. The new law, scheduled to go into effect on July 5, replaces the current law dating back to 1985, which allowed abortions only in the case of rape, up to 12 weeks, severe fetal malformation, up to 22 weeks, or if the woman's physical or mental health was in danger. The court has given the government three days to present arguments [El Pais report, in Spanish] on whether the implementation of the law should be suspended while the court deliberates on the constitutional issues presented.

The Spanish Senate [official website, in Spanish] gave final approval to the bill in February. Spain's lower house of parliament, the Congress of Deputies [official website, in Spanish], passed the bill in December after it received approval [JURIST reports] from the Council of State in September. The changes were proposed [JURIST report] last March by a panel of legal and medical experts led by Minister of Equality Bibiano Aido [official website, in Spanish], eliciting widespread protests [JURIST report] throughout Spain. Pro-life activists actively protested the new law and had previously encouraged [JURIST reports] the PP to make good on a promise to seek the bill's repeal. The panel was formed [JURIST report] in September 2008 at the request of Prime Minister Jose Luis Rodriguez Zapatero [official profile, in Spanish] as part of a series of social reforms that have included same-sex marriage [JURIST report] and streamlined divorce proceedings.




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Iran court sentences 2 to death over detained protester killings
Sarah Miley on June 30, 2010 2:20 PM ET

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[JURIST] An Iranian military court has sentenced two men to death by hanging for killing three anti-government protesters in prison, according to the state-run Islamic Republic News Agency (IRNA) [official website, in Persian] on Wednesday. Nine others were sentenced to prison terms, and one suspect was acquitted. The men were charged [JURIST report] with torturing and eventually killing Mohammad Kamrani, Amir Javadi-far and Mohsen Ruholamini while they were detained at Kahrizak jail south of Iran. The Iranian government was sharply criticized by both pro-democracy leaders and government supporters for the death of the protesters, who were incarcerated after last June's disputed presidential election [JURIST news archive]. Authorities initially claimed that the three men had died from meningitis, holding that the torture accusations were the propaganda of the opposition party. This viewpoint began to shift in August when government officials spoke out [JURIST report] against the abuse of protesters detained in Iranian prisons and Supreme Leader Ayatollah Ali Khamenei [official website] ordered the closure of Kahrizak prison as a result. The defendants, whose trial began [JURIST report] in March, included of 11 policemen and one civilian. It is unclear whether the civilian was one of the men sentenced to death, as the presiding judge has prevented any trial information from being disclosed. The convicted men will have 20 days to appeal the military court's ruling.

Observers have accused the Iranian government of conducting the trial as a mere political move. In January, an Iranian parliamentary inquiry found [JURIST report] that Tehran prosecutor Saeed Mortazavi was responsible for the deaths. The report alleged that Mortazavi, the prosecutor responsible for overseeing the Kahrizak prison, ordered that the prisoners be transferred to Kahrizak, where they were tortured and beaten to death. The US government and EU issued a joint statement [JURIST report] in February condemning the human rights violations following the presidential election. In December, Amnesty International (AI) [advocacy website] labeled [JURIST report] the human rights violations committed by the Iranian government following the election among the worst of the past 20 years.




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Wisconsin Supreme Court unanimously upholds same-sex marriage ban
Drew Singer on June 30, 2010 1:21 PM ET

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[JURIST] The Wisconsin Supreme Court [official website] on Wednesday unanimously upheld [opinion text] the state's constitutional ban on same-sex marriage [JURIST news archive] and civil unions. A voter challenged the passing of a referendum banning both same-sex marriages and civil unions, claiming that each type of union should have received its own vote as per a Wisconsin separate amendment rule. The Wisconsin Constitution [text] reads, "provided, that if more than one amendment be submitted, they shall be submitted in such manner that the people may vote for or against such amendments separately." The court established a test to determine if a referendum violates this rule and determined that this particular one did not:
In short, the sponsors of the amendment wanted to protect the current definition and legal status of marriage, and to ensure that the requirements in the first sentence could not be rendered illusory by later legislative or court action recognizing or creating identical or substantially similar legal statuses. The purpose of the marriage amendment, then, was to preserve the legal status of marriage in Wisconsin as between only one man and one woman. Both propositions in the amendment tend to effect or carry out this general purpose.
The court noted that its decision was based purely on whether the amendment was adopted in conformity with a constitutional requirement and "not whether the marriage amendment is good public policy or bad public policy." The state had also challenged the plaintiff's standing to file suit altogether, questioning whether he had been harmed by the referendum. The court ruled that the plaintiff could challenge the referendum because he at least had a trifling interest as a voter whose rights might have been violated.

Several jurisdictions in the US have legalized same-sex marriage. In March, the US Supreme Court [official website; JURIST news archive] denied an emergency appeal to prevent Washington DC's same-sex marriage law from taking effect. Chief Justice John Roberts, acting as circuit justice for the DC area, denied [JURIST report] an application [text, PDF] requesting a stay pending further review of the Religious Freedom and Civil Marriage Equality Amendment Act of 2009 [text, PDF]. With that, DC became the sixth US jurisdiction to allow for same-sex marriages, joining Vermont, New Hampshire, Iowa, Connecticut and Massachusetts [JURIST reports]. Supporters had looked to Wisconsin to be a leader in the gay rights movement before the state passed the marriage ban [JURIST report] in 2006, with more than 59 percent of the state vote.




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Israel considers widening scope of internal flotilla raid probe
Hillary Stemple on June 30, 2010 1:03 PM ET

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[JURIST] Israeli Prime Minister Benjamin Netanyahu [official website; BBC profile] said Tuesday that he is considering widening the scope of the internal probe into the May Israeli raid on several Turkish ships bound for the blockaded Gaza Strip [BBC backgrounder]. Earlier this month, Netanyahu appointed [JURIST report] former Israeli Supreme Court [official website] justice Yakov Turkel to head the investigation, and Turkel has demanded that the investigation be given the same authority [BBC report] as a state commission of inquiry. The internal probe, approved by the Israeli cabinet [JURIST report], does not have the power to subpoena witnesses or recommend sanctions, powers that official state commissions possess. If the probe is considered an official inquiry, witnesses would be required to give testimony under oath. According to Turkel, the Basic Law of Government [text] gives committees appointed by the government the power to conduct a full judicial investigation. Turkel threatened to resign from the commission [Haaretz report] if the scope of the investigation was not widened. He has also requested that two additional members be added to the commission.

The panel has been asked to investigate the events that took place in the early hours of May 31, when Israeli forces raided six ships attempting to deliver more than 10,000 tons of aid to the Palestinian territory of Gaza. The raid left numerous wounded and resulted in the shooting deaths of nine pro-Palestine activists: eight Turks and one American. Earlier this month, UN Secretary-General Ban Ki-moon [official website] reiterated the importance of an international component [JURIST report] in the investigation into the raid. Ban's original proposal to establish an investigatory panel comprised of representatives from Israel, Turkey, and other unnamed countries, was rejected by Israeli officials [JURIST report]. Israeli officials have insisted that Israel has the ability and the right to resolve matters through an internal investigation and does not require international oversight. The Israel Defense Forces (IDF) [official website] has also launched an internal investigation [JURIST report] into the flotilla attack. The investigatory unit will study the outcomes of the incident, "establish lessons" and present its findings by July 4.




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UK Supreme Court rules no human rights protections for soldiers abroad
Sarah Miley on June 30, 2010 12:16 PM ET

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[JURIST] The UK Supreme Court [official website] ruled [judgment, PDF; press summary, PDF] Wednesday that the 1998 Human Rights Act, which incorporates the European Convention on Human Rights (ECHR) [texts] into English law, does not apply to armed forces on foreign soil and that a soldier's family does not have an automatic right to an investigation into cause of death in the battlefield. The case involved Private Jason Smith, who died of heat stroke in Iraq after making several complaints to his commanding officers. Smith's mother filed suit against the government, claiming that the UK owed her son a duty to respect his right to life, which was protected by Article 2 of the ECHR, and that the government must launch an investigation into the alleged breach of that right. The UK Court of Appeal held that Smith had been protected by the Human Rights Act at all times and ordered a new investigation. The Supreme Court overruled the decision, holding that the act does not extend to troop operations abroad. The court held that, since Smith died outside of the UK's Iraqi army base, he was on foreign soil and was not protected by human rights. Justice Lord Alan Rodger noted that the lower court's ruling would require the government to protect soldiers from risks caused by conflict or face potentially costly lawsuits:
While steps can be taken, by training and by providing suitable armour, to give our troops some measure of protection against these hostile attacks, that protection can never be complete. Deaths and injuries are inevitable. ... To suggest that these deaths and injuries can always, or even usually be seen as the result of some failure to protect the soldiers ... is to depreciate the bravery of the men and women who face these dangers.
Lawyers for the plaintiff criticized [Reuters report] the court's ruling, stating that it was "artificial" to assert that rights can be protected on a UK armed forces base abroad but not off the base. The UK Ministry of Defense [official website] welcomed the ruling [press release], stating that the same legal considerations cannot be applied to both the battlefield and non-combat situations.

Private Jason Smith, a member of the Territorial Army since 1992, was mobilized for service in Iraq in June 2003. After spending a short time in Kuwait to become acclimated with the weather, he was sent to a Camp Abu Naji, a UK base in Iraq. He was then sent to an athletics stadium approximately seven miles from the base. On August 9, Smith reported he was feeling sick to his commanding officers, complaining of the heat, which exceeded 120 degrees Fahrenheit during the daytime in the shade. Over the next few days he was employed in various duties off the base. On the evening of August 13, Smith collapsed at the stadium and died of heat stroke. An investigation into Smith's death found that it was caused by a serious failure to address the difficulty he had in adjusting to the climate. Smith's mother than commenced proceedings to open a new investigation into human rights abuses under the ECHR.




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Human trafficking a growing problem in Europe: UN report
Hillary Stemple on June 30, 2010 11:05 AM ET

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[JURIST] The UN Office on Drugs and Crime (UNODC) [official website] on Tuesday released a report [text, PDF] detailing the ongoing problem of human trafficking in Europe. According to the report, European criminal organizations make a yearly profit of around $3 billion from trafficking humans for sexual exploitation or forced labor. The report also found that at a minimum, 140,000 are currently victims of human trafficking in Europe. The UNODC announced the findings of the report [press release] at an event where Spain became the first country in Europe to join the UN's Blue Heart Campaign [official website] against human trafficking. The Blue Heart Campaign seeks to raise awareness of human trafficking, provide support to victims of human trafficking and persuade countries to implement the Protocol to Prevent, Suppress and Punish Trafficking in Persons [text, PDF]. Speaking at the event, UNODC Executive Director Antonio Maria Costa called on all countries in Europe to join the campaign [press release] and equated human trafficking to slavery, saying "Europeans believe that slavery was abolished centuries ago. But look around—slaves are in our midst. We must do more to reduce demand for slave-made products and exploitation."

Earlier this month, the UNODC released a report [text, PDF; press release] describing the globalization of organized crime [JURIST news archive] and its threat to international security [JURIST report]. The report specifically addressed human trafficking and its effect on international criminal activities. Also this month, the US State Department (DOS) [official website] released its annual report [text, PDF; JURIST report] on human trafficking conditions across the globe. It was the tenth annual report on human trafficking by the DOS, following reports in 2009 [JURIST report], 2008 [materials], 2007 and 2006 [JURIST reports]. In January, the European Court of Human Rights (ECHR) [official website] ruled that sex trafficking violates conventions [JURIST report] against slavery and forced labor. Last October, the US and the EU announced an international criminal treaty [JURIST report] that will greatly increase cooperation between the two governments in fighting the trafficking of humans and the sale of illegal drugs.




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Tennessee governor signs immigration bill requiring police to check status of arrestees
Sarah Miley on June 30, 2010 10:13 AM ET

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[JURIST] Tennessee Governor Phil Bredesen (D) [official website] on Monday signed an immigration bill [SB 1141/HB 670 text, PDF] into law that will require police to check the legal status of people who have been arrested and report those who are in the US illegally. The law was created to combat illegal immigration [JURIST news archive] in Tennessee and enhance communication with the US Immigration and Customs Enforcement [official website]. Bredesen hopes passing the bill will make illegal immigration a prominent issue in the upcoming gubernatorial elections, from which he is legally barred from seeking a third term. Bredesen told reporters that he did not like what the law symbolized but found that the bill was not unreasonable. The Tennessee Immigrant and Refugee Rights Coalition [advocacy website] chided Bredesen for "declin[ing] to show leadership" by vetoing the bill. The coalition claims that Tennessee police officers lack the specialized training and oversight to properly implement the law and that it will allow officers to "treat foreign national or non-white resident with heightened suspicion." Knoxville Mayor Bill Haslam (R), who will be running the upcoming gubernatorial elections, praised the signing, stating that "states must step up and address the issue of illegal immigration, because it's clear the federal government has failed to do its part." The law is set to go into effect in January 2011.

Several state and local governments have been passing immigration legislation, as the federal government has been unable to create a solution on the national level. Last week, the voters of Fremont, Nebraska [official website] passed [JURIST report] an ordinance [No 5165 text, PDF] banning the hiring, harboring or renting property to illegal immigrants. The American Civil Liberties Union of Nebraska [advocacy website] has promised to challenge the ordinance in court [press release], describing the law as "un-American and unconstitutional" and arguing that the ordinance will "cause discrimination and racial profiling against Latinos and others who appear to be foreign born, including U.S. citizens." In April, Arizona Governor Jan Brewer (R) [official website] signed into law [JURIST report] a controversial bill [SB1070 materials] that would require any individual suspected of being an illegal immigrant to present valid identification to law enforcement officials. Brewer is currently facing federal lawsuits filed by the National Coalition of Latino Clergy and Christian Leaders, several Tuscon police officers and a class action [JURIST reports] led by the American Civil Liberties Union (ACLU) [advocacy website]. US President Barack Obama has also criticized the law [JURIST report] and plans to file a lawsuit on behalf of the federal government. The Mexican government has also spoken out against the law and filed an amicus curiae brief [JURIST reports] last week in support of the ACLU lawsuit.




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Canada rights group calls for inquiry into G-20 security measures
Hillary Stemple on June 30, 2010 9:36 AM ET

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[JURIST] The Canadian Civil Liberties Association (CCLA) [advocacy website] on Tuesday called for an inquiry [press release] into possible civil liberties violations during the Toronto Group of 20 (G-20) summit [official website]. The group released a preliminary report [text, PDF] on security measures, condemning some police conduct during the summit as "disproportionate, arbitrary and excessive." The CCLA also criticized the enactment of a local regulation [O Reg 233/10 text] under the Public Works Protection Act [text], which broadened the scope of police search and seizure powers in certain areas of Toronto during the summit. Under the regulation, anyone present in certain areas of Toronto could be required to identify themselves to police or be subjected to a search. Some legal experts have also indicated that implementation of the regulation may have been a violation [Toronto Star report] of the Canadian Charter of Rights and Freedoms [text]. They argue that the public was not given enough notice about the regulation and that the primary area of focus for determining constitutionality is whether the public could have reasonably expected to be able to assemble in the areas without being asked for identification. Some legal experts have gone so far as to compare the government's actions leading up to the summit to the government's response to the 1970 October Crisis where civil liberties were temporarily suspended under the War Measures Act [Canadian Encyclopedia backgrounders]. CCLA has called for a review of the Public Works Protection Act, a withdrawal of all charges filed under the act, implementation of a more transparent regulatory process, and the modernization of the Canadian Criminal Code. Amnesty International Canada [advocacy website] has also called for an inquiry [press release] into police operations surrounding the G-20, as well as the impact of the use of the Public Works Protection Act.

Similar concerns over civil liberties violations arose last fall, following the Pittsburgh G-20 summit [JURIST news archive]. In December, the American Civil Liberties Union of Pennsylvania (ACLU-PA) [official website] and the Center for Constitutional Rights (CCR) [advocacy websites] announced they were extending and continuing a lawsuit [JURIST report] against the City of Pittsburgh for allegedly violating the rights of two protest groups during the September summit. According to the amended complaint, Pittsburgh police officers repeatedly violated the First, Fourth and Fourteenth Amendment [text] rights of Seeds of Peace and Three Rivers Climate Convergence (3RCC) [advocacy websites]. The ACLU-PA and CCR originally filed the lawsuit [JURIST report] in September. Both groups claimed that police searched and seized members of the groups and their property and that police retaliated against members for exercising their right to free speech. Seeds of Peace also claimed that police detained their bus without cause, illegally searched and impounded the bus and conducted a warrantless raid on the property on which the bus was being stored. Pittsburgh has also been criticized for its handling of other protesters. The National Lawyers Guild (NLG) [advocacy website] questioned [JURIST report] the methods used by police during protests in the Lawrenceville and Oakland [JURIST reports] sections of Pittsburgh and also noted that individual officers lacked visible identification, frustrating the work of NLG and ACLU legal observers.




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ICTY terminates appeal proceedings of deceased Bosnia army commander
Sarah Miley on June 30, 2010 8:33 AM ET

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[JURIST] The Appeals Chamber of the International Criminal Tribunal of the former Yugoslavia (ICTY) [official website] on Tuesday terminated the appellate proceedings [judgment, PDF] in the case of former Bosnia and Herzegovina (BiH) army commander Rasim Delic [case materials; Trial Watch profile], who died in April [JURIST report] while on provisional release in Sarajevo. Delic was convicted [JURIST report] in 2008 on the basis of superior responsibility for failing to prevent abuses by his El Mujahedin Detachment (EMD), which subjected 12 members of the Bosnian Serb Army (VRS) to severe beatings and electric shocks and forced them to kiss the severed heads of other detainees. The appeals chamber cited three reasons for why the ICTY was limited to the prosecution of living persons under the tribunal's statute and rules of procedure:
First, the personal jurisdiction of the Tribunal is limited to "natural persons", which, read in the context and in light of the Statute's object and purpose, should be understood in its ordinary meaning, i.e., the living. Second, Article 25 of the Statute clearly states that "[t]he Appeals Chamber shall hear appeals from persons convicted by the Trial Chambers or from the Prosecutor", thus leaving no room for other persons interested in the outcome of the appeal. Third, neither the Statute nor the Rules allow for Tribunal's jurisdiction in relation to any procedures initiated by the convicted person's heirs or victims. The Appeals Chamber is of the view that this clearly demonstrates that the Tribunal's jurisdiction ... is limited to living accused or convicted persons.
The chamber went on to conclude that the tribunal offered no prevalent approach under customary international law [press release] that would be applicable to Delic's situation, as no appellant under the jurisdiction of the ICTY or the International Criminal Tribunal for Rwanda (ICTR) has died before the rendering of the appeal judgment.

Delic was one of the highest-ranking Bosnian military leaders to stand trial before the tribunal for his actions in the 1992-1994 Bosnian civil war [JURIST news archive]. After he was charged in early 2005, Delic surrendered to the court and pleaded not guilty [JURIST reports]. He was convicted on three counts of murder and cruel treatment in 2008 and sentenced to three years in prison. Delic was awaiting a decision from the ICTY on his appeal of the conviction when he died of cancer in April.




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Federal judge finds for Merck in Louisiana Vioxx suit
Patrice Collins on June 30, 2010 8:24 AM ET

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[JURIST] A judge for the US District Court for the Eastern District of Louisiana [official website] on Tuesday ruled in favor of Merck & Co. [corporate website] in a lawsuit filed by the state of Louisiana over reimbursements for the prescription painkiller Vioxx [JURIST news archive]. Louisiana had argued that it would have restricted the sales of Vioxx through state Medicaid [official website] if the officials had known about increased chances of heart attack and stroke caused by the drug. US District Judge Eldon Fallon found that Louisiana failed to prove that it would have stopped reimbursing sales of the drug if the state had better information about its effects. The lawsuit, filed in 2005 by the Louisiana Attorney General's Office, was joined [JURIST report] in 2008 by the state of Florida.

Vioxx has been the subject of stream of litigation since Merck pulled it from the market in September 2004 after a study showed that it could double the risk of heart attack or stroke if taken for more than 18 months. State and federal lawsuits have been filed in Louisiana, California, New Jersey and Texas [JURIST reports]. In April, the US Supreme Court ruled [JURIST report] that a securities fraud claim filed against Vioxx had not passed its statute of limitations and could proceed. In September 2007, the New Jersey Supreme Court dismissed [JURIST report] a class action lawsuit filed against Merck, reversing a lower court's decision to grant nationwide class certification in the case. In November 2007, Merck said that it had agreed to pay $4.85 billion to settle all pending lawsuits [JURIST report] regarding its marketing and distribution of Vioxx.




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ACLU finds incidents of political surveillance increasing
Erin Bock on June 30, 2010 7:16 AM ET

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[JURIST] The American Civil Liberties Union (ACLU) [advocacy website] reported Tuesday that there have been more than 100 incidents of political surveillance [report, PDF; press release] and harassment by authorities in 33 states since 9/11 [JURIST news archive]. The report is broken down by state and lists incidents ranging from undercover police officers attending protests to authorities arresting individuals for taking pictures of police activity and government buildings. The report compares current surveillance practices to those conducted during the Cold War era [BBC backgrounder] by the FBI and CIA. ACLU Policy Counsel Michael German criticized these practices:
In our country, under our Constitution, the authorities aren't allowed to spy on you unless they have specific and individual suspicion that you are doing something illegal. Unfortunately, law enforcement in our country seems to be reverting to certain old, bad behaviors when it comes to political surveillance. ... Americans have been put under surveillance or harassed by the police just for deciding to organize, march, protest, espouse unusual viewpoints and engage in normal, innocuous behaviors...
California had the highest reported frequency of surveillance activities with 22 separate incidents, many involving undercover police infiltrating political activist group meetings to gather intelligence regarding possible terrorism threats.

The report cited incidents of cross-country surveillance where undercover police officers infiltrated groups that were planning to attend protests during the 2004 Republican National Convention (RNC). Earlier this month, a panel of the US Court of Appeals for the Second Circuit [official website] ruled that the city of New York could withhold documents related to their surveillance practices [JURIST report] that led to the arrest of 1,800 protesters during the convention. The court found that the documents needed to remain confidential because their release could compromise future surveillance efforts.




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US, EU reach deal to access suspected terrorists' financial information
Drew Singer on June 29, 2010 2:56 PM ET

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[JURIST] The EU agreed Monday to give the US access to bank data in order to track the finances of suspected terrorists. Under the agreement, the US can use the Terrorist Finance Tracking Program [fact sheet] to access information from the Society for Worldwide Interbank Financial Telecommunication (SWIFT) [official website; bylaws], an interbank money transfer system, to track the finances of suspected terrorists. To protect privacy concerns, Europol [official website] will check the validity of each US request, and an EU representative will monitor the use of EU citizens' banking data by US authorities. The agreement still needs to be approved by the European parliament, but EU Commissioner for Home Affairs Ceilia Malmstrom [official website] indicated that the parliament will likely support the agreement [AFP report]. In February, the parliament voted down [press release] a version of the agreement that did not include EU oversight.

The EU and US have struggled to balance privacy concerns with anti-terrorism efforts in the past. In 2006, an EU panel said that SWIFT broke privacy laws [JURIST report] by sharing data with the US. Revelation of the once-secret program [NYT report; JURIST report], prompted sharp criticism from the Bush administration, which defended the initiative. The chairman of the US House Homeland Security Committee [official website] later encouraged the administration to press criminal charges [JURIST report] against the media for publicizing the program, which allowed the CIA [official website] to monitor international financial transactions processed by SWIFT.




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Supreme Court upholds 'soft money' ban
Hillary Stemple on June 29, 2010 2:08 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday summarily affirmed [order list, PDF] a lower court's ruling [JURIST report] in Republican National Committee v. Federal Elections Commission [materials], upholding a ban on the use of "soft money" in elections. The Federal Election Campaign Act [text] prohibits national political parties from soliciting, receiving or spending non-federal campaign funds in conjunction with federal campaign funds for certain federal election activities. The Republican National Committee (RNC) [party website] argued that the ban was overbroad and a violation of First Amendment [text] rights. Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas noted they would allow the case to proceed to oral arguments.

The court granted certiorari in Thompson v. North American Stainless [docket; cert. petition, PDF], where it will decide if a third party is afforded protection against retaliation when they have made claims about bias in the workplace that were not directly related to their own treatment. Title VII of the Civil Rights Act [42 USC § 2000e-3(a) text] prohibits retaliation against a worker who has complained of bias in the workplace, but it is unclear whether that protection extends to a third party associated with the worker complaining of the bias. The US Court of Appeals for the Sixth Circuit [official website] affirmed [opinion, PDF] the district court's ruling and held that the statute only protects workers personally engaging in the protected activity, in this case complaining of workplace bias. The court has also been asked to decide if a civil remedy can be sought by third party, if the court of appeals ruling is upheld.

The court vacated the judgments against former Alabama governor Don Siegelman (D) [official profile; JURIST news archive] and former Health South [corporate website] CEO Richard Scrushy [JURIST news archive]. Their cases were remanded to the US Court of Appeals for the Eleventh Circuit [official website] for proceedings consistent with the court's ruling in Skilling v. United States [opinion, PDF; JURIST report]. Siegelman and Scrushy were convicted in 2006 [JURIST report] on federal bribery and corruption charges. The convictions were appealed and Siegelman had two counts of mail fraud reversed for lack of evidence. The court of appeals later denied a request [JURIST report] by Siegelman and Scrushy for an en banc rehearing of their convictions on charges of corruption.

The court declined to grant certiorari in Pfizer Inc. V. Abdullahi [cert. petition, PDF], where the court was asked to determine if Alien Tort Statute (ATS) [28 USC § 1350 text] jurisdiction extends to include a private actor based on the alleged state action by a foreign government. The lawsuit was filed against Pfizer [corporate website] by two Nigerian families alleging that the company violated international law when it administered an experimental antibiotic to Nigerian children without the consent or knowledge of their patients. The district court dismissed the lawsuit, ruling that the court lacked subject matter jurisdiction under the ATS. The US Court of Appeals for the Second Circuit [official website] reversed the lower court ruling [JURIST report] and held that the ATS does allow for jurisdiction in the case.




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Senators question Kagan's views on Solomon Act, Citizens United
Sarah Miley on June 29, 2010 12:03 PM ET

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[JURIST] The second day of confirmation hearings [materials] for Supreme Court [official website] nominee Elena Kagan [JURIST news archive] began Tuesday with Kagan defending her decision to restrict military recruiter access to Harvard Law School [academic website] while she was dean. Senate Judiciary Committee ranking member Jeff Sessions (R-AL) [official websites] called Kagan's position "unconnected to reality" and held that it "punished" the military. During her deanship at HLS, Kagan reinstated a prohibition against military recruiters using the Office of Career Services (OCS) because the military's "Don't Ask Don't Tell" (DADT) [JURIST news archive] policy violated the school nondiscrimination code. HLS has previously made an exception to the nondiscrimination code for the military after Congress passed the 1996 Solomon Act [Georgetown backgrounder], which blocks federal funding for schools refusing to allow military recruitment on campus. Kagan reinstated the ban after the Solomon Act was struck down by the Third Circuit but rescinded the prohibition after the Department of Defense (DOD) [official website] threatened to withhold all aid from HLS. The Supreme Court has since upheld the Solomon Act. During the hearings, Kagan defended her reinstatement of the restrictions on military recruiting, holding that the DOD "ignored" the Third Circuit ruling striking down the Solomon Act. Sessions said that Kagan's action was not "with the law" but instead part of her agenda against DADT.

Later on Tuesday, in a friendlier exchange with Senator Orrin Hatch (R-UT), Kagan discussed her opinion of the recent Supreme Court ruling in Citizens United v. Federal Exchange Commission [Cornell LII backgrounder; JURIST report], which eased restrictions on political campaign spending by corporations. Kagan carefully avoided answering his questions on her personal views about the case, but asserted that the Supreme Court decided wrongly. She also noted that there is a difference between an advocate and a judge. Kagan's distinction was meant to assure Republicans that she will be an impartial justice and that her ideological view will not play a role on the bench. Hatch supported Kagan when she was confirmed to her current position as Solicitor General, but has criticized her lack of judicial experience. Hatch was less critical during his time on the floor Tuesday raising a series of questions rather than direct criticism.

Kagan's confirmation hearings began Monday [JURIST report] with Democratic and Republican senators offering contrasting interpretations of Kagan's judicial philosophy and lack of experience on the bench. In his opening statement, Senator Ted Kaufman (D-DE) [official website] welcomed Kagan's lack of judicial experience, stating that her experience with all three branches of government would help to diversify the bench and bring a fresh perspective to a court that is composed of all former judges. Kagan's lack of experience was not similarly embraced by Sessions, who applauded her work as outside the courtroom, but held that there is no replacement for first-hand judicial experience. Obama nominated Kagan [JURIST report] in May to replace Justice John Paul Stevens [official profile; JURIST news archive], who announced his retirement [JURIST report] in April. Kagan became the first woman confirmed as Solicitor General [JURIST report] in 2009.




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BP facing fraud lawsuits over oil spill
Hillary Stemple on June 29, 2010 10:42 AM ET

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[JURIST] Two lawsuits have been filed against BP alleging violations of the Rackteer Influenced Corrupt Organizations (RICO) [18 USC § 1961 et seq.] statute in connection with the recent Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive]. The first lawsuit, a class action filed on behalf of US residents affected by the oil spill, was filed last week and alleges [complaint, PDF] that BP engaged in a scheme to secure profits by deceiving the public. According to the complaint, BP committed a pattern of criminal acts, including bribery, mail fraud and wire fraud in order to deceive the public as to its ability to safely drill for oil and to contain oil in the event of a spill. Plaintiffs in the first suit are seeking compensatory relief, as well as injunctive relief requiring BP to comply with provisions of the Outer Continental Shelf Lands Act (OCSLA) [text, PDF]. The second suit, filed Monday, alleges [complaint, PDF] that BP has been involved in racketeering and corruption related to the BP claims payment process. According to the complaint, BP has been involved in corruption, wire fraud, mail fraud, unauthorized practice of law, violation of state insurances laws and regulations and other criminal activity in order to delay or reduce the payment of legitimate claims for damages. Plaintiffs are seeking damages and a writ of quo warranto ordering defendants to stop engaging in unauthorized practice of law and other criminal conduct.

Calls for criminal and civil actions have been mounting against BP, as evidence of the oil giant's lack of proper compliance with regulations has come out. Earlier this month, US Attorney General Eric Holder [official website] announced that the Department of Justice (DOJ) [official website] is reviewing whether any criminal or civil laws were violated [JURIST report] by BP resulting in the oil spill. Holder cited several statutes being examined by government lawyers including the Clean Water Act and the Oil Pollution Act of 1990 [materials]. The Clean Water Act includes both civil and criminal penalties, and the Oil Pollution Act can be used to hold parties liable for cleanup costs. Last month, DC-based consumer advocacy organization Food and Water Watch (FWW) [advocacy website] filed suit [JURIST report] in a US district court against the US Department of Interior (DOI) and the Minerals Management Service (MMS) [official websites] for an injunction to halt drilling at the BP Atlantis Facility [corporate website], another BP Gulf of Mexico site.




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UK government to overhaul interrogation policy
Hillary Stemple on June 29, 2010 9:24 AM ET

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[JURIST] The British government indicated Monday that it will issue a new set of regulations regarding the use of information obtained via torture. The announcement came as part of the government's defense against a lawsuit filed by the human rights group Reprieve [advocacy website], which has been seeking a review of the country's torture policy. A UK High Court judge agreed that the country's policy must be reviewed [press release], but indicated that because lawyers for the government promised new guidelines would be released shortly, the court would take no immediate action. Similar claims of complicity were made against the government by a new report [materials] released Monday by Human Rights Watch (HRW) [advocacy website]. According to HRW, intelligence services in France, Germany and the UK lack proper oversight of intelligence information that is received from countries that torture. HRW also condemned the use of information obtained via torture against suspects at trial. HRW has called on the countries [press release] to "take responsibility for their own role in third-party abuse, and to ensure that their intelligence cooperation isn't perpetuating abuse." It also urged the countries to repudiate the use of information obtained through torture, to establish new guidelines clearly excluding torture evidence in civil and criminal proceedings, and strengthen oversight of intelligence services.

Last month, UK Foreign and Commonwealth Affairs Secretary William Hague [official profile] said that the UK will launch an investigation [JURIST report] into allegations that overseas UK operatives were complicit in torture. Hague stated that the new coalition government will initiate a judge-led inquiry into the allegations, but no details were outlined in the legislative program [text, PDF] published by Prime Minister David Cameron [official profile]. Also last month, the England and Wales Court of Appeal [official website] ruled [JURIST report] that state intelligence agencies cannot use secret evidence in their defense against abuse accusations by Binyam Mohamed [BBC profile; JURIST news archive] and several other UK residents who were held at Guantanamo Bay [JURIST news archive]. The judgment overturned a November ruling [JURIST report] of a UK high court, which held that defendants MI5 and MI6 [official websites] could utilize a "closed material procedure" that would allow them to rely on certain evidence without disclosing it to opposing counsel or committing it to the public record. The procedure, typically employed in criminal proceedings, is designed to allow concealment of evidence where disclosure would cause "real harm to the public interest."




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Google to stop redirecting China users to unfiltered Hong Kong search engine
Sarah Miley on June 29, 2010 8:53 AM ET

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[JURIST] Google [corporate website; JURIST news archive] announced Monday that it will stop redirecting Internet users in mainland China [press release] to its unfiltered search engine in Honk Kong in an effort to renew the company's Internet Content Provider license. In March, Google began redirecting users [JURIST report] from its google.cn search engine to google.com.hk [websites] after reaching a legal impasse with the Chinese government over censoring search results. The redirect allowed Google to maintain a presence in mainland China without having to filter search results. The google.cn search engine is currently composed of a simple logo and an inactive search bar, and clicking on much of the page automatically redirects users to google.com.hk. The Chinese government has informed Google that its rerouting practices are unacceptable and if the company does not cease and desist, then its Internet Content Provider (ICP) license will not be renewed. Google's Chief Legal Officer David Drummond released a statement on Google's official blog explaining the necessity of ending the redirect:
[I]t's clear from conversations we have had with Chinese government officials that they find the redirect unacceptable. ... Without an ICP license, we can't operate a commercial website like Google.cn—so Google would effectively go dark in China. That's a prospect dreaded by many of our Chinese users, who have been vocal about their desire to keep Google.cn alive. Over the next few days we'll end the redirect entirely, taking all our Chinese users to our new landing page—and today we re-submitted our ICP license renewal application based on this approach. This new approach is consistent with our commitment not to self censor and, we believe, with local law. We are therefore hopeful that our license will be renewed on this basis so we can continue to offer our Chinese users services via Google.cn.
The Chinese government claims that Google did not uphold agreements the company had made when it entered the Chinese market in 2006 and that the company "violated its written promise" when it ceased censoring Internet searches.

In February, China issued new regulations tightening restrictions on Internet use [JURIST report] by requiring citizens operating websites to submit identity cards and meet with regulators before their sites can be registered. The new policies came amid negotiations with Google regarding the Internet company's January threat to discontinue operations in China [JURIST report] due to the country's overarching Internet censorship. Google's action was in response to a cyber attack on its Gmail service in December, which targeted the e-mail accounts of human rights activists in China and drew the ire of rights groups around the world. Google indicated that it would work with the Chinese government to find a way to allow an, "unfiltered search engine within the law as well," but also noted that if an agreement cannot be reached, it would close its offices there and shut down its Google.cn website. China responded [JURIST report] by reiterating its commitment to open Internet, but stressed that international Internet companies must follow Chinese law.




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Rights group urges East Timor to ban amnesty for international war criminals
Ann Riley on June 29, 2010 7:42 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Monday called on the government of East Timor [BBC backgrounder; JURIST news archive] to close legal loopholes [press release] in that allow for national amnesties and pardons for war crimes. In a report [text, PDF] analyzing the consistency of the country's penal code with provisions of the Rome Statute [text, PDF] of the International Criminal Court (ICC) [official website] and other international laws, AI accused East Timor of creating a "culture of impunity." Some convicted by the UN Special Panels for Serious Crimes [official website] of crimes against humanity during East Timor's 1999 transition to nationhood were released by pardons or commutation of sentences. Militia leader Joni Marques, originally sentenced to 33 years in prison for crimes against humanity, was released in 2008 after his sentence was commuted, and militia leader Maternus Bere [case materials], indicted for his involvement in massacres of civilians in 1999, was transferred to Indonesia before his trial to avoid prosecution. AI Researcher on East Timor Isabelle Arradon said:
Survivors of decades of human rights violations in Timor-Leste are demanding justice and reparations, but the authorities' routine use of amnesties, pardons and similar measures has created a culture of impunity. ... The authorities in Timor-Leste are compromising on justice to seek peace—but trading away justice for such serious crimes only undermines the rule of law, and cannot resolve the trauma of the past.
AI recommends that East Timor take steps to implement its cooperation obligation under the ICC and hold accountable those guilty of human rights violations. Additionally, AI recommends that East Timor amend its penal code to comply with the provisions of the Rome Statute and other international law, banning amnesties for crimes against international law.

In August 1999, East Timor voted for independence from Indonesia in the UN-sponsored East Timor special autonomy referendum [text]. The Commission for Reception, Truth and Reconciliation in East Timor (CAVR) [official website] found [report materials] that more than 100,000 people were killed between 1974 and 1999, and severe crimes against humanity were consistent during the 25-year Indonesian occupation. Last August, East Timor President Jose Ramos-Horta [BBC profile], who won the 1996 Nobel Peace Prize for his work in attempting to resolve the Timor-Indonesian conflict, rejected a call for a criminal tribunal [JURIST report] to investigate abuses during the Timorese bid for independence, saying that such a tribunal would harm reconciliation between the two nations. AI requested a criminal tribunal [JURIST report], to be appointed by the UN, citing the lack of investigation into abuses during that period. In 2008, Indonesia accepted a truth commission report [JURIST report] that indicated it was responsible for rights abuses during the 1999 referendum for independence.




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Rights group sues over Nebraska abortion law requiring psychological screening
Andrea Bottorff on June 29, 2010 7:27 AM ET

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[JURIST] Women's rights group Planned Parenthood of the Heartland [advocacy website] filed a lawsuit [complaint, PDF; press release, PDF] on Monday opposing a new Nebraska law [LB 594 materials] that will require doctors to perform psychological screenings of patients seeking abortions [JURIST news archive]. The lawsuit names several defendants, including Nebraska Governor Dave Heineman [official profile], who signed the new legislation [press release] in April, and Nebraska Attorney General Jon Bruning [official profile], as well as the state's Department of Health and Human Services, Board of Nursing [official websites] and Board of Advanced Practice Registered Nurses [member list, PDF]. Planned Parenthood argues that the law is unconstitutional [statement, PDF] because, by setting out unreasonable requirements that most physicians are unable to meet, the law pressures those doctors to stop performing abortions or face large penalties. The group also argues that the law is unethical because it forces physicians to tell patients about all risks associated with abortion, even risks based on outdated or unreliable studies. Supporters of the law argue that the requirements are reasonable [Lincoln Journal Star report] and will increase the safety of women having abortions. The law, known as the Women's Health Protection Act, requires physicians to evaluate patients to determine that their choice to have an abortion is voluntary and to inform the patients of all risk factors and complications [LB 594 text] that have been statistically associated with abortion and published in peer-reviewed journals 12 months prior to the pre-abortion evaluation, as well as earlier studies. Violations of the Act can result in a $10,000 penalty for each failure to screen or inform, wrongful death damages, actual damages and attorneys fees. The law will take effect on July 15.

Several state legislatures have acted recently to place restrictions on women's access to abortion. Earlier this month, Florida Governor Charlie Crist [official website] vetoed a bill [JURIST report] that would have required women seeking an abortion to undergo an ultrasound or listen to a detailed description of the fetus before the procedure would be performed. Last month, Oklahoma lawmakers approved a bill [JURIST report] requiring women seeking an abortion to complete a questionnaire containing information on marital status, reason for seeking the abortion and whether the pregnancy is the result of rape or incest. In April, the Nebraska legislature approved a bill prohibiting abortions at or past 20 weeks [JURIST report] on the theory that a fetus can allegedly feel pain following that point. Advocacy groups have criticized the laws and indicated they will challenge them in court.




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Senators offer opposing views on Kagan's experience as confirmation hearings begin
Sarah Miley on June 28, 2010 3:06 PM ET

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[JURIST] The US Senate Judiciary Committee [official website] began confirmation hearings [materials] Monday for Supreme Court [official website] nominee Elena Kagan [JURIST news archive], with Democratic and Republican senators offering contrasting interpretations of Kagan's judicial philosophy and lack of experience on the bench. In his opening statement Senator Ted Kaufman (D-DE) [official website], who replaced Vice President Joe Biden [official profile] after the 2008 presidential election, welcomed Kagan's lack of judicial experience, stating that her experience with all three branches of government would help to diversify the bench and bring a fresh perspective to a court that is composed of all former judges. Addressing Kagan and the committee, Kaufman stated [transcript]:
I was noting the fact that the current Justices all share very similar professional backgrounds. Every one of them served as a federal circuit court judge before being appointed to the Supreme Court. Not one of them has ever run for political office, like Sandra Day O'Connor or Earl Warren or Hugo Black.

Some pundits, and some Senators, have suggested that your lack of judicial experience is somehow a liability. I could not disagree more. While prior judicial experience can be valuable, the Court should have a broader range of perspectives than can be gleaned from the appellate bench.

Kagan's lack of experience was not similarly embraced by Ranking Member Jeff Sessions (R-AL) [official website] who applauded her work as outside the courtroom, but held that there is no replacement for first-hand judicial experience:
Ms. Kagan certainly has numerous talents and many good qualities, but there are serious concerns about this nomination. Ms. Kagan has less real legal experience of any nominee in at least 50 years. And it's not just that the nominee has not been a judge. She has barely practiced law and not with the intensity and duration from which I think real legal understanding occurs.

Ms. Kagan has never tried a case before a jury. She argued her first appellate case just nine months ago. While academia certainly has value, there is no substitute, I think, for being in the harness of the law, handling real cases over a period of years.

Kagan concluded Monday's hearing by pledging to consider every case impartially, modestly, with commitment to principle and in accordance with law. The Senate's confirmation vote is expected to take place by the end of July and puts the Senate on track to meet President Barack Obama's goal of confirming Kagan by the time the court begins its new session in the fall.

Earlier this month, a letter [text, PDF] was released by a group of 69 current and former law school deans [JURIST report], describing her as "superbly qualified." The letter, addressed to Senate Judiciary Committee chair Patrick Leahy (D-VT) and Sessions, was authored by Stanford Law School [academic website] Dean Larry Kramer [professional profile] and represented the views of deans from a diverse group of schools in a variety of states. The group cited Kagan's academic accomplishments, including the qualities she exhibited as former dean of Harvard Law School [official website], to bolster their recommendation. Obama nominated Kagan [JURIST report] in May to replace Justice John Paul Stevens [official profile; JURIST news archive], who announced his retirement [JURIST report] in April. Kagan became the first woman confirmed as Solicitor General [JURIST report] in 2009.




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Supreme Court to rule on Arizona immigration employment law
Hillary Stemple on June 28, 2010 2:25 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in six cases. In Chamber of Commerce v. Candelaria [docket; cert. petition, PDF], the court will determine whether an Arizona statute imposing sanctions on employers that hire illegal immigrants is preempted by federal law. According to 8 USC § 1324(a)(h)(2) [text], federal law preempts any "[s]tate or local law imposing civil or criminal sanctions upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens," except in cases of state licensing laws. The US Court of Appeals for the Ninth Circuit upheld [opinion, PDF; JURIST report] the Legal Arizona Workers Act [materials] on the basis that the state statute is a licensing law, which exempts it from being preempted by the federal law.

The court will also hear the case of Janus Capital Group v. First Derivative Traders [docket; cert. petition, PDF], where it will determine if a service provider can be held primarily liable in a private securities fraud suit for aiding and participating in another company's misstatements. Section 10(b) of the Securities and Exchange Act [materials] prohibits any manipulation or deception in connection with the purchase or sale of securities, but it is unclear whether the liability associated with the act extends to service providers who aided in the selling of securities where misinformation was involved. The US Court of Appeals for the Fourth Circuit overturned the district court decision [opinion, PDF] and allowed a class action against the petitioner to proceed, holding that a service provider may be liable for securities fraud. There is currently a circuit split on this issue.

In CIGNA Corp. v. Amara [docket; cert. petition, PDF] the court will determine what "showing" is required to entitle participants of the Employee Retirement Income Security Act (ERISA) [materials] to recover benefits where there has been an alleged inconsistency between the explanation of benefits and the terms of the plan. The US Court of Appeals for the Second Circuit applied a "likely harm" standard when affirming the district court's ruling. The circuit courts are deeply divided over this issue, with some requiring a showing of prejudice or reliance in order to recover benefits and others only requiring a discrepancy between the explanation of benefits and the terms of the plan. The Second Circuit has been the only circuit to apply the "likely harm" standard.

The court also granted certiorari in Henderson v. Shinseki, Milner v. Dept. of Navy and Pepper v. United States [dockets].

The court denied certiorari in Philip Morris v. United States [cert. petition, PDF] and six other cases involving tobacco companies, where the tobacco companies were asking the court to overturn a 2006 district court ruling [JURIST reports] that held the tobacco industry [JURIST news archive] liable under civil racketeering laws for deceiving American consumers as to the health effects of their products. The tobacco companies had argued that the district court's decision did not properly consider issues involving the First Amendment [text] and that the government's application of the Racketeer Influenced and Corrupt Organizations Act (RICO) [18 USC §§ 1961–1968] was overbroad. The court declined to hear the cases without comment.

The court also denied certiorari in Holy See v. John Doe [cert. petition, PDF], where the Holy See [official website] was asking the court to consider whether it is entitled to immunity under the Foreign Sovereign Immunities Act (FSIA) [28 USC § 1602 et seq text]. The plaintiff filed a respondeat superior claim against the Vatican alleging that he was a victim of clergy sexual abuse [JURIST news archive] and that the church could be held responsible as the offending priest's employer. The US Court of Appeals for the Ninth Circuit affirmed [opinion, PDF] the district court's ruling that the tort claim fell under the exemptions to FSIA and the Vatican, therefore, did not have immunity. The court declined to hear the case without comment.




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Supreme Court rules Sarbanes-Oxley oversight board unconstitutional
Sarah Miley on June 28, 2010 1:49 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 5-4 in Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board [Cornell LII backgrounder; JURIST report] that the Sarbanes-Oxley Act of 2002 [text] violates constitutional separation of powers by affording members of the Public Company Accounting Oversight Board (PCAOB) [board website] executive power while removing any presidential authority to control the exercise of such power. The US Court of Appeals for the District of Columbia Circuit held [opinion, PDF; JURIST report] that the act is constitutional because Congress is able to restrict the president's removal power in any way it "deems best for the public interest" and because the constitutional authority to appoint implies the authority to limit, restrict and regulate the removal of such appointments. The Supreme Court reversed the circuit court's ruling, holding that the PCAOB was too attenuated from presidential authority because the act created a multilevel tenure provision that protects board members from removal except for good cause. Additionally, board members could be removed only by the Securities and Exchange Commission (SEC) [official website] rather than by the president directly, withdrawing from the chief executive any decision on whether that good cause exists. Chief Justice John Roberts, writing the opinion of the court, held that because the SEC cannot remove a board member at will, the president cannot hold the commission fully accountable for the board's conduct. The president is limited to reviewing the commissioner's good-cause determination for removal and is powerless to intervene on that determination unless it is so unreasonable as to constitute "inefficiency, neglect of duty, or malfeasance" in office. Roberts noted the effects of expanding legislative power in this area:
This arrangement contradicts Article II's vesting of the executive power in the President. Without the ability to oversee the Board, or to attribute the Board's failings to those whom he can oversee, the President is no longer the judge of the Board's conduct. He can neither ensure that the laws are faithfully executed, nor be held responsible for a Board member's breach of faith. If this dispersion of responsibility were allowed to stand, Congress could multiply it further by adding still more layers of good-cause tenure. Such diffusion of power carries with it a diffusion of accountability; without a clear and effective chain of command, the public cannot determine where the blame for a pernicious measure should fall. The Act's restrictions are therefore incompatible with the Constitution's separation of powers.
Roberts went on to say that the unconstitutional removal provision was severable from the rest of the Sarbanes-Oxley Act, holding that the statute remains fully operative as a law with the good-cause restrictions excised, leaving the members of the PCAOB subject to removal by the commission without restriction. Justice Stephen Breyer, joined by Justices John Paul Stevens, Ruth Bader Ginsburg and Sonia Sotomayor, dissented, listing several other federal agencies and boards whose appointees are similarly insulated from presidential control. Breyer concluded that the act did not "significantly interfere" with the president's executive power and that the majority's opinion "threatens to disrupt severely the fair and efficient administration of the laws."

The Sarbanes-Oxley Act was passed in 2002 to reform business practices and prevent corporate fraud by overseeing the accounting industry and punishing corrupt auditors. In 2006, the Free Enterprise Fund, a non-profit public interest organization promoting economic growth, lower taxes and limited government, and a Nevada accounting firm, Beckstead and Watts, LLP [corporate website], challenged [JURIST report] certain portions of the legislation, alleging that it violated separation of powers doctrine because it did not give the president sufficient control over the agency. Consistent with the overall purpose of Sarbanes-Oxley, the PCAOB was created in response to the collapse of Enron and the other corporate fraud scandals [JURIST news archives] that made headlines in 2002. The five-member PCAOB is appointed and overseen by the SEC.




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Supreme Court rules Second Amendment applies to states
Hillary Stemple on June 28, 2010 11:15 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 5-4 in McDonald v. Chicago [Cornell LII backgrounder; JURIST report] that the Due Process Clause of the Fourteenth Amendment makes the Second Amendment [texts] right to bear arms applicable to the states as well as the federal government. The case arose over a city of Chicago ordinance effectively banning the possession of handguns. The US Court of Appeals for the Seventh Circuit upheld the handgun ban [opinion, PDF; JURIST report], emphasizing that the Supreme Court had not directly ruled on the application of the Second Amendment to the states. Justice Samuel Alito, delivering the opinion of the court, cited the court's 2008 opinion in District of Columbia v. Heller [opinion, PDF; JURIST report] and reversed and remanded the case for further proceedings, stating:
In Heller, we held that the Second Amendment protects the right to possess a handgun in the home for the purpose of self-defense. Unless considerations of stare decisis counsel otherwise, a provision of the Bill of Rights that protects a right that is fundamental from an American perspective applies equally to the Federal Government and the States. We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.
Justice Clarence Thomas wrote a concurring opinion, in which he argued for incorporation under the Privileges or Immunities Clause of the Fourteenth Amendment rather than the Due Process Clause. Justice Antonin Scalia also wrote a concurring opinion. Justice John Paul Stevens wrote a dissenting opinion, arguing that the question of incorporation was previously settled by the court and that the only remaining question is whether the right to bear arms is a fundamental right. Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, also dissented.

Based on Heller, the court's ruling was somewhat expected. In Heller, the court ruled that the Second Amendment bestows upon citizens, an individual right to own firearms for lawful purposes, but that the right is not unlimited. Chicago's mayor has previously defended the law [AP report] and indicated that the city would continue trying to limit gun possession in a constitutional manner. During oral arguments, counsel for the city of Chicago, argued against application [JURIST report] of the Second Amendment to the states on the basis that state and local governments have historically been "primary locus" of gun control.




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Supreme Court rules some business methods patentable subject matter
Christian Ehret on June 28, 2010 11:08 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] in Bilski v. Kappos [Cornell LII backgrounder] that business method patents [Jones Day backgrounder] may qualify as patentable subject matter but that a specific method for hedging risks in commodities trading is ineligible for patent protection because it is an abstract idea. Justice Anthony Kennedy, writing for a divided court and affirming the invalidity of the patent at issue, rejected the ruling [opinion, PDF; JURIST report] of the US Court of Appeals for the Federal Circuit that the "machine-or-transformation test" is the exclusive consideration for determining whether a process is patentable subject matter under 35 USC § 101 [text]. Instead of premising the patentability of a process on whether it is "tied to a particular machine or apparatus" or "transforms a particular article into a different state or thing," the court suggested that such a test is merely a helpful inquiry rather than a per se rule. Declining to construct any new tests for determining what processes are patentable, the court stressed the importance of flexible patent protection for emerging technologies, stating that:
The machine-or-transformation test may well provide a sufficient basis for evaluating processes similar to those in the Industrial Age; for example, inventions grounded in a physical or other tangible form. But there are reasons to doubt whether the test should be the sole criterion for determining the patentability of inventions in the Information Age. ... In the course of applying the machine-or-transformation test to emerging technologies, courts may pose questions of such intricacy and refinement that they risk obscuring the larger object of securing patents for valuable inventions without transgressing the public domain. ... This Age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck.
The ruling rejects the argument that business methods are not subject to patent protection by pointing to the statutory definition of "processes," the mention of business method patents in 35 USC § 273 [text] and prior Supreme Court cases including Gottschalk v. Benson and Parker v. Flook [opinions text]. Chief Justice Roberts and Justices Clarence Thomas and Samuel Alito joined the full opinion, while Justice Antonin Scalia joined except for Parts II-B-2 and II-C-2. Justice John Paul Stevens filed an opinion concurring in the judgment, which Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined. Breyer also filed a concurring opinion, which Scalia joined in part. Stevens' opinion concurs that the "machine-or-transformation test" is not the exclusive means of determining patentability for processes but disagrees with the overall patentability of business methods, stating:
But the Court is quite wrong, in my view, to suggest that any series of steps that is not itself an abstract idea or law of nature may constitute a process within the meaning of § 101. The language in the Courts opinion to this effect can only cause mischief. The wiser course would have been to hold that petitioners method is not a process because it describes only a general method of engaging in business transactions and business methods are not patentable.
Breyer's concurring opinion also rejects business methods as patentable subject matter. The short concurrence attempts to clarify the points in the opinions that all the Justices seem to agree on: that patentable subject matter is not without limit, that the "machine-or-transformation" test is still an important consideration in determining what processes are patentable, although not the sole consideration, and that the Federal Circuit's previous "useful, concrete, and tangible result" test is also incapable of wholly deciding patentability.

The patentability of business methods and software as "processes" is a controversial subject among practitioners. Monday's opinion has been long anticipated in the patent law community and adds to a significant line of cases spanning several decades defining patentable "processes." The court granted certiorari in June 2009 and heard oral arguments [JURIST reports] in November of that year. During arguments, the court approached the issue of classifying business methods and other processes as patentable subject matter broadly and with skepticism.




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Supreme Court upholds 'all comers' mandate for student group funding at public school
Sarah Miley on June 28, 2010 9:25 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 5-4 in Christian Legal Society v. Martinez [Cornell LII backgrounder; JURIST report] that the "all comers" policy at the University of California-Hastings School of Law [official website], which limits funding to student organizations that adopt the school's nondiscrimination policy, is reasonable and viewpoint neutral and does not violate the First Amendment. Christian Legal Society [advocacy website] filed the suit after Hastings rejected the local chapter's application for registered student organization (RSO) status because the CLS bylaws exclude students based on religion and sexual orientation. Hastings' RSO policy mirrors the state discrimination policy and mandates that RSOs must allow "all comers" to participate regardless of status or beliefs. CLS claimed that Hastings' refusal to grant the group RSO status violated its First and Fourteenth Amendment rights to free speech, expressive association and free exercise of religion, and sought an exemption from the school's open-access requirement. The US Court of Appeals for the Ninth Circuit found in favor of Hastings, holding that a state institution may impose restrictions on First Amendment rights that are viewpoint neutral and reasonable in light of the institution's purposes. The Supreme Court affirmed the circuit court's ruling, holding that Hastings' policy met these specifications under the school's educational mission, but limited its opinion to "all comers" policies at public institutions. Justice Ruth Bader Ginsburg, writing the opinion of the court, held that the school's policy is a reasonable restriction because it does not involve regulations that force student organizations to include unwanted members with no choice to opt out. The court also noted that CLS could function effectively without RSO status, citing that Hastings still allowed the group access to school facilities and that improvements in social-networking services allowed CLS to communicate efficiently with fellow students. Ginsburg also stated that an "all comers" policy was not only reasonable, but "textbook viewpoint neutral" and stayed within constitutional limits:
In requiring CLS—in common with all other student organizations—to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations. CLS, it bears emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings' policy. The First Amendment shields CLS against state prohibition of the organization's expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity. ... Hastings, caught in the crossfire between a group's desire to exclude and students' demand for equal access, may reasonably draw a line in the sand permitting all organizations to express what they wish but no group to discriminate in membership.
Justice Samuel Alito wrote a dissent, joined by fellow conservatives Chief Justice John Roberts and Justices Antonin Scalia and Clarence Thomas. Alito called the majority's opinion "a serious setback for freedom of expression in this country." He also said that "the proudest boast of our free speech jurisprudence is that we protect the freedom to express 'the thought that we hate.' Today's decision rests on a very different principle: no freedom of expression that offends prevailing standards of political correctness in our country's institutions of higher learning."

In 2004, CLS became the first group to seek exemption from Hastings' nondiscrimination policy. CLS chapters exclude from affiliation anyone who engages in "unrepentant homosexual conduct" or holds religious convictions different from those in the Statement of Faith, which all members are required to sign. After Hasting rejected the group's application for RSO status and denied its exemption request, CLS continued to operate independently on campus. In 2005, CLS filed suit claiming that Hastings violated the group's First Amendment rights by not exempting it from the nondiscrimination clause. The district court issued a summary judgment for the law school, which was affirmed by the Ninth Circuit.




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Rights group urges Honduras to investigate violations stemming from 2009 coup
Hillary Stemple on June 28, 2010 9:04 AM ET

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[JURIST] Amnesty International (AI) [official website] on Monday accused the Honduran government of failing to address human rights violations [press release] stemming from the June 2009 coup [JURIST report] that removed Manuel Zelaya [BBC profile; JURIST news archive] from power. AI contends that hundreds of people opposed to the coup have been beaten and detained since the coup. The group cited evidence that judges critical of the coup have "suffered a series of arbitrary transferrals and unfair disciplinary proceedings" as well as threats and intimidation. AI also expressed concern about attacks on members of the media, which have risen since the new government came to power. The Honduran government established a Truth and Reconciliation Commission [JURIST report] last month to determine what happened before, during and after the coup, but AI argues that the commission will not go far enough to prevent future human rights violations, saying "[t]ruth commissions should be one part of a comprehensive national plan devised to protect the rights of victims of human rights violations. In addition to this, the government must ensure investigation, justice and reparation for victims." Zelaya supporters have rejected the commission as a farce and have pledged not to cooperate with investigators. A final report by the commission is expected in January.

Last January, Honduran President Porfirio Lobo [NYT profile] granted amnesty to both Zelaya and military leaders accused of participation in the coup. Also in January, the Honduran Supreme Court [official website, in Spanish] exonerated six military leaders [JURIST report] accused of abuse of power for their alleged roles in the coup. In December, the Honduran Congress voted 111-14 not to reinstate [JURIST report] Zelaya. His ouster was the result of a judicial order [press release, in Spanish] that asserted Zelaya had broken Honduran law by attempting to conduct a controversial referendum on constitutional reform [JURIST report], contrary to a Supreme Court ruling.




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Noriega money laundering trial begins in France
Sarah Miley on June 28, 2010 8:41 AM ET

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[JURIST] The trial of former Panamanian dictator Manuel Noriega [BBC backgrounder; JURIST news archive] began Monday in a Paris criminal court. Noriega faces money laundering charges in France for allegedly laundering $3 million in drug profits by purchasing property in Paris. He was extradited [JURIST report] to France in April by the US, where he had served a 17-year sentence on drug charges. Noriega was already sentenced in absentia [Reuters report] to 10 years in jail by a French court in 1999, but under French law is entitled to a new trial. The trial is set to last for three days.

Last month, the Paris Court of Appeals [official website, in French] denied a request [JURIST report] by Noriega to be released from jail while awaiting his trial. Noriega claimed that he is too well-known to be a flight risk and that because of his partial paralysis and poor health, he was not receiving adequate care in Paris's La Sante prison. The court rejected his appeal, remanding him to custody. In April, the French Justice Ministry denied [JURIST report] Noriega's request to be treated as a prisoner of war (POW). Justice Ministry spokesperson Guillaume Didier said that Noriega would not be treated as a POW [AFP report] because the charges are based on breaches of common law not related to military service. Earlier that week, Panamanian President Ricardo Martinelli [official profile, in Spanish] said that his government would seek Noriega's extradition [JURIST report] to face charges of human rights violations in Panama. Noreiga had fought extradition [JURIST report] from the US since 2007. In March, the US Supreme Court declined to reconsider [JURIST report] Noriega's petition to stop the extradition process.




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Kyrgyzstan voters approve new constitution
Hillary Stemple on June 27, 2010 3:33 PM ET

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[JURIST] Kyrgyzstan interim President Roza Otunbayeva [BBC profile] announced Sunday that voters approved a new constitution [text, DOC, in Russian] that will allow the interim government to establish a legitimate government through parliamentary elections in the fall. Otunbayeva will remain the acting president through 2011 when elections will be held to determine the next president, scheduled to take office in 2012. Under the new constitution, parliamentary elections will be held every five years, while presidential elections will be held every six years. The office of president will be limited to one six-year term. Otunbayeva indicated the results of the referendum are valid [Kabar report] and that the country is now on the path to democracy. The constitution, approved by the interim government [JURIST report] in May, shifts power from the president to the prime minister, defines Kyrgyzstan as a secular state and increases the number of seats in parliament from 90 to 120.

The government of Kyrgyzstan chose to proceed with the elections [JURIST report] despite ongoing ethnic violence [Guardian backgrounder] against the Kyrgyz Uzbek population. Earlier this month, Otunbayeva issued shoot to kill orders [JURIST report] to the nation's military after the reservists were activated and sent to quell the ethnic conflict that has been primarily focused in the southern cities of Osh and Jalal'abad. The cause of the violence is unclear, but UN Human Rights Commissioner Navi Pillay [official website] and witnesses have described it as organized. One suggested motivation for the violence was to cause a delay of the referendum by allies of ousted Kyrgyz president Kurmanbek Bakiyev [BBC profile]. The interim government has accused the former president's son of paying USD $10 million to finance the violence. He was arrested in the UK earlier this month, and the interim government has promised to seek his extradition. Despite the on-going violence, voter turnout for the referendum was reported to be about 65-percent.




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DOJ asks appeals court to block injunction on oil drilling ban
Hillary Stemple on June 27, 2010 2:42 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Friday asked the US Court of Appeals for the Fifth Circuit [official website] to stay a district court ruling to lift a six-month moratorium on deep water drilling [JURIST reports] issued by the Obama administration in response to the BP Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive]. The district judge issued a preliminary injunction against the moratorium [opinion, PDF] last week saying it was necessary because the ban caused irreparable harm to both the plaintiffs, small oil companies affected by the ban, and the public. In its filing, the DOJ contends that the district judge abused his discretion [Reuters report] in issuing the injunction and that another deepwater spill could overwhelm the ongoing efforts to clean up the spill with catastrophic results. Lawyers for the DOJ argue that the moratorium was put in place so the government could engage in concerted effort [Business Week report] to protect the economic, social and ecological health of the region. US Secretary of the Interior Ken Salazar [official website] confirmed last week [JURIST report] that the DOJ would appeal the injunction, stating that the ban on deepwater drilling was the "right decision" and is necessary to protect the communities and environment of the Gulf coast. Salazar has also indicated that he will implement a new injunction against deep water drilling that complies with the district court's ruling.

Earlier this month, US President Barack Obama [official website] announced the government's latest plan of action for tackling the oil spill, which includes a $20 billion compensation fund [JURIST reports] subsidized by BP. The newly-established escrow fund [government backgrounder] will be used to indemnify the workers and business owners harmed as a result of the oil spill. The announcement also included a long-term restoration plan and prevention of future disasters [JURIST report] through stronger regulation. Additionally, Obama announced the appointment of Micheal Bromwich [press release], a former federal prosecutor and Inspector General for the Justice Department, as head of the Minerals Management Service (MMS) [official website], which has been plagued with corruption and notorious for its cozy relationship with oil companies. The Deepwater Horizon oil spill was a result of an oil well blowout that caused an explosion 5,000 feet below the surface of the Gulf. More than 120 million gallons of oil have leaked already from the rig's broken pipe and has now surpassed the Exxon Valdez [JURIST news archive] as the worst oil spill in US history. The White House is keeping a daily chronology of events [text].




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Guantanamo detainee to be repatriated to Yemen after judge orders release
Sarah Miley on June 27, 2010 11:52 AM ET

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[JURIST] A federal judge on Saturday ordered the release [opinion, PDF] of Guantanamo Bay detainee Mohammed Odaini, who will now be transferred to his homeland of Yemen [JURIST news archives], despite the Obama administration's ban on repatriation to the Arab nation. In January, the administration suspended all transfers of Guantanamo Bay detainees to Yemen [JURIST report] citing security concerns. Judge Henry Kennedy Jr. of the US District Court for the District of Columbia [official website] ruled that the US government has illegally detained Odaini for the past eights years and ordered his release, forcing the administration to make an exception to the ban. Kennedy held that the government had failed to show a preponderance of evidence, the lower standard of proof used in to prosecute suspected terrorists, linking Odaini to al Qaeda [JURIST news archive]:
Respondents have kept a young man from Yemen in detention in Cuba from age eighteen to age twenty-six. They have prevented him from seeing his family and denied him the opportunity to complete his studies and embark on a career. The evidence before the Court shows that holding Odaini in custody at such great cost to him has done nothing to make the United States more secure. There is no evidence that Odaini has any connection to Al Qaeda. Consequently, his detention is not authorized by the AUMF. The Court therefore emphatically concludes that Odaini's motion must be granted.
Odaini was a student at a religious institution in Faisalabad, Pakistan, before he was detained in 2002. He had been visiting a nearby guesthouse for the first time when it was raided by US forces. The Obama administration has confirmed that ban on transfers to Yemen is still in place [WP report] and the repatriation of Odaini should not be seen as a representation of the administration's broader policy on Yemeni detainees.

Most of the detainees remaining at Guantanamo are Yemeni, and many have been transferred back to the Arab nation. In January, the US Court of Appeals for the District of Columbia Circuit [official website] upheld the detention [JURIST report] of Yemeni Guantanamo detainee Ghaleb Nassar Al-Bihani [NYT materials], ruling that he can remain in US custody, but, in December, the US government transferred six detainees [JURIST report] back to Yemen. Also in December, a federal judge granted Yemeni detainee Saeed Hatim's petition for habeas corpus, ordering his release [JURIST report]. A few weeks after the Obama administration suspended transfers to Yemen, a Yemeni government official said that Yemen will build a rehabilitation center for Guantanamo detainees. According to the anonymous official, Yemen will begin building [Reuters report] once it receives funding for the $11 million project promised by the US. It is believed the rehabilitation center will be internationally financed and monitored.




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UN advises Iraq to ratify convention against torture
Sarah Miley on June 27, 2010 10:21 AM ET

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[JURIST] UN Special Representative to Iraq Ad Melkert on Saturday urged the Iraqi government to ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [text]. Melkert's statement, which was delivered on the thirteenth annual International Day in Support of Victims of Torture [official website], called for increased monitoring and investigation of torture allegations [CNN report] made by detainees and the prosecution of those responsible. Melkert went on to say that Iraq has made several advances in recognizing human rights violations, but the government's policy implementation still faces several obstacles. The convention was adopted by the UN in 1984 and has been ratified by 147 countries. Iraq remains one of 45 member-countries that have yet to ratify the treaty.

Iraq has faced several obstacles in solidifying the nation's newly-created democratic government, which has been riddled with tension between Shiite Muslims and the Sunni minority. Earlier this month, the Iraqi Supreme Court ratified the final results [JURIST report] of the nation's March 7 parliamentary elections [CEIP backgrounder; JURIST news archive], officially confirming a narrow victory for the secular Iraqiya alliance, led by Iyad Allawi [personal website, in Arabic; Al Jazeera profile]. The victory gave Iraqiya a slim two-seat lead over the Shiite State of Law [official website] coalition of incumbent Prime Minister Nouri al-Maliki [official website, in Arabic]. Allawi hopes Iraqiya's victory will be a turning point for bipartisan participation among the religious sects, but his goal of unification may be thwarted, as Maliki's bloc has already announced an alliance with the Shia Iraqi National Alliance, which polled third, to form the largest grouping in parliament.




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Hong Kong legislature approves China-backed political reform package
Brian Jackson on June 26, 2010 1:38 PM ET

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[JURIST] The Legislative Council of Hong Kong [official website] on Friday approved an addition of 10 members [amendment, PDF] to its body. By a vote of 46-12, the council approved increasing its membership number to 70 one day after it approved changes [The Standard report] to the way in which Hong Kong's chief executive is elected. While Hong Kong's current Chief Executive Donald Tsang [official profile], applauded the changes—the first to Hong Kong's electoral procedures since the change from British rule in 1997—the additions to the council were seen by many as a blow to the pro-democracy movement [Reuters report] in the country. In remarks made after the vote [transcript], Tsang focused on the bipartisanship needed to pass the reforms:
For too long, partisan politics, political infighting, and distrust of the Central and SAR governments have marred the discussions not only in LegCo but also public affairs at large. This time round, some parties and scholars have shown us how constructive political dialogue and mutual trust can bring real benefits to the community.
The changes to the council's membership and the method of electing a chief executive will be implemented in 2012.

The changes to the Hong Kong political and electoral process are a significant first step [WSJ editorial] for the nation, but they do not go far enough for some, and the result has divided members [AP report] of Hong Kong's Democratic party. One of the provisions of the new system calls for a scaling back of so-called "functional constituencies", which are positions on the council selected by special interests, rather than by popular vote. China's willingness to compromise on these constituencies, while a political victory [AP report] for that nation, may also signal an understanding that China will have to adhere to its promise [The Economist report] of universal suffrage for Hong Kong by 2020.




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UK court rules Afghan detainees must be protected from possible abuse
Brian Jackson on June 26, 2010 12:23 PM ET

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[JURIST] The UK High Court [official website] ruled [judgment text] Friday that restrictions must be placed on whether British soldiers in Afghanistan may transfer detainees to Afghan-run detention facilities. The judgment, delivered by Lord Justice Richards and Justice Cranson, examined the allegations of abuse of seven detainees at the hands of the National Directorate of Security (NDS), Afghanistan's intelligence agency. Citing, "independent reports ... of widespread and serious ill-treatment of detainees," the justices maintained a December 2008 moratorium on the transfer of detainees to the NDS facility in Kabul. The justices also lifted a temporary moratorium on the transfer of detainees to the NDS facility in Kandahar, giving deference to Canada's decision to transfer prisoners to that facility. Lastly, the justices allowed transfers to an NDS facility in Lashkar Gah, provided that in addition to existing safeguards, the following also be implemented:
(i) all transfers must be made on the express basis (spelling out the requirements of the MoU and EoL) that the UK monitoring team is to be given access to each transferee on a regular basis, with the opportunity for a private interview on each occasion; (ii) each transferee must in practice be visited and interviewed in private on a regular basis; and (iii) the UK must consider the immediate suspension of further transfers if full access is denied at any point without an obviously good reason (we have in mind circumstances such as a security alert) or if a transferee makes allegations of torture or serious mistreatment by NDS staff which cannot reasonably and rapidly be dismissed as unfounded.
The court's ruling does not prevent the transfer of detainees to Kabul from the approved facilities, though the court called the likelihood of such transfers "insufficiently large."

In April, the High Court received documents from human rights lawyers that alleged British troops were allowing the torture of detainees [JURIST report] in Afghanistan. Concerns over detainee abuse were first brought to light in a 2007 report [JURIST report] by Amnesty International (AI) [advocacy website], which said that the International Security Assistance Force (ISAF) [official website], led by the North Atlantic Treaty Organization (NATO), was exposing terrorism detainees to risks of torture by transferring NATO-held detainees into custody of Afghanistan authorities. AI's report focused on actions by Belgium, Canada, the Netherlands, Norway and the UK, saying that the forces from those countries have been transferring terror detainees to the NDS, despite numerous reports of torture. The report prompted a 2008 suit, which mirrors similar allegations that Canadian military officials were complicit [JURIST news archive] in the torture of detainees that were transferred to Afghanistan officials.




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UN rights commissioner pledges justice for torture victims
Zach Zagger on June 26, 2010 11:49 AM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] on Friday warned people and nations that practice torture [JURIST report] that they cannot escape the reach of justice [statement]. Commemorating the International Day in Support of Victims of Torture, Pillay noted that 45 UN member states have not ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [text] and that many states party continue to practice torture. Pillay also expressed concern over democracies that generally abide by the rule of law but have maintained amnesties that prevent torturers from being brought to justice:
Torture is an extremely serious crime, and in certain circumstances can amount to a war crime, a crime against humanity or genocide. No one suspected of committing torture can benefit from an amnesty. That is a basic principle of international justice and a vital one.
Pillay promised that the international criminal tribunals and the International Criminal Court (ICC) [official website] would continue to prosecute those responsible for torture when national courts fail to act.

Earlier this month, UN rights experts called on the UN Human Rights Council [official website] to investigate findings [JURIST report] from a report [text, PDF; JURIST report] released earlier this year detailing the secret imprisonment of terrorism [JURIST news archives] suspects by 66 countries, including the US, Ethiopia, Romania and Pakistan. UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment Manfred Nowak [official website] indicated that secret prisons [JURIST news archive] remain a widespread problem and can often lead to torture. Last month, The UN Committee Against Torture (CAT) [official website] urged Syria, Yemen and Jordan to conduct thorough investigations [JURIST report] into allegations of torture by law enforcement officials.




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UN announces opening of new Kenya courtroom for piracy trials
Hillary Stemple on June 25, 2010 3:43 PM ET

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[JURIST] The UN Office on Drugs and Crime (UNODC) [official website] on Friday announced the opening of a new high-security courtroom in Kenya [press release] that will hear maritime piracy cases as well as cases involving other serious criminal offenses. The courtroom, opened on Thursday, was funded through contributions the UNODC received from donor states including Australia, Canada, Germany, France, the EU and the US. The UNODC announced last week [JURIST report] that donor states will spend more than USD $9.3 million to fund courts in Kenya and Seychelles that prosecute suspected Somali pirates [JURIST news archive]. The Kenyan government announced in April that it would no longer accept [JURIST report] Somali pirate cases due to its overburdened legal system and the lack of support that had been promised by the international community. Kenya resumed the adjudication of piracy cases in May after being reassured it would receive additional support. Kenya currently has 123 suspected pirates awaiting trial, the highest number of any country that has agreed to hear piracy cases. Kenyan courts have convicted and sentenced 18 pirates since agreeing to assist in the prosecution of piracy cases. A spokesperson for the UNODC praised Kenya's role in fighting piracy stating, "Kenya has taken on a heavy burden in dealing with a crime that affects the entire international community."

The international community has been supporting actions taken against maritime piracy. The UNODC announced in May that Seychelles would create [JURIST report] a UN-supported center to prosecute suspected pirates. In April, the UN Security Council approved a resolution [JURIST report] calling on member states to criminalize piracy under their domestic laws and urging Secretary-General Ban Ki-moon [official website] to consider an international tribunal for prosecuting piracy. The Security Council resolution came the same week the UN announced that a trust fund established to combat piracy will be funding five projects [UN News Centre report] aimed at piracy committed in the waters around Somalia. The US is also involved in the prosecution of pirates. In May, nine Somali men accused of piracy and other charges by federal prosecutors pleaded not guilty [JURIST report] at their arraignment. Trials for the accused pirates are scheduled for July but may be delayed until September.




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Federal appeals court reinstates stem cell research funding challenge
Hillary Stemple on June 25, 2010 2:48 PM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Friday reinstated [opinion, PDF] a lawsuit challenging the Obama administration's decision to ease restrictions [JURIST report] on stem cell research [JURIST news archive]. The lawsuit was originally dismissed [JURIST report] by the district court in October for lack of standing. The plaintiffs argued that their ability to obtain funding for adult stem cell research was harmed by increased competition for the funds after President Barack Obama signed an executive order [JURIST report] permitting federal funds to be used for research on embryonic stem cells as well as adult stem cells. Under the guidelines issued in accordance with the executive order, federal funding may be used for embryonic stem cells obtained from embryos that were created to be used in fertility clinics but were no longer needed and would have been discarded. The court held that a party competing for a governmental benefit can assert competitor standing when the government takes steps that would benefit a competitor, causing harm to the party. The panel ruled that plaintiffs meet the basic requirement for standing and remanded the case to the district court for further proceedings. The appeals court refused to consider the plaintiffs' motion for a preliminary injunction blocking enforcement of the executive order.

The new guidelines reversed previous rules that limited government funding of embryonic stem cells to only cell lines that were in existence as of August 2001. Despite pressure from the scientific community, the previous administration refused similar changes to funding guidelines. In 2007, then-president George W. Bush vetoed [JURIST report] the Stem Cell Research Enhancement Act of 2007 [S 5 materials], which was intended to relax funding restrictions on embryonic stem cell research. The administration rejected the bill, saying it would compel taxpayers to support the destruction of human embryos. In 2006, Bush vetoed a previous version [JURIST report] of the Stem Cell Research Enhancement Act, which was passed by the Senate to remove restrictions on embryonic stem cell research, saying he would not provide federal funding for stem cell research because many consider the destruction of embryos to be murder.




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Romania high court rules pension cuts unconstitutional
Hillary Stemple on June 25, 2010 1:23 PM ET

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[JURIST] The Romanian Constitutional Court [official website, in Romanian] on Friday ruled that a government plan to reduce pension funds by 15 percent was unconstitutional, jeopardizing a pending billion dollar loan from the International Monetary Fund (IMF) [official website] needed to stabilize the Romanian economy. The planned decrease in the pension fund was part of a larger package of benefit reforms enacted in order to limit the budget deficit to the 6.8 percent required to qualify for the loan. Also included in the reforms was a 25 percent decrease in wages for public sector jobs, which the court upheld as constitutional. Romanian Prime Minister Emil Boc [official website, in Romanian] indicated that the government is working to create a new reform package [press release, in Romanian] in order to ensure that the loan can be dispersed as scheduled. The government may consider tax increases in order to meet the loan requirements, a measure that was considered [Business Week report] before the current reforms were implemented. The IMF is scheduled to meet Monday to discuss whether the loan should be dispursed.

The Greek government was recently forced to implement similar austerity measures after suffering an economic crisis [BBC backgrounder] that threatened to destabilize the international economy. Last month, the EU and IMF announced a €110 billion bailout package for Greece, which was subsequently approved by euro-zone leaders [BBC report]. Last month, Germany's Constitutional Court [official website, in German] refused to issue a temporary injunction [judgment, in German; JURIST report] against the German government's €22.4 billion contribution to the bailout fund. The suit, brought by four lawyers and a businessman, claimed that the contribution would violate Germany's constitutional law.




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Rights group urges Hamas to allow access to Israeli soldier
Sarah Miley on June 25, 2010 12:49 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Friday urged [press release] Hamas [JURIST news archive] authorities to allow captive Israeli soldier Gilad Shalit [advocacy website, in Hebrew; BBC backgrounder] to communicate with his family and receive visits from the International Committee of the Red Cross (ICRC) [official website]. Shalit was captured in 2006 by Palestinian militants during a raid on an Israel Defense Forces (IDF) [official website] post near the Kerem Shalom crossing in Israel. HRW claims that Hamas is violating the laws of war by blocking all access to Shalit. The advocacy group also stated that Hamas' actions are deemed cruel and inhuman and may amount to torture. HRW's statement echoed concerns included in a statement released earlier this month by ICRC [JURIST report] calling Shalit's "incommunicado detention" a violation of international humanitarian law. Since his incarceration more than four years ago, Hamas has passed on only three letters from him, a voice recording and a short video. Hamas officials hold that allowing outside access to Shalit would alert the Israeli government to his location, which would lead to armed attacks if Shalit's release could not be negotiated. Hamas has refused to release Shalit until Israel releases hundreds of Palestinian prisoners, many of whom were arrested in retaliation of Shalit's prolonged captivity.

In an attempt to pressure Hamas into releasing Shalit, the Israeli Cabinet voted last year to deny Hamas prisoners privileges not required by law, such as education, entertainment and some visitation. The policy places strict limits on family visits and money transfers, as well as removes opportunities for prisoners to take high school and university classes. The new rules were enacted after a failed negotiation over Shalit's release, which led to the seizure of several Hamas officials by Israel forces [JURIST report], including Palestinian Cabinet ministers and lawmakers. Several third-party nations, especially Egypt have attempted to mediate [JURIST report] negotiations between the neighboring nations, but none has come to fruition. In September, the UN Fact Finding Mission on the Gaza Conflict [official website] also chided Hamas [JURIST report] for Shalit's incommunicado detention in a controversial report covering last year's Operation Cast Lead [GlobalSecurity backgrounder] in the Gaza Strip. The report stated that the mistreatment of Shalit was a potential war crime and called for Hamas officials to allow access to the incarcerated soldier.




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US House, Senate reconcile financial reform bills
Hillary Stemple on June 25, 2010 12:07 PM ET

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[JURIST] Members of the US Senate and House of Representatives [official websites] on Friday reached an agreement on the financial reform bills [HR 4173 materials; S 3217 materials] passed by each chamber, which focus on increasing regulation in the financial sector following the recent economic crisis [JURIST news archive]. The reconciled bill creates a new regulatory council to monitor financial institutions in order to prevent the companies from becoming "too big to fail." It also gives the Federal Reserve [official website] the power to supervise the largest financial companies and report to the government any risks the firms may pose to the economy at large. Additionally, a new consumer protection division will be established within the Federal Reserve to enforce rules against certain business practices like abusive mortgage lending and some credit card practices. As a final protection against future bailouts, the government will have the ability to seize and liquidate failing financial institutions before their collapse can have an adverse affect on the entire economy. The so-called "Volcker Rule" is included in the final bill, but instead of prohibiting banks from owning hedge funds, banks will be permitted to invest up to 3 percent of their capital into hedge funds or private equity funds. The final bill also includes regulation of some derivatives, requiring that they be bought and sold through clearinghouses or exchanges. US President Barack Obama [official website] applauded the reconciliation efforts [press release] and commented on the important nature of the reforms, stating, "[t]he reforms making their way through Congress will hold Wall Street accountable so we can help prevent another financial crisis like the one that we're still recovering from." The House and Senate are expected to vote on the final bill next week.

The Senate approved its version of the financial reform bill last month, after the House passed its version [JURIST reports] in December. The Senate Banking Committee [official website] proposed a bill [text, PDF; JURIST report] in 2009 that was met with resistance and resulted in the committee's development of the bill ultimately passed by the Senate. One provision in the bill that has been the source of much debate is the creation of a consumer protection agency. The House Financial Services Committee [official website] had approved a bill to create the agency in October, after originally delaying [JURIST reports] it at the behest of financial industry leaders in July. The creation of the agency is a key step in achieving the Obama administration's stated goal of tightening financial industry regulations. Last June, the administration proposed a broad series of regulatory reforms [press release; JURIST report] aimed at restoring confidence in the US financial system.




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UN launches global commission on HIV and the law
Sarah Miley on June 25, 2010 11:33 AM ET

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[JURIST] The UN Development Programme (UNDP), in coordination with the UNAIDS Secretariat [official websites], on Thursday launched the Global Commission on HIV and the Law [press release] in order to better understand the role played by the law in facilitating universal access to AIDS prevention and treatment. The commission is charged with developing "actionable and evidence-informed recommendations" to create national legal environments with effective and efficient HIV/AIDS responses. The commission will address some of the most challenging HIV legal issues, including the criminalization of HIV/AIDS transmission and behavioral practices such as drug use and sexual activity. UNDP Administrator Helen Clark highlighted the need for such an investigation [transcript] in order create legal frameworks to support AIDS prevention and treatment:
It has ... become increasingly clear that successes in responding to HIV can only reach the required scale if they are underpinned by legal, regulatory and social environments which advance human rights, gender equality, and social justice goals. ... Sadly, however, in many places social and legal challenges to human rights are undermining efforts to achieve universal access to HIV/AIDS prevention, treatment, care, and support. ... While the number of countries with specific laws to protect people living with HIV from discrimination has increased since 2003, one third of countries still lack them. Where they do exist, such laws often are not enforced. ... There is an abundance of anecdotal evidence, and an ever increasing body of documentation, on human rights abuses stemming from punitive laws, policies, practices, stigma, and discrimination. We need now to move from anecdote to evidence on the impact of these abuses on HIV, public health, and development outcomes. That evidence will help advance effective HIV/AIDS responses and generate political will to bring about the needed changes.
The commission will be composed of an international panel of experts and will hold regional hearings in Africa, Asia, the Caribbean and Eastern Europe to ensure that it hears from all affected communities and policy-makers. The commission is expected to complete the inquiry by December 2011.

UNAIDS has repeatedly urged policy changes in the 51 countries and areas that still bar entry to individuals with HIV/AIDS. In April, the Chinese government lifted a ban on entry [JURIST report] for individuals with HIV/AIDS and other communicable diseases. The ban had temporarily been lifted [JURIST report] for international events, such as the 2008 Summer Olympic Games, but the inconvenience that resulted, as well as the increased knowledge of how HIV/AIDS is spread, were reasons cited by the government as factors for changing the law. The US lifted its 22 year-old entry ban [JURIST report] in January when the Centers for Disease Control [official website] removed HIV/AIDS from its list of communicable diseases of public significance. UNAIDS strongly opposes any laws that restrict movement based on HIV-positive status, holding that such restrictions are discriminatory and do not prevent HIV transmission or protect public health.




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Germany court recognizes 'right to die'
Sarah Miley on June 25, 2010 10:40 AM ET

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[JURIST] The German Federal Court of Justice [official website, in German] on Friday ruled that removing a patient from life support is not a criminal offense [judgment, in German] if the terminal individual had previously given consent. The landmark ruling legalized [press release, in German] the right to die [JURIST news archive] and overturned the nine-month sentence of a lawyer who was convicted last year for advising a client to remove her mother from life support after being in a coma since 2002. Before slipping into the coma, the patient had told her daughter she did not want her life to be prolonged artificially. Upon the lawyer's advice, the daughter had removed the gastric tube keeping her mother alive. The hospital was able to reinsert the feeding tube, but the patient died of heart failure two weeks later. Both the lawyer the daughter were charged with attempted manslaughter, but the daughter was previously acquitted by a district court. The ruling only legalizes the right to die through the passive assistance of removing a patient from life support. Other "active" forms of assistance are still punishable by up to five years in prison.

The right to die has been a highly contentious issue around the world. In August, the Supreme Court of Western Australia [official website] upheld the right to die [JURIST report] in a case involving a quadriplegic who asked to be removed from food and hydration services. Last July, the UK Law Lords asked the Director of Public Prosecutions to clarify [JURIST report] the UK's laws regarding those who aid patients seeking assisted suicide. Many Britons have reportedly gone to the Dignitas clinic [website, in German] in Switzerland to obtain assisted suicides. The House of Lords in July rejected a bill [JURIST report] that would would have barred prosecuting those who go abroad to help others commit assisted suicide. In May 2009, the South Korean Supreme Court [official website, in Korean] upheld a lower court ruling allowing a brain-damaged patient the right to die. The judge held that, for future cases, doctors should make efforts to confirm patients' wishes to die with dignity and that such determinations can be deduced from an analysis of different factors.




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Pakistan court sentences Americans to prison on terrorism charges
Ann Riley on June 25, 2010 9:41 AM ET

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[JURIST] A Pakistani anti-terrorism court on Thursday sentenced five Americans to 10 years in prison for plotting attacks on Pakistan. Waqar Hussain Khan, Ahmed Minni, Ramy Zamzam, Aman Yemer and Umar Farooq, all students from the Washington, DC metro area, were convicted [AP report] of criminal conspiracy and funding a banned terrorist organization and will carry out the respective ten-year and five-year sentences concurrently. According to Deputy Prosecutor Rana Bakhtiar, the five men, facing life in prison, were acquitted [Reuters report] of additional charges of planning war against Pakistan, directing others to launch attacks and attempting to cross the Afghan border illegally. US State Department (DOS) [official website] spokesperson Mark Toner said the US respected Pakistan's right to conduct such judicial proceedings [press briefing] but did not comment on the ongoing legal process, as the defense is expected to appeal the decision.

Prosecutors claimed that e-mail records and witness statements supported the allegations that the five men, arrested in Pakistan in December, were planning attacks [Washington Post report] against a nuclear plant, an air base and targets in Afghanistan and US territories. The men are committed to appeal the decision [Washington Post report] and contend that they were on their way to Afghanistan to participate in humanitarian work, while additionally claiming that they were tortured by FBI agents and Pakistani authorities. Their arrest highlights a growing concern of US citizens' involvement with extremist groups and homegrown terrorists. Thursday's verdict comes the same week as Pakistani-born US citizen Faisal Shahzad [BBC profile] pleaded guilty [JURIST report] to 10 counts of terrorism and weapons charges [indictment, PDF; JURIST report] relating to last month's attempted car bombing in New York City's Times Square.




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US House approves campaign finance reform legislation
Hillary Stemple on June 25, 2010 9:30 AM ET

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[JURIST] The US House of Representatives [official website] on Thursday voted 219 to 206 [roll call] to approve legislation [HR 5175 materials] aimed at decreasing the ability of corporations and other special interest groups to influence elections. The bill, known as the Disclose Act, was developed in response to the January US Supreme Court [official website; JURIST news archive] ruling in Citizens United v. Federal Election Commission [Cornell LII backgrounder; JURIST report], which eased restrictions on political campaign spending by corporations. If signed into law, the bill would prohibit corporations receiving federal contracts worth more than $7 million from spending money on "electioneering communications" and would also prohibit foreign-controlled domestic corporations from financing campaigns. Corporations donating money to political campaigns would be required to file a certification with the Federal Election Commission (FEC) [official website] indicating they are legally able to make such donations. The bill exempts § 501(c)(4) [text] organizations with more than 500,000 members, which will allow organizations like the National Rifle Association (NRA) and the Sierra Club [advocacy websites] to continue financing campaigns. The bill's primary author, Chris Van Hollen (D-MD) [official website] praised its passage [press release] and indicated the Senate would be addressing the matter soon, stating:
Passage of the bipartisan DISCLOSE Act is truly a victory for the American people, who have a right to know which organizations are spending millions to influence their vote and who is funding that effort. I applaud my colleagues for supporting this bill, which addresses the very serious threats to our democracy created by the Supreme Court's decision in Citizens United, and I and look forward to the Senate taking up the legislation in short order.
Republican opponents of the bill call it "unconstitutional" [press release] and "misguided." It is unclear when the Senate will take up the issue of campaign finance reform, although Van Hollen indicated that he had been assured [press release] of the Senate's commitment to the bill.

Senate Democrats introduced a similar bill [text, PDF; JURIST report] in April after the Senate Judiciary Committee [official website] held hearings [JURIST report] in March on the effects of the Citizens United decision. In Citizens United, the court struck down Section 203 of the Bipartisan Campaign Reform Act [text, PDF], which prohibited corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an "electioneering communication" or for speech expressly advocating the election or defeat of a candidate. President Barack Obama sharply criticized [JURIST report] the decision in his State of the Union Address [transcript] in January. Obama warned of the increased potential for powerful interest groups, both foreign and domestic, to wield excessive influence over American elections and called for bipartisan support of legislation to counteract the decision. The decision has caused a deep partisan divide [CNN report] over the topic, with Democratic officials largely opposing the decision, and Republican officials mostly in support.




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Rwanda doctor arrested in Gabon on genocide charges
Ann Riley on June 25, 2010 8:29 AM ET

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[JURIST] Gabon police arrested Rwandan doctor Jean-Chrysostome Ndindabahizi [INTERPOL warrant] on charges of conspiracy to commit genocide, crimes against humanity and murder in connection to the 1994 Rwandan genocide [HRW backgrounder, JURIST news archive], according to Rwandan National Public Prosecution Authority [official website] spokesperson Augustin Nkusi on Thursday. Witnesses say Ndindabahizi was working as a doctor at Butare University Hospital in 1994 and participated in planning meetings [New Times report] prior to the genocide. Ndindabahizi's indictment was prepared and sent to the Gabonese government in January 2009. According to Gabonese presidency spokesperson Guy Bertrand, Ndindabahizi was handed over [Reuters report] to INTERPOL [official website], as Gabon has no extradition treaty with Rwanda. Ndindabahizi could face trial in Rwanda or the International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive], established for the prosecution of high-level officials responsible for genocide and other serious violations of international humanitarian law during the Rwandan genocide.

Earlier this month, the ICTR transferred [JURIST report] the cases of 25 suspects to Rwandan authorities, following strategic steps to complete [completion strategy text, PDF] the court's trial work by 2011. In April, Rwandan authorities arrested [JURIST report] opposition presidential candidate Victoire Ingabire Umuhoza [campaign website], accusing her of denying the genocide and collaborating with terrorists. In March, an aid to Ingabire who had been convicted in absentia, pleaded guilty to genocide charges [JURIST report] in exchange for a reduced prison sentence of 17 years. Also in March, the Appeals Chamber of the ICTR affirmed the genocide conviction [JURIST report] of popular Rwandan singer-songwriter Simon Bikindi [Trial Watch profile]. The court also reversed the conviction for counts of genocide, murder and extermination against Rwandan district attorney Simeon Nchamihigo. Additionally, the widow of assassinated Rwandan president Juvenal Habyarimana, Agathe Habyarimana, was arrested [JURIST report] in France on suspicions of complicity in genocide and was later released on bail. In January, the Rwandan government released a report [JURIST report] concluding that the assassination of then-president Juvenal Habyarimana, which sparked the genocide, was the work of Hutu extremists. The ICTR continues its work to prosecute those most responsible for the Rwandan genocide, in which nearly 800,000 people, primarily Tutsis, were killed.




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Blagojevich judge refuses to delay trial after Supreme Court 'honest services' ruling
Sarah Miley on June 25, 2010 8:15 AM ET

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[JURIST] A federal judge on Thursday denied a request to delay the corruption trial of former Illinois governor Rod Blagojevich [JURIST news archive] in order for his defense lawyers to review a decision by US Supreme Court [official website] limiting the scope of the federal honest services fraud statute [18 USC § 1346 text]. Blagojevich is currently facing several honest services fraud charges for allegedly conspiring to sell or trade the Senate seat left vacant by US President Barack Obama [official website] after his election. Judge James Zagel of the US District Court for the Northern District of Illinois [official website] held that the trial delay was unnecessary because the Supreme Court's decision in Skilling v. United States [Cornell LII backgrounder; JURIST report] was unlikely to affect Blagojevich's case. The Supreme Court held in Skilling that the honest services law is not unconstitutionally vague under a limited construction of the statute and was only applicable to the protection of intangible rights of honest service deprived through bribery and kickbacks. Last month, the Supreme Court denied [JURIST report] Blagojevich's request to postpone the start of his trial until tit issued opinions in cases involving the honest services statute. In anticipation of a potential void for vagueness ruling Skilling, the prosecution also charged Blagojevich with racketeering, attempted extortion, bribery, conspiracy to commit bribery and conspiracy to commit extortion.

In April, the prosecution was ordered [JURIST report] to release a 91-page government proffer outlining evidence in its case against Blagojevich. According to the proffer, Blagojevich tried to sell the Senate seat vacated by Obama, made appointments based on anticipated campaign contributions and took kickbacks from a number of companies. In March, Blagojevich pleaded not guilty [JURIST report] to eight amended corruption charges. In January 2009, the Illinois State Senate voted unanimously [JURIST report] to convict Blagojevich of abuse of power and remove him from office. Blagojevich and his former chief of staff John Harris were initially arrested [JURIST report] in December 2008.




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Europe court finds no right to same-sex marriage
Dwyer Arce on June 25, 2010 7:31 AM ET

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[JURIST] The European Court of Human Rights (ECHR) [official website] on Thursday ruled [judgment; press release] 4-3 that the European Convention on Human Rights [text] does not mandate that member states recognize same-sex marriages [JURIST news archive]. The applicants, an Austrian same-sex couple, argued that their country's prohibition on same-sex marriage violated their rights under the Article 8 right to private and family life, the Article 12 right to marry and the Article 14 prohibition against discrimination. They contended that because of social changes, marriage is no longer an institution aimed at procreation and the education of children and is instead a "union of two persons which encompassed all aspects of their lives." The Austrian government argued that because of the wording of Article 12 and the lack of European consensus on the issue, the court should uphold the ban on same-sex marriage. The UK government intervened in favor of Austria, arguing that there was no reason to depart from ECHR case law in Austria's favor. Four non-governmental organizations intervened as well, arguing that denying marriage to same-sex couples was discriminatory and that the prohibition could not be rationally justified. In rejecting the applicants' argument and finding no violation of the convention, the court noted that only six of 47 states party to the convention had legalized same-sex marriage, stating:
The Court cannot but note that there is an emerging European consensus towards legal recognition of same-sex couples. Moreover, this tendency has developed rapidly over the past decade. Nevertheless, there is not yet a majority of States providing for legal recognition of same-sex couples. The area in question must therefore still be regarded as one of evolving rights with no established consensus, where States must also enjoy a margin of appreciation in the timing of the introduction of legislative changes[.]
Three judges dissented, agreeing with the majority as to the Article 12 claim but dissenting with regard to Articles 8 and 14.

The applicants were denied a marriage license by Austrian authorities in 2002 due to a law that allows only opposite-sex couples to enter into marriage contracts. The Austrian Constitutional Court [official website] dismissed the applicants' complaint the following year, causing the applicants to bring the case to the ECHR in 2004. Earlier this month, a German court ruled that a same-sex marriage performed abroad must be recognized as a registered partnership [JURIST report] in Germany. Also in June, the Icelandic Althingi [official website, in Icelandic] unanimously passed legislation [JURIST report] legalizing same-sex marriage. Last month, Portuguese President Anibal Cavaco Silva [official website, in Portuguese] signed a bill [JURIST report] that legalized same-sex marriage but stopped short of allowing same-sex couples to adopt. Same-sex marriage is also recognized in Belgium, the Netherlands, Spain, Sweden and Norway [JURIST reports], while several other countries, including the UK, France and Austria recognize civil unions between same-sex partners. Same-sex marriage has also been recognized nationwide in Canada and South Africa and in certain jurisdictions in Mexico and the US [JURIST reports].




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Sri Lanka to refuse UN panel entry
Hillary Stemple on June 24, 2010 2:15 PM ET

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[JURIST] Sri Lankan External Affairs Minister Gamini Lakshman Peiris [official website] said Thursday that members of a recently-appointed UN panel [JURIST report] will not be permitted to enter the country to investigate allegations of human rights abuses during the last months of the Sri Lankan civil war [JURIST news archive]. The government rejected the appointment of the panel [JURIST report] earlier this week. Peiris indicated that the panel was unnecessary and noted that Sri Lanka would not issue visas to its members [AFP report]. UN Secretary-General Ban Ki-moon [official website] announced the formation of the panel [press release] on Tuesday in order to investigate alleged wartime abuses of civilians by both the Sri Lankan government and the rebel Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive]. The panel has been asked to examine "the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka" and make the information available to the Sri Lankan government for further action on the matter. The panel will also report on the implementation of the human rights accountability statement [text] that both Ban and Sri Lankan President Mahinda Rajapaksa [official website] agreed to last May, but which Rajapaksa subsequently rejected [JURIST report]. The Sri Lankan government has firmly denied agreeing to the implementation of the human rights accountability statement and has cited an internal commission appointed last month [press release] as sufficient to deal with reconciliation issues within Sri Lanka.

Sri Lanka has faced numerous allegations of human rights violations originating from incidents that took place during the final months of the civil war. Last month, Human Rights Watch (HRW) [advocacy website] announced it had acquired new evidence [JURIST report] supporting allegations of war crimes. Also last month, the International Crisis Group (ICG) [official website] accused Sri Lankan security forces of war crimes [JURIST report], claiming that the violence of the 30-year civil war escalated in January 2009, leaving thousands more dead than projected by the UN. In March, Ban reaffirmed his plan to set up a UN panel [JURIST report] to investigate allegations of human rights violations during the civil war. Earlier in March, Rajapaksa rejected [JURIST report] Ban's plan to appoint a panel of experts to look into alleged rights abuses in the island nation's civil war, saying it "s totally uncalled for and unwarranted."




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Canada PM apologizes for 1985 Air India bombing
Drew Singer on June 24, 2010 1:36 PM ET

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[JURIST] Canadian Prime Minister Stephen Harper [official website; BBC profile] on Wednesday formally apologized to the families of the victims [list] of the 1985 Air India bombing [CBC backgrounder] for the government's failure to prevent the attack. The apology comes one week after the Air India Commission [official website], led by former Canadian Supreme Court justice John Major [official website], released a report [text] outlining the government's "cascading series of errors" in preventing and responding to the attack. The judicial inquiry began in June 2006 to further investigate the bombing [JURIST reports]. Harper took responsibility for the government's malfeasance at a memorial service Wednesday morning:
The mere fact of the destruction of Air India Flight 182 is the primary evidence that something went very, very wrong. For that, we are sorry. For that, and also for the years during which your legitimate need for answers and indeed, for empathy, were treated with administrative disdain.
At the service, which marked the 25th anniversary of the bombing, Harper also declared June 23 to be a national day of remembrance.

The 1985 bombing downed an Air India jetliner over the Atlantic and killed all 329 passengers, most of them Canadians. The bombing was the single largest terror attack against a Western target before the the 2001 9/11 attacks [JURIST news archive] and resulted in the longest and most expensive trial in Canadian history. Ripudaman Singh Malik and Ajaib Sing Bagri were tried on charges of conspiracy to commit murder, first-degree murder of the passengers and crew of Air India Flight 182 and attempted murder of the passengers and crew. The suspects were acquitted on all charges [judgment; JURIST report] in 2005.




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Supreme Court rules no cause of action for foreign plaintiffs in securities fraud litigation
Dwyer Arce on June 24, 2010 12:59 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 8-0 in Morrison v. National Australia Bank [Cornell LII backgrounder] that the Securities and Exchange Act of 1934 (SEA) [text, PDF] does not provide a cause of action to foreign plaintiffs suing for misconduct occurring on foreign stock exchanges. The court held that, as a general rule, unless a statute specifically states that it applied extraterritorially, it only applies within the territorial jurisdiction of the US. The court upheld the ruling [opinion, PDF] of the US Court of Appeals for the Second Circuit but found that the lower court had erred in its reasoning. The lower court had dismissed the claim brought under § 10(b) of the SEA due to a lack of subject matter jurisdiction [Cornell LII backgrounder] because the majority of the activity the plaintiff was suing for had occurred outside of US jurisdiction. In rejecting this rationale, the Supreme Court stated that what conduct § 10(b) covered was not a jurisdiction question but a merits one, over which the lower courts have jurisdiction. Despite this, the court held that the case should still be dismissed for the failure to state a claim upon which relief can be granted [FRCP 12(b)(6) text] because of the lack of extraterritoriality in § 10(b). In affirming the decision of the lower court, Justice Antonin Scalia stated:
Section 10(b) reaches the use of a manipulative or deceptive device or contrivance only in connection with the purchase or sale of a security listed on an American stock exchange, and the purchase or sale of any other security in the United States. This case involves no securities listed on a domestic exchange, and all aspects of the purchases complained of by those petitioners who still have live claims occurred outside the United States. Petitioners have therefore failed to state a claim on which relief can be granted. We affirm the dismissal of petitioners' complaint on this ground.
Justice John Paul Stevens filed a concurring opinion, which Justice Ruth Bader Ginsburg joined. In his concurrence, Stevens agreed with the judgment but criticized the scope of the court's reasoning, stating:
The Court instead elects to upend a significant area of securities law based on a plausible, but hardly decisive, construction of the statutory text. In so doing, it pays short shrift to the United States' interest in remedying frauds that transpire on American soil or harm American citizens, as well as to the accumulated wisdom and experience of the lower courts. I happen to agree with the result the Court reaches in this case. But "I respectfully dissent," once again, "from the Court's continuing campaign to render the private cause of action under § 10 (b) toothless."
Justice Stephen Breyer also filed a concurring opinion, and Justice Sonia Sotomayor did not take part in the case.

The lawsuit was brought by Australian shareholders of the National Australia Bank [corporate website]. The bank purchased a mortgage servicing company based in Florida in 1998 and devalued the listed assets of that company three years later. The shareholders bought stock in National Australia Bank on a foreign stock exchange before the devaluation and brought suit against the bank, alleging that its officers had deliberately manipulated financial models in order to make its mortgage servicing rights appear more valuable. The court heard oral arguments [transcript, PDF; JURIST report] in the case in March and granted certiorari [JURIST report] in November.




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Supreme Court limits scope of 'honest service' doctrine in Enron, Conrad Black cases
Sarah Miley on June 24, 2010 12:11 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] in Skilling v. United States [Cornell LII backgrounder; JURIST report] that the "honest services" doctrine [18 USC § 1346 text] is not unconstitutionally vague under a limited construction of the statute and that the district court adequately "detected and diffused" juror prejudice in the pre-trial publicity of former Enron CEO Jeffrey Skilling [JURIST news archives]. The court subsequently reversed and remanded the conviction of Canadian media mogul Conrad Black [JURIST news archive] and former Alaskan congressmen Bruce Weyhrauch, after the court held in Skilling that the honest service statute was limited to bribery and kickbacks. Under Part I of the opinion in Skilling, the court ruled that pre-trial publicity and community prejudice did not prevent Skilling from having a fair trial because Houston, where the trial was held, had a large pool of jurors and was not subjected to "blatantly" prejudiced news. The court also noted that the jurors displayed their ability to be impartial by acquitting Skilling of nine insider trading counts. In Part II of the opinion, the court limited the honest services doctrine to the protection of intangible rights of honest service deprived through bribery and kickbacks and vacated Skilling's conviction under the statute since his misconduct did not fall under either category. The court refused the government's request to include "undisclosed self-dealing by a public official or private employee" under the statute. Justice Ruth Bader Ginsburg, writing the opinion for the court, defended the court's interpretation of the honest services statute:
Interpreted to encompass only bribery and kickback schemes, § 1346 is not unconstitutionally vague. A prohibition on fraudulently depriving another of one's honest services by accepting bribes or kickbacks presents neither a fair-notice nor an arbitrary-prosecution problem. As to fair notice, it has always been clear that bribes and kickbacks constitute honest-services fraud, and the statute's mens rea requirement further blunts any notice concern. As to arbitrary prosecutions, the Court perceives no significant risk that the honest-services statute, as here interpreted, will be stretched out of shape. Its prohibition on bribes and kickbacks draws content not only from [precedent] case law, but also from federal statutes proscribing and defining similar crimes.
The court concluded that its determination to vacate Skilling's conviction under the honest services doctrine does not necessarily require reversal of the conspiracy conviction, which it remanded for harmless error review. The justices voted unanimously to vacate Skilling's conviction, but Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy would have ruled that the honest services statute is unconstitutional. Scalia and Kennedy both wrote concurring opinions. Justice Sonia Sotomayor wrote an opinion concurring in part and dissenting in part. In her dissent, joined by Justices John Paul Stevens and Stephen Breyer, Sotomayor disagreed with the court's conclusion that Skilling had a fair trial before an impartial jury.

Justice Ginsburg also authored Thursday's opinion [text, PDF] in Black v. United States [Cornell LII backgrounder; JURIST report], which vacated the conviction of the former chairman and CEO of Hollinger International Inc. under the honest services doctrine. In 2007, Black was convicted of mail fraud and obstruction of justice and sentenced [JURIST reports] to 78 months in prison. The Seventh Circuit rejected [opinion, PDF; JURIST report] Black's appeal, holding that § 1346 may be applied in a private setting regardless of whether the defendant's conduct risked any foreseeable economic harm to the victim. The Supreme Court held that Black had properly objected to the jury instructions at trial concerning the honest service doctrine and remanded the case to the circuit court for an opinion consistent with the judgment in Skillings. The judgment to vacate Black's conviction was unanimous, but both Scalia and Thomas wrote separate concurring opinions.

In the final "honest service" decision this session, the Supreme Court issued a per curiam opinion [text, PDF] in Weyhrauch v. United States [Cornell LII backgrounder], vacating the Ninth Circuit ruling [opinion, PDF] that no state law violation is required in a federal honest services mail fraud prosecution under 18 USC §§ 1341 and 1346 and remanded the case for further consideration in light of Skilling.The case involves former Alaska state representative Bruce Weyhrauch and whether he should have disclosed that he was seeking legal work from oil company Veco Corp. while he was voting on an oil tax.




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Supreme Court rules release of names on petition does not violate free speech
Hillary Stemple on June 24, 2010 11:51 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 8-1 in Doe #1 v. Reed [Cornell LII backgrounder; JURIST report] that the First Amendment [text] does not bar a state from releasing identifying information about petitioner signers where there is a sufficiently compelling state interest. The case arose over an order to publish the names of those who signed a Washington state petition to overturn a state law [JURIST report] giving same-sex partners the same rights as married partners. The US Court of Appeals for the Ninth Circuit ruled [opinion, PDF] that the names should be released, but the Supreme Court issued a temporary stay [JURIST report] in October. Chief Justice John Roberts, delivering the opinion of the court, affirmed the Ninth Circuit's ruling holding that the state had a compelling interest in limiting speech, stating:
The State's interest in preserving the integrity of the electoral process is undoubtedly important. "States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process, as they have with respect to election processes generally" The State's interest is particularly strong with respect to efforts to root out fraud, which not only may produce fraudulent outcomes, but has a systemic effect as well: It "drives honest citizens out of the democratic process and breeds distrust of our government."
Justice John Paul Stevens wrote a concurring opinion advocating for the use of a balancing test and was joined by Justice Stephen Breyer, who also wrote a concurring opinion. Justice Samuel Alito wrote a concurring opinion indicating that he would rule in favor of the petitioners in an as-applied challenge to the Washington state law. Justice Sonia Sotomayor, joined by Stevens and Justice Ruth Bader Ginsburg, wrote a concurring opinion arguing that the state law should be upheld on the basis of federalism principles. Justice Antonin Scalia also wrote a concurring opinion arguing that the First Amendment does not prohibit public disclosure of the information. Justice Clarence Thomas wrote a dissenting opinion arguing that release of the information would stifle speech and discourage participation in state's referendum process.

During oral arguments, counsel for the petitioners argued [JURIST report] that, "[n]o person should suffer harassment for participating in our political system, and the First Amendment protects citizens from intimidation resulting from compelled disclosure of their identity and beliefs and their private associations." Counsel for the state of Washington argued that the names can be made public. Thursday's ruling addressed a broad application of the state law, but still allowed the as-applied challenge to the law, which is currently pending before a district court, to proceed.




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Supreme Court allows death row inmate's habeas petition
Dwyer Arce on June 24, 2010 10:57 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 5-4 in Magwood v. Patterson [Cornell LII backgrounder] that a federal habeas corpus petition is not "second or successive" when a new judgment intervenes between it and a previous petition. Federal law [28 USC § 2244(b) text] bars the filling of a "second or successive" habeas petition when that claim was made or could have been made in the previous petition. Under the law, if the petition is "second or successive," the petitioner must be granted leave from the court of appeals before filing in the district court. In its ruling, the Supreme Court rejected the state's argument that the statute functioned as a "one opportunity" rule, barring a second habeas petition where the petitioner could have raised the same claim during the first habeas petition. Although the term "second or successive" is not defined in the statute, the court held that case law and "statutory context" indicate that the law was meant only to apply to repeat habeas petitions made on the same judgment. The court went on to reject the state's argument that its interpretation was in line with the statute's purpose, finding that the court "cannot replace the actual text with speculation as to Congress' intent." In reversing the decision of the lower court and remanding the case, Justice Clarence Thomas explained:
Ironically, in an effort to effectuate what they believe is Congress' intent not to give any unfair benefit to habeas petitioners, the State and the dissent propose an alternative rule that would "close our doors to a class of habeas petitioners seeking review without any clear indication that such was Congress' intent." Many examples can be given, but one suffices to illustrate this point. Suppose that a petitioner files an application raising 10 meritorious claims challenging his conviction. The district court grants a conditional writ based on one of them, without reaching the remaining nine. Upon retrial, the state court commits the same 10 legal mistakes. ... Is an application presenting those same 10 claims - now based on the errors in the new judgment - "second or successive"? Under the opportunity-based rule advanced by the State and the dissent, the answer must be yes.
Justice Anthony Kennedy filed a dissenting opinion, which was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Samuel Alito. In his dissent, Kennedy criticized the majority's opinion for violating the purpose of the law, stating: "The Court ... reaches this conclusion by misreading precedents on the meaning of the phrase 'second or successive.' ... The Court then rewrites [the law's] text but refuses to grapple with the logical consequences of its own editorial judgment." Justice Stephen Breyer filed a concurring opinion, which was joined by Justices John Paul Stevens and Sonia Sotomayor.

Petitioner Billy Joe Magwood was sentenced to death for murdering a county sheriff in 1979. The US District Court for the Middle District of Alabama conditionally granted the petitioner's writ on his original death sentence in 1985, ordering the state either to release or resentence him. Magwood was later sentenced to death for a second time. He challenged the second sentence and was again granted conditional relief, but the US Court of Appeals for the Eleventh Circuit overturned [opinion, PDF] the decision after finding that his claim should have been raised in the first petition. The court heard oral arguments [transcript, PDF; JURIST report] in the case in March after granting certiorari [JURIST report] in November.




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Supreme Court rules federal courts can decide when bargaining agreement was formed
Hillary Stemple on June 24, 2010 10:20 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] in Granite Rock Co. v. International Brotherhood of Teamsters [Cornell LII backgrounder; JURIST report] that federal courts have jurisdiction to determine if a collective bargaining agreement (CBA) was formed between parties. The court also ruled that § 301(a) of the Labor Management Relations Act (LMRA) [text] supports a federal cause of action only for breach of contract claims and not claims of tortious interference of contract. The US Court of Appeals for the Ninth Circuit affirmed [opinion, PDF] the district court's dismissal of a claim against the International Brotherhood of Teamsters (IBT) for tortious interference with a CBA between Granite Rock and Local Union 287. The US Court of Appeals for the Ninth Circuit had reversed the district court with respect to whether a federal court has jurisdiction to determine when a CBA was formed, holding that the issue should be determined in arbitration. Justice Clarence Thomas, delivering the opinion of the court, affirmed with regards to the tort claim, but reversed the Ninth Circuit with regard to jurisdiction over the CBA, holding:
[A] court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute. To satisfy itself that such agreement exists, the court must resolve any issue that calls into question the formation or applicability of the specific arbitration clause that a party seeks to have the court enforce. Where there is no provision validly committing them to an arbitrator, these issues typically concern the scope of the arbitration clause and its enforceability. In addition, these issues always include whether the clause was agreed to, and may include when that agreement was formed. ...This simple framework compels reversal of the Court of Appeals judgment because it requires judicial resolution of two questions central to [respondent's] arbitration demand: when the CBA was formed, and whether its arbitration clause covers the matters [respondent] wishes to arbitrate.
Justice Sonia Sotomayor, joined by Justice John Paul Stevens, filed a separate opinion concurring in part and dissenting in part.

During oral arguments, counsel for the petitioner argued for a plain meaning [JURIST report] interpretation of the LMRA, calling the enforcement of contracts the "central mission of the statute." Counsel for the respondent argued that the petitioner was advocating a drastic change in the way labor issues were settled. Monday's ruling is likely to have broad implications in future labor and contract negotiations.




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UN SG calls East Jerusalem demolition plans illegal
Dwyer Arce on June 24, 2010 9:30 AM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official website] on Wednesday criticized plans to demolish 22 Palestinian homes in East Jerusalem [GlobalSecurity backgrounder], describing them as contrary to international law. The plans, called King's Garden, were approved Monday [YNet report] by the Jerusalem City Council [official website] and will remove the buildings in order to make way for an archaeological park in the neighborhood of Silwan, a mostly Palestinian neighborhood of 45,000 people. In addition to the demolition of the 22 homes, the plan would retroactively approve 66 others, which were initially slated for destruction due to their illegal construction. Ban described the plans as contrary to international law, under which East Jerusalem is considered occupied territory, and expressed concern for the settlement activities that are continuing in the area. Ban also stated that the plans would increase tensions in the city and threaten peace talks. The plans have also been criticized [Haaretz report] by Israeli Defense Minister Ehud Barak [official website, in Hebrew] and the US State Department [official website]. The re-unified Jerusalem was declared the Israeli capital in 1980. East Jerusalem was under Jordanian control along with the West Bank until the 1967 war [NPR backgrounder], when Israel took control over the territory from Jordan and took the Gaza Strip [BBC backgrounder] from Egyptian control.

Last week, Amnesty International (AI) [advocacy website] urged the Israeli government to stop demolishing Palestinian homes [JURIST report] found to be constructed illegally in the Occupied Territories [UNICEF backgrounder], which is considered by the UN to include East Jerusalem. AI cited incidents over the past five years where Israeli forces demolished Palestinian homes and schools, leaving more than 600 Palestinians homeless. According to AI, the demolitions violate the International Covenant on Economic, Social and Cultural Rights (ICESCR) [text, PDF], which guarantees a right to housing without discrimination, and the Fourth Geneva Convention [text], which prohibits destruction of property without military necessity. According to the group, the UN has unsuccessfully called for Israel to put an end to the demolition practice on many occasions and estimates that some 4,800 demolition orders are pending. Property rights have been an invariable point of contention between Israel and Palestinians. In March, Ban called Israeli settlement construction in the West Bank "illegal" [JURIST report]. His statement came two weeks after Israel announced the construction of 1,600 new housing units in East Jerusalem, where Palestinians hope to establish the capital of their future state. Ban voiced his support for the proposed plan of Palestinian Authority Prime Minister Salam Fayyad [BBC profile] to build the institutions of an independent state by 2011 and called for the immediate resumption of peace talks to result in an independent Palestinian state within two years.




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Federal judge dismisses Viacom copyright case against Google's YouTube
Sarah Miley on June 24, 2010 9:19 AM ET

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[JURIST] A federal judge on Wednesday dismissed a suit [opinion, PDF] filed [JURIST report] by US entertainment company Viacom against Google, accusing if of allowing copyrighted material on its YouTube service [corporate websites] without permission. Judge Louis Stanton of the US District Court for the Southern District of New York [official website] issued the summary judgment, stating that the Digital Millennium Copyright Act (DMCA) [text, PDF] requires Google and YouTube to have more than a "general awareness" that videos might be posted illegally in order to be found liable. Stanton held that the DMCA provides a "safe harbor" period for the removal of copyrighted content after notice is given of the violation and stated that there was no dispute that when YouTube was given the notices by Viacom, it removed the material:
Mere knowledge of prevalence of such activity in general is not enough. The provider need not monitor or seek out facts indicating such activity. ... [W]hen they received specific notice that a particular item infringed a copyright, they swiftly removed it. It is uncontroverted that all the clips in suit are off the YouTube website, most having been removed in response to DMCA takedown notices. ... [Google] is thus protected from liability.
Google called the judgment an "important victory" [press release] for individuals who use file-sharing services like YouTube "to communicate and share experiences with each other." Viacom stated that the ruling is "fundamentally flawed" [press release] and is contrary to the language of the DCMA and recent Supreme Court decisions. Viacom will appeal the decision.

Google is also facing several potential privacy lawsuits for collecting and storing data obtained over unsecured wireless networks for its Street View maps [website]. The UK, Australia and Canada [JURIST reports] have all launched investigations into Google's unsecured Wi-Fi data collection to determine whether Google has violated the countries' privacy laws. Connecticut Attorney General Richard Blumenthal [official profile] announced Monday that he will lead a multistate investigation [JURIST report] against Google and requested additional detailed information from the company on its data harvesting procedures. Belgium, the Czech Republic, France, Germany, Italy, Spain and Switzerland have also asked Google to retain data collected in those respective nations. In a letter [text, PDF] sent last week to the US House of Representatives Energy and Commerce Committee [official website], Google claimed that its collection of private information was inadvertent and did not violate any laws [JURIST report].




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California voters to decide on climate change law
Hillary Stemple on June 24, 2010 9:13 AM ET

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[JURIST] A ballot initiative [text, PDF] aimed at suspending California's Global Warming Solutions Act (AB32) [materials] qualified on Tuesday for California's November ballot, setting the stage for a debate over environmental policy and its impact on the economy. The initiative, known as the California Jobs Initiative, has been partially funded by oil companies Valero Energy and Tesoro Corp [corporate websites] and, if passed, would suspend implementation of AB32 or any other regulation on carbon emissions until the unemployment rate within the state is at or below 5.5 percent for one year. AB32, signed into law in 2006 [JURIST report], seeks to return greenhouse gas emission [JURIST news archive] levels in the state to 1990 levels by 2020 through a series of regulations on automobiles, oil refineries and other industrial polluters. The law would also require that one-third of the energy used within the state come from a renewable source such as wind or solar energy. Proponents of the initiative contend that it is necessary [LAT report] during the current economic downturn in order to prevent further job loss within the state and to prevent a rise in utility and fuel rates. California Governor Arnold Schwarzenegger [official website] reiterated his support for AB32 and condemned the initiative [press release], stating:
This initiative sponsored by greedy Texas oil companies would cripple California's fastest growing economic sector, reverse our renewable energy policy and decimate our environmental progress for the benefit of these oil companies' profit margins. I will not allow this to happen on my watch. We will continue moving this state forward with our comprehensive energy policy that creates jobs, reduces our reliance on foreign oil and ensures the California we love will be the California we hand over to the next generation.
There has been debate over the effect AB32 would have on the job market, although the non-partisan state Legislative Analyst's Office [official website] found that the law would result in an increase in some job markets [report] with losses in others. The regulations associated with AB32 are currently scheduled to go into effect in 2012.

The California debate could have an effect on current federal efforts to regulate greenhouse gas emissions. Earlier this month, the US Senate [official website] defeated a resolution [materials; JURIST report] aimed at limiting the ability of the Environmental Protection Agency (EPA) [official website] to regulate greenhouse gas emissions under the Clean Air Act [materials]. The US Supreme Court [official website; JURIST news archive] affirmed the EPA's ability to regulate carbon emissions under the Clear Air Act in its 2007 ruling in Massachusetts v. Environmental Protection Agency [Cornell LII backgrounder; JURIST report]. In its ruling, the court held that if the EPA could show a link between greenhouse gas emissions and public health and welfare, then the act gives it the power to regulate emissions. The EPA announced last December [JURIST report] that it had found that greenhouse gases "threaten the public health and welfare of current and future generations," and that emissions from motor vehicles contribute to greenhouse gas pollution. The EPA first announced its proposed finding [JURIST report] in April before undertaking a 60-day public comment period. Some have suggested that the EPA findings have allowed Congress to avoid the political fallout [JURIST comment] that could come from passing tough climate legislation.




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Federal judge approves settlement with 9/11 cleanup workers
Dwyer Arce on June 24, 2010 8:24 AM ET

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[JURIST] A judge in the US District Court for the Southern District of New York [official website] on Wednesday approved a settlement agreement [overview, PDF; materials] between New York City and 10,000 rescue and cleanup workers who became sick or injured from responding to the 9/11 attacks [JURIST news archive]. Judge Alvin Hellerstein approved the deal [CNN report] after a hearing to determine its acceptability and urged the plaintiffs to agree to it as well. The deal would distribute between USD $625 million and $712.5 million, depending on how many plaintiffs agree to the deal. The city's insurer, WTC Captive Insurance Company [official website], offered the deal after its previous offers of $575 million and $657.5 million were rejected. The plaintiffs' lawyers will also reduce their legal fees from 33.33 percent to a maximum of 25 percent, giving their clients an extra $50 million. The funds will be distributed [NYT report] between the plaintiffs by a claims administrator who will determine the amount received by each based on the severity of the illness and how strongly the health condition can be linked to the cleanup. The agreement must be accepted by 95 percent of the 10,000 workers before September 30 in order to become effective.

The agreement was first proposed [JURIST report] earlier this month, following two failed settlement attempts between the parties. Hellerstein rejected a proposed settlement [JURIST report] in March, citing an unfairness of claim amounts and the over-complicated process to determine compensation. Hellerstein also said that attorney's fees should be limited and paid by the WTC Captive Insurance Company, rather than by the claimants. WTC Captive is a nonprofit company created by Public Law 108-7 [text, PDF] with $1 billion in FEMA [official website] funding to compensate injured workers involved in the Ground Zero rescue and cleanup efforts. In 2007, the city agreed to enter into settlement negotiations over a federal class action lawsuit filed on behalf of more than 9,000 emergency and cleanup workers who may have inhaled toxic dust at World Trade Center site, which Hellerstein allowed to proceed [JURIST reports]. The plaintiffs claim that they were not properly equipped or trained to perform their tasks.




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Canada court convicts remaining 'Toronto 18' terrorism suspects
Erin Bock on June 24, 2010 7:37 AM ET

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[JURIST] A Canadian court on Wednesday convicted [press release] the final two members of the "Toronto 18" [Toronto Star backgrounder; JURIST news archive] for their roles in a 2006 terror plot. The Toronto 18 were arrested in 2006 after police learned of their plans to bomb sites throughout Ontario using fertilizer explosives in response to Canada's military involvement in Afghanistan. A jury in the Ontario Superior Court [official website] found Asad Ansari and Steven Vikash Chand guilty of "participation in a terrorist group," which carries a maximum sentence of 10 years in prison. Chand was also found guilty of "counseling to commit fraud over $5,000 for the benefit of a terrorist group," which carries a maximum sentence of life imprisonment, after attempting to take out fraudulent bank loans [CBC report] in order to support the group. The men have 30 days to consider an appeal, and sentencing will take place at a later date. This trial marks the first time Canadian terrorism suspects were tried in front of a jury instead of a judge.

Chand and Ansari were on trial with accused group leader Fahim Ahmad, who switched his plea to guilty mid-trial [JURIST report]. The Public Prosecution Service of Canada (PPSC) [official website] confirmed that Ahmad pleaded guilty in May to one count of "instructing to carry out activity for a terrorist group," importing firearms to benefit the group and "participation in a terrorist group," which can carry a maximum life sentence. Ahmad also pleaded guilty to "participation in a terrorist group," which carries a maximum sentence of 10 years. In February, Toronto 18 member Shareef Abdelhaleem was convicted [JURIST report] after a Canadian judge found no evidence of entrapment. In January, Amin Mohamed Durrani was released [JURIST report] after pleading guilty to participating in and assisting a terrorist group. Also in January, Zakaria Amara and Saad Gaya [JURIST op-ed] were sentenced [JURIST report] to life and 12 years in prison, respectively, for their roles in the plot. Seven others involved in the plot pleaded guilty, two were found guilty by a judge at trial and seven others had their charges dropped or stayed.




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Kenya court allows prisoners to vote in constitutional referendum
Drew Singer on June 23, 2010 4:23 PM ET

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[JURIST] The Kenyan Interim Independent Constitutional Dispute Resolution Court ruled [video] Wednesday that prisoners of sound mind will be allowed to vote in a referendum on the country's proposed constitution [text, PDF; JURIST report]. Kenya's current constitution [text] bans convicts from voting in presidential, parliamentary and civic elections, but convicts from Kenya's Shimo La Tewa Prison petitioned the court [BBC report] to allow them to vote in the referendum, arguing that it does not fall under any of the banned categories. This marks the first time that prisoners in Kenya have been allowed to vote in any election. Kenyan officials will now try to register the nation's 53,000 inmates, but lawyers from Kenya's Interim Independent Electoral Commission [official website] warned that the process might not be done in time [Daily Nation report] for the August 4 vote. The five-judge bench also ordered that prisons be used as polling stations.

The new constitution, first introduced last November [JURIST report], includes several significant checks on presidential authority, including a requirement that presidential appointees face parliamentary confirmation and an end to the presidential appointment of judges. Additionally, members of parliament receiving cabinet positions will be required to relinquish their legislative seats. The changes are intended to address issues that led to violence following the 2007 presidential elections [JURIST news archive] where tens of thousands of protesters took to Kenya's streets accusing President Mwai Kibaki of election fraud after early opinion polls suggested rival and current Prime Minister Raila Odinga [official profiles] was in the lead. Kibaki and Odinga both support the proposed constitution [Daily Nation report] and have urged citizens to approve it in the public referendum. Earlier this month, three members of the Kenyan Parliament [official website] were arrested after being accused of hate speech [JURIST report] in statements made against the proposed constitution.




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Pakistan court reimposes ban on YouTube for offensive content
Sarah Miley on June 23, 2010 3:41 PM ET

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[JURIST] A Pakistani court on Wednesday reimposed a ban on the video sharing network YouTube [official website] after content deemed offensive to Muslims resurfaced on the website when a previous ban was lifted last month. The court also restricted access to Yahoo, MSN, Hotmail, Google, Islam Exposed, In The Name Of Allah, Amazon and Bing [official websites]. The court ordered the ban [Reuters report] after evidence of content on the websites regarding the Prophet Muhammad and the Koran was presented at a hearing. Depicting the Prophet Muhammad is considered blasphemous by Muslims, who make up the overwhelming majority of the population in Pakistan. The Pakistan Telecommunications Authority (PTA) [official website] stated that it has not yet received official notice of the ban, but will block the websites once the order is received.

Last month, a Pakistan high court briefly blocked Facebook [JURIST report] in response to a page created by a Facebook user marking "Everybody Draw Mohammed Day" [website]. The page encouraged users to submit religiously-prohibited images of the prophet. A few weeks later, the Lahore High Court (LHC) ordered the PTA to restore access to Facebook [JURIST report], holding that the government, and not the court, should be responsible for blocking offensive internet content and calling on the PTA to create a centralized system [AFP report] to block blasphemous content. Depicting the Prophet Muhammad is considered blasphemous by Muslims, and has been a source of international controversy since 2005 when a Danish newspaper published caricatures of the Prophet Muhammad in a series of cartoons [JURIST news archive].




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Kenya parliament gives preliminary approval to anti-human trafficking bill
Dwyer Arce on June 23, 2010 1:48 PM ET

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[JURIST] The Kenyan Parliament [official website] on Tuesday gave preliminary approval to legislation [text, PDF] that would create severe penalties for human traffickers, including life imprisonment for repeat offenders. The Counter-Trafficking in Persons Bill, 2010 was unanimously approved [Daily Nation report] by the parliament, and will now be considered again by the body before being sent to President Mwai Kibaki [official profile; BBC profile] for approval. The legislation is intended to bring Kenya in full compliance with the UN Convention Against Transnational Organized Crime [materials] and would impose life sentences on traffickers involved in organized trafficking efforts. The legislation would also subject individual traffickers to a minimum sentence of 15 years in prison or a minimum fine of KEC $5 million (USD $62,000), and a life sentence for a repeat offense. Courts would be able to order restitution to the victims of human trafficking under the bill for medical and psychological treatment, living expenses, and otherwise "just compensation." Victims would also be immunized against prosecution for any crime committed as a direct result of being trafficked, and the government will be required to establish National Assistance Trust Fund for Victims of Trafficking, consisting of the forfeited assets of traffickers'.

Earlier this month, the US State Department (DOS) [official website] released its annual report [JURIST report] on human trafficking conditions across the globe. In its section detailing Kenya, the report recommended the passage of the counter-trafficking bill after finding that the country had inadequate protections in place for the victims of human trafficking. Additionally, the report stated that despite stringent anti-trafficking laws, they were rarely enforced and the crime was ill-defined. Also in June, the UN Office on Drugs and Crime (UNODC) [official website] released a report [JURIST report] detailing the globalization of organized crime and its threat to international security. The report specifically addressed the global economic impact of human and drug trafficking, sale of illicit firearms, piracy, identity theft and the illegal exploitation of natural resources. Last October, the US and the EU announced an international criminal treaty [JURIST report] that will greatly increase cooperation between the two governments in fighting the trafficking of humans and the sale of illegal drugs.




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Spain Senate calls for government ban of face veils
Hillary Stemple on June 23, 2010 1:26 PM ET

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[JURIST] The Spanish Senate [official website, in Spanish] on Wednesday approved a motion [press release, in Spanish] calling on the Spanish government to ban the use of full face veils in public places. The motion, passed by a vote of 131 to 129, would ban use of both the burqa and niqab [JURIST news archives]. The motion was approved one week after Spanish Justice Minister Francisco Caamano [official profile, in Spanish] indicated that the Spanish government planned to introduce legislation [JURIST report] banning the burqa as part of Spain's Religious Freedom Bill. Supporters of the motion claim that it represents a positive step towards equality for women [AFP report], while opponents are concerned that regulation of the burqa under the Religious Freedom Bill could lead to regulation [El Pais report, in Spanish] of other religious symbols. Also on Wednesday, the Parliamentary Assembly of the Council of Europe (PACE) [official website] voted unanimously to reject [press release] any general prohibition on the wearing of the burqa or other religious clothing. PACE indicated that while such laws may seem to benefit women, they deny women "who genuinely and freely desire to do so" the right to cover their faces as part of their religious expression. PACE firmly renounced the subjugation of women through the forced wearing of the veil and also acknowledged that some legal restrictions on face coverings might be necessary for security purposes.

Many jurisdictions continue to consider legislation banning the burqa. Earlier this month, the Barcelona city council [official website, in Catalan] passed a ban on face coverings in all public places [JURIST report]. Last month, Australian state lawmakers voted to end debate [JURIST report] on a bill that would have banned the wearing of the burqa or other face veils in public. Also last month, the French Cabinet approved legislation [JURIST report] that would ban the wearing of the burqa or other face veils in public. The same week the French Cabinet voted, hearings began [CBC report] in Quebec's legislature on a bill introduced in March that would ban women from wearing full face veils from public services. Earlier last month, European Parliament [official website] Vice President Silvana Koch-Mehrin [official website, in German] expressed her support for a continent-wide burqa ban [JURIST report]. In April, the Belgian House of Representatives voted 136-0 to approve [JURIST report] a bill that would ban the burqa and other full face veils in public.




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Libya human rights progress stalling: report
Hillary Stemple on June 23, 2010 11:42 AM ET

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[JURIST] Libya has made some progress with regards to human rights, but the situation remains "dire," according to a report [text, PDF; press release] released Wednesday by Amnesty International (AI) [advocacy website]. The report details Libya's rise in prominence within the international community and warns other countries against turning a "blind eye" to the human rights situation within Libya in order to further their own national interests. AI reported violations by the Libyan Internal Security Agency (ISA) which "appear[s] to have unchecked powers to arrest, detain and interrogate individuals suspected of dissent or of terrorism-related activities." The group also documented harsh adultery punishments, abuse of migrants, the ongoing cases of enforced disappearances of dissidents and the continuing use of the death penalty in the country. The report did note a greater willingness by the Libyan government to accept criticism, but also warned that activists speaking against the government still face harassment and possible arrest. AI urged Libya to conform to international standards and warned of failure to do so, stating Libya must:
implement recommendations grounded in international law and standards aimed at putting an end to human rights violations and ensuring that they never recur. Unless the Libyan authorities demonstrate real political will to reform laws, policies and practices and to address the legacy of gross human rights violations, there is little hope for the establishment and consolidation of a "Libya of tomorrow" based on respect for human rights and the rule of law.
AI's findings were partially based on a visit to Libya last year, the first such visit to the country since by AI since 2004.

The report also echoed concerns about use of the death penalty, which AI expressed earlier this month when it condemned the recent execution [press release; JURIST report] of 18 people, including foreign nationals, in Libya. Human Rights Watch (HRW) [advocacy website] issued a similar report [text; JURIST report] last December finding that Libya is making strides towards greater transparency and acknowledgment of human rights but that it still has a long way to go. Both Libya and Italy were criticized by an HRW report [materials; JURIST report] issued last September, which found that Italy systematically forces migrants to return to Libya where they face human rights abuses without screening them for possible asylum claims.




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Asia rights groups urge Thailand to end state of emergency
Dwyer Arce on June 23, 2010 11:35 AM ET

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[JURIST] A group of 55 non-governmental organizations (NGOs) on Tuesday urged the Thai government to end its state of emergency [statement; JURIST news archive]. The statement comes after the UN Human Rights Council [official website] unanimously elected Thai Ambassador Sihasak Phuangketkeow [CV, PDF] to the presidency, along with electing the Cuban ambassador [CNA report] to the vice-presidency. The two countries will hold these positions for one year. Thailand was the sole candidate for the position, in a process intended to rotate the leadership of the council between the world's regions every five years. The NGOs called on Thailand to improve freedom of expression and independence of the judiciary and to set an example of human rights standards, stating:
[T]he government of Thailand ... must play an exemplary role in upholding the highest human rights standards and fully cooperating with the Council and other UN human rights mechanisms. The public image and credibility of the Council will be seriously undermined if it is chaired by a representative of the State that continues to impose unduly prolonged state of emergency in the country. We urge the government of Thailand to lift the Emergency Decree without any further delay and ensure full transparency and accountability for those human rights violations committed during the recent unrest in its capital.
The statement also called on the new members of the council, Malaysia, the Maldives, Qatar and Thailand to comply with international human rights standards and urged greater cooperation with regional human rights NGOs during their three-year terms on the council.

Earlier this month, Thai Prime Minister Abhisit Vejjajiva [official website, in Thai; BBC profile] announced that he will not lift the emergency decree [JURIST report] until July 7 due to suspicion that red shirt protesters [BBC backgrounder] are planning additional rallies. Under the state of emergency, civil liberties will continue to be restricted through the institution of curfews and the banning of public gatherings. Additionally, the police have broader powers to arrest and detain, the government may censor media reports and detainees can be held for 30 days without access to legal counsel. The state of emergency was instituted in April [JURIST report] in anticipation of anti-government protests. The protests came to end [JURIST report] last month when red shirt leaders surrendered to police, which led to rioting, arson, and the imposition of a curfew to protect citizens of Bangkok and its surrounding areas. The red shirts are supporters of ousted prime minister Thaksin Shinawatra [BBC profile; JURIST news archive], who was removed from power in 2006 [JURIST report]. The group was demanding that Abhisit dissolve parliament and call new elections.




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UK police launch privacy investigation against Google
Sarah Miley on June 23, 2010 10:45 AM ET

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[JURIST] The UK Metropolitan Police [official website] on Tuesday launched an investigation [press release] into whether Google [corporate website; JURIST news archive] violated privacy laws while collecting information over Wi-Fi networks for its Street View maps [website]. The probe was initiated in response to a complaint filed [JURIST report] by Privacy International (PI) [advocacy website], which claims that the information gathered in an independent audit [text, PDF] published by Google earlier this month proves that company's interception of unencrypted data was not inadvertent [JURIST report] and should lead to prosecution. The police will investigate whether Google's data harvesting techniques violated the Wireless Telegraphy Act and the Regulation of Investigatory Powers Act [texts], which regulate radio communications and ensure investigatory powers are used in accordance with human rights, respectively. According to PI, the preliminary investigation will take eight to 10 days and then, pending the results, will be escalated to a national team of specialists. PI Director Simon Davies stated that regardless of the probe's findings, the investigation will "give Google pause for thought" about future data collection techniques.

Several investigations have recently been launched into Google's unencrypted data collections to determine whether the Internet giant's practices have violated privacy laws. Connecticut Attorney General Richard Blumenthal [official profile] announced Monday that he will lead a multistate investigation [JURIST report] against Google and requested additional detailed information from the company on its data harvesting procedures. Earlier this month, Australia commenced an investigation [JURIST report] into whether Google breached the nation's Telecommunications Interception Act [text], which prevents people from accessing electronic communications other than for authorized purposes. Additionally, Canada launched an investigation [JURIST report] into Google's unsecured Wi-Fi data collection to determine whether Google has violated the country's Personal Information Protection and Electronic Documents Act [text, PDF], which applies to private organizations that collect, use or disclose personal information in the course of commercial activities. Belgium, the Czech Republic, France, Germany, Italy, Spain and Switzerland have also asked Google to retain data collected in those respective nations. In a letter [text, PDF] sent last week to the US House of Representatives Energy and Commerce Committee [official website], Google claimed that its collection of private information was inadvertent and did not violate any laws [JURIST report].




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Sri Lanka rejects UN panel investigating possible civil war rights abuses
Hillary Stemple on June 23, 2010 10:08 AM ET

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[JURIST] The Sri Lankan government on Wednesday strongly rejected [press release] the appointment of a UN panel [JURIST report] to investigate allegations of human rights abuses during the last months of the Sri Lankan civil war [JURIST news archive]. UN Secretary-General Ban Ki-moon [official website] announced the formation of the panel [press release] on Tuesday in order to investigate alleged wartime abuses of civilians by both the Sri Lankan government and the rebel Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive]. The government cited an internal commission appointed last month [press release] as sufficient to deal with reconciliation issues within Sri Lanka. It also emphasized the country's sovereignty and "robustly independent judiciary" as an adequate system for the administration of justice. The government indicated it viewed the UN panel as "an unwarranted and unnecessary interference," and warned of the possibility of exploitation of the reconciliation process within the country. The government also firmly denied agreeing to the implementation of the human rights accountability statement [text] that both Ban and Sri Lankan President Mahinda Rajapaksa [official website] reportedly agreed to last May, but which Rajapaksa subsequently rejected [JURIST report].

Sri Lanka has faced numerous allegations of human rights violations originating from incidents that took place during the final months of the civil war. Last month, Human Rights Watch (HRW) [advocacy website] announced it had acquired new evidence [JURIST report] supporting allegations of war crimes. Also last month, the International Crisis Group (ICG) [official website] accused Sri Lankan security forces of war crimes [JURIST report], claiming that the violence of the 30-year civil war escalated in January 2009, leaving thousands more dead than projected by the UN. In March, Ban reaffirmed his plan to set up a UN panel [JURIST report] to investigate allegations of human rights violations during the civil war. Earlier in March, Rajapaksa rejected [JURIST report] Ban's plan to appoint a panel of experts to look into alleged rights abuses in the island nation's civil war, saying it "is totally uncalled for and unwarranted."





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Interior secretary confirms appeal of injunction on oil drilling ban
Sarah Miley on June 23, 2010 9:53 AM ET

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[JURIST] US Secretary of the Interior Ken Salazar [official profile] confirmed Tuesday that the Department of Justice [official website] will appeal [press release] a federal court decision to issue a preliminary injunction against a six-month moratorium on deepwater drilling [JURIST reports]. The ban was issued last month by the Obama administration in response to the BP Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive]. Salazar stated that the the ban on deepwater drilling was the "right decision" and is necessary to protect the communities and environment of the Gulf coast. The secretary criticized the court's ruling, stating the government has clear evidence that the moratorium is needed to prevent irreparable harm and is therefore not arbitrary:
We see clear evidence every day, as oil spills from BP's well, of the need for a pause on deepwater drilling. That evidence mounts as BP continues to be unable to stop its blowout, notwithstanding the huge efforts and help from the federal scientific team and most major oil companies operating in the Gulf of Mexico. The evidence also continues to mount that industry needs to raise the bar on blowout prevention, containment, and response planning before deepwater drilling should continue. Based on this ever-growing evidence, I will issue a new order in the coming days that eliminates any doubt that a moratorium is needed, appropriate, and within our authorities.
The injunction was sought in the US District Court for the Eastern District of Louisiana [official website] by several small oil companies affected by the ban. The companies claimed that the imposition of a general moratorium on deepwater drilling in the Gulf of Mexico was contrary to federal law. Judge Martin Feldman held that the injunction was necessary because the ban caused irreparable harm to both the plaintiffs and the public, and the Obama administration considered no alternatives when enacting the blanket moratorium.

Last week, US President Barack Obama [official website] announced the government's latest plan of action for tackling the oil spill, which includes a $20 billion compensation fund [JURIST reports] subsidized by BP. The newly-established escrow fund [government backgrounder] will be used to indemnify the workers and business owners harmed as a result of the oil spill. The announcement also included a long-term restoration plan and prevention of future disasters [JURIST report] through stronger regulation. Additionally last week, Obama announced the appointment of Micheal Bromwich [press release], a former federal prosecutor and Inspector General for the Justice Department, as head of the Minerals Management Service (MMS) [official website], which has been plagued with corruption and notorious for its cozy relationship with oil companies. The Deepwater Horizon oil spill was a result of an oil well blowout that caused an explosion 5,000 feet below the surface of the Gulf. More than 120 million gallons of oil have leaked already from the rig's broken pipe and has now surpassed the Exxon Valdez [JURIST news archive] as the worst oil spill in US history. The White House is keeping a daily chronology of events [text].




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Rights group urges Indonesia to respect free expression
Dwyer Arce on June 23, 2010 9:14 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Tuesday urged the Indonesian government to release secession activists and adhere to international standards of free speech [report materials; press release]. The report, "Prosecuting Political Aspiration: Indonesia's Political Prisoners," criticized the Indonesian government for its treatment of people imprisoned for peaceful political expression related to the Papuan [Economist backgrounder] and Moluccan [GlobalSecurity backgrounder] secession movements. According to HRW, these prisoners are subjected to torture, poor prison conditions and the denial of medical services and are transferred to prisons distant from their homes in order to isolate them from their families. These activists are imprisoned under Government Regulation 77/2007 [text, PDF], banning the display of symbols associated with the independence movements, and under articles 106 and 110 of the Indonesian Criminal Code, which HRW claims that the government is using to imprison peaceful political speech. The report called for the repeal of these laws, in addition to laws criminalizing religious beliefs that diverge from the six officially recognized religions. Despite the legitimate security concerns created by these movements, HRW urged Indonesia to move to comply with the international standards for national security measures outlined in the Johannesburg Principles [text, PDF] and the freedom of expression standards in the International Covenant on Civil and Political Rights (ICCPR) [text]. Despite progress made since the resignation of former president Haji Mohammad Suharto [BBC profile; JURIST news archive], HRW pointed to persisting problems, stating:
Improved freedom of expression has been hailed as emblematic of this progress. While there have been notable accomplishments - 700 new magazines and newspapers sprung up in the first three years after Suharto's ouster alone - the right to free speech in Indonesia continues to be limited in ... significant ways[.] ... Under Suharto, Indonesian authorities failed to distinguish between acts of criminal violence and peaceful expression of separatist views, contributing to political polarization and fueling radicalization in East Timor and Aceh. While those latter conflicts have been resolved through political agreements and thousands of political prisoners have been released since Suharto's resignation, the practice of lumping together peaceful advocates and armed militants and treating both as criminals continues in Papua and the southern Moluccas.
HRW also called on the Indonesian government to open all areas of Papua to journalists and human rights workers and called for progress at next week's EU-Indonesia conference on human rights.

In April, the Indonesian Constitutional Court [official website, in Bahasa] voted 8-1 to uphold [JURIST report] a controversial anti-blasphemy law enacted in 1965 by the first Indonesian president. In 2008, HRW called for Indonesia to protect freedom of religion [JURIST report] and reverse a decree that provides for the prosecution of members of a controversial Islamic sect and to uphold its commitments under the ICCPR. Under the decree, Ahmadiyah Muslims [religious website], who believe that Mohammad was not the final prophet, face up to five years in prison if they continue to promote their beliefs, which are considered heretical by many mainstream Islamic groups. Indonesia ratified the ICCPR in February 2006. In 2007, Indonesia convicted over a dozen people [JURIST report] for advocating a sovereign government for the province of Papua, according to HRW. Article 28 of 1945 Indonesia Constitution [text, PDF] guarantees freedom of expression, but HRW says that subsequent legislation has denied Indonesians this right. HRW criticized Indonesia for making it a crime to "insult" the president or express "feelings of hatred" toward the government, even when such sentiments are part of a peaceful protest.




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Legal reform groups urge US government to make judicial nominations 'top priority'
Erin Bock on June 23, 2010 8:01 AM ET

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[JURIST] A group of legal reform organizations on Tuesday called on US government officials to make judicial nominations "a top priority" [letter, PDF; press release] and to fill judicial vacancies "expeditiously." The letter, sent to President Barack Obama, the Senate majority and minority leaders as well as the leadership of the Senate Judiciary Committee [official websites], called on the parties to work together to end the politicization of the judicial confirmation process. The groups, including the Justice at Stake Campaign, the Brennan Center for Justice and the American Judicature Society [advocacy websites], illustrated the current problem by citing the 103 current vacancies in the federal judiciary, 40 of which constitute "emergency" vacancies, and the estimated 20 additional vacancies anticipated in the near future. The groups pointed out that Obama has nominated fewer federal district and circuit court judges than former president George W. Bush did at this point in his presidency and that the time period between vacancy and nomination is also longer. In order to remedy the current shortage, the groups included a list of recommendations to both the Obama administration and the Senate leadership. The administration is encouraged to nominate more federal judges and to "speed up" the nominating process. The Senate is encouraged to abolish the practice of "secret holds," which allows senators to anonymously obstruct the confirmation processes. They also urged the Senate to vote on the Supreme Court nomination of Elena Kagan [official profile; JURIST news archive] without threatening the use of a filibuster, criticizing senatorial delay tactics:
[W]hen a judicial nominee is qualified to serve and enjoys support from across the political spectrum, the Senate should not engage in tactics that serve only to delay and score political points, and should simply take an up or down vote on a nominee after hearings. Unjustified delaying tactics, practiced by both parties in the past, do not serve the courts or the Constitution.
Both the president and the Senate were urged to fulfill their responsibilities to the judicial branch in order to protect the integrity of the justice system.

Senator Claire McCaskill (D-MO) [official website] is currently circulating a petition [press release] in the Senate calling for an end to "secret holds." On Wednesday, the Senate Rules Committee [official website] is scheduled to hold a hearing examining the Senate's use of holds, filibusters and other delay tactics [press release] to block presidential nominations. Last year, Supreme Court Justice Sonia Sotomayor [Oyez profile; JURIST news archive] faced delays when the vote on whether to send her nomination to the full Senate was pushed back by a week [JURIST report]. Justice Samuel Alito [Oyez profile; JURIST news archive], nominated during the Bush Administration, faced similar delays [JURIST report] during his confirmation in 2006. According to the US Courts website, there are currently 44 federal judicial nominations pending [official website], with the longest hold being close to one year.




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Federal judge refuses to allow Nigeria to observe plane bombing trial
Patrice Collins on June 23, 2010 7:09 AM ET

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[JURIST] A federal judge on Tuesday denied a motion filed on behalf of the Nigerian government seeking to formally observe the trial of Umar Farouk Abdulmutallab [BBC profile; JURIST news archive], accused of attempting to set off an explosive device on Northwest Airlines Flight 253 bound from Amsterdam to Detroit last Christmas. The government sought to observe the proceedings [Bloomberg report] in order to guarantee that Nigerian-born Abdulmutallab receives a fair trial and that the reputation of Nigeria is protected. The government also requested to receive copies of all court filings. Presiding judge Nancy Edmunds of the US District Court for the Eastern District of Michigan [official website] denied the request [Detroit News report], stating that the court record is already open to the public. The lawyer for the Nigerian government later asked to withdraw the motion. Abdulmutallab, who is currently being held in Milan, was not present at the hearing.

Last month, US Attorney General Eric Holder [official website] reacted to criticism surrounding the reading of Miranda Rights to Abdulmutallab, stating that the Obama administration plans to ask Congress to enact legislation [JURIST report] allowing interrogators to question terror suspects for a longer period of time than currently allowed before informing them of their constitutional rights to remain silent and be represented by an attorney. In February, Holder defended his decision [JURIST report] to try Abdulmutallab in federal court rather than a military tribunal. Abdulmutallab is charged [JURIST report] with attempted use of a weapon of mass destruction, attempted murder within the special aircraft jurisdiction of the US, willful attempt to destroy or wreck an aircraft, willfully placing a destructive device on an aircraft, use of a firearm/destructive device during and in relation to a crime of violence and possession of a firearm/destructive device in furtherance of a crime of violence. A plea of not guilty [JURIST report] has been entered on his behalf.




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Mexico government asks judge to strike down Arizona immigration law
Hillary Stemple on June 22, 2010 3:33 PM ET

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[JURIST] The Mexican government on Tuesday filed an amicus curiae brief [text, PDF] with the US District Court for the District of Arizona [official website] asking that the recently passed Arizona immigration law [SB 1070 materials; JURIST news archive] be declared unconstitutional. The brief was filed in support of the petitioners in a class action lawsuit [complaint; JURIST report] filed last month by the American Civil Liberties Union (ACLU) [advocacy website], as well as several other advocacy groups, seeking an injunction against implementation of the law. Mexico asserted two substantial and compelling interests in filing its brief. The government claims a substantial interest in ensuring its "bilateral diplomatic relations" with the US remain "transparent, consistent and reliable, and not frustrated by the actions of individual US states." It also claims an interest as amicus curiae in ensuring that its citizens are "accorded human and civil rights when present in the US in accordance with federal immigration law." The brief cites a concern that Mexican citizens will be discriminated against based on their ethnicity. In addition to the lawsuit filed by the ACLU, two other lawsuits were filed in April [JURIST report] challenging the constitutionality of the Arizona law. The Obama administration indicated last week [JURIST report] that the US Department of Justice (DOJ) [official website] will also be filing a suit challenging the law. The law is set to go into effect on July 29.

Arizona's new immigration has been widely criticized in regard to the law's constitutionality and alleged "legalization" of racial profiling. Earlier this month, the city of Tucson, Arizona joined a lawsuit [JURIST report] against the state's new immigration law arguing that it law violates the Commerce Clause and Fourth Amendment [Cornell LII backgrounders] of the US Constitution [text], in addition to federal immigration law, through which the federal government has "fully occupied" the field of immigration control. The Obama administration, though supporting immigration reform, has sharply criticized the law [JURIST report], calling it "misguided" and expressing concern that it could be applied in a discriminatory fashion. These criticisms are shared by Mexican President Felipe Calderon [official website, Spanish] who called the law a "violation of human rights" [JURIST report]. In May, a group of UN experts found that the law could violate international standards [JURIST report] that are binding on the US.




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State failure a 'chronic condition': report
Dwyer Arce on June 22, 2010 2:34 PM ET

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[JURIST] The 2010 Failed States Index [index; FP special report] was released Monday, describing state failure as a "chronic condition" after finding that the same group of countries have occupied the top 10 spots as failed states for the last six years. The index is published by Foreign Policy Magazine (FP) [media website] and the Fund for Peace [advocacy website] and uses publicly available sources to measure 177 countries, judging their stability based on a rubric of 12 factors [FP backgrounder]. These factors include human rights, external intervention, demographic pressures, refugees and economic development. According to an FP special report outlining the findings of the index, Somalia [JURIST news archive] is the archetypal failed state, topping the rankings for the third year in a row due to continued unrest, an Islamist insurgency and the general ungovernability of the state. Despite this "wearying consistency" in the rankings of failed states, the report noted the few instances of improvement, citing Colombia as a "stunning success story" and also pointing to the improvement of Sierra Leone and Liberia. Among the least stable states in the world after Somalia were Zimbabwe, Sudan, Iraq, Afghanistan, Pakistan and Haiti [JURIST news archives]. Listed among the most stable were most of the countries of Europe, the US, Canada, Australia and Oman. In conjunction with the Failed States Index, FP published a Watch List [text] of four countries that are in danger of growing failure, comprised of Guatemala, Honduras, Nigeria and Iran [JURIST news archives].

Earlier this month, the Global Peace Index (GPI) [report; materials] found that world peace has declined [JURIST report] over the past year due to a global increase in states' internal violence and unrest. The GPI cited factors such as the rise in violent demonstrations and the increase in fear of violent crime as factors for the drop in global peace. New Zealand, Iceland and Japan top the list as the most peaceful, and Iraq, Somalia and Afghanistan were the least peaceful. According to the GPI, nearly USD $30 trillion would have been added to the global economy over the last four years in the absence of the world's conflicts. The GPI has been published annually by the Institute for Economics and Peace since 2007. The GPI is based on information compiled by the Economist Intelligence Unit [official website], and compares the relative peacefulness of 149 countries.




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Federal judge blocks deepwater drilling ban in Gulf
Sarah Miley on June 22, 2010 2:11 PM ET

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[JURIST] A judge for the US District Court for the Eastern District of Louisiana [official website] on Tuesday ordered a preliminary injunction [opinion, PDF] against a six-month moratorium on deepwater drilling [JURIST report] issued last month by the Obama administration in response to the BP Deepwater Horizon oil spill [BBC backgrounder; JURIST news archive]. The suit was filed by small oil companies in Louisiana affected by the ban, claiming that the imposition of a general moratorium on deepwater drilling in the Gulf of Mexico was contrary to federal law. Judge Martin Feldman held that the injunction was necessary because the ban caused irreparable harm to both the plaintiffs and the public, and the Obama administration considered no alternatives when enacting the blanket moratorium. Feldman agreed with the plaintiffs' assertion that the ban was arbitrary and capricious stating:
The Deepwater Horizon oil spill is an unprecedented, sad, ugly and inhuman disaster. What seems clear is that the federal government has been pressed by what happened on the Deepwater Horizon into an otherwise sweeping confirmation that all Gulf deepwater drilling activities put us all in a universal threat of irreparable harm. While the implementation of regulations and a new culture of safety are supportable by the [administration's] Report and the documents presented, the blanket moratorium, with no parameters, seems to assume that because one rig failed and although no one yet fully knows why, all companies and rigs drilling new wells over 500 feet also universally present an imminent danger.
The court went on to say that the administration's ban "trivializes" the business and jobs that would be affected by the mandate. The administration immediately responded to the injunction, stating that the federal government will appeal [NBC report] the court's ruling.

Last week, US President Barack Obama [official website] announced the government's latest plan of action for tackling the oil spill, which includes a $20 billion compensation fund [JURIST reports] subsidized by BP. The newly-established escrow fund [government backgrounder] will be used to indemnify the workers and business owners harmed as a result of the oil spill. The announcement also included a long-term restoration plan and prevention of future disasters [JURIST report] through stronger regulation. Additionally last week, Obama announced the appointment of Micheal Bromwich [press release], a former federal prosecutor and Inspector General for the Justice Department, as head of the Minerals Management Service (MMS) [official website], which has been plagued with corruption and notorious for its cozy relationship with oil companies. The Deepwater Horizon oil spill was a result of an oil well blowout that caused an explosion 5,000 feet below the surface of the Gulf. More than 120 million gallons of oil have leaked already from the rig's broken pipe and has now surpassed the Exxon Valdez [JURIST news archive] as the worst oil spill in US history. The White House is keeping a daily chronology of events [text].




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UN SG appoints panel to investigate Sri Lanka civil war rights abuses
Hillary Stemple on June 22, 2010 2:09 PM ET

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[JURIST] UN Secretary-General Ban Ki-moon [official website] on Tuesday appointed a three-member panel [press release] to investigate allegations of human rights abuses during the last months of the Sri Lankan civil war [JURIST news archive]. The panel will be investigating alleged wartime abuses of civilians by both the Sri Lankan government and the rebel Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive] in the hopes that the Sri Lankan government will hold those responsible for the worst of the violence accountable [statement] for their actions. The panel will examine " the modalities, applicable international standards and comparative experience with regard to accountability processes, taking into account the nature and scope of any alleged violations in Sri Lanka" and make the information available to the Sri Lankan government for further action on the matter. The panel will also report on the implementation of the human rights accountability statement [text] that both Ban and Sri Lankan President Mahinda Rajapaksa [official website] agreed to last May, but which Rajapaksa subsequently rejected [JURIST report].

Sri Lanka has faced numerous allegations of human rights violations originating from incidents that took place during the final months of the civil war. Last month, Human Rights Watch (HRW) [advocacy website] announced it had acquired new evidence [JURIST report] supporting allegations of war crimes. Also last month, the International Crisis Group (ICG) [official website] accused Sri Lankan security forces of war crimes [JURIST report], claiming that the violence of the 30-year civil war escalated in January 2009, leaving thousands more dead than projected by the UN. In March, Ban reaffirmed his plan to set up a UN panel [JURIST report] to investigate allegations of human rights violations during the civil war. Earlier in March, Rajapaksa rejected [JURIST report] Ban's plan to appoint a panel of experts to look into alleged rights abuses in the island nation's civil war, saying it "is totally uncalled for and unwarranted."




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Lawyer freed from Rwanda returns to US
Drew Singer on June 22, 2010 1:37 PM ET

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[JURIST] US lawyer and JURIST Forum [website] contributor Peter Erlinder [professional profile; JURIST news archive] returned to the US Tuesday after spending 21 days in a Rwandan prison. Upon his return, Erlinder stated his belief that had he not requested to contact the US embassy shortly before his detention, he would not have survived [Star Tribune report]. He also said that he was on a reported hit list made up of the names of opponents to Rwandan President Paul Kagame [official website; BBC profile]. The High Court of Rwanda [GlobaLex backgrounder] on Thursday released Erlinder on bail due to persisting medical problems from what Rwandan officials say was a suicide attempt [JURIST reports]. The court also required him to inform the court of his whereabouts and comply with future court orders. Rwandan police arrested Erlinder [JURIST report] last month on charges that he denied the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive]. Erlinder was in Rwanda to prepare his defense of opposition presidential candidate Victoire Ingabire Umuhoza [campaign website], who was arrested in April [JURIST report] on similar charges. Erlinder has pleaded not guilty [JURIST report]. He will speak to the press [FOX9 report] Wednesday at William Mitchell College of Law, where he is a professor.

The International Criminal Tribunal for Rwanda (ICTR) [official website] last week called for Erlinder's release [JURIST report] in a letter to Rwandan authorities. Acting on the advice of the UN Office of Legal Affairs [official website], the ICTR asserted in the letter that Erlinder has immunity from prosecution under the Convention on Privileges and Immunities of the United Nations [text, PDF], a treaty that Rwanda is a party to that prevents legal action of any kind against UN employees working in an official capacity. Last Monday, US Secretary of State Hillary Clinton [official website] stated that the Obama administration had expressed concern [statement] to the Rwandan government over Erlinder's detention and the prosecution of opposition candidates but emphasized the US government's continued support for the Rwandan government. Two weeks ago, US Representatives Betty McCollum (D-MN) and Keith Ellison (D-MN) [official websites] introduced a resolution [JURIST report] calling on the Rwandan government to release Erlinder in order to "prevent ... an impasse in relations" between the US and Rwanda.




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Israel high court overturns jail sentence of ultra-Orthodox Jews for segregation
Sarah Miley on June 22, 2010 12:16 PM ET

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[JURIST] The Israeli Supreme Court [official website] on Tuesday overturned jail sentences for 13 ultra-Orthodox Jewish mothers charged with contempt for disobeying a court order on school integration in the West Bank settlement of Immanuel. The court delayed jail sentences for an additional nine mothers [Haaretz report] in order to allow the women to care for their families while their husbands remain jailed on similar charges. The women, who belong to a strictly observant Ashkenazi sect, were sentenced last week to two weeks in jail for refusing to reintegrate their daughters into a school with Jewish Sephardi [JVL backgrounders] girls. The women claimed that the Sephardi girls, who are of Middle Eastern or North African origin, were not observant enough and would be a bad influence on their daughters. Thousands of ultra-Orthodox Jews staged a rally last week in Jerusalem's city center to protest the ruling. Thirty-five men turned themselves over to the police [BBC report] during the protest in order to begin serving their jail sentences, but the women were given a stay of reprieve until the court could determine whether to delay their sentences.

Approximately 120,000 Askenazi Jews rallied in Jerusalem after the original ruling on reintegration at Beit Yaakov girls' school. The protest was the biggest demonstration by the ultra-Orthodox community in over two decades. Before the Supreme Court administered its ruling last week, a mother that was convicted told reporters that the court had no right to rule on the dispute because parents had simply carried out orders from their rabbis, who had a higher jurisdiction.




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Afghanistan president announces removal of Taliban officials from UN blacklist
Sarah Miley on June 22, 2010 10:37 AM ET

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[JURIST] The Afghan Office of the President [official website] announced Tuesday that the UN will gradually begin to remove Taliban officials who have renounced al Qaeda from the organization's blacklist [JURIST news archive]. The blacklist freezes assets and limits travel of senior figures linked to the Taliban. The announcement followed a meeting in Kabul [UN News Centre report] between diplomats from the UN Security Council [official website] and President Hamid Karzai [official profile] to review progress made by the Afghan government. Following a national peace summit [press release] held in Afghanistan earlier this month, Karzai called for a review of the UN blacklist, as Taliban members began to take a more active role in the Afghan parliament and diplomatic relations. The Security Council delegates agreed to remove Taliban members from the list "gradually" [Reuters report], provided the members had no links to al Qaeda or other terrorist groups.

Afghanistan's national peace summit held earlier this month was aimed at ending the nine-year insurgency in Afghanistan [JURIST news archive] and bringing peace to the country. Two days after the summit, Karzai announced the creation of a commission to review the cases of all suspected Taliban militants [JURIST report] currently being held in custody. Suspects that are being held without sufficient evidence will immediately be released. Karzai's announcement was the first step toward achieving the goals set at the conclusion of the summit [press release], which included implementing a framework to negotiate with disaffected members of the country, ending corruption in the government and creating a national government valuing the input of all citizens. While the resolution called for the release of all prisoners being held in the country without sufficient evidence, it is unclear whether the new commission will examine the cases of suspects currently in US custody.




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Australia reinstates racial discrimination laws
Hillary Stemple on June 22, 2010 10:36 AM ET

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[JURIST] The Australian government reinstated its Racial Discrimination Act (RDA) [materials] in the Northern Territory on Tuesday after the Senate [official website] approved the legislation [Senate report] as part of a Social Security Act late Monday. The discrimination laws were suspended by the Northern Territory National Emergency Response Act (NTER) [text, PDF] in 2007 in order to allow governmental authorities to regulate how welfare money was spent by the Aboriginal people of the country. Under the act, regulators were able to intervene in Aboriginal areas [AFP report] by setting aside a portion of the welfare benefits received for rent, food and medical care in order to prevent the designated money from being spent on alcohol. Until the repeal of the NTER, the regulations would only have applied to Aborigines. The reinstatement of the RDA allows the regulation of welfare payments to remain in place, but the regulations will be applied to both indigenous and non-indigenous citizens living in the Northern Territory. Indigenous Affairs Minister Jenny Macklin [official website] praised the restoration of the RDA [press release] and noted the intent of the NTER will still be achieved, stating:
This is an important achievement. The legislation removes what has been a blight on Australia's reputation as the land of a fair go. We recognise the importance of dignity and pride for Indigenous Australians. The legislation also introduces a new non-discriminatory income management scheme to protect children and families and help disengaged youth. The suspension of the RDA left Indigenous people feeling hurt, betrayed and less worthy than other Australians. Re-instating the RDA restores dignity and helps Indigenous Australians to take ownership of their lives and to drive change in the Northern Territory. It also ensures that measures under the NTER are sustainable and can be effective in the long term.
The discriminatory nature of the NTER has been widely criticized. In March, UN special rapporteur James Anaya [official website] condemned the law [press release], calling it problematic from a human rights point of view. The welfare regulations approved under the NTER are scheduled to go into effect on July 1.

Current Prime Minister Kevin Rudd [official website] has championed the cause of improved living conditions for and relations with Australia's indigenous population since his election in 2008. Last year, Australia endorsed [JURIST report] the UN Declaration on the Rights of Indigenous People [text, PDF]. When the declaration was adopted by the UN [JURIST report] in 2007, Australia was among the four member states that declined to endorse the treaty. Former prime minister John Howard [JURIST news archive] said [speech, PDF] that his Liberal Party [official website] led administration believed the declaration would cause a national regression into a climate of "victimhood." In February 2008, Rudd issued an official apology [statement text] for past mistreatment to the nation's indigenous population on behalf of the federal government, a sentiment which he reaffirmed last year.




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Zimbabwe court denies bail to rights activist investigating conflict diamonds
Dwyer Arce on June 22, 2010 10:10 AM ET

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[JURIST] A Zimbabwean court on Monday denied bail to human rights activist Farai Maguwu, who is being held for allegedly supplying false information about Zimbabwe's controversial diamond mining practices to the international diamond control body the Kimberley Process (KP) [official website]. In denying the bail request, Judge Chinembiri Bhunu of the Harare High Court [GlobaLex backgrounder] cited the severity of the crimes, which he characterized as borderline treason. The state had argued against Maguwu's release, stating that he posed a flight risk. According to Maguwu's lawyer, he has been in declining health [VOA report] due to the temperature of his cell, which has caused him to develop throat and chest infections. He was moved Monday to the prison hospital for care after a recent throat operation. Maguwu's bail denial comes as an appeal [Standard report] from a Harare magistrate judge, who denied Maguwu's bail application earlier this month. Maguwu faces charges of false information on killings, torture and the theft of state security documents, in violation of § 31 of the Criminal Law (Codification and Reform) Act [text, PDF]. He was arrested [JURIST report] in early June. An investigation was launched after he allegedly leaked to the KP a document compiled by the police [SW Radio Africa report] for the Joint Operations Command (JOC), a military-run security agency that was thought to be defunct. If convicted, Maguwu could face 20 years imprisonment.

Also Monday, KP member states began a meeting in Israel during which the body is reported to be preparing to lift the ban [BBC report] on Zimbabwean diamonds. Human Rights Watch (HRW) [advocacy website] on Monday urged the KP to remove Zimbabwe [JURIST report] from its membership. According to HRW's report, human rights abuses by the Zimbabwean government have persisted since the discovery of diamonds in the Marange fields. In calling for Zimbabwe's suspension from the oversight body, HRW explained that the KP "risk[ed] becoming irrelevant" if it failed to address this problem. Civil society groups such as Global Witness, Partnership Africa Canada and Green Advocates [advocacy websites], have also called for the suspension of Zimbabwe's international diamond trade due to the human rights violations [Telegraph report] allegedly committed by the Zimbabwean army against civilians and illegal workers in the Marange diamond fields.




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Belgium officials accused in murder of former Congo leader
Andrea Bottorff on June 22, 2010 9:33 AM ET

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[JURIST] A team of Belgian lawyers on Monday filed a complaint in a Brussels court against 12 Belgian officials accused of planning the 1961 assassination of Patrice Lumumba [advocacy profile], the first democratically-elected leader of the Democratic Republic of the Congo (DRC). The complaint was filed only one week before the DRC celebrates its fiftieth year of independence from Belgian colonial rule. Lumumba was placed under house arrest in September 1960 after Colonel Joseph Mobutu [Biography profile] gained power through a military coup. The Belgian legal team, hired by Lumumba's sons, hold that Lumumba escaped house arrest in January 1961 only to be recaptured, beaten and killed by Mobutu's soldiers with the assistance of Belgian officers. The lawyers claim that Belgian officials did nothing to stop the death of Lumumba and their alleged actions were war crimes [Der Standaard report, in Dutch]. The team filed the legal complaint against accomplices in the killing, although many of the alleged actors are now deceased. The identities of the accused officials have not been released but include police officers and politicians [GVA report, in Dutch] who worked during the 1960s. The legal team expects the case will go before a Belgian judge in October.

Belgium has been active in seeking justice for war crimes committed in Africa. Last year, the International Court of Justice (ICJ) [official website] denied [JURIST report] Belgium's request to compel Senegal to extradite former Chadian president Hissene Habre [BBC profile] under Belgium's universal jurisdiction [AI backgrounder, PDF] statute. In 2008, Congolese former vice president Jean-Pierre Bemba [case materials; JURIST news archive] was arrested in Belgium and transferred [JURIST reports] to the International Criminal Court (ICC) [official website]. He is set for trial this summer [JURIST report]. In 2002, the Belgian government apologized for playing a role [AP report] in Lumumba's death after a Belgian investigation found evidence of the country's involvement in the political overthrow.




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NYC car bomb suspect pleads guilty to terrorism charges
Hillary Stemple on June 22, 2010 9:05 AM ET

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[JURIST] Pakistani-born US citizen Faisal Shahzad [BBC profile] pleaded guilty Monday to 10 counts of terrorism and weapons charges [indictment, PDF; JURIST report] relating to last month's attempted car bombing in New York City's Times Square. Appearing before Judge Miriam Goldman Cedarbaum in the US District Court for the Southern District of New York [official website], Shahzad was asked a detailed set of questions to ensure he understood his rights and the possible ramifications of pleading guilty. Cedarbaum questioned Shahzad as to why he wanted to carry out the attack and whether he had any remorse over the lives that could have been lost. Shahzad indicated that he was a Muslim soldier [Al Jazeera report] and that his actions reflected an act of war. He also stated that attempted attacks would continue until US forces leave Iraq and Afghanistan and stop using unmanned drone attacks [JURIST news archives] in Somalia, Yemen and Pakistan. Shahzad also admitted to receiving training in the Waziristan region of Pakistan from members associated with Tehrik-e-Taliban [GlobalSecurity backgrounder], a branch of the Pakistani Taliban, as well as financial support for carrying out the attack. US Attorney General Eric Holder [official website] praised the role of the justice system [press release] in obtaining the guilty plea, stating:
Faisal Shahzad plotted and launched an attack that could have led to serious loss of life, and today the American criminal justice system ensured that he will pay the price for his actions. We will not rest in bringing to justice terrorists who seek to harm the American people, and we will use every tool available to the government to do so.
US Attorney Preet Bharara stressed that Shahzad's plea was not part of a plea agreement and that the investigation into the plot is ongoing. Shahzad is scheduled to be sentenced on October 5, and will likely be sentenced to life in prison.

Shahzad's arrest and subsequent interrogation have helped shape debate in the US over the reading of the Miranda warnings to terror suspects. Shahzad was given Miranda warnings but waived them and continued talking with police [NYT report] for more than two weeks before finally meeting with counsel. Despite the information provided by Shahzad, lawmakers continue to push for more limitations on Miranda. Last month, Holder indicated that the Obama administration plans to ask Congress to enact legislation [JURIST report] allowing interrogators to question terror suspects for a longer period of time than currently allowed before informing them of their constitutional rights to remain silent and be represented by an attorney. Also last month, lawmakers introduced a bill [JURIST report] that, if passed, would strip US citizenship rights from those suspected of engaging in terrorism. In March, Senators John McCain (R-AZ) and Joseph Lieberman (I-CT) proposed a law [JURIST report] that would require terror suspects to be stripped of their Miranda rights and to face military interrogation and trial. The proposed legislation, has been controversial [JURIST op-ed], with critics claiming its impact "would be a fundamental miscarriage of justice."




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Nebraska city voters pass ban on hiring, renting to illegal immigrants
Dwyer Arce on June 22, 2010 8:42 AM ET

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[JURIST] The voters of Fremont, Nebraska [official website] on Monday passed an ordinance [No 5165 text, PDF] banning the hiring, harboring or renting property to illegal immigrants [JURIST news archive]. The voters of the eastern Nebraska community of 25,000 approved the ordinance with 57 percent in favor. It requires all employers in the city to register for the E-Verify program [DHS website] and makes it a crime to rent to illegal immigrants. The ordinance states that any lease entered into by an illegal immigrant will be considered void. It also requires every person seeking to rent residential property to obtain an occupancy permit from the city, which will require the applicant to sign a declaration affirming his or her US citizenship or otherwise provide a visa or employment authorization number. In explaining the need for the law, the preamble to the ordinance states:
The presence of illegal aliens places a fiscal burden on the City, increasing the demand for, and cost of, public benefits and services[.] Crimes committed by illegal aliens in the City harm the health, safety and welfare of U.S. citizens and aliens lawfully present in the United States[.] The employment of unauthorized aliens in the City displaces authorized United States workers and adversely affects their wages[.]
The American Civil Liberties Union of Nebraska [advocacy website] has promised to challenge the ordinance in court [press release], describing the law as "un-American and unconstitutional" and arguing that the ordinance will "cause discrimination and racial profiling against Latinos and others who appear to be foreign born, including U.S. citizens." The ordinance comes in response to a wave of immigration to the region due to the availability of jobs in the meatpacking industry. The Nebraska Supreme Court [official website] ruled [opinion, PDF] that the vote could occur, denying the city's request for declaratory relief on the basis that the ordinance would be preempted by federal law. A similar initiative was narrowly voted down [BBC report] by the Fremont City Council [official website] in 2008.

In March, the US District Court for the Northern District of Texas [official website] issued a permanent injunction [opinion, PDF; JURIST report] against a Texas city ordinance [No. 2952 text] containing a nearly identical occupancy permit scheme. The court ruled that the Dallas suburb of Farmers Branch cannot enforce the permit scheme, finding it to be preempted by federal law under the Supremacy Clause [Cornell LII backgrounder] of the US Constitution. State and local governments nationwide have been passing strict laws targeting illegal immigration in recent months. Earlier this month, the US Conference of Mayors [official website] passed two resolutions [JURIST report] opposing Arizona's recently passed immigration law [SB 1070 materials; JURIST news archive] and supporting federal immigration reform. The controversial Arizona bill, which was signed into law [JURIST report] in April by Governor Jan Brewer (R) [official website], will go into effect on July 29. Proponents of the law argue that it will discourage illegal immigration, while opponents contend it will lead to discriminatory police practices based on race. Last month, the American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit seeking an injunction against implementation of the law, joining two others filed in April [JURIST reports] questioning the constitutionality of the law.




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Connecticut AG launches multistate privacy investigation against Google
Ann Riley on June 22, 2010 7:32 AM ET

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[JURIST] Connecticut Attorney General Richard Blumenthal [official profile] announced Monday that he will lead a multistate investigation [press release] into whether Google [corporate website; JURIST news archive] violated privacy laws while collecting information over Wi-Fi networks for its Street View maps [website]. Blumenthal said he sent a letter [text, PDF] to the corporation last week requesting additional detailed information on its data harvesting procedures. The request was in response to a statement from Google [text, PDF] earlier this month claiming that the collection of payload data was inadvertent. In commencing the investigation, Blumenthal stated:
Street View cannot mean Complete View - invading home and business computer networks and vacuuming up personal information and communications. Consumers have a right and a need to know what personal information - which could include emails, web browsing and passwords - Google may have collected, how and why. Google must come clean, explaining how and why it intercepted and saved private information broadcast over personal and business wireless networks. ... The company must provide a complete and comprehensive explanation of how this unauthorized data collection happened, why the information was kept if collection was inadvertent and what action will prevent a recurrence. Our investigation will consider whether laws may have been broken and whether changes to state and federal statutes may be necessary.
More than 30 states took part in a recent conference call on the issue, and Blumenthal expects a significant number of states to participate in the investigation. Illinois Attorney General Lisa Madigan and Michigan Attorney General Mike Cox [official profiles] have also opened investigations against Google's data collection practices and requested information [press releases] about the personal data the company has obtained from its Street View vehicles.

In a letter [text, PDF] sent last week to the US House of Representatives Energy and Commerce Committee [official website], Google claimed that its collection of private information was inadvertent and did not violate any laws [JURIST report]. Several countries have recently launched investigations into Google's unencrypted data collections to determine whether the company's practices have violated privacy laws. Earlier this month, Australia commenced an investigation [JURIST report] into whether Google breached the nation's Telecommunications Interception Act [text], which prevents people from accessing electronic communications other than for authorized purposes. Additionally, Canada launched an investigation [JURIST report] into Google's unsecured Wi-Fi data collection to determine whether Google has violated the country's Personal Information Protection and Electronic Documents Act [text, PDF], which applies to private organizations that collect, use, or disclose personal information in the course of commercial activities. Belgium, the UK, the Czech Republic, France, Germany, Italy, Spain and Switzerland have also asked Google to retain data collected in those respective nations. Earlier this month, Google was accused by advocacy group Privacy International (PI) [advocacy website] of criminal intent [JURIST report] for the company's private data collection. PI released its statement in response an independent audit [text, PDF] published by Google on the company's official blog [website]. PI claims that information gathered in the audit proves that Google's interception of unencrypted data was not inadvertent and should lead to prosecution.




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Sweden prosecutor to probe possible oil company complicity in Sudan war crimes
Hillary Stemple on June 21, 2010 3:14 PM ET

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[JURIST] Sweden's international prosecutor, Magnus Elving, announced Monday that he would investigate the possible role of Lundin Petroleum [corporate website] in crimes against humanity committed in Sudan [JURIST news archive] from 1997 to 2003. The investigation will examine allegations made in a report [text, PDF] released by the European Coalition on Oil in Sudan (ECOS) [advocacy website], which alleged that Sudanese troops attacked and displaced civilians so that Lundin could have access to land for oil drilling. The ECOS contends that by launching oil exploration in an unstable area, Lundin exacerbated the violence in the region, leading to widespread displacement and killing of civilians. Elving indicated the aim of the investigation is to determine if any individual can be held responsible [The Local report] for any of the alleged crimes. Sweden's Minister of Foreign Affairs Carl Bildt [official website] will likely be included in the investigation, due to his role as a member of Lundin's board of directors from 2001 to 2006. Lundin's chairman of the board has denied the allegations [text, PDF] included in the ECOS report and contends that Lundin actually helped bring peace and stability to Sudan.

International efforts continue in order to bring those responsible for the violence in Sudan to justice. Last week, two Sudanese men suspected of committing war crimes related to the ongoing violence in the Darfur [JURIST news archive] region of Sudan surrendered [JURIST report] to the International Criminal Court (ICC) [official website]. Earlier this month, ICC Chief Prosecutor Luis Moreno-Ocampo [official website] called on the UN Security Council [official website] to support the arrest [statement, PDF; JURIST report] of two other Sudanese men who have been indicted for war crimes in Sudan. In March 2009, the ICC issued an arrest warrant [JURIST report] 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. Last February, the ICC Appeals Chamber ordered the trial chamber to reconsider the charges of genocide after an appeal was filed [JURIST reports] by ICC prosecutors last July.




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India high court orders government to explain action on honor killings
Dwyer Arce on June 21, 2010 1:53 PM ET

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[JURIST] The Supreme Court of India [official website] on Monday ordered the central government and seven state governments to explain the steps they have taken to reduce honor killings [AI backgrounder]. The order comes in response to a petition [TOI report] filed by Shakti Vahini [advocacy website], a non-governmental human rights organization seeking the implementation of stricter laws against the perpetrators of honor killings. The organization is also seeking the creation of special police units [Hindustan Times report] dedicated to the protection of people who believe that they will be the target of an honor killing. Shakti Vahini alleges that the central and state governments have not adequately addressed the issue of honor killings due to political considerations. These killings are believed to be carried out at the order of village governing bodies for actions such as marrying a member of the wrong caste [LOC backgrounder], or otherwise committing an action that is considered to bring shame to the community. Honor killings have been the cause of 30 deaths [BBC report] in the previous 18 months in India. Over the weekend, two more instances of suspected honor killings were reported. In both cases, the victims were couples whose relationships continued despite objections from their families.

Honor killings, along with other forms of violence against women, have been the focus of numerous human rights groups and international organizations. Earlier this month, in a report [JURIST report] issued by Human Rights Watch (HRW) [advocacy website], the organization called for the government of Iraqi Kurdistan to take greater steps against the practice of female genital mutilation (FGM) [WHO backgrounder], while praising the government's efforts to punish honor killings by outlawing reduced sentencing for those convicted of committing them. In 2005, the UN Human Rights Committee criticized Yemen [JURIST report] for not incorporating many of its 2002 recommendations for civil and political rights in the country, including inequality for women, honor killings and FGM, and alleging serious rights violations were used to combat terrorism. The committee, which monitors adherence to the International Covenant on Civil and Political Rights [text], acknowledged the creation of a Ministry of Human Rights in Yemen in May 2003, but said Yemen should work towards creating a national human rights organization and strive towards equality between men and women by reexamining certain laws, among other possible reforms.




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Supreme Court limits judicial authority over arbitration agreements
Sarah Miley on June 21, 2010 1:02 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 5-4 in Rent-A-Center v. Jackson [Cornell LII backgrounder; JURIST report] that, under the Federal Arbitration Act (FAA) [materials], the arbitrator has the authority to decide whether an arbitration agreement is valid, unless the plaintiff specifically challenges the agreement's delegation provision. Under the Restatement (Second) of Contracts [text], contractual clauses can be voided by the court if they are "unconscionable." The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that that the district court was required to determine whether the arbitration agreement was unconscionable, even when the parties to the contract have clearly and unmistakably assigned this "gateway" issue to the arbitrator for decision. Justice Samuel Alito, writing the opinion for the court, reversed the circuit court decision and held that since the plaintiff, Antonio Jackson, challenged only the validity of the arbitration agreement as a whole and not the delegation provision specifically, the agreement is valid under FAA:
Jackson's appeal to the Ninth Circuit confirms that he did not contest the validity of the delegation provision in particular. His brief noted the existence of the delegation provision, but his unconscionability arguments made no mention of it. He also repeated the arguments he had made before the District Court that the "entire agreement" favors Rent-A-Center and that the limitations on discovery further his "contention that the arbitration agreement as a whole is substantively unconscionable." Finally, he repeated the argument made in his District Court filings, that under state law the unconscionable clauses could not be severed from the arbitration agreement. The point oft his argument, of course, is that the Agreement as a whole is unconscionable under state law.
Alito noted that Jackson contended in his brief to the Supreme Court that the delegation provision itself is substantively unconscionable, but he determined that the challenge was too late and would not be considered. Justice John Paul Stevens dissented, arguing that Jackson's claim that the arbitration agreement is unconscionable undermines any suggestion that he "clearly and unmistakably" assented to submit questions of "arbitrability" to the arbitrator, and the challenge should therefore not require specific reference to the delegation provision. Stevens was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor.

The case stems from a discrimination suit filed by Jackson, a former Rent-A-Center (RAC) [corporate website] employee. Jackson claims he was was repeatedly passed over for promotion until he complained to his store manager and human resources, and was subsequently promoted. Two months after obtaining the promotion, RAC fired Jackson. Jackson filed a complaint alleging racial discrimination and retaliation. His employment contract with RAC contained an arbitration clause requiring arbitration of all disputes and specifically providing that only an arbitrator had the authority to resolve questions concerning the validity of the arbitration agreement.




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Supreme Court to rule on credit card notice issue
Hillary Stemple on June 21, 2010 12:50 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in three cases. In Chase Bank USA v. McCoy [docket; cert. petition, PDF], the court will consider whether a creditor seeking to raise the interest rate on a credit card where the cardholder defaulted must provide the cardholder with a change in terms notice. According to Regulation Z, 12 CFR § 226.9(c) [text], a creditor must provide a cardholder with a change in terms notice when the contractual terms governing the account have changed. The court will determine if a change in the interest rate due to the cardholders default falls within the terms of the statute. The US Court of Appeals for the Ninth Circuit [official website] found [opinion, PDF] that Regulation Z does require the creditor to provide the cardholder with a change in terms notice where the cardholder has defaulted triggering an increase in the interest rate.

The court will hear the case of Walker v. Martin [docket; cert. petition, PDF], where it will decide whether a state law barring a prisoner from collaterally attacking his conviction is adequate to support a procedural bar to filing a habeas corpus petition. A California state law prevents prisoners from collaterally attacking their judgment when the prisoner "substantially delayed" filing his habeas petition. The court will decide whether the law is inadequate to bar the collateral attack because it is vague and because state courts failed to apply the state law consistently. The Ninth Circuit found [opinion, PDF] that the state's law was not well-established or "consistently applied" and therefore did not constitute a procedural bar to collaterally attacking the conviction.

The court also agreed to hear Virginia Office for Protection and Advocacy v. Reinhard [docket; cert. petition, PDF], in which it will decide whether the Eleventh Amendment [text] prevents an independent state agency from bringing an action in federal court against state officials to remedy a violation of federal law. The state of Virginia participates in a federal program designed to detect abuse and neglect at state-run medical facilities. The petitioner is the state agency given oversight over the medical facilities and is seeking access to records relevant to the deaths of two individuals who were residents of the state-run facilities. The US Court of Appeals for the Fourth Circuit ruled [opinion, PDF] that the suit by the petitioner was barred under the Eleventh Amendment and did not fall within the Ex parte Young doctrine [text].




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Supreme Court upholds law criminalizing material support for terror organizations
Dwyer Arce on June 21, 2010 10:51 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 6-3 in Holder v. Humanitarian Law Project [Cornell LII backgrounder] that a federal law criminalizing providing material support for groups designated as terrorist organizations is constitutional. The court rejected plaintiffs' argument that the case should be decided on statutory grounds before ever reaching constitutional issues, finding that the federal law [18 USC § 2339B(a)(1) text] cannot be interpreted to require proof that a defendant intended to further the illegal activities of an organization. In ruling on the constitutionality of the statute, the court held that it did not violate plaintiffs' First Amendment rights to free speech and association, nor was it unconstitutionally vague in violation of the Fifth Amendment [Cornell LII backgrounders]. In support of the Fifth Amendment argument, the plaintiffs had alleged that the statute's prohibition of particular types of material support, such as training and expert advice, was unconstitutionally vague. In rejecting this, the court found that the terms of the list were not like terms that had been struck down previously by the court for having subjective and ambiguous meanings. In rejecting the plaintiffs' First Amendment claims, the court found that the statute did not criminalize the mere association with groups designated as terrorist organizations, and that even though in some instances the law interfered with free speech, this was "carefully drawn" to cover "an urgent objective of the highest order," the combating of terrorism. In remanding the case and partially reversing the decision [text, PDF; JURIST report] of the US Court of Appeals for the Ninth Circuit, Chief Justice John Roberts explained:
The Preamble to the Constitution proclaims that the people of the United States ordained and established that charter of government in part to "provide for the common defence." As Madison explained, "[s]ecurity against foreign danger is ... an avowed and essential object of the American Union." We hold that, in regulating the particular forms of support that plaintiffs seek to provide to foreign terrorist organizations, Congress has pursued that objective consistent with the limitations of the First and Fifth Amendments.
Justice Stephen Breyer filed a dissenting opinion in which Justices Ruth Bader Ginsburg and Sonia Sotomayor joined. In his dissent, Breyer agreed with the majority that the statute was not unconstitutionally vague, but disagreed with the court on the free speech claims, stating:
In my view, the Government has not made the strong showing necessary to justify under the First Amendment the criminal prosecution of those who engage in [the training of organizations to use nonviolent means to achieve their goals]. We cannot avoid the constitutional significance of these facts on the basis that some of this speech takes place outside the United States and is directed at foreign governments, for the activities also involve advocacy in this country directed to our government and its policies.
In reacting to the decision, the Constitution Project [advocacy website] stated that it was "dismayed" [press release] by the decision, which it said would allow prosecution for "constitutionally protected ... speech and association activities."

The plaintiffs in the case initially filed suit in 1998, claiming that they wanted to provide support for the humanitarian and political activities of the Liberation Tigers of Tamil Eelam and the Kurdistan Workers' Party [GlobalSecurity backgrounders], two organizations that were designated as terrorist organizations by the Secretary of State pursuant to federal statute in 1997. In November, the Constitution Project, the American Civil Liberties Union, (ACLU), and the Rutherford Institute [advocacy websites] filed amicus curiae briefs [JURIST report] supporting a Humanitarian Law Project (HLP) [advocacy website] argument that the law defines "material support" too broadly. The Supreme Court heard oral arguments [transcript, PDF; JURIST report] in the case in February, and granted certiorari [JURIST report] in September.




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Supreme Court rules on Carmack Amendment for overseas shipment of goods
Hillary Stemple on June 21, 2010 10:35 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 6-3 in Kawasaki Kisen Kaisha v. Regal-Beloit Corporation [Cornell LII backgrounder] that the Carmack Amendment to the Interstate Commerce Act of 1887 [49 USC § 11706] does not apply to a shipment that originated overseas under a single bill of lading. The petitioner, shipping company Kawasaki Kisen Kaisha (K Line), included provisions in its bills of lading providing that the terms of the Carriage of Goods by Sea Act (COGSA) [46 USC § 30701] would govern the shipments, that Japanese law would govern any dispute and that the Tokyo District Court in Japan would have jurisdiction over any such disputes. The respondents contracted with the petitioners to ship products from China to the US and filed suit against K-Line in the US after products were damaged during the rail portion of transport. K-Line moved to dismiss the case based on the forum selection clause of the bill of lading. The district court granted the dismissal, but the US Court of Appeals for the Ninth Circuit overturned [opinion, PDF] the district court's ruling, holding that the district court did not consider whether the parties had properly opted out of the Carmack Act, without which the COGSA does not apply. Justice Anthony Kennedy, delivering the opinion of the court, reversed the court of appeals ruling, holding that COGSA governs over Carmack because:
[F]or Carmack's provisions to apply the journey must begin with a receiving railcarrier, which would have to issue a Carmack-compliant bill of lading. It follows that Carmack does not apply if the property is received at an overseas location under a through bill that covers the transport into an inland location in the United States. In such a case, there is no receiving rail carrier that receives the property for [domestic rail] transportation and thus no carrier that must issue a Carmack-compliant bill of lading.
Under the holding, the parties' agreement to litigate in Japan and under Japanese law is binding. Justice Sonia Sotomayor dissented and was joined by Justices John Paul Stevens and Ruth Bader Ginsburg.

During oral arguments, counsel for the respondent argued for a plain reading [JURIST report] of the statute to determine its meaning, while counsel for the petitioner argued that Carmack has not historically, and does not currently, apply to foreign trade. Counsel for the US government argued as amicus curiae on behalf of petitioners. The court granted certiorari [JURIST report] in the case to resolve a split among the circuits.




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Supreme Court strikes down injunction against genetically modified seed
Sarah Miley on June 21, 2010 10:18 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday ruled [opinion, PDF] 7-1 in Monsanto Company v. Geerston Seed Farms [Cornell LII backgrounder; JURIST report] that the district court abused its discretion when it issued a nationwide injunction against a genetically modified alfalfa seed. The district court sought to remedy a National Environmental Policy Act (NEPA) [EPA materials] violation based on only a remote possibility of reparable harm. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that NEPA plaintiffs are specially exempt from the requirement of showing a likelihood of irreparable harm to obtain an injunction, affirming the nationwide injunction. Justice Samuel Alito, writing the opinion of the court, reversed the circuit court's ruling, stating that NEPA violations, absent unusual circumstances, are not exempt from the standard four-factor test to determine the availability of injunctive relief. The test requires the plaintiff has suffered an irreparable injury, adequate alternative remedies are not available, a remedy of equity is warranted and it serves the public interest. Alito concluded that the respondent plaintiffs were unable to show that a partial deregulation would pose any appreciable risk of environmental harm if the scope of the regulation is sufficiently limited:
The District Court ... erred in entering the nationwide injunction ... for two independent reasons. First, because it was inappropriate for the District Court to foreclose even the possibility of a partial and temporary deregulation, it follows that it was inappropriate to enjoin planting in accordance with such a deregulation decision. Second, an injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course. If, as respondents now concede, a less drastic remedy (such as partial...deregulation decision) was sufficient to redress their injury, no recourse to the additional and extraordinary relief of an injunction was warranted.
The court also upheld that both the respondent and petitioner had constitutional standing for injunctive relief and judicial review respectively. Alito stated that each party's claims address a particular and imminent injury that was substantially related to the challenged action, and was redressable by the court. Justice John Paul Stevens dissented from the opinion, and Justice Stephen Breyer took no part.

The case arose over an injunction against the planting of Monsanto's "Roundup Ready alfalfa" (RRA), pending an environmental impact statement (EIS). Conventional alfalfa growers and environmental groups filed an action against an decision by the Animal and Plant Health Inspection Service (APHIS) [official website] to deregulate RRA unconditionally and without preparing a detailed EIS. The plaintiffs claimed that the decision violated NEPA, which requires federal agencies "to the fullest extent possible" to prepare a detailed EIS for "every ... major Federal actio[n] significantly affecting the quality of the human environment." The district court found for the plaintiffs and vacated the agency's decision completely deregulating RRA. The court also enjoined APHIS from deregulating RRA, in whole or in part, pending completion of the EIS and entered a nationwide permanent injunction prohibiting almost all future planting of RRA during the pendency of the EIS process.




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India to consider further penalties related to Bhopal gas incident
Hillary Stemple on June 21, 2010 9:19 AM ET

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[JURIST] A panel of Indian Cabinet ministers on Monday recommended that the government consider increasing compensation for the victims of the 1984 Bhopal chemical spill disaster [BBC backgrounder]. The panel also indicated it will seek extradition of Warren Anderson, the former chairman of US chemical producer Union Carbide [corporate website], the company responsible for the spill. Members of the panel announced that all issues relation to the Bhopal disaster, including compensation, legal options and health related issues, were thoroughly discussed [Bloomberg report] and will be considered by the full Cabinet. The panel also announced that the government would begin the process of cleaning up the site of the disaster where nearly 3,800 people were killed when toxic gas was accidentally released in the middle of the night by a chemical plant owned by a Union Carbide subsidiary company. Upwards of 15,000 others later died from exposure to the gas, and 50,000 were left permanently disabled. A settlement was reached between Union Carbide and the Indian government in 1989 with the company paying $470 million to end its liability. The panel, however, indicated it was willing to revisit the settlement and possibly seek further compensation from Union Carbide. Dow Chemicals [corporate website], which purchased Union Carbide in 1999, contends that the settlement ended all possible claims against the company. The full Cabinet is expected to discuss the recommendations on Friday.

The recommendations come two weeks after the first convictions [JURIST report] related to the disaster were handed down by an Indian court. The 1984 Bhopal disaster caused an international outcry over the activities of Western chemical manufacturing in India and the developing world. A number of environmental groups, including Greenpeace [advocacy website], have called for Union Carbide and Dow Chemicals to be brought to justice [Greenpeace backgrounder] for the after-effects of the disaster. In 2008, the US Court of Appeals for the Second Circuit [official website] reinstated a water pollution lawsuit [JURIST report] brought by disaster victims against Union Carbide. In 2004, groups representing Bhopal victims appealed a $330 million award [JURIST report] issued by the Indian Supreme Court, arguing that the award should be quadrupled to provide enough compensation for each of the 572,173 people that the court ruled were eligible.




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Diamond monitoring body urged to suspend Zimbabwe over rights abuse allegations
Dwyer Arce on June 21, 2010 8:57 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Monday called for the removal of Zimbabwe [report materials; press release] from the Kimberley Process (KP) [official website], the global organization dedicated to suppressing trade in so-called "conflict diamonds." The report, "Deliberative Chaos," calls on the KP to suspend Zimbabwe at its meeting in Israel June 21. According to the report, human rights abuses by the Zimbabwean government have persisted since the discovery of diamonds in the Marange fields. The military continues to control a majority of the fields and has forced Marange villagers to mine them, perpetrating several human rights abuses, such as harassment, torture, beatings and the planned relocation of more than 4,000 families to expand the mining operations, according to HRW. Additionally, HRW has accused officials from the ruling ZANU-PF party of smuggling diamonds for personal and party benefit and has criticized the findings of the KP investigator to the region, who has recommended that Marange diamonds be certified as "conflict-free." In calling for Zimbabwe's suspension from the oversight body, HRW explained that the KP "risk[ed] becoming irrelevant" if it failed to address this problem.

Zimbabwean human rights activist Farai Maguwu was arrested [JURIST report] earlier this month for allegedly supplying false information about Zimbabwe's controversial diamond mining practices to the KP. An investigation was launched against Maguwu after he allegedly leaked to the KP a document compiled by the police [SW Radio Africa report] for the Joint Operations Command (JOC), a military-run security agency that was thought to be defunct. The report allegedly confirms allegations recently made by human rights organizations that Zimbabwe is continuing to engage in illegal diamond mining with the use of military force and leads non-governmental organizations to believe that the JOC is being subversively employed by the government. Civil society groups such as Global Witness, Partnership Africa Canada and Green Advocates [advocacy websites], have called for the suspension of Zimbabwe's international diamond trade due to the human rights violations [Telegraph report] allegedly committed by the Zimbabwean army against civilians and illegal workers in the Marange diamond fields. During the summer of 2009, KP appointed a team to conduct a Review Mission [press release, PDF] in Zimbabwe. They suggested that Zimbabwe's membership to the organization be revoked [Times Live report] for at least six months while the KP could ascertain that minimum standards were being met. Illicit trade in rough diamonds has been closely linked to armed conflict [UN backgrounder] in Angola, Cote d'Ivoire, the Democratic Republic of Congo, and Sierra Leone. Since its inception in 2003, the KP has operated [DF backgrounder] by endeavoring to require its members to follow the regulations set forth by the KPCS, and in turn certifies their shipments of rough diamonds as "conflict-free."




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Saudi Arabia official reports 25 recidivism cases among ex-Guantanamo inmates
Hillary Stemple on June 20, 2010 1:36 PM ET

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[JURIST] A senior Saudi official said Saturday that 25 former Guantanamo Bay [JURIST news archive] detainees have rejoined Islamic extremist groups after going through a rehabilitation program in Saudi Arabia aimed at decreasing religious radicalism within the country. Abdulrahman al-Hadlaq, a top Saudi security expert, spoke generally about the government's effort to rehabilitate Islamic radicals [Al-Jazeera report] and reported that about 300 men have completed the rehabilitation program, with an overall recidivism rate of about 10 percent. Out of the 300 men who have completed the rehabilitation, 120 were formerly held at Guantanamo Bay, making the recidivism rate among former Guantanamo detainees about twice that of those who were not detained by the US. Hadlaq indicated that of the 25 former Guantanamo detainees who returned to extremist activities, 11 were believed to have joined an al-Qaeda group in Yemen, while the rest have been killed or re-arrested. Hadlaq blamed the discrepancy in the rate of recidivism on the close personal ties developed between former detainees at Guantanamo, as well as the harsh tactics used by the US, which he stated led to more extremist views. Overall Hadlaq indicated that the rehabilitation program, which includes religious re-education and financial support, is considered a success [Reuters report]. He also stated that the country plans to build five additional rehabilitation centers which will be able to accommodate the nearly 1,000 suspected al-Qaeda militants who will eventually be released from Saudi prisons. Thirteen Saudi nationals remain at Guantanamo Bay as US President Barak Obama pursues plans to close the detention center, despite missing a self-imposed one-year deadline [JURIST report] in January.

The Obama administration has encountered several hurdles in its attempts to close Guantanamo. Last month, The US House Armed Services Committee [official website] approved a bill [JURIST report] prohibiting the administration from modifying or building a facility in the US to hold detainees currently held at the military prison. In June 2009, the US House denied [JURIST report] an Obama administration request for $60 million to fund the closure of the detention facility, and required the president to submit a detailed plan to Congress documenting the costs and risks of transferring a detainee to the US for trial or detention at least two months before the detainee is to be transferred. A growing list of countries including Bulgaria, Spain, Georgia, Albania, Latvia, Switzerland, Slovakia, Algeria, Somaliland, Palau, Belgium, Afghanistan and Bermuda [JURIST reports] have recently accepted transfers from Guantanamo to aid in closing the facility. There are currently 180 detainees remaining at the Guantanamo facility. Obama originally issued the executive order to close Guantanamo within a year [JURIST report] on January 22, 2009, two days after taking office.





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Japan envoy backs UN war crimes probe into Sri Lanka conflict
Sarah Miley on June 20, 2010 12:51 PM ET

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[JURIST] A diplomat with the Japanese Ministry of Foreign Affairs [official website] said Sunday that Japan supports UN efforts to address alleged war crimes committed during the final phase of Sri Lanka's 30-year ethnic civil war [JURIST news archive] that ended last year. Yasushi Akashi, the government's Representative for Peace-Building, Rehabilitation and Reconstruction in Sri Lanka, made the announcement after a five-day visit to Sri Lanka [press release] during which he met with Sri Lankan government officials. Akashi said the Japanese government supports the establishment of an advisory panel [JURIST report] by UN Secretary-General Ban Ki-moon [official profile], even though Sri Lanka opposes an international investigation [JURIST report] into the claims. Akashi went on to say that the panel would be useful [AFP report] on a consultation basis but should not interfere with the nation's ongoing internal investigation. The advisory panel was organized after UN Human Rights Commissioner Navi Pillay [official website] called for an international inquiry into the conduct of the Sri Lankan government during the civil war.

In May the International Crisis Group (ICG) [official website] accused Sri Lankan security forces of commiting war crimes [JURIST report] during the last months of the conflict. The ICG claimed that it had acquired enough evidence supporting allegations of shelling civilians, hospitals, and environmental facilities to warrant a independent inquiry by the UN on war crimes in Sri Lanka. The Sri Lankan government claims that no civilians were killed during the final months of the war.




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Kyrgyzstan interim government extends state of emergency
Sarah Miley on June 20, 2010 11:04 AM ET

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[JURIST] The Kyrgyzstan interim government Sunday extended a state of emergency in the southern city of Osh, as government forces began to pull down barricades erected during riots last week between ethnic Kyrgyz and Uzbeks. The state of emergency, declared by interim President Roza Otunbayeva [Telegraph profile] on June 11, was set to expire on Sunday, but was extended to June 25 to deter fresh violence. Last week, Otunbayeva issued "shoot to kill" orders [JURIST report] to the nation's military as the ethnic conflict [Guardian backgrounder] continued. She also activated the reserves after the Russian government refused a request to send peacekeeping troops. Thousands of Uzbeks have massed at refugee camps on the border between Kyrgyzstan and Uzbekistan, refusing to return to their homes in Osh, The ethnic minority fears continued violence and do not trust Kyrgyz troops [AP report] to protect them. The official death toll stood at 191 as of Friday, but Otunbayeva said during an inspection tour to Osh that the real number was likely 10 times higher [Al Jazeera report], as many of the victims were buried quickly in keeping with local tradition.

The violence is thought to have been incited by deposed president Kurmanbek Bakiyev [BBC profile; JURIST news archive], who was ousted from power in April [JURIST report], as part of an attempt to delay the June 27 referendum of the country's new constitution. The interim government has accused the former president's son of paying $10 million to finance the violence. Last week, Otunbayeva announced that the referendum seeking approval of the new constitution and a popular mandate for the interim government would be held June 27 despite the ethnic violence. The constitution was approved by the interim government [JURIST report] in May and would shift power from the president to the prime minister, define Kyrgyzstan as a secular state, limit the president to one six-year term in office and increase the number of seats in parliament from 90 to 120.




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UN rights group urges Malaysia to amend security laws allowing detention without trial
Carrie Schimizzi on June 19, 2010 12:38 PM ET

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[JURIST] The UN Working Group on Arbitrary Detention [official website] recommended Friday that Malaysia repeal or amend its internal security laws, which allow indefinite detainment without trial. At the end of an official visit [press release], the group said amending the laws would allow Malaysia to conform to the Universal Declaration of Human Rights [text; Bernama report]. The UN group had been in the country observing prisons and detention centers and was highly critical of four fundamental security laws, including the Internal Security Act (ISA) [text, PDF; AI backgrounder]. Group chairman Malick Sow said that although detainees were generally treated well in the prisons, they were more likely to be tortured [BBC report] in order to obtain evidence or confessions while in detention. The group will present a full report on Malaysia to the UN Human Rights Council [official website] early next year.

Malaysia's internal security laws have been heavily criticized. Last August, a Malaysian court charged 29 protesters [JURIST report] for their alleged involvement in rallies against the country's Internal Security Act. The demonstration was allegedly started by the Abolish ISA Movement [advocacy blog]. The law was protested by an estimated 10,000 to 20,000 people in Kuala Lumpur, resulting in 589 arrests and the use of tear gas and water cannons by police. The protesters were charged with aiding an illegal organization or participating in an illegal rally since a police permit was not obtained. At the time, Prime Minister Najib Razak [official website; BBC profile] dismissed the protest as being unnecessary since he previously pledged to review the controversial law. In January 2008, the International Federation for Human Rights (FIDH) [advocacy website, in French] called for the country to abolish the ISA [JURIST report], claiming that the law was being used to stifle peaceful dissent.




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Federal judge dismisses lawsuits against bin Laden relatives
Sarah Miley on June 19, 2010 12:33 PM ET

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[JURIST] A judge for the US District Court for the Southern District of New York (SDNY) [official website] Friday dismissed 49 terrorism lawsuits, including five cases against relatives of al Qaeda leader Osama bin Laden [JURIST news archives], citing lack of evidence. Judge George Daniels dismissed claims against four half-brothers and a nephew of bin Laden, holding that the prosecution lacked evidence [AFP report] to support the relatives' involvement in al Qaeda operations surrounding the 9/11 attacks [JURIST news archive]. The claims were brought seven years ago by the families of victims who died in the attack on the World Trade Center in 2001.

As the "Ground Zero" federal district court, the SDNY has dealt with a wide variety of issues resulting from the 9/11 attacks. Last week, SDNY Judge Alvin Hellerstein approved a $712.5 million settlement [JURIST report] between New York City and the 10,000 rescue and cleanup workers who became sick or injured from responding to the 9/11 attacks. The most severe injuries, most of which are asthma-related, could garner more than $1 million in compensation for a client. In April US Attorney General Eric Holder [official profile] announced that the government has not ruled out prosecuting certain high-profile 9/11 suspects [JURIST report], including alleged 9/11 conspirator Khalid Sheikh Mohammad [BBC profile] in the SDNY.




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Obama administration to file lawsuit challenging Arizona immigration law: reports
Sarah Miley on June 19, 2010 10:38 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] plans to file a lawsuit challenging Arizona's controversial immigration legislation [SB 1070 materials; JURIST news archive], according to media reports Friday. Senior officials for the Obama administration are said to have confirmed the DOJ's intent [CBS report] after Secretary of State Hillary Clinton [official website] mentioned the legal action in a television interview in Ecuador [recorded video]. The interview took place June 8, but was not picked up by US domestic media until this week. Last month, President Obama personally criticized the Arizona legislation [JURIST report] and said the DOJ was considering a lawsuit. Neither the administration nor the DOJ have officially confirmed the US media reports. Arizona Governor Jan Brewer [official website] responded to the reports [press release] later Friday, saying that federal legal action would be "outrageous" and a waste of federal funds that would be better spent on national immigration reform. Brewer is currently facing at least five lawsuits challenging the immigration law. She subsequently filed a motion to dismiss [press release] another lawsuit filed by the American Civil Liberties Union (ACLU) [official website] in May challenging the constitutionality of the law [JURIST report]. The law, which takes effect July 29, criminalizes illegal immigration and requires police officers to question an individual's immigration status if the officer has a "reasonable suspicion" to believe an individual is in the country illegally.

Last week, Brewer filed a motion to dismiss on similar grounds [JURIST report] a suit filed by Washington-based researcher Roberto Frisancho, alleging that the immigration legislation would lead to him being harassed when he visits Arizona because he is a US-born Hispanic. Brewer claims that the plaintiffs in the several lawsuits filed against the state law possess a "fundamental misunderstanding" of the legislation's language, citing the law's "rigorous" safeguards against racial profiling and "carefully crafted language" to avoid usurping federal authority. The law been widely criticized for its dubious constitutionality and alleged "legalization" of racial profiling. Mexican President Felipe Calderon [official website, Spanish] recently called it a "violation of human rights" [JURIST report].




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Canada Supreme Court finds limited right to government information
Dwyer Arce on June 18, 2010 4:33 PM ET

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[JURIST] The Supreme Court of Canada [official website; JURIST news archive] on Thursday ruled [judgment text] 7-0 that Canadians have a limited right to government information if the information is necessary to the effective exercise of the freedom of expression and is not privileged. The court held that under § 2(b) of the Charter of Rights and Freedoms [text] guaranteeing freedom of expression a claimant must show that denial of access to withheld information "effectively precludes meaningful public discussion on matters of public interest." In establishing this, a claimant creates a prima facie case for production of the information that may be refuted through an assertion of a privilege which would place it outside of the scope of § 2(b). Additionally, information may be withheld from release if its release would interfere with the functions of government. In finding so, the court upheld Ontario's Freedom of Information and Protection of Privacy Act (FIPPA) [text] as constitutional, which provided for the release of documents when in the public interest unless they are the product of law enforcement investigation or subject to solicitor-client privilege. In applying this standard to the case before it, the court denied the request for documents by the Criminal Lawyers' Association (CLA) [advocacy website] reporting the findings of an inquiry into police misconduct committed during the investigation the 1983 murder of Domenic Racco. The court held that the documents sought by the CLA did not meet the criteria. The court remitted the question of whether applying the law enforcement privilege was appropriate to the Assistant Information and Privacy Commissioner, who first reviewed the decision to withhold the report.

The case, Ontario (Public Safety and Security) v. Criminal Lawyers' Association [case information], came to the court on appeal from the Court of Appeals for Ontario [official website], which had found FIPPA to be unconstitutional. The case arises out of the prosecution of two men for the 1983 murder. A retrial was ordered by the Court of Appeals in 1995, the proceedings for which were stayed in 1997 due to what the court described as the deliberate non-disclosure of pertinent information and the negligent breach of duty by government officials during trial. This led to the investigation of the local police by provincial authorities, and the report of the findings which the CLA was attempting to gain access to. The CLA was also attempting to gain access to a 1998 memorandum and letter containing legal advice to local authorities regarding the report. The Supreme Court heard arguments in the case in October 2008 after granting leave to appeal from the Ontario court in 2007.




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UN rights expert calls for release of Suu Kyi
Hillary Stemple on June 18, 2010 3:24 PM ET

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[JURIST] A UN independent human rights expert on Thursday called for the immediate release [press release] of Myanmar pro-democracy leader Aung San Suu Kyi [BBC profile; JURIST news archive] and other "prisoners of conscience" in order to create improved conditions for upcoming elections. Suu Kyi is currently awaiting the decision on her final appeal [JURIST report] challenging the 18-month extension of her house arrest. The UN Working Group on Arbitrary Detention [official website] has repeatedly called on Myanmar to abide by the Universal Declaration on Human Rights [materials] which forbids arbitrary arrest and detention. The Working Group recently released its sixth opinion calling Suu Kyi's detention arbitrary. On Friday, the UK Foreign Office [official website] also called on Myanmar to immediately release [press release] Suu Kyi and other dissidents, saying:
Her continued detention, and that of more than 2,100 other political prisoners in [Myanmar], contravenes international human rights law and casts a long shadow over planned elections in the country. I urge the military regime to release all political prisoners immediately and unconditionally, and respect the human rights of [Myanmar's] people.
In October, Myanmar is expected to hold their first elections [BBC report] in more than two decades.

Suu Kyi's detention in her compound in Yangon will prohibit her from competing in this year's elections as a member of her National League for Democracy (NLD) [party website] party. Suu Kyi, who has been in prison or under house arrest for 14 of the past 20 years, will be released in November [JURIST report], according to a government official, likely after the elections have taken place. In April, Suu Kyi filed suit before the Myanmar's Supreme Court to stop the dissolution of her opposition NLD under a controversial election law [JURIST report]. Additionally, the claim seeks to annul the part of the election law that bars political prisoners [JURIST report] from participating in elections and also requests the establishment of a parliament of lawmakers who won in the 1990 elections.




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Taiwan court extends sentence for ex-president Chen
Sarah Miley on June 18, 2010 3:16 PM ET

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[JURIST] The Taiwan High Court [official website, in Chinese] on Friday extended the jail sentence [press release, in Chinese] of former Taiwanese president Chen Shui-bian [BBC profile; JURIST news archive] for two months while the former leader prepares his appeal to a 20-year sentence for corruption and embezzlement. The court denied Chen's request for bail, stating that he posed a flight risk. The ruling marks the fourth time the court has extended Chen's detention. Chen was originally sentenced to life imprisonment, but the High Court reduced his sentence [JURIST reports] last week after finding that he had not embezzled as much money as previously thought. Chen's office has stated that he is very disappointed with the ruling. Legal experts have stated that under the new sentence, Chen could be released after only serving 10 years in prison. The court also reduced the life sentence of Chen's wife, Wu Shu-chen, to 20 years, as well as those of the couple's son and daughter-in-law.

Chen was originally found guilty on corruption charges and sentenced to life in prison in September. Chen's wife was also given a life sentence [CNA report] after the pair were convicted on charges of embezzlement, receiving bribes, forgery, and money laundering. A three-judge panel of the Taipei District Court [official website, in Chinese] also sentenced their son to two-and-a-half years in prison and their daughter-in-law to one year and eight months. Ruling on another indictment against Chen, the district court on last week found him not guilty of embezzling [JURIST report] USD $330,000 from the Foreign Affairs Ministry [official website] to finance his son's studies in the US. The court held that the indictment was without credibility [CNA report], was contradictory, and was not supported by the facts presented. Prosecutor General Huang Shyh-ming said that he may appeal to the High Court. Chen has maintained his innocence against all charges, claiming that current Taiwanese President Ma Ying-jeou [official website] is using Chen's trial to distance himself from Chen's anti-China views. Chen was also indicted in December for allegedly embezzling USD $20 million from banks [JURIST report] that sought to protect themselves during Chen's financial reform program.




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Federal judge orders ex-Guantanamo detainee subject to strip searches
Sarah Miley on June 18, 2010 2:52 PM ET

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[JURIST] A ruling was released Thursday by Judge Lewis Kaplan of the US District Court for the Southern District of New York (SDNY) [official website] denying a request from former Guantanamo Bay detainee Ahmed Ghailani [GlobalSecurity profile; JURIST news archive] to be exempt from prison strip searches, citing security concerns. Kaplan issued the ruling on Monday [Washington Post report], but it was not made public until Thursday. Ghailani challenged a 1997 Bureau of Prisons [official website] policy that requires all inmates entering or leaving the Metropolitan Correctional Center [official website] in Manhattan to submit to a visual inspection of all body surfaces and cavities. A psychologist at Ghailani's trial stated that he was not opposed to the strip search in general, but to the visual rectal exam that is required. The exam allegedly triggers Ghailani's post-traumatic stress disorder (PTSD), which he says he acquired while being interrogated at an overseas Central Intelligence Agency (CIA) [official website] detention camp. Kaplan held that the entire visual search was a necessary safety standard to prevent inmates from hiding weapons and other illegal items in body cavities. Ghailani's lawyer's argued that he would not be able to adequately defend himself at trial if he was continually suffering from psychological trauma, but Kaplan held that Ghailani could be found incompetent to stand trial if he is unable to assist in his defense. The request was filed in May after Kaplan ruled that Ghailani must attend the opening of his trial [JURIST report], requiring him to submit to strip searches.

Last month, Kaplan refused to dismiss criminal charges [JURIST report] against Ghailani, despite his lawyer's claims that he had been tortured in prison. Kaplan held that even if Ghailani was mistreated while in CIA custody, there was no connection between that and the current prosecution. In November, Kaplan ruled that Ghailani does not have a right to be represented by his military defense lawyers [JURIST report] in a civilian court. In July 2009 Ghailani's military lawyers requested access [JURIST report] to the CIA "black sites" at which their client was held prior to his transfer to Guantanamo Bay and was allegedly subjected to cruel interrogation methods. Ghailani was the first Guantanamo detainee to be brought to the US for prosecution. Having been held at the Guantanamo facility since 2006, Ghailani was transferred [JURIST report] to the SDNY in June to face 286 separate counts, including involvement in the bombings and conspiring with Osama bin Laden and other members of al Qaeda to kill Americans worldwide. He pleaded not guilty [JURIST report] at his initial appearance.




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Israel security cabinet agrees to ease blockade in Gaza Strip
Sarah Miley on June 18, 2010 1:38 PM ET

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[JURIST] Israeli Prime Minister Benjamin Netanyahu [official profile] on Thursday announced [text] that the Security Cabinet has agreed to ease the nation's land blockade of the Gaza Strip [BBC backgrounder]. The Israeli government has been under increasing international pressure to review its policy towards Gaza since its May 31 raid of several Turkish ships bound for the strip left nine dead. The statement released by Netanyahu claimed that the government will "liberalize the system by which civilian goods enter Gaza," including the importation of all food items, toys, stationery, kitchen utensils, mattresses and towels. The new policy will also "expand the inflow of materials for civilian projects that are under international supervision," allowing access to more construction materials [Haaretz report] to repair damage from the 2008-2009 Operation Cast Lead [GlobalSecurity backgrounder; JURIST news archive] in Gaza. The statement was sent to foreign consulates and embassies indicating that the decision made by the security cabinet will be implemented immediately. The announcement was welcomed by UN Secretary-General Ban Ki-moon and US President Barack Obama [official website], both of whom noted that the new policy was step in the right direction. Middle eastern media reports have called Israel's policy change a ploy to appease the international community [BBC report], and called for continuing pressure to lift the blockade completely.

International pressure to lift the blockade has increased significantly since the May 31 flotilla attack. Turkey, a longtime ally of Israel, has included lifting the blockade as a condition upon which the restoration of normal diplomatic ties rests, along with an apology and an international inquiry. The International Committee of the Red Cross (ICRC) [official website] on Monday called for and end [JURIST report] to the Israeli blockade of the Gaza Strip, which it labeled a violation of international humanitarian law under Article 33 of the Geneva Conventions [text; ICRC backgrounder]. Israel has so far refused an international inquiry [JURIST report] into the flotilla attack. Earlier this month, the UN Human Rights Council [official website] condemned [JURIST report] Israel's raid on the ships and initiated an independent investigation into possible violations of international law. Also that week, the UN Security Council [official website] called [JURIST report] for a "prompt, impartial, credible and transparent investigation" into the raid. The Turkish ship on which the violence occurred was one of six organized [Guardian backgrounder] by the Free Gaza Movement [advocacy website] to carry protesters and humanitarian supplies to the isolated Palestinian enclave. The Gaza naval blockade began in 2007 after Hamas forcibly expelled [BBC report] their chief rival, Fatah [CFR backgrounder] from Gaza. In 2006, Hamas was elected [JURIST report] as the ruling party of the Palestinian Authority after unbroken rule by Fatah. In January 2008, then-UN High Commissioner on Human Rights Louise Arbour also described the blockade as collective punishment [JURIST report].




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UN releases report detailing impact of global organized crime
Hillary Stemple on June 18, 2010 1:10 PM ET

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[JURIST] The UN Office on Drugs and Crime (UNODC) [official website] on Thursday released a report [text, PDF; press release] detailing the globalization of organized crime [JURIST report] and its threat to international security. The report specifically addressed the global economic impact of human and drug trafficking, sale of illicit firearms, piracy, identity theft and the illegal exploitation of natural resources. The report found that while countries such as Afghanistan and Colombia supply the majority of the world's illegal drugs, the profits from the drugs are primarily found in the countries where the drugs are being sold. Human trafficking is reported to generate a profit of USD $3 billion, with 140,000 victims being exploited in Europe alone. Piracy has reportedly doubled over the past year resulting in an annual income of US $100 million, the majority of which goes to organized crime. Antonio Maria Costa, head of the UNODC, announced the findings to a special meeting of the UN General Assembly and warned of its possible implications [press releases], stating:
Today, the criminal market spans the planet: illicit goods are sourced from one continent, trafficked across another and marketed in a third. Transnational crime has become a threat to peace and development, even to the sovereignty of nations. Criminals use weapons and violence, but also money and bribes to buy elections, politicians and power - even the military.
Costa's statement echoed statements he made last month [JURIST report] at a UN conference on international crime prevention, calling for a disruption of the international criminal market. The report suggests that countries combat global organized crime by "disrupting the market forces" behind the illegal trafficking and by utilizing the framework provided by the UN Convention against Transnational Organized Crime [materials] protocol adopted in 2000 as an important mechanism in crime prevention.

Earlier this week, the US State Department (DOS) [official website] released its annual report [text, PDF; JURIST report] on human trafficking conditions across the globe. It was the tenth annual report on human trafficking by the DOS, following reports in 2009 [JURIST report], 2008 [materials], 2007 and 2006 [JURIST reports]. In January, the European Court of Human Rights (ECHR) [official website] ruled that sex trafficking violates conventions [JURIST report] against slavery and forced labor. Last October, the US and the EU announced an international criminal treaty [JURIST report] that will greatly increase cooperation between the two governments in fighting the trafficking of humans and the sale of illegal drugs. In March 2009, UN Special Rapporteur on human rights in North Korea [JURIST news archive] Vitit Muntarbhorn cited the country [JURIST report] for various human rights violations including human trafficking.




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NYC car bomb suspect indicted on terrorism and weapons charges
Hillary Stemple on June 18, 2010 11:27 AM ET

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[JURIST] The US District Court for the Southern District of New York [official website] on Thursday indicted [indictment, PDF] Pakistani-born US citizen Faisal Shahzad [BBC profile] on 10 counts of terrorism and weapons charges related to his alleged role in last month's attempted car bombing in New York's Times Square. Five charges were added to the original complaint [JURIST report], which was filed last month. Included in the indictment are allegations that Shahzad attempted to use weapons of mass destruction, was part of a conspiracy to use weapons of mass destruction and that he was part of a conspiracy to commit an act of terrorism transcending national boundaries. According to the indictment, Shahzad received weapons training in the Waziristan region of Pakistan from members associated with Tehrik-e-Taliban [Global Security backgrounder], a branch of the Pakistani Taliban. Shahzad also allegedly received a total of USD $12,000 from an unnamed co-conspirator to fund the bombing. US Attorney General Eric Holder [official website] indicated that Shahzad's indictment was important [press release], but that law enforcement must continue fighting threats of terrorism, stating:
The facts alleged in this indictment show that the Pakistani Taliban facilitated Faisal Shahzad's attempted attack on American soil. Our nation averted serious loss of life in this attempted bombing, but it is a reminder that we face an evolving threat that we must continue to fight with every tool available to the government.
Shahzad has reportedly admitted to the attempted bombing and claims to have acted alone, but Pakistani authorities have made several arrests [Reuters report] in connection with the case. If convicted, he could be sentenced to life in prison.

Shahzad's arrest has contributed to the controversy over the appropriate venue to try terrorism suspects. In April, Holder said that the government has not ruled out [JURIST report] prosecuting certain high-profile terror suspects in federal court in New York. During a hearing [materials] on oversight of the US Department of Justice (DOJ), Holder told the Senate Judiciary Committee [official website] that the government is still considering civilian trials for several high-level terror suspects, including alleged 9/11 conspirator Khalid Sheikh Mohammad [BBC profile; JURIST news archive]. In March, Defense Secretary Robert Gates [official profile] appointed [JURIST report] retired Navy Vice Adm. Bruce MacDonald [official profile] as the convening authority for military commissions [JURIST news archive], leading to speculation that the Obama administration was planning to try the 9/11 conspirators in a military court. Also in March, Holder defended his decision [JURIST report] to try the suspected terrorists in civilian court. Holder announced [JURIST report] that the alleged conspirators would face civilian criminal trials rather than military tribunals late last year.




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Utah convict executed by firing squad
Dwyer Arce on June 18, 2010 11:15 AM ET

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[JURIST] A Utah firing squad executed inmate Ronnie Lee Gardner [BBC backgrounder] on Friday, after the US Supreme Court [official website; JURIST news archive] failed to stay the execution [order, PDF]. The execution comes as the first of its kind [CBS report] in the US in 14 years, and only the third since the Supreme Court reinstated the death penalty [JURIST news archive] in 1976. Gardner was permitted to choose his method of execution under Utah's former death penalty law because he was convicted prior to the passing of a 2004 law requiring lethal injection. He was executed for a murder committed in 1985 during an escape from a courtroom where he was being tried for another murder. At a press conference following the execution, Utah Attorney General Mark Shurtleff [official website] emphasized that the decision to execute Gardner was not taken lightly [BBC report], stating that only 0.6 percent of convicted murderers are executed in the US. The American Civil Liberties Union (ACLU) [official website] used the occasion to criticize the use of the death penalty in the US, describing it as arbitrary [press release] and the product of an unequal justice system, citing the low percentage of capital offenders to be executed as an example of a random system. The ACLU also called on Utah to abolish the death penalty.

In March 2009, New Mexico Governor Bill Richardson (D) [official website] signed a bill which repealed [JURIST report] the use of the death penalty in the state, replacing it with a sentence of life in prison without the possibility of parole for capital felony convictions. New Mexico was the third state to abolish the death penalty since 1976, joining New Jersey and New York [JURIST reports], which abolished the death penalty in 2007. There are 15 other states which do not use the death penalty. According to the Death Penalty Information Center (DPIC) [advocacy website], Maryland, Utah, Kansas, Colorado, and Montana are considering eliminating or limiting the use of capital punishment. The number of executions that took place in the US in 2009 was down 47 percent from 10 years ago, according to the DPIC annual report [JURIST report] released in December. There were 52 executions in 2009, compared to 98 in 1999. The report also emphasized that the number of death sentences handed down in 2009 - 106 - is the lowest since 1976. Executions resumed in the US in April 2008 after the Supreme Court lifted an effective ban on the death penalty by upholding the constitutionality of lethal injection [JURIST report].




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Canada commission faults law enforcement in 1985 Air India bombing final report
Ann Riley on June 18, 2010 10:23 AM ET

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[JURIST] Canada's Commission of Inquiry [official website] into the 1985 bombing of Air India Flight 182 [CBC backgrounder, JURIST news archive] released its final report [materials] Thursday. Led by former Canadian Supreme Court justice John Major [official profile], the Commission found that there were various institutional organizations that did not fulfill their responsibilities. Major condemned the Canadian Security Intelligence Service (CSIS) and the Royal Canadian Mountain Police (RCMP) [official websites] for not utilizing the information available to them before the bombing, failing to enhance security, and not cooperating with each other during the investigation following the bombing. In remarks [text, PDF] at press conference, Major explained the Commission's findings:
The level of error, incompetence, and inattention which took place before the flight was sadly mirrored in many ways for many years, in how authorities, Governments, and institutions dealt with the aftermath of the murder of so many innocents: in the investigation, the legal proceedings, and in providing information, support and comfort to the families...Overall, the Government of Canada and its agencies in 1985 were not prepared for a terrorist act like the bombing of Air India Flight 182...Communications within and between security, law enforcement and transport agencies were often flawed or non-existent. Agencies relied on different concepts of risk and what constituted a threat to security. A lack of awareness of the threat of Sikh terrorism at the agency level led to inadequate procedures and practices, and employees were often poorly trained. This reflected a culture of complacency...The Government needs to take responsibility to avoid further failures and to prevent a return to a culture of complacency.
The Commission recommended enhancing the role of the National Security Advisor in the Privy Counsel Office [GlobalSecurity backgrounder] to ensure coordination among different agencies, as well as creating a Director of Terrorism Prosecutions, amending the Canada Evidence Act [materials], and establishing a National Security Witness Protection Coordinator. Additionally, the Commission concluded that the RCMP is not constructed to handle terrorism issues and the Canadian government lacks a knowledge and understanding of terrorism, further recommending the development of a terrorism-related academic center.

The 1985 bombing of Air India Flight 182 over the Atlantic resulted in the deaths of all 329 passengers, most of whom were Canadians. It was the largest single modern terror attack against a Western target before September 11, 2001 and resulted in the longest and most expensive trial in Canadian history. Ripudaman Singh Malik and Ajaib Sing Bagri were tried on charges [indictment, PDF] of conspiracy to commit murder, first-degree murder of the passengers and crew of Air India Flight 182, and attempted murder of the passengers and crew. However, the suspects were acquitted on all charges [JURIST report] in 2005. The Commission's judicial inquiry then began [JURIST reports] in June 2006. The following year, Major temporarily closed proceedings [JURIST report] until certain documents from the RCMP and CSIS were publicly released. In December 2007, the Commission released its first report, The Families Remember [text, PDF], which emphasized the emotional suffering following the bombing.




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Dutch court sentences Somali pirates to 5 years in prison
Drew Singer on June 18, 2010 9:22 AM ET

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[JURIST] The Netherlands Rotterdam District Court [official website, in Dutch] on Thursday sentenced [judgment, in Dutch; press release] a group of Somali pirates [JURIST news archive] to five years in prison for hijacking a cargo ship registered in the Netherlands Antilles. The five men were arrested last year during an attempt to forcibly board a cargo ship in the Gulf of Aden after a Danish navy frigate sunk their boat. The five men had pleaded not guilty [JURIST report], saying they were fishermen who were seeking help after an equipment malfunction. They also challenged the court's jurisdiction and claimed that the severe poverty in Somalia had driven them to piracy. In rejecting these claims, the court emphasized the growing threat of piracy to international shipping that convicted pirates must face strict consequences:
The incidences of piracy and hijacking of ships in the Gulf of Aden have sharply increased since 2008. Because of the large sums of ransom pirates receive for the release of a hijacked ship and its hostage crew, piracy is extremely lucrative. Meanwhile, piracy is a serious threat to the internationally recognized right of free passage in international waters. The Gulf of Aden is one of the busiest shipping routes in the world, and the threat to the safety of the ships that sail this route has global economic consequences. Also, the food of the World Food Program of the United Nations in Somalia face the constant threat of compromise by pirates. Piracy is a serious matter, which needs to be firmly punished.
After hearing the sentence, one of the defendants indicated [AFP report] that the court was discriminating against them. They faced a maximum sentence of 12 years in prison. The trial, the first European trial of Somali pirates, commenced last month [JURIST report], after the defendants were charged with "sea robbery."

The international community is supporting actions taken against piracy. On Tuesday, a spokesperson for the UN Office on Drugs and Crime (UNODC) [official website] announced that donors will spend more than USD $9.3 million [JURIST report] to fund courts in Kenya and Seychelles that prosecute suspected Somali pirates. Yemen's Ministry of Defense announced last month that a Yemeni court sentenced six Somali pirates to death [JURIST report] and six additional pirates to 10-year jail sentences for the hijacking of a Yemeni oil tanker in April 2009. Earlier that month, UNODC announced that the island nation of Seychelles will create a UN-supported center [JURIST report] to prosecute suspected pirates. This will be the second such court established for the prosecution of pirates, following only Kenya. Last month, the UN Security Council [official website] approved a resolution [JURIST report] calling on member states to criminalize piracy under their domestic laws and urging UN Secretary-General Ban Ki-moon [official website] to consider an international tribunal for prosecuting piracy. The Security Council resolution came the same week the UN announced that a trust fund established to combat piracy will be funding five projects [UN News Centre report] aimed at piracy committed in the waters around Somalia. Germany will likely be the next European country to try alleged pirates, as 10 Somali men await trial there. In 2009, Somali pirates hijacked 47 ships and took 867 crewmembers hostage, according to a report [text] by the International Maritime Bureau [official website].




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FCC opens broadband proceedings to determine legal approach to regulation
Sarah Miley on June 18, 2010 9:06 AM ET

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[JURIST] The Federal Communications Commission (FCC) [official website] on Thursday opened a new proceeding [press release, PDF] to identify the legal approach that will best support its efforts to develop universal access to "high quality" Internet broadband services. The FCC was forced to revisit its method of broadband regulation under its National Broadband Plan [official website; materials] after the DC Circuit Court [official website] ruled in Comcast v. FCC [opinion, PDF] that the commission lacks authority to require broadband providers to treat all Internet traffic equally. The FCC commissioners have remained divided on the best legal framework for broadband access after the Comcast decision and have released a notice of inquiry (NOI) asking for public commentary on three potential approaches. Two possible methods of subjecting broadband to FCC regulation would be to either classify broadband transmissions as an information service under Title I of the Communications Act of 1934 [text, PDF], or as a telecommunications service under Title II. FCC Chairman Julius Genachowski [official profile], however, did not feel that Title I gave the commission enough authority, while Title II put too much regulation on Internet service providers. Genachowski's proposed "third way" [official website] would carve out the connectivity aspect of broadband and classify that as a telecommunications service, but would refrain from applying most Title II requirements to other broadband components. The NOI was passed on a 3-2 vote with Commissioners Meredith Baker and Robert McDowell [official profiles] dissenting. McDowell held that the FCC does not have the authority to reclassify and should be determined by Congress. Comments from the public are due on July 15 and reply comments are due on August 12.

The FCC's "third way" approach to broadband regulation was announced last month after the DC Circuit struck down [JURIST reports] a key part of the FCC National Broadband Plan, which allowed the commission to regulate broadband Internet access. The appeal was brought by cable giant Comcast [official website] to review whether the FCC has the authority to enforce the plan's newly-developed "net neutrality" [backgrounder; JURIST news archive] regulations. The concept of net neutrality, supported unanimously by the FCC commissioners, is to allow for the open flow of information over the Internet, regardless of the amount of revenue generated by the information. The FCC sent the plan [JURIST report] to Congress for approval in March, seeking approval to enact regulations to update the communications infrastructure in the US and make broadband service available to millions more Americans. Telecommunications companies Verizon, AT&T [corporate websites], and Comcast argue that net neutrality would inhibit their ability to effectively manage Internet traffic.




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Supreme Court rules objection to bankruptcy exemption not required to recover excess value
Sarah Miley on June 17, 2010 3:53 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] 6-3 in Schwab v. Reilly [Cornell LII backgrounder; JURIST report] that a trustee assigned to a Chapter 7 bankruptcy [Cornell LII backgrounder] case is not required to object to the exemptions made by the debtor in order to preserve the estate's right to retain any value in the asset beyond the value of the exempt interest. The US Court of Appeals for the Third Circuit held [opinion, PDF] that the debtor intended to fully exempt the asset and that the trustee had to object within 30 days. Justice Clarence Thomas, writing the opinion for the court, reversed the circuit court opinion and held that under § 522 of the Bankruptcy Code [text] the debtor is only entitled to the dollar amount she claimed, not the full value of the asset. Thomas concluded that:
because the Code defines such property as an interest, not to exceed a certain dollar amount, in a particular asset, not as the asset itself, the value of the property claimed exempt should be judged on the dollar value the debtor assigns the interest, not on the value the debtor assigns the asset.
Justice Ruth Bader Ginsburg dissented, joined by Chief Justice John Roberts and Justice Stephen Breyer.

In 2005, Nadejda Reilly filed a Chapter 7 bankruptcy petition and claimed two exempt interests in "business equipment," estimating the value at $10,718. Although an appraisal revealed that the equipment's total market value could be as much as $17,200, the bankruptcy estate's trustee William Schwab, did not object to the claimed exemptions because the dollar value Reilly assigned to each fell within the limits maximum limits imposed by the Code. Schwab moved the Bankruptcy Court for permission to auction the equipment so Reilly could receive the dollar value she claimed exempt and the estate could distribute the remaining value to her creditors. Reilly argued that Schwab's failure to object within the thirty-day statutory period rendered the property exempt. Schwab countered that Reilly's exemption was limited to the specific amount claimed and did not serve to fully exempt the property from distribution. Schwab also argued that the objection deadline applied only to the type of property claimed as exempt, not to the value.




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US lawyer in Rwanda custody released on bail
Dwyer Arce on June 17, 2010 1:51 PM ET

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[JURIST] A Rwandan court on Thursday granted the bail request of US lawyer and JURIST Forum [website] contributor Peter Erlinder [professional profile; JURIST news archive]. Judge Johnson Busingye of the High Court of Rwanda [GlobaLex backgrounder] granted unconditional release [Reuters report] due to Erlinder's persisting medical problems, which would allow Erlinder to leave the country, but requires that he inform the court of his whereabouts and comply with court orders. Erlinder, who was being hospitalized during the hearing, is expected to return to the US on Friday [AFP report]. In reacting to the court's decision, Prosecutor General Martin Ngoga [New Times profile] said that the investigation against Erlinder is ongoing, and that the ruling does not affect the charges against him [press release, PDF], stating:
Bail on health grounds cannot be mistaken as vindication for Mr. Erlinder - it just proves that the justice system he so freely criticizes was willing to show him compassion with respect to his physical and mental wellbeing. This will not deter the prosecution as we finalize the case against Mr. Erlinder. He will soon be called to defend his record of genocide denial that insults the people of Rwanda and inflames those who seek to harm us.
Thursday's bail hearing comes on appeal from the Gasabo Intermediate Court's decision Sunday ordering that Erlinder be detained for 30 more days [JURIST report] as the investigation is pending, citing flight risk, despite Erlinder's claim that he needed to return to the US for medical treatment following what Rwandan officials say was a suicide attempt [JURIST report].

The International Criminal Tribunal for Rwanda (ICTR) [official website] on Tuesday called for Erlinder's release [JURIST report] in a letter to Rwanda authorities. Acting on the advice of the UN Office of Legal Affairs [official website], the ICTR asserted in the letter that Erlinder has immunity from prosecution under the Convention on Privileges and Immunities of the United Nations [text, PDF], a treaty that Rwanda to which is a party that prevents legal action of any kind against UN employees working in an official capacity. On Monday, US Secretary of State Hillary Clinton [official website] stated that the Obama administration had expressed concern [statement] to the Rwandan government over Erlinder's detention and the prosecution of opposition candidates but emphasized the US government's continued support for the Rwandan government. Last week, US Representatives Betty McCollum (D-MN) and Keith Ellison (D-MN) [official websites] introduced a resolution [JURIST report] calling on the Rwandan government to release Erlinder in order to "prevent ... an impasse in relations" between the US and Rwanda. Rwandan police arrested Erlinder [JURIST report] last month on charges that he denied the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive]. Erlinder was in Rwanda to prepare his defense of opposition presidential candidate Victoire Ingabire Umuhoza [campaign website], who was arrested in April [JURIST report] on similar charges. Erlinder has pleaded not guilty [JURIST report].




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Supreme Court rules fixing of coastal boundaries not 'taking'
Hillary Stemple on June 17, 2010 1:30 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] in Stop the Beach Renourishment, Inc. v. Florida Department of Environment Protection [Cornell LII backgrounder] that the state of Florida did not "take" property without just compensation in violation of the Fifth Amendment [text] where the state permanently fixed property boundaries as part of a beachfront restoration project. The petitioners in the case argued [JURIST report] that coastal property owners are entitled to two easements, the right to have their land touch the water, and the right to gain property through coastal expansion. They argued that the practice of adding sand to prevent beach erosion, as authorized by Florida's Beach and Shore Preservation Act [text], effectively ended the easements in violation of Florida common law. They also argued that the practice of taking land was unconstitutional under the Fifth Amendment. Justice Antonin Scalia announced the judgment of the court, upholding the Florida Supreme Court decision [opinion, PDF], stating:
There is no taking unless petitioner can show that, before the Florida Supreme Court's decision, [coastal] property owners had rights to future [coastal expansion] and contact with the water superior to the State's right to fill in its submerged land. Though some may think the question close, in our view the showing cannot be made.
The court was unified in its holding, but there was a four to four split on the question of whether the Fifth Amendment applies to judicial "takings." Justice Scalia was joined by Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito in holding that the Fifth Amendment clause against "taking" without just compensation applies to the judicial branch as well as the legislative and executive branches. Justice Anthony Kennedy was joined by Justice Sonia Sotomayor in concluding that the court did not need to reach the issue of judicial taking in order to reach their decision on the case. Justice Stephen Breyer was joined by Justice Ruth Bader Ginsburg in concluding that such complex questions of constitutional law need not be decided to reach a conclusion on this case. Justice John Paul Stevens took no part in the ruling.

The court originally granted certiorari [JURIST report] in the case to determine the constitutional question of whether the taking of land by the judiciary was a violation of due process. During oral arguments, counsel for the US argued as amicus curiae on behalf of the respondents that "what has happened here is the State has exercised, not just sovereign regulatory rights; it has exercised critical sovereign proprietary rights."




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Supreme Court rules NLRB must have 3 member panel to exercise authority
Sarah Miley on June 17, 2010 12:08 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled 5-4 in New Process Steel v. National Labor Relations Board (NLRB) [Cornell LII backgrounder; JURIST report] that the NLRB lacks the authority to decide cases where only two of the five-member board are present. Section 3(b) of the National Labor Relations Act [29 USC § 153(b)] provides that three members are enough to constitute a quorum of the NLRB. The US Court of Appeals for the Seventh Circuit found [opinion, PDF] that the NLRB had acted appropriately when it continued to issue board decisions for 27 months as a two-member quorum after one group member's appointment expired. Justice John Paul Stevens, writing the opinion for the court, held that Section 3(b) requires that an NLRB quorum must maintain a membership of three "at all times" in order to exercise the delegated authority of the full board. Stevens concluded:
We are not insensitive to the Board's understandable desire to keep its doors open despite vacancies. Nor are we unaware of the costs that delay imposes on the litigants. If Congress wishes to allow the Board to decide cases with only two members, it can easily do so. But until it does, Congress's decision to require that the Board's full power be delegated to no fewer than three members, and to provide for a Board quorum of three, must be given practical effect rather than be swept aside in the face of admittedly difficult circumstances.
Justice Anthony Kennedy dissented, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. In his dissent Kennedy stated that "the objectives of the statute, which must be to ensure orderly operations when the Board is not at full strength as well as efficient operations when it is, are better respected by a statutory interpretation that dictates a result opposite to the one reached by the Court." The NLRB later released a response [press release, PDF] to the Supreme Court's ruling stating that "[t]he same question has been raised in five more cases pending before the Supreme Court, and 69 that are pending before the Courts of Appeals. It is expected that those cases will be remanded to the Board, and the now-four member Board will decide the appropriate means for further considering and resolving them."

New Process Steel [official website], a US-based steel processing company, filed suit against the NLRB in 2008 after the two-member Board issued decisions sustaining two unfair labor practice complaints against petitioner. The three member delegation was brought down to two in December 2007 when a member's appointment expired. During the 27-month period in which the Board had only two members, it decided almost 600 cases.




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Supreme Court rules sentencing guidelines changes do not affect modification hearings
Hillary Stemple on June 17, 2010 11:52 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday ruled [opinion, PDF] in Dillon v. United States [Cornell LII backgrounder] that the court's decision in United States v. Booker [opinion, text] does not provide for special consideration of changes in sentencing guidelines during U.S.C. §3582(c)(2) [text] sentence modification hearings. The court ruled in Booker that federal sentencing guidelines [materials] are advisory only, although they had never ruled on the application to sentence modification hearings. The petitioner argued [JURIST report] that Booker also holds for sentence modification hearings under U.S.S.G. §1B.10 [text], which allows for sentence reduction if the sentencing guidelines have been amended. He argued that in light of Booker, the re-sentencing court could have lowered his sentence beyond the newest sentencing guidelines based on discretionary factors. The court, however, held that Booker's holding does not extend to §3582(c)(2). Justice Sonia Sotomayor, writing for the majority, upheld the decision below stating:
By its terms, §3582(c)(2) does not authorize a sentencing or resentencing proceeding. Instead, it provides for the modif[ication of] a term of imprisonment by giving courts the power to reduce an otherwise final sentence in circumstances specified by the [federal sentencing guidelines] Commission. ... Section 3582(c)(2)'s text, together with its narrow scope, shows that Congress intended to authorize only a limited adjustment to an otherwise final sentence and not a plenary resentencing proceeding.
Justice John Paul Stevens dissented and Justice Samuel Alito took no part in the decision.

Petitioner Percy Dillon was originally sentenced under the federal guidelines to 322 months in prison for drug related offenses. The sentencing commission subsequently reduced the sentencing guidelines for drug related offenses and Dillon filed a pro se motion for sentence reduction pursuant to §3582(c)(2). The district court reduced Dillon's sentence to 277 months, which fell under the revised sentencing guidelines. Dillon appealed the reduction to the Third Circuit Court of Appeals which upheld [opinion] Dillon's modified sentence and ruled that Booker does not apply in sentence modification proceedings. The Supreme Court granted certiorari [JURIST report] to resolve the issue of Booker's application on retroactive sentence modifications.




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Supreme Court allows reasonable searches of private texts on work-issued devices
Sarah Miley on June 17, 2010 10:25 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Thursday unanimously ruled [opinion, PDF] in City of Ontario v. Quon [Cornell LII backgrounder; JURIST report] that an employer's search of private text messages on a work-issued device does not violate the Fourth Amendment [text] if the search is motivated by a legitimate work-related purpose and is not excessive in scope. The court's ruling applies even when the employee possess a reasonable expectation of privacy in the device. The US Court of Appeals for the Ninth Circuit had ruled [opinion, PDF] that Quon, a special weapons and tactics (SWAT) team member, had a reasonable expectation of privacy in text messages sent to and from his SWAT pager under an informal policy of allowing personal use of the pagers, and therefore his Fourth Amendment rights had been violated. Justice Anthony Kennedy, writing the opinion of the court, reversed the circuit court opinion holding that the search is validated if it is reasonably related to the employer's legitimate work-related objectives and narrow in scope, regardless of an employee's expectation. The court cautioned that the ruling should be applied narrowly and should not determine privacy expectations of emerging technology before its role in the work place is fully developed:
The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. A broad holding concerning employees' privacy expectations vis-a-vis employer-provided technological equipment might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on narrower grounds.
Justice Antonin Scalia joined all but one part of the court's opinion, and additionally wrote a concurrence in part and in the judgment. Justice John Paul Stevens wrote a separate concurrence.

The case was brought by Ontario SWAT officer Jeff Quon after text messages on work-issued pager were searched during a department review. The police department had an official no-privacy policy, but a lieutenant announced an unauthorized informal policy of allowing some personal use of the pagers, which Quon utilized. After determining the current payment system was not efficient, the department ordered a review of the content of the text messages for the purpose of determining how many of the text messages were for business purposes. The search revealed Quon had sent personal messages to friends, as well as sexually explicit texts to both his wife and mistress. Quon then filed suit against the department claiming a violation of the Fourth Amendment under unreasonable searches.




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San Francisco board approves cell phone radiation ordinance
Hillary Stemple on June 17, 2010 10:15 AM ET

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[JURIST] The San Francisco Board of Supervisors [official website] on Tuesday voted to approve an ordinance [transcript] that would require retailers who sell cellular phones to display the varying amounts of radiation emitted by the different cell phone models. The ordinance passed by a vote of 10-1 and Mayor Gavin Newsom [official website], who helped sponsor the legislation, is expected to sign the ordinance into law after a 10 day comment period and final vote by the Board of Supervisors. Supporters of the legislation contend that it will help consumers make informed choices [LAT report] when purchasing cellular phones, while members of the cellular phone industry say the legislation will mislead the retail public into believing one product is safer than another. The safety of cellular phone radiation levels has been a topic of debate, and while San Francisco is the first to pass legislation on the issue, similar legislation has been considered by Maine and California [materials]. If the ordinance receives final approval as expected, it will go into effect early next year.

While cellular phone radiation emission levels have caused some concern, more legislative attention has been focused on banning cellular phone use while driving. Last month, UN Secretary General Ban Ki-moon [official website] called for a global ban on cell phone use [JURIST report] while driving. In October, Ontario enacted a law banning the use of handheld devices [JURIST report] while driving, joining other jurisdictions in Canada and the US to pass similar bans including Quebec, Nova Scotia, Newfoundland, Labrador, California, and New York. Earlier this October, US President Barack Obama signed [JURIST report] an executive order [text] making it illegal for federal employees or government contractors to use text messaging while driving.




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US federal court hears closing arguments in Proposition 8 case
Dwyer Arce on June 17, 2010 9:43 AM ET

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[JURIST] The US District Court for the Northern District of California [official website] on Wednesday heard closing arguments [transcript] in Perry v. Schwarzenegger [case materials], challenging the constitutionality of Proposition 8 [text; JURIST news archive]. During closing arguments, the attorneys for the plaintiffs argued that the state ban on same-sex marriage [JURIST news archive] violates the Equal Protection Clause and the Due Process Clause [Cornell LII backgrounders] of the 14th Amendment to the US Constitution [text]. Former solicitor general Ted Olson [professional profile], argued for the plaintiffs that denying same-sex couples the ability to marry denied them a fundamental constitutional right based solely on their sexual orientation. Olson argued that the court must therefor apply strict scrutiny [Cornell LII backgrounder], a standard of review that would require the defense to show a compelling interest in continuing the ban in order for it to be constitutional. In his argument, Olson stated:
This case is about marriage and equality. The fundamental constitutional right to marry has been taken away from the plaintiffs and tens of thousands of similarly-situated Californians. Their state has rewritten its constitution in order to place them into a special disfavored category where their most intimate personal relationships are not valid, not recognized, and second rate. Their state has stigmatized them as unworthy of marriage, different and less respected. ... It is the right of individuals, not an indulgence dispensed by the State of California, or any state, to favored classes of citizens which could ... be withdrawn[.]
In the closing arguments in defense of Proposition 8, former assistant attorney general Charles Cooper [professional profile] stressed the importance of the institution of marriage to society as a means to "responsible procreation." He argued that the standard of review applied by the court should be the lower standard of rational basis review [Cornell LII backgrounder], which he argued has been applied by nearly every federal court that had ruled on discrimination based on sexual orientation. He argued that under this standard the ban should be upheld, stating:
[T]he plaintiffs say ... there is no way to understand ... why anyone would support Proposition 8, why anyone would support the traditional definition of marriage except through some irrational and dark motivation, some animus, some kind of bigotry, your Honor. And that is not just a slur on 7 million Californians who supported Proposition 8. It's a slur on 70 of 108 judges who have upheld as constitutional and rational the decision of voters and legislatures to preserve the traditional definition of marriage. It denies the good faith of Congress -- not just these judges, of Congress -- of state legislature after state legislature and electorate after electorate.
Chief Judge Vaughn Walker is expected to issue his ruling within the next few weeks. Regardless of the outcome, the losing side is considered likely to appeal the ruling [NYT report] in the case.

The case began in January [JURIST report] with opening statements from lead attorneys and testimony from plaintiffs seeking the right to marry their same-sex partners. In October, Walker ruled that the case could be heard in federal court [JURIST report]. Walker has said the trial is necessary to ascertain the level of constitutional protection granted to same-sex couples. The lawsuit was filed [complaint text] in May 2009 after Proposition 8 was approved [JURIST report] by California voters in November 2008, overturning a decision [text; JURIST report] of the California Supreme Court [official website] finding that same-sex marriage must be allowed under the California Constitution [text]. Several jurisdictions in the US have legalized same-sex marriage. In March, the District of Columbia joined Vermont, New Hampshire, Iowa, Connecticut, Massachusetts [JURIST reports] and the Coquille Indian Tribe [OregonLive report], in legalizing same-sex marriage.




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Iceland parliament approves measures to protect press freedoms
Hillary Stemple on June 17, 2010 8:55 AM ET

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[JURIST] The Icelandic Parliament [official website, in Icelandic] on Wednesday voted 50-0 [vote count, in Icelandic] to pass sweeping media reform laws aimed at increasing protections for journalists and promoting freedom of speech and transparency in government. The Icelandic Modern Media Initiative (IMMI) [materials] was developed by lawmakers in conjunction with Wikileaks [advocacy website], a non-profit website focused on exposing corruption and unethical actions by governments and corporations. The measures were developed partially in response to Iceland's 2008 economic crisis [BBC backgrounder], where a close relationship between the government and the media has been blamed for a lack of warning about the impending crisis. Provisions in the bill include protection for anonymous sources, and protections against censorship and "libel tourism," and it is being touted as the strongest media protection law [Independent report] in any country. Iceland hopes that provisions in the new law prohibiting enforcement of judgments from other countries that violate the IMMI will encourage foreign news services to move their publication services to Iceland. Minor changes were made to the original draft of the bill [JURIST report] which was released in February, including adding additional responsibilities for the government [text, in Icelandic]. Under the final bill the government must perform a detailed analysis of the security surrounding data centers and they must also host an international conference to discuss the legal implications of increased Internet news reporting.

Iceland has historically been viewed as a country with strong protections for freedom of the press. That reputation took a hit in 2009, following the economic crisis, when it fell to ninth in the annual Worldwide Index of Freedom [press release] released by Reporters Without Borders (RWB) [advocacy website, in French]. Iceland had been ranked first in 2007 and 2008, and second in 2006 [JURIST reports].




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Switzerland parliament passes US banking treaty
Dwyer Arce on June 17, 2010 8:43 AM ET

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[JURIST] The Swiss Federal Assembly [official website] on Thursday gave final approval on an agreement [text, PDF] with the US that will allow Swiss bank UBS [corporate website; JURIST news archive] to disclose account information of clients suspected by the US government of tax evasion. The approval came at a conciliation meeting between the two houses of parliament at which the Swiss National Council [official website], the lower house of parliament, voted 81-63 [Bloomberg report] to drop its calls for a referendum [JURIST report] that would have delayed ratification of the treaty until some time in 2011. The agreement allows UBS to turn over information of 4,450 US clients to the US Internal Revenue Service (IRS) [official website] and may prevent the US Department of Justice (DOJ) [official website] from resuming a lawsuit against UBS in which it had sought the names of 52,000 UBS clients. The Swiss Federal Tax Administration [official website] has already sent the DOJ the information of 500 UBS clients [AP report] who signed waivers allowing the disclosure.

The National Council on Tuesday voted 81-61 to pass the treaty after rejecting it [JURIST report] last week. The tax conflict has already cost UBS $780 million in fines levied by the DOJ for its admitted assistance [BBC report] of US citizens in avoiding taxes. The agreement was before the parliament due to a court ruling in January, when the Swiss Federal Administrative Court [official website, in French] ruled [JURIST report] that an American taxpayer's financial information at UBS may not be disclosed to the IRS pursuant to an August 2009 agreement [JURIST report]. Also in January, the Federal Administrative Court ruled [JURIST report] that the Swiss Financial Market Supervisory Authority [official website, in German] violated the law in February 2009 when it ordered UBS to disclose information to the US on more than 250 of the bank's clients without the authority to do so. In September, the US and Switzerland signed a treaty [JURIST report] that would increase the amount of information shared between the two nations on would-be tax evaders. The agreement came one month after a Swiss banker and lawyer were indicted in US federal court [JURIST report] for helping clients hide assets. In March 2009, the Swiss announced their intention to adopt a more stringent definition [JURIST report] of tax evasion and to work with other countries to investigate such claims.




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Rights group urges Israel to end Palestine home demolitions
Erin Bock on June 17, 2010 7:12 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Wednesday issued a report [text, PDF] urging the Israeli government to stop demolishing Palestinian homes [press release] found to be constructed illegally in the Occupied Palestinian Territories (OPT) [UN official profile]. AI cited incidents over the past five years where Israeli forces demolished Palestinian homes and schools, leaving more than 600 Palestinians homeless. The demolitions are carried out on structures found to be built in violation of Israeli law, which requires building permits for all new construction. According to the report, most Palestinians are denied building permits after lengthy application and appeals processes, while Israelis have little difficulty obtaining permits. As a result, Palestinians are forced to build without official permits. According to AI, the demolitions violate the International Covenant on Economic, Social and Cultural Rights (ICESCR) [text, PDF] that guarantees a right to housing without discrimination and the Fourth Geneva Convention [text] that prohibits destruction of property without military necessity:
The right to adequate housing is an essential component of the right to a decent standard of living. When fulfilled, it can provide a foundation on which other rights are better able to be realized...Violations of the right to adequate housing...are both a symptom of the wider human rights violations to which Palestinians are subject and a barrier to their achievement of other human rights.
According to the group, the UN has unsuccessfully called for Israel to put an end to the demolition practice on many occasions and estimates that some 4,800 demolition orders are pending.

Property rights have been an invariable point of contention between Israel and Palestine. In March UN Secretary-General Ban Ki-moon [official profile] called Israeli settlement construction in the West Bank "illegal" [JURIST report]. His statement came two weeks after Israel announced the construction of 1,600 new housing units in East Jerusalem, where Palestinians hope to establish the capital of their future state. Ban voiced his support for the proposed plan of Palestinian Authority Prime Minister Salam Fayyad [BBC profile] to build the institutions of an independent state by 2011 and called for the immediate resumption of peace talks to result in an independent Palestinian state within two years. Earlier that month, the Quartet on the Middle East, a group comprising the US, European Union, UN, and Russia, dedicated to mediating the Israeli-Palestinian peace process, urged the Israeli government to "freeze all settlement activity ... and to refrain from demolitions and evictions in East Jerusalem." Israeli Prime Minister Benjamin Netanyahu [official website] responded stating that construction in East Jerusalem would not be restricted despite international criticism and pressure from the US.




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BP to set aside $20 billion in escrow to pay oil spill damage claims
Sarah Miley on June 16, 2010 3:43 PM ET

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[JURIST] US President Barack Obama [official website] announced Wednesday that BP will subsidize a $20 billion compensation fund [transcript] to indemnify the workers and business owners harmed as a result of the BP oil spill [BBC backgrounder, JURIST news archive] in the Gulf of Mexico. The announcement follows a meeting with BP chairman Carl-Henric Svanberg [professional profile] to discuss containment strategies and the timeline and resources that will be utilized to pay legitimate damage claims. Under federal law, there is a $75 million cap on on how much oil companies could be required to pay for economic damages resulting from oil spills. The newly-established escrow fund [government backgrounder] will not have a liability cap and "will provide substantial assurance that the claims people and businesses have will be honored." Washington lawyer and special master for compensation Ken Feinberg [Who Runs Gov profile] has been tapped to be the independent administrator of the oil spill escrow fund. All claims turned down by Feinberg will be adjudicated by a three-person panel. BP will pay $3 billion into the fund in the third quarter of this year and another $2 billion in the fourth quarter. BP will then continue to pay quarterly payments of $1.25 billion until the full $20 billion has been paid. BP also agreed to establish a $100 million fund to compensate unemployed oil rig workers affected by the closure of the deepwater rigs. Whether the escrow fund will cover all legitimate claims remains uncertain, as the total cost of damages resulting from the ongoing oil spill cannot yet be estimated.

The compensation fund meeting followed an announcement from Obama on Tuesday outlining the government's latest plan of action [JURIST report], which included the escrow fund, a long-term restoration plan and prevention of future disasters through stronger regulation. Obama has appointed Secretary of the Navy Ray Mabus [official website] to develop a long-term Gulf Coast Restoration Plan, which will be designed by states, local communities, tribes, fishermen, businesses, conservationists and other Gulf residents. BP will also be responsible for funding the restoration projects. Obama reiterated the prevention goals of the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling established last month [JURIST report]. The bipartisan commission members, which were announced on Monday [press release], are charged with identifying the causes of the BP oil spill and developing options to mitigate future occurrences through laws, regulations and agency reform. Obama also announced the appointment of Micheal Bromwich [press release], a former federal prosecutor and Inspector General for the Justice Department, as head of the Minerals Management Service, which has been plagued with corruption and notorious for its cozy relationship with oil companies. The president stated that "[Bromwich's] charge over the next few months is to build an organization that acts as the oil industry's watchdog - not its partner."




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UK Supreme Court rules control order violated appellant's rights
Dwyer Arce on June 16, 2010 2:50 PM ET

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[JURIST] The UK Supreme Court [official website] ruled [judgment, PDF; press summary, PDF] Wednesday that a control order [Guardian backgrounder; JURIST news archive] imposing a 16-hour curfew and requiring the appellant to live 150 miles from his family was a violation of his rights. The appellant, known only as AP, was subjected to the control order in 2008 after being suspected of involvement in terrorism. The order required him to wear an electronic tracking device, live 150 miles from his family in London and adhere to a 16-hour curfew. The solicitor for the appellant argued that the control order subjected him to social isolation, breaching his right to liberty under Article 5 of the European Convention of Human Rights (ECHR) [text]. Lawyers for the government argued that the control order was necessary to prevent the appellant from contacting terrorist organizations based in London. The government also argued that in considering the impact of the control order on the family, the court should not look at the individual circumstances of the family but should consider it on an objective standard. In siding with the appellant, Justice Simon Brown, writing for the seven-justice majority on the 12-member court, stated:
There is nothing in the Secretary of State's argument. ... In short, the judge must disregard not "the particular difficulties of the subject's family in visiting him" but rather any lack of contact resulting from the family's unreasonable failure to overcome these difficulties in order to visit him. It is not suggested here that the family behaved unreasonably in failing to overcome more effectively the practical difficulties they faced in visiting AP on a more regular basis, only that their particular difficulties should have been ignored. That submission cannot be accepted.
The case came to the court on appeal after the Court of Appeals of England and Wales [official website] had reversed the decision of a lower court. The lower court had rejected AP's EHCR Article 8 claim on the basis that the interference with family life was justified by national security considerations but found that, in conjunction with the 16-hour curfew, it constituted an EHCR Article 5 deprivation of liberty.

The appellant is an Ethiopian immigrant to the UK who was suspected of terrorist ties and not allowed to reenter the country after traveling to Somalia and Ethiopia in 2006. AP was later allowed out of detention subject to a control order issued under the Prevention of Terrorism Act of 2005 (PTA) [text], which allows the British government to conduct surveillance and impose house arrest on suspects where there does not exist enough evidence to prosecute. The orders can also be used to forbid the use of mobile phones and the Internet. The system set up under PTA has been criticized by Amnesty International (AI) [advocacy website] for what the human rights organization describes as criminal sanction without trial [press release] that is not compatible with human rights. AI has called for the repeal of the PTA and the abandonment of control orders, which it described as "fundamentally flawed." In September, then-Home Secretary Alan Johnson [BBC profile] said that the government would undertake a review [JURIST report] of the system. Johnson issued a ministerial statement [text] saying that his "current assessment is ... that the control order regime remains viable," but that he would "be keeping this assessment under review." In October 2007, the UK Law Lords ruled in a series of decisions that the government can continue to impose control orders [JURIST report] on terror suspects in lieu of detention, but said that some elements of the orders violate human rights.




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Rwanda genocide tribunal hears appeal of convicted former colonel
Drew Singer on June 16, 2010 2:07 PM ET

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[JURIST] The Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) [official website] heard arguments [press release] Wednesday in an appeal filed on behalf of former Rwandan Armed Forces Colonel Tharcisse Renzaho [case materials; Trial Watch profile]. Renzaho was sentenced to life in prison [judgment, PDF; JURIST report] last year after he was convicted of crimes relating to the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive]. Renzaho's lawyer argued [AFP report, in French] that the defense's key witnesses faced threats and intimidation while in Rwanda, which prevented Renzaho from receiving a fair trial. Renzaho wants the court to overturn his convictions and order his release or reduce his life sentence. The prosecution opposes the relief sought and is asking that the appeal be dismissed.

The ICTR continues its work to prosecute those most responsible for the Rwandan genocide, in which nearly 800,000 people, primarily Tutsis, were killed. On Tuesday, the ICTR Appeals Chamber heard arguments [JURIST report] on behalf of Emmanuel Rukundo, a priest convicted of genocide and other charges last year. In March, the ICTR Appeals Chamber affirmed [JURIST report] the genocide conviction of popular Rwandan singer-songwriter Simon Bikindi. Also in March, the Appeals Chamber reversed several convictions against Rwandan district attorney Simeon Nchamihigo including murder and extermination as crimes against humanity and three counts of genocide. Both Bikindi and Nchamihigo are being held in the UN Detention Facility in Arusha, Tanzania, pending their transfer to the countries where they will serve their sentences.




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Former mortgage company CEO indicted on TARP fraud charges
Hillary Stemple on June 16, 2010 1:17 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Wednesday announced that a grand jury has indicted [press release] the former CEO of mortgage company Taylor, Bean & Whitaker (TWB) [corporate website] on charges of fraud related to the Troubled Asset Relief Program (TARP) [materials]. The indictment alleges that Lee Farkas and his co-conspirators engaged in a USD $1.9 billion complex fraud scheme that contributed to the failure of Colonial Bank [corporate website] in order to cover financial losses suffered by TWB. The scheme involved sweeping money between accounts in order to hide existing debt. The indictment also alleges that Farkas was involved in a phony equity investment in Colonial Bank, which led the company to misrepresent its assets when applying for TARP funds. Farkas has been charged with conspiracy, bank fraud, wire fraud and securities fraud. The Securities and Exchange Commission (SEC) [official website] also filed civil charges [press release] against Farkas alleging that he sold more than $1.5 billion worth of fabricated or impaired mortgage loans and securities to Colonial Bank, which misled the public as to the quality of the bank's assets. Assistant Attorney General Lanny Breuer [official website] noted the importance of the indictment stating, "This alleged fraud scheme is an example of the damaging and destabilizing impact financial crimes can have on our nation's financial institutions. Individuals and companies that violate the law in a reckless pursuit of profits must be held accountable for their crimes." In additional to facing a potentially lengthy prison sentence, the government is also seeking to recover USD $20 million that was allegedly personally misappropriated by Farkas.

The federal government continues to investigate possible cases of fraud that may have played a role in the recent financial crisis [JURIST news archive]. In April, the DOJ announced a criminal investigation [JURIST report] of Goldman, Sachs & Co. [corporate website] for possible securities fraud in mortgage trading. Also in April, the SEC filed a civil suit [JURIST report] against Goldman alleging securities fraud. Last year, two former Bear Stearns hedge fund managers were acquitted [JURIST report] of securities-related charges. The June 2008 SEC complaint [text, PDF] alleged that the managers had taken leveraged positions in financial derivatives based on subprime mortgage-based assets and then taken steps to conceal ensuing losses from investors.




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Two Sudan war crimes suspects voluntarily surrender to ICC
Hillary Stemple on June 16, 2010 11:40 AM ET

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[JURIST] Two Sudanese men suspected of committing war crimes related to the ongoing violence in the Darfur [JURIST news archive] region of Sudan surrendered [press release] Wednesday to the International Criminal Court (ICC) [official website]. Abdallah Banda Abakaer Nourain (Banda) and Saleh Mohammed Jerbo Jamus (Jerbo) are suspected in connection with the September 2007 attack on African Union (AU) [official website] peacekeeping troops at Haskanita [BBC backgrounder], which resulted in the death of 12 peacekeepers. Summonses for Banda and Jerbo [text, PDF] were issued under seal by Pre-Trial Chamber I last August and include charges of murder, intentionally attacking a peacekeeping mission, and "pillaging." ICC Chief Prosecutor Luis Moreno-Ocampo [official website] praised the voluntary appearance [press release] of the men saying, "It shows the importance of co-operation by all parties to the conflict, as required by United Nations Security Council Resolution 1593 [text, PDF]." Ocampo also indicated that the appearance of the men means that the ICC will have the chance to prosecute all suspects they wished to prosecute in connection with the Haskanita attack. A third rebel leader, Bahar Idriss Abu Garda, was charged by the ICC earlier this year [case materials] in connection with the attack, but the charges were dropped [JURIST report] due to lack of evidence. Banda and Jerbo are scheduled to make their first appearance before the court tomorrow.

Last week, Ocampo called on the UN Security Council [official website] to support the arrest [statement, PDF; JURIST report] of two other Sudanese men who have been indicted for war crimes in Sudan. Ocampo urged the Security Council to secure the execution of the outstanding arrest warrants for Ahmad Harun and Ali Kushayb [Trial Watch profiles; case materials] in light of the fact that the Sudanese government, which bears the primary responsibility to do so, has not. The ICC issued arrest warrants [JURIST report] for Harun and Kushayb in 2007 on 51 counts of crimes against humanity and war crimes. Kushayb was apprehended and held pending trial, but he appealed [JURIST reports] and was released by the Sudanese government later that year when the government announced that the ICC did not have jurisdiction over Sudanese citizens. Last month, Ocampo referred Sudan to the Security Council [JURIST report] for lack of cooperation in the pursuit of Harun and Kushayb. Sudan, which is not a permanent member of the ICC under the Rome Statute [text], refuses to recognize the court's jurisdiction, stating that "the International Criminal Court has no place in this crisis at all."




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UK prosecutors considering charges over 'Bloody Sunday' deaths
Sarah Miley on June 16, 2010 11:20 AM ET

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[JURIST] The Public Prosecution Service (PPS) for Northern Ireland announced Tuesday that it is considering whether to file charges [press release, PDF] against the British soldiers responsible for civilian casualties in the 1972 Bloody Sunday [BBC backgrounder] attack in Londonderry. The Bloody Sunday Inquiry [official website] released a report [text] of a 12-year investigation on Tuesday calling the soldiers' actions "unjustified and unjustifiable." The report raises the possibility of criminal prosecutions for offenses ranging from perjury to murder. The PPS stated that it would consult with the UK Crown Prosecution Service [official website] to determine the scope of jurisdiction [press release, PDF] in regard to any possible offenses that may arise. Critics hold that the prosecution of the soldiers is a divergence from the Good Friday Agreement of 1998 [government backgrounder], which set up democratic and peaceful means of resolving differences between Britain and Ireland. The agreement resulted in the release of numerous Irish Republican Army [Global Security backgrounder] militants guilty of similar crimes as those committed by the British soldiers in Northern Ireland. The PPS did not give a date for determination of the soldier's prosecution, but stated that the "matter will be considered as expeditiously as possible."

The Bloody Sunday inquiry was launched in 1998 by former prime minister Tony Blair [Guardian backgrounder] in response to pressure from the victims' families. The final report concluded [JURIST report] that British soldiers fired upon unarmed civilians without warning during an illegal civil rights march in Londonderry. The inquiry also found that the soldiers continued to shoot the civilians as they were fleeing the gunfire. The military unit originally held that they were aiming at armed individuals who were allegedly IRA militants, but the investigation concluded that no soldiers suffered injuries from returned fire. The onslaught killed 13 civilians and wounded 15. UK Prime Minister David Cameron [official website] apologized [transcript] for the soldiers' malfeasance stating that although the atrocity happened almost 40 years ago, the victims and their families still deserved an apology from the current government for the mistakes of those in the past. The victims' families requested the investigation in order for their loved ones to be exonerated from being labeled IRA bombers and gunmen and to hold the British contingent responsible for the unjustified killings. The Bloody Sunday inquiry is the longest and most expensive public investigation [JURIST report] in British legal history.




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ICTR calls for release of US lawyer in Rwandan custody
Dwyer Arce on June 16, 2010 10:54 AM ET

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[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website] on Tuesday called for the release of US lawyer and JURIST Forum [website] contributor Peter Erlinder [professional profile; JURIST news archive] in a letter [text] to Rwanda authorities. Acting on the advice of the UN Office of Legal Affairs [official website], the ICTR asserted in the letter that Erlinder has immunity from prosecution under the Convention on Privileges and Immunities of the United Nations [text, PDF], a treaty that Rwanda to which is a party that prevents legal action of any kind against UN employees working in an official capacity. Despite assurances to the contrary by Rwandan Prosecutor General Martin Ngoga [New Times profile], the letter points to the arguments made at Erlinder's June 7 bail hearing [JURIST report], as evidence that the genocide denial charges against him are related to his work as defense counsel at the ICTR, stating:
The ICTR notes that the Prosecution appearing before the High Court made specific references to words Professor Erlinder spoke and statements he made in his case before the ICTR. ... Although no formal copy of the charges brought against Professor Erlinder has been received yet, the ICTR takes the view that the decision of the High Court constitutes a sufficient basis to identify a link between the nature of the accusations against Professor Erlinder and his mandate with the Tribunal.
Erlinder has appealed the decision at the bail hearing, where the court found him to be a flight risk and denied bail despite his claim that he needed to return to the US for medical treatment following what Rwandan officials say was a suicide attempt [JURIST report]. The appeal hearing is scheduled for Thursday. On Monday, US Secretary of State Hillary Clinton [official website] stated that the Obama administration had expressed concern [statement] to the Rwandan government over Erlinder's detention and the prosecution of opposition candidates but emphasized the US government's continued support for the Rwandan government.

Last week, US Representatives Betty McCollum (D-MN) and Keith Ellison (D-MN) [official websites] introduced a resolution [JURIST report] calling on the Rwandan government to release Erlinder in order to "prevent ... an impasse in relations" between the US and Rwanda. The resolution emphasizes the amount of aid that has been given to the Rwandan government by the US, which is to be increased by 43 percent in the 2011 budget [materials] and has amounted to over a billion dollars since 2000. The resolution has been referred to the Committee on Foreign Affairs of the House of Representatives [official websites] for consideration. The resolution came a day after a joint statement [JURIST report] calling for Erlinder's release was issued by more than 30 defense lawyers from the ICTR. The statement described the arrest as indicating a growing threat to the country's legal system. The defense lawyers contend that Erlinder's arrest and subsequent denial of bail "seriously compromised" the ICTR's mission by undermining the independence of lawyers and preventing them from performing their duties without fear of suffering reprisals. Rwandan police arrested Erlinder [JURIST report] last month on charges that he denied the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive]. Erlinder was in Rwanda to prepare his defense of opposition presidential candidate Victoire Ingabire Umuhoza [campaign website], who was arrested in April [JURIST report] on similar charges. Erlinder has pleaded not guilty [JURIST report].




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Deputy AG nominee criticized on Obama administration terrorism approach
Hillary Stemple on June 16, 2010 9:50 AM ET

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[JURIST] The US Senate Judiciary Committee [official website] on Tuesday held a hearing [materials; video] to consider the nomination [JURIST report] of James Cole [nomination materials] for deputy attorney general. Republican members of the committee used the hearing to offer criticism of the Obama administration's approach to fighting terrorism [JURIST news archive] and to question the commitment of the Department of Justice (DOJ) [official website] to using all tools necessary to prevent future terrorist attacks. Jeff Sessions (R-AL) [official website], the ranking Republican on the committee, questioned Cole's qualifications to serve as deputy attorney general, citing an op-ed written by Cole [text, PDF] following the 9/11 terrorist attacks [JURIST news archive] in which Cole referred to the attacks as a criminal act and indicated that the attorney general's job was to prosecute crimes, not act as part of the military. Sessions condemned this philosophy, which he viewed as rejecting the use of military tribunals to try terrorist suspects. He also questioned Cole's position on reading terrorist suspects their Miranda rights. Sessions indicated he thought Cole's nomination provided troubling insight into the current DOJ's view on terror, calling the approach, "an adherence to the failed 9/11 enforcement approach to Islamic terrorism that focused on indictments rather than intelligence and individual suspects rather than the individual terrorist networks." He also called on the DOJ to "reject this blind adherence to the pre-9/11 criminal law mindset." Witnesses supporting Cole's appointment maintained that his views have been validated by US Supreme Court [official website; JURIST news archive] rulings in Hamdan v. Rumsfeld and Boumediene v. Bush [JURIST reports].

US Attorney General Eric Holder [official website] and the DOJ have been heavily criticized by Republicans for the decision to try certain terror suspects in federal court and because of two-high profile terror cases where the suspects were given their Miranda warnings [JURIST report]. Last month, lawmakers introduced a bill [JURIST report] that, if passed, would strip US citizenship rights from those suspected of engaging in terrorism in order to prevent the warnings from being given in the future. In February, Holder defended his decision [JURIST report] to try the so-called "Christmas Day Bomber", Umar Farouk Abdulmutallab [BBC profile; JURIST news archive], in federal court. A week later, Holder indicated that he would be open to a more "flexible" approach [JURIST report] when considering whether to try terrorism suspects in civilian or military courts.




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Obama to create BP oil spill compensation fund, increase industry regulation
Sarah Miley on June 16, 2010 9:08 AM ET

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[JURIST] US President Barack Obama [official website] on Tuesday announced the latest plan of action [transcript] for tackling the BP oil spill [BBC backgrounder, JURIST news archive], including the development of a compensation fund, a long-term restoration plan and prevention of future disasters through stronger regulation. Obama will meet with BP chairman Carl-Henric Svanberg [professional profile] on Wednesday to discuss the establishment of a compensation fund that will be subsidized by BP to indemnify the workers and business owners harmed as a result of the oil spill. In order to ensure that all legitimate claims are paid out in a fair and timely manner, the fund will be administered by a third party. Obama has also appointed Secretary of the Navy Ray Mabus [official website] to develop a long-term Gulf Coast Restoration Plan, which will be designed by states, local communities, tribes, fishermen, businesses, conservationists and other Gulf residents. BP will also be responsible for funding the restoration projects. Obama reiterated the prevention goals of the National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling established last month [JURIST report]. The bipartisan commission members, which were announced on Monday [press release], are charged with identifying the causes of the BP oil spill and developing options to mitigate future occurrences through laws, regulations and agency reform. Obama also announced the appointment of Micheal Bromwich [press release], a former federal prosecutor and Inspector General for the Justice Department, as head of the Minerals Management Service, which has been plagued with corruption and notorious for its cozy relationship with oil companies. The president stated that "[Bromwich's] charge over the next few months is to build an organization that acts as the oil industry's watchdog - not its partner." Obama closed his speech from the Oval Office by reiterating his commitment to tackle the crisis created by the oil spill.

The federal government continues examining its options for dealing with the oil spill and future drilling regulations. Last week, Obama called for new oil pollution laws [statement; JURIST report], emphasizing the need to need to update the Oil Pollution Act of 1990 [materials], a piece of legislation that was passed in the aftermath of the Exxon Valdez oil spill [backgrounder]. Obama also called on Congress to pass energy reform legislation, several versions of which have been introduced [JURIST report] in recent months. Earlier this month, US Attorney General Eric Holder [official website] announced that the Department of Justice [official website] would be reviewing whether any criminal or civil laws were violated by BP [JURIST report]. Holder cited several statutes being examined by government lawyers including the Clean Water Act [materials] and the Oil Pollution Act. Obama held a press conference in May to announce new regulations to mitigate future oil spills [JURIST report] and the current plan of action for resolving the crisis created by the ongoing spill in the Gulf of Mexico. The government suspended several offshore drilling activities including exploration of platform locations in Alaska, pending lease sales in the Gulf and Virginia, and the drilling of 33 deepwater exploratory wells in the Gulf. The government also suspended the issuance of new permits to drill deepwater wells for six months. The White House is keeping a daily chronology of events [text].




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Rights group urges Iraqi Kurdistan to end female genital mutilation
Dwyer Arce on June 16, 2010 9:00 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] called on the government of Iraqi Kurdistan to outlaw female genital mutilation (FGM) [WHO backgrounder] in a report [materials; press release] published Wednesday. The report, "They Took Me and Told Me Nothing," calls on the Kurdistan Regional Government (KRG) [official website] to develop a comprehensive legislative plan to reduce FGM in the region and to ensure that it is enforced and in compliance with all international anti-discrimination treaties that are binding upon the KRG. According to the report, the comprehensive strategy should include a ban on performing FGM on children and non-consenting adults and programs to raise awareness of the negative impact of the practice. HRW also urged the Iraqi government to work with the KRG to develop an anti-FGM policy and provide medical and social support to the victims of the practice. HRW emphasized the complexity of ending FGM in a society due to the status of the practice in the cultures that practice it and the belief among some practitioners that it is a requirement of Islam. HRW stated:
FGM poses a difficult challenge for the government and people of Iraqi Kurdistan. It is a complex issue to address, its eradication requiring strong leadership from the authorities and partnerships across the political spectrum and with religious leaders, nongovernmental organizations, and communities to bring about social change. First and foremost, it requires Iraqi Kurds in positions of leadership and influence to recognize and accept that FGM is a problem, one that can be addressed through concerted action that will reinforce Iraqi Kurdistan's reputation as a society committed to the protection of the rights of women and children, and a society in which Muslims practice their faith without FGM, as is the case with the majority of Muslims across the world.
According to the report, 57 percent of women in Iraqi Kurdistan have had some form of FGM performed on them, a practice that is recognized as a form of violence against women. The report went on to encourage the KRG to uphold its history of protecting and promoting women's rights, including outlawing reduced sentencing for honor killings [AI backgrounder] and a requirement that 30 percent of the Kurdistan Parliament [official website, in Persian] be women.

As many as 140 million women and girls worldwide have undergone some form of FGM, which is defined by the World Health Organization (WHO) [official website] as "all procedures involving partial or total removal of the external female genitalia or injury to the female genital organs for nonmedical reasons." The KRG has taken steps in the past to reduce FGM. In 2008, a majority of the members of the Kurdistan Parliament supported the introduction of legislation banning the practice, although the legislation was not pursued. In 2007, the KRG Justice Ministry [official website] issued a decree ordering police to charge those found practicing FGM, but this was never enforced. Iraqi Kurdistan is one of the few regions in the Middle East where FGM is practiced, along with some communities in Yemen. The practice of FGM is most common on the African continent, where a 2005 UNICEF report [text, PDF] found near universal prevalence in countries such as Egypt, Sudan, Ethiopia and Mali, and lower rates in surrounding nations. In December, Uganda's parliament voted to outlaw the practice [JURIST report].




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Law school deans support Kagan as 'superbly qualified' Supreme Court nominee
Erin Bock on June 16, 2010 8:15 AM ET

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[JURIST] A group of 69 current and former law school deans have expressed their support for US Supreme Court [official website] nominee Elena Kagan [official profile; JURIST news archive], describing her as "superbly qualified" in a letter [text, PDF] released Tuesday. The June 7 letter, addressed to Senate Judiciary Committee [official website] chair Patrick Leahy (D-VT) and ranking member Jeff Sessions (R-AL) [official websites], was authored by Stanford Law School [academic website] Dean Larry Kramer [professional profile] and represented the views of deans from a diverse group of schools in a variety of states. The group cited Kagan's academic accomplishments, including the qualities she exhibited as former dean of Harvard Law School [official website], to bolster their recommendation:
Elena Kagan has, over the course of her career, consistently exhibited patience, a willingness to listen, and an ability to lead, alongside enormous intelligence. The same qualities that enabled her to unify what some described as a fractious campus will serve the nation, and the Constitution, well ... She will inspire those around her to pursue law and justice in a way that makes us proud.
The deans said their professional positions put them at a "unique vantage point" to speak on Kagan's behalf. Three deans reiterated their support [CNN report] during a telephone conference organized by the White House on Tuesday afternoon.

Kagan's nomination has not been without controversy. Last week, the Clinton Presidential Library released more than 40,000 pages of memos [AP report] written by Kagan during her time as legal counsel to the Clinton administration and as a law clerk to Justice Thurgood Marshall. The memos fueled conservatives' fears that Kagan may be too liberal [AP report]. Some of the memos outlined policy arguments regarding issues such as abortion, assisted suicide and religious freedom. The Senate Judiciary Committee is concerned that more pertinent documents will not be released in time for Kagan's hearings, which are scheduled to begin on June 28 [JURIST report]. Critics also worry that having another graduate from an Ivy League law school on the bench will foster elitism [JURIST op-ed]. President Barack Obama nominated Kagan [JURIST report] in May to replace Justice John Paul Stevens [official profile; JURIST news archive], who announced his retirement [JURIST report] in April. Kagan became the first woman confirmed as Solicitor General [JURIST report] in 2009.




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Rwanda genocide tribunal hears appeal of convicted former priest
Christian Ehret on June 16, 2010 7:05 AM ET

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[JURIST] The Appeals Chamber of the International Criminal Tribunal for Rwanda (ICTR) [official website] heard arguments [press release] Tuesday on behalf of Emmanuel Rukundo [case materials; church website], a priest convicted of genocide [JURIST report] and other charges last year. The appellate chamber also heard arguments from the prosecution, which is seeking to increase the 25-year sentence to life imprisonment. Rukundo's arguments are based on his contention that the Trial Chamber erred both factually and legally in reaching a conviction. The Trial Chamber originally found that Rukundo, while serving as a military chaplain and captain in the Rwandan Armed Forces, used his position as a priest to influence troops to abduct and kill Tutsi refugees who were hiding in the Saint Leon Seminary during the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive].

The ICTR continues it work to prosecute those most responsible for the Rwandan genocide, in which nearly 800,000 people, primarily Tutsis, were killed. In March, the ICTR Appeals Chamber affirmed [JURIST report] the genocide conviction of popular Rwandan singer-songwriter Simon Bikindi. Also in March, the Appeals Chamber reversed several convictions against Rwandan district attorney Simeon Nchamihigo including murder and extermination as crimes against humanity and three counts of genocide. Both Bikindi and Nchamihigo are being held in the UN Detention Facility in Arusha, Tanzania, pending their transfer to the countries where they will serve their sentences.




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Ethiopia opposition parties files suit against electoral board
Hillary Stemple on June 15, 2010 4:43 PM ET

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[JURIST] Ethiopian opposition parties on Tuesday filed suit against the National Electoral Board (NEB) [official website] alleging that parties' complaints regarding last month's elections were handled in an irregular manner. The parties allege they submitted 87 pages of evidence [Reuters report] showing irregularities related to the election but were never questioned by the NEB regarding the allegations. The allegations included intimidation of opposition supporters and voter fraud. During last month's election, the ruling Ethiopian People's Revolutionary Democratic Front (EPRDF) [party website] and their supporters won 545 seats out of 547, with opposition parties picking up the final two seats. The overwhelming win ensured that the EPRDF, and incumbent Prime Minister Meles Zenawi [BBC profile], would remain in power for another five years. Both the US and EU criticized the results following the election. The US State Department (DOS) [official website] noted that Ethiopian election laws heavily favor the party in power [press briefing] and that Ethiopia must take direct, concrete steps to further democracy if its relationship with the US is to progress. An EU spokesman stated that the election process failed to meet international standards [BBC report] and that the ruling party clearly had an advantage in the election process.

The 2005 Ethiopian elections were also marred by allegations of fraud, which led to violent demonstrations [JURIST reports]. The NEB ordered new elections [JURIST report] in 20 districts after an investigation into the fraud allegations found evidence of abuse at more than 100 polling stations. Several Ethiopian opposition members were convicted and sentenced for their roles in the protests, although many asked for and eventually received pardons [JURIST reports]. Human Rights Watch (HRW) [advocacy website] has chided the Ethiopian government for rights abuses in both elections. Following Tuesday's election, HRW reported on the intimidation tactics [press release] used by the EPRDF in the days preceding the election.




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Spain to include burqa ban in religious freedom bill
Drew Singer on June 15, 2010 3:34 PM ET

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[JURIST] Spanish Justice Minister Francisco Caamano [official profile, in Spanish] said Tuesday that the Spanish government plans to introduce legislation to ban the Islamic burqa [JURIST news archive] in public places. The measure will be included in Spain's Religious Freedom Bill, which would also prohibit religious symbols, such as crucifixes, in state-owned buildings. Caamano said that the reasons for the impending ban are twofold [AFP report]. The government holds that burqas impede identification in public places and that the ban is necessary to ensure public safety and security. Additionally, Caamano stated that burqas are not "compatible" with human dignity and that the government has the responsibility to protect women from being degraded. Caamano's statement comes one day after the Barcelona city council [official website, in Catalan] passed a ban on face coverings in all public places [JURIST report]. Barcelona Mayor Jordi Hereu indicated that the ban was put in place out of a concern for public safety, and was not aimed at any particular religious group. Barcelona is the first major city in Spain to ban face coverings in municipal areas, although several smaller cities have already imposed or are considering similar restrictions.

Many jurisdictions continue to consider legislation banning the burqa. Last month, Australian state lawmakers voted to end debate [JURIST report] on a bill that would have banned the wearing of the burqa or other face veils in public. Also last month, the French Cabinet approved legislation [JURIST report] that would ban the wearing of the burqa or other face veils in public. The same week the French Cabinet voted, hearings began [CBC report] in Quebec's legislature on a bill introduced in March that would ban women from wearing full face veils from public services. Earlier last month, European Parliament [official website] Vice President Silvana Koch-Mehrin [official website, in German] expressed her support for a continent-wide burqa ban [JURIST report]. In April, the Belgian House of Representatives voted 136-0 to approve [JURIST report] a bill that would ban the burqa and other full face veils in public.




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Germany court recognizes foreign same-sex marriage as civil union
Dwyer Arce on June 15, 2010 3:00 PM ET

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[JURIST] A German court on Tuesday ruled that a same-sex marriage [JURIST news archive] performed abroad must be recognized as a registered partnership in Germany. An administrative court in Berlin held that the marriage must be treated legally as a registered partnership [AFP report], after finding that authorities could not recognize the relationship as a marriage due to the requirement of different sexes for marriage under German law. The case came to the court after Andreas Boettcher was listed as single on his registration card. He initiated the case in order to compel local authorities to recognize his four-year-old Canadian marriage. Boettcher expressed disappointment [AP report] with the outcome, but has stated that he will not seek to have it overturned. Germany has recognized registered partnerships between same-sex couples, a legal relationship that offers the same benefits of marriage excepting tax benefits and joint adoption rights, since 2001.

In March, the Berlin government, sought to introduce legislation [DK report, in German] in the Bundesrat [official website, in German] that would legalize same-sex marriage nationwide. In October, Germany's Constitutional Court [official website, in German] ruled that surviving partners in a registered civil partnership have a right to collect [JURIST report] under the occupational pension scheme for civil service employees. Last week, the Icelandic Althingi [official website, in Icelandic] unanimously passed legislation [JURIST report] legalizing same-sex marriage. In May, Portuguese President Anibal Cavaco Silva [official website, in Portuguese] signed a bill [JURIST report] that legalizes same-sex marriage but stops short of allowing same-sex couples to adopt. Same-sex marriage is also recognized in Belgium, the Netherlands, Spain, Sweden and Norway [JURIST reports], while several other countries, including the UK and France, recognize civil unions between same-sex partners. Same-sex marriage has also been recognized nationwide in Canada and South Africa, and in jurisdictions in Mexico and the US [JURIST reports].




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Kosovo advisory group urges increased effort to fight corruption
Sarah Miley on June 15, 2010 2:21 PM ET

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[JURIST] The International Steering Group for Kosovo (ISG) [official website] urged the nation to strengthen its efforts in fighting organized crime and corruption, following a meeting [press release, in Albanian] with Kosovo President Fatmir Sejdiu [official website] and Prime Minister Hashim Thaci [BBC profile], according to local media [Gazeta Express report, in Albanian]. The ISG is made up of 25 countries that have recognized Kosovo's unilateral proclamation of independence and was set up to oversee Kosovo's independence from Serbia in 2008. The announcement follows a report [text, PDF] released by the EU Rule of Law Mission (EULEX) [official website] highlighting the progress Kosovo's judiciary system has made and the challenges it still faces. ISG and EULEX both praised Kosovo's establishment of an anti-corruption task force in the Office of the Special Prosecutor of Kosovo but stated that Kosovo must strengthen cooperation and coordination between prosecutors and Kosovo Police, as well as between prosecution offices and courts. The ISG stated that development in these areas could garner more international support for Kosovo during a time when the nation's independence is not yet solidified.

Serbia opposes Kosovo's independence and has asked the International Court of Justice (ICJ) [official website] to render an advisory opinion [JURIST report] on the secession's legality. Oral arguments [JURIST report] on the advisory opinion began in December. The advisory proceedings will include arguments from 29 additional countries, including the five member-states of the UN Security Council [official website], debating whether Kosovo's unilaterally proclaimed secession complied with international law. Serbia argues that UN Resolution 1244 [text, PDF], which ended the war in Kosovo, solidified the country's boundaries, which included the southern region of Kosovo. Kosovo argues that the resolution was not meant to exclude the opportunity for secession. While Serbia is backed by the majority of UN countries, including Russia, Kosovo has the support of the US and most EU countries. The outcome of these proceedings is nonbinding but will be closely watched by countries with large breakaway regions. The reintegration of Kosovo is an unlikely outcome, but Serbian President Boris Tadic believes that these proceedings create a platform for a discussion on the overlying issue of fragmentation [BBC backgrounder] in the Balkans. The ICJ is expected to reveal its non-binding opinion in July.




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UN announces $9.3 million in donations to fund piracy courts
Hillary Stemple on June 15, 2010 1:40 PM ET

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[JURIST] A spokesperson for the UN Office on Drugs and Crime (UNODC) piracy division [official website] announced Tuesday that donors will spend more than USD $9.3 million to fund courts in Kenya and Seychelles that prosecute suspected Somali pirates [JURIST news archive]. The Kenyan government announced in April that it would no longer accept [JURIST report] Somali pirate cases due to its overburdened legal system and the lack of support that had been promised by the international community. Kenya resumed the adjudication of the piracy cases in May after being reassured it would receive additional support. The UNODC announced in May that Seychelles would create [JURIST report] a UN-supported center to prosecute suspected pirates. The donations will be used to fund the transportation of witnesses [AP report] and upgrade the courts and prisons in Kenya and Seychelles. Kenya has convicted and sentenced 18 pirates with another 123 suspects awaiting trial. In March, Seychelles began the trial [AFP report] of 11 accused pirates captured last year after amending its criminal code to resemble international standards.

The international community is supporting actions taken against maritime piracy. In April, the UN Security Council approved a resolution [JURIST report] calling on member states to criminalize piracy under their domestic laws and urging Secretary-General Ban Ki-moon [official website] to consider an international tribunal for prosecuting piracy. The Security Council resolution came the same week the UN announced that a trust fund established to combat piracy will be funding five projects [UN News Centre report] aimed at piracy committed in the waters around Somalia. The US is also involved in the prosecution of pirates. In May, nine Somali men accused of piracy and other charges by federal prosecutors pleaded not guilty [JURIST report] at their arraignment. Trials for the accused pirates are scheduled for July but may be delayed until September.




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UK 'Bloody Sunday' inquiry concludes casualties were unjustified
Sarah Miley on June 15, 2010 1:33 PM ET

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[JURIST] The UK Bloody Sunday Inquiry [official website] released a report [text] Tuesday concluding that casualties resulting from a 1972 attack on Northern Ireland civilians by British forces were unjustified. The inquiry was launched in 1998 by former prime minister Tony Blair [Guardian backgrounder] in response to pressure from the victims' families. The report concluded that British soldiers fired upon unarmed civilians without warning during an illegal civil rights march in Londonderry. The inquiry also found that the soldiers continued to shoot the civilians as they were fleeing the gunfire. The military unit originally held that they were aiming at armed individuals who were allegedly Irish Republican Army [Global Security backgrounder] militants, but the investigation concluded that no soldiers suffered injuries from returned fire. The onslaught killed 13 civilians and wounded 15. UK Prime Minister David Cameron [official website] apologized [transcript] for the soldiers' malfeasance stating that although the atrocity happened almost 40 years ago, the victims and their families still deserved an apology from the current government for the mistakes of those in the past:
I am deeply patriotic. I never want to believe anything bad about our country. I never want to call into question the behavior of our soldiers and our Army who I believe to be the finest in the world. And I have seen for myself the very difficult and dangerous circumstances in which we ask our soldiers to serve. But the conclusions of this report are absolutely clear. There is no doubt. There is nothing equivocal. There are no ambiguities. What happened on Bloody Sunday was both unjustified and unjustifiable. It was wrong. ... Some members of our Armed Forces acted wrongly. The Government is ultimately responsible for the conduct of the Armed Forces. And for that, on behalf of the Government - and indeed our country - I am deeply sorry.
The victims' families requested the investigation in order for their loved ones to be exonerated from being labeled IRA bombers and gunmen and to hold the British contingent responsible for the unjustified killings.

The Bloody Sunday inquiry is the longest and most expensive public investigation in British legal history. The government deposed more than 900 witnesses [JURIST report] in 432 days of testimony and took more than 1,500 written statements. The soldiers held responsible for the killings attempted to take action against the inquiry in 2004, arguing against the use of any standard below the criminal standard of proof because of the potential consequences facing them. Inquiry Chairman Lord Saville of Newdigate determined that the tribunal would not use a criminal standard of proof [JURIST report] to find if a soldier shot anyone without justification because the tribunal was merely investigating the circumstances surrounding the deaths and issuing a report. The investigation came to fruition after the Irish government in 1997 produced new evidence that cast doubts on the conduct of the original tribunal established at the time of the incident, which labeled the victims as bombers and gunmen.




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Turkish court begins trial in Ergenekon coup plot
Dwyer Arce on June 15, 2010 12:10 PM ET

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[JURIST] A Turkish criminal court on Tuesday began the trial of 33 retired and active naval officers accused of attempting to overthrow the government and establish military rule. The accused are before the Istanbul 12th High Criminal Court for their connection to a group called Ergenekon [BBC backgrounder; JURIST news archive], which allegedly planned to assassinate prominent members of Turkey's Christian and Jewish minority groups, blame Islamic terrorists for the deaths and use this to delegitimize the ruling Justice and Development Party (AKP) [party website]. Prosecutors in the case will attempt to link [BBC report] the 33 defendants to a plan to detonate a bomb in an Istanbul museum and the deaths of a Catholic priest, Protestant missionaries and journalist Hrant Dink. Dink was the editor-in-chief of the Armenian daily Agos [media website, in Turkish], which the court announced as a party [Hurriyet report] to the case Tuesday. The defense has argued that the court lacks jurisdiction, requiring the case to be transferred to a military court. If convicted, the defendants could face sentences ranging between seven-and-a-half and 15 years in prison. The investigation has strained relations between the religiously-inclined government and the secular military, which has been responsible for four coups in the last fifty years. Since the founding of the modern republic in 1923, the military has regarded itself as the defender [Guardian report] of the secular legacy of founder Mustafa Kemal Ataturk [Turkish News profile].

In March, the Turkish government indicted the 33 defendants [JURIST report] on charges of attempting to overthrow the government and establish military rule. Earlier that week, Turkish police detained 20 people [JURIST report] in connection with the Ergenekon plot. Turkish prosecutors recently charged [JURIST report] an army general and a state prosecutor with belonging to Ergenekon and plotting to overthrow the AKP. In February, more than 40 military officers were arrested and charged in a separate coup attempt [JURIST report], the so-called Sledgehammer plot [Al Jazeera backgrounder], to provoke a military confrontation with Greece and take advantage of the ensuing chaos. The Ergenekon investigation has been criticized as an attempt by the AKP to silence the opposition and impose Islamic principles [JURIST report] on secular Turkey. Trials against the Ergenekon group started [JURIST report] two years ago and nearly 200 people have been charged in connection with it. The prosecution of military officials comes amid a larger effort by the AKP to reform the Turkish legal system as a step toward EU accession [materials; CFR backgrounder]. Last month, Turkey's opposition Republican People's Party [party website, in Turkish] filed suit [JURIST report] in the country's Constitutional Court [official website, in Turkish] in an effort to halt proposed constitutional amendments that would reform the judiciary allowing military and government officials to be tried in civilian court.




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Thailand court charges 11 red shirt protest leaders with terrorism
Hillary Stemple on June 15, 2010 12:01 PM ET

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[JURIST] A Thai court on Tuesday charged 11 protest leaders with terrorism in connection with Thailand's latest round of political violence [JURIST news archive], denying them bail. The men held leadership positions in the United Front for Democracy Against Dictatorship [party website, in Thai] opposition group known as red shirts [BBC backgrounder] that conducted anti-government protests spanning from March 12 to May 19. In issuing the order, the court indicated that the men posed a flight risk [Bangkok Post report] and that the severity of the charges played a role in its decision. Also Tuesday, the Thai government indicated it will study the possibility of extending amnesty [TNA report] to red shirt protesters convicted of minor offenses in order to facilitate reconciliation within the country. The offer of amnesty would not be given to the protesters charged with terrorism but could be extended to the 27 red shirt protesters who were sentenced to six months in prison [JURIST report] for violating the emergency decree prohibiting political gatherings of more than five people. The men charged with terrorism could face the death penalty if they are found guilty. Thailand remains under an emergency decree instituted in April [JURIST report] due to suspicion that red shirt protesters are planning additional rallies.

The protests came to an end [JURIST report] last month when red shirt leaders surrendered to police, which led to rioting, arson and the imposition of a curfew to protect citizens of Bangkok and its surrounding areas. The red shirts are supporters of ousted prime minister Thaksin Shinawatra [BBC profile; JURIST news archive], who was removed from power in 2006 [JURIST report]. The group was demanding that Prime Minister Abhisit Vejjajiva [official website, in Thai] dissolve parliament and call new elections. Human Rights Watch (HRW) [advocacy website] has expressed concern about the treatment of anti-government protesters [JURIST report] detained as a result of the protests, criticizing the broad powers given to Thai security forces under the emergency decree. Abhisit has promised to conduct an independent investigation [JURIST report] into the clashes between security forces and red shirt protesters, which resulted in more than 80 deaths.




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Kenya MPs arrested for hate speech during campaign against new constitution
Dwyer Arce on June 15, 2010 10:45 AM ET

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[JURIST] Three members of the Kenyan Parliament [official website] were arrested Monday after being accused of hate speech in statements made against Kenya's proposed constitution [text, PDF]. The three parliamentarians were among six that were accused [BBC report] of hate speech Monday, including Assistant Minister for Roads Wilfred Machage and Minister of Higher Education William Ruto [official profiles], for statements made last week during the campaign leading up to the August 4 constitutional referendum, which were described as bordering on incitement [Daily Nation report]. Among the statements made are those claiming that residents of the Rift Valley, an epicenter of post-2007 election violence [NYT report], will be uprooted and that there will be a war between Muslims and Christians if the new constitution goes into effect. The parliamentarians have denied the accusations, claiming that they are politically motivated due to their opposition to the constitution, which is supported by the government. They are scheduled to be formally charged Wednesday. Also Monday, the chairman of the National Cohesion and Integration Commission, created after the 2007 election violence [allAfrica report] requested that the referendum campaign be postponed in order to avoid the outbreak of violence. On Sunday, six were killed [JURIST report] at a prayer meeting organized by the campaign against the new constitution in an attack that the organizers have accused the government of orchestrating. The proposed constitution faces criticism from Kenyan religious figures who oppose the draft's position on abortion [Daily Nation report], marriage and divorce. Kenyan Christian groups also oppose the proposed constitution because it would reinstate the system of Islamic courts found unconstitutional [JURIST report] under the current constitution.

Earlier last month, Wako published the country's draft constitution [JURIST report], which proposes more balance of power in the government. President Mwai Kibaki and Prime Minister Raila Odinga [official profiles] supported the proposed constitution [Daily Nation report] and have urged citizens to approve it in the public referendum. The draft includes several significant checks on presidential authority, including a requirement that presidential appointees face parliamentary confirmation and the removal of presidential appointment of judges. Members of Parliament receiving Cabinet positions will also have to relinquish their legislative seats. The changes are intended to address issues that led to violence following the 2007 presidential elections [JURIST news archive] where tens of thousands of protesters took to Kenya's streets accusing Kibaki of election fraud after early opinion polls suggested rival Odinga was in the lead.




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Serbia court upholds sentences of 3 militants in 1999 Kosovo deaths
Sarah Miley on June 15, 2010 10:40 AM ET

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[JURIST] A Serbian appeals court on Tuesday upheld the conviction and sentences of three members of Serbia's "Scorpion" paramilitary group for the death of 14 civilians in March 1999 during the 1998-1999 Kosovo war [BBC backgrounder; JURIST news archive]. The court demanded a retrial for a fourth member of the paramilitary unit [AP report], holding that his conviction had been unlawfully based on testimony by a protected witness. The men were originally convicted [JURIST report] in June 2009 by the War Crimes Chamber of the Belgrade District Court [official website, in Serbian]. According to testimony from the trial, the Scorpions lined up 19 people, mostly women and children, and sprayed them with machine gun fire in Kosovo's northern town of Podujevo. The violence was halted by the arrival of Serbian troops, who were able to save five of the wounded children. Zeljko Djukic, Dragan Medic and Dragan Borojevic were sentenced to 20 years in prison, and Miodrag Solaj was sentenced to 15 years because he was younger than 18. The surviving children testified at the ex-Scorpions' trial.

Several nations and international organizations have been working together to apprehend those responsible for the atrocities that occurred during the Kosovo war. Last month, EU police officers arrested a suspected war criminal in Kosovo [JURIST report]. Sabit Geci is accused of being a former member of the Kosovo Liberation Army (KLA) [GlobalSecurity backgrounder; JURIST news archive], which allegedly tortured prisoners at an Albanian prison during the war. The EU has stationed thousands of officials in Kosovo to conduct war crimes investigations and protect the justice system. In April, Council of Europe Commissioner on Human Rights Thomas Hammarberg [official profile] criticized an agreement [JURIST report] reached between Germany and Kosovo that would return to Kosovo thousands of refugees who fled to Germany during the Kosovo war. Hammarberg worried that Kosovo does not yet have the infrastructure to care for the returning refugees or to protect them from ethnically motivated violence. Also last month, Swedish police arrested a Serbian man [JURIST report] suspected of committing war crimes in the Kosovo village of Cuska during the war. In March, a spokesperson for Serbia's Office of the War Crimes Prosecutor [official website] announced the arrest of nine individuals [JURIST report] suspected of being members of the Serbian paramilitary group Sakali and accused of the systematic murders of 41 ethnic Albanians in May 1999.




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US military judge releases Marine cleared of killing Iraqi civilian
Hillary Stemple on June 15, 2010 10:36 AM ET

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[JURIST] A military judge on Monday ordered the release of US Marine Sgt. Lawrence Hutchins III, two months after his conviction for killing an Iraqi citizen was reversed [opinion, PDF; JURIST report] by the Navy-Marine Court for Criminal Appeals [official website], citing lack of a fair trial. Hutchins was convicted in 2007 [JURIST report] of murder, conspiracy to commit murder, making a false official statement and larceny for his role in the April 2006 kidnapping and murder of Iraqi civilian Hashim Ibrahim Awad in Hamdania [USMC materials; JURIST news archive]. He was originally sentenced to 15 years in prison, but had his sentence reduced to 11 years [JURIST report]. Hutchins was released pending an appeal [certificate for review; JURIST report] to the US Court of Appeals for the Armed Forces [official website] by the US Navy, which contends that the lower court applied the incorrect standard for an unfair trial when reaching the decision to overturn the conviction. The court is expected to hear arguments on the appeal in the fall and render a decision early next year.

The US military continues to investigate civilian deaths in both the Iraq and Afghanistan wars [JURIST news archives]. In May, the US Department of Defense (DOD) [official website] announced an investigation [JURIST report] into allegations that a "small number" of soldiers are responsible for the unlawful deaths of three civilians in Afghanistan. In addition to Hutchins' original conviction, six Marines pleaded guilty [JURIST report] to charges related to their roles in the Hamdania incident, which involved Awad being removed from his residence and killed, then arranged with a shovel and firearm to appear as if he were planting an improvised explosive device.




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Kyrgyzstan to proceed with constitutional referendum despite violence
Dwyer Arce on June 15, 2010 9:39 AM ET

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[JURIST] Kyrgyzstan interim President Roza Otunbayeva [Telegraph profile] on Tuesday announced that the referendum seeking approval of a new constitution [text, DOC, in Russian] and a popular mandate for the interim government will be held June 27 despite ongoing ethnic violence [Guardian backgrounder] against the Kyrgyz Uzbek population. The constitution was approved by the interim government [JURIST report] in May and would shift power from the president to the prime minister, define Kyrgyzstan as a secular state, limit the president to one six-year term in office and increase the number of seats in parliament from 90 to 120. The UN and EU have been urging the interim government not to postpone the referendum [BBC report], despite the outbreak in violence on Thursday that has so far left 170 people dead and 1,400 wounded, according to official numbers. Casualty figures have been estimated to be much higher [Al Jazeera report] by Uzbek community leaders and the International Committee of the Red Cross [official website]. The cause of the violence is unclear, but UN Human Rights Commissioner Navi Pillay [official website] and witnesses have described it as organized. One motivation proposed for an orchestration of violence is to cause a delay of the June 27 referendum by allies of ousted Kyrgyz president Kurmanbek Bakiyev [BBC profile]. The interim government has accused the former president's son of paying USD $10 million to finance the violence. He was arrested in the UK on Monday, and the interim government has promised to seek his extradition.

On Sunday, Otunbayeva issued shoot to kill orders [JURIST report] to the nation's military after the reservists were activated and sent to quell the ethnic conflict that has been primarily focused in the southern cities of Osh and Jalal'abad. The lull in violence seen Tuesday is partly attributed to this action, but it has also faced criticism from Pillay [press release], who stated that "the right to life and the right not to be tortured cannot be set aside during an emergency." The reserves were activated after the Russian government refused a request by the interim government to send peacekeeping troops, a request that was withdrawn Tuesday. Additionally on Sunday, Otunbayeva declared a state of emergency in the south and established a curfew [DW report] for Osh and the surrounding areas. UN Secretary-General Ban Ki-moon [official website] expressed his concern [BBC report] over the violence on Sunday, stating that he would coordinate relief efforts with the government of Kazakhstan and the EU. On Sunday, an estimated 80,000 ethnic Uzbeks sought to cross the border into neighboring Uzbekistan, where the Uzbek government had been hastily establishing refugee camps before finally closing the border [CNN report] Tuesday. The violence is thought to be linked to the overthrow of Bakiyev, who was ousted from power in April [JURIST report]. Bakiyev's main support base was in southern Kyrgyzstan, whereas ethnic Uzbeks have been more likely to support the interim government.




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Iran opposition leader urges prosecution for 2009 election fraud
Sarah Miley on June 15, 2010 9:35 AM ET

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[JURIST] Iranian opposition leader Mir Hossein Mousavi [BBC backgrounder] on Tuesday called for the prosecution of those who committed fraud during the 2009 presidential election [JURIST news archive] and vowed to continue leading the resistance movement against incumbent president Mahmoud Ahmadinejad [official website]. The statement was posted on Mousavi's website [website, in Persian] following the June 12 anniversary of the election and outlined new policy goals for the opposition movement, including an independent judiciary, an end to military force in politics and the abrogation of Islamic extremism. Mousavi called for those responsible for the "fraudulent" elections to stand trial [AFP report]. He also stated that officials responsible for the death and torture of protesters in the wake of the 2009 elections should be prosecuted. Since last year's election the opposition has claimed that Ahmadinejad won the election through vote tampering and has mounted massive protests claiming Mousavi as the rightful winner. The government responded with violent crackdowns leaving several protesters dead and thousands incarcerated. Protesters appeared more subdued on the one year anniversary of the presidential election as there were no signs of major disturbances or sizable gatherings.

The Iranian government arrested hundreds in a crackdown on anti-government activity in the wake of protests over the re-election of Ahmadinejad last June, drawing criticism from international human rights groups and advocacy organizations. A Tehran Revolutionary Court [official website, in Persian] in April sentenced [JURIST report] three prominent progressive activists to six years in prison in connection with protests. The men were high-ranking officials of the Islamic Iran Participation Front [party website, in Farsi], a pro-democracy reformist political party that supported opposition leader Mousavi in the disputed election. Iranian authorities jailed prominent Iranian journalist Mohammad Nourizad and reform movement leader Hossein Marashi [JURIST reports] on similar charges in April and March, respectively. Also in March, an Iranian appeals court upheld [JURIST report] the death sentence of 20-year-old student Mohammad Amin Valian, who took part in anti-government protests in December. In February, the US and EU jointly issued a statement condemning [JURIST report] Iran's action against protesters and political dissenters. Earlier this month, Iranian Supreme Leader Ayatollah Ali Khamenei [official website; BBC profile] pardoned or commuted the sentences of 81 protesters [JURIST report] arrested following the disputed election. The pardons were made upon the request of the head of the Supreme Judicial System of Iran [GlobaLex backgrounder], Ayatollah Sadeq Larijani [official website, in Farsi], who described the pardoned protesters as repentant.




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Rights commission concerned over freedom of expression in Venezuela
Hillary Stemple on June 15, 2010 9:24 AM ET

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[JURIST] The Inter-American Commission on Human Rights (IACHR) [official website] on Monday sent a letter to the Venezuelan government expressing their concern over the increasing threat to freedom of expression [press release] in the country. The IACHR cited three recent cases that caused them particular concern. In the first case, a journalist was sentenced to over three years in prison and fined USD $18,000 for "defamation of a public official" after he wrote a newspaper column indicating that several members the local mayor's family were working on municipal construction projects. IACHR also cited a warrant that was issued last week for the arrest of Guillermo Zuloaga, one of the owners of Globovision [media website, in Spanish], the only remaining opposition news organization in Venezuela. Zuloaga has been the frequent target of threats from public officials, and the arrest warrant was issued a week after Venezuelan President Hugo Chavez [BBC backgrounder; JURIST news archive] criticized the judiciary and questioned why Zuloaga was still free. IACHR also expressed concern over the continuing attacks on the headquarters of the media company Cadena Capriles [media website, in Spanish]. Various media outlets belonging to Cadena Capriles, as well as individual employees, have been criticized by public officials and referred to as "media terrorists," "destabilizers" and "coup conspirators." In addition to the verbal threats, physical violence against the media outlets has been increasing. IACHR cited inadequate separation between the judicial and executive branches as the primary cause for the decreasing freedom of expression, stating:
[S]paces for public debate on Venezuelan government authorities are constantly becoming smaller, given the use of instruments like the criminal law to silence critical expression and dissent. In this sense, it is extremely worrying that a journalist would be convicted for the crime of "disrespecting a public official" for publishing an article denouncing a possible act of corruption; or that the criminal law can be used as an indirect method of censoring the owner of one of the only media outlets in Venezuelan that is independent of the government. These facts are another demonstration of the consensus between executive branch and judicial branch authorities on the idea that it is legitimate to silence critics of the government using the criminal law
IACHR is urging the Venezuelan government to guarantee all citizens the right to freedom of expression, including the right to speak against the government. They also called on the country to take the steps necessary to ensure an independent judiciary that is "committed to applying the provisions of the Venezuelan Constitution and international treaties to which Venezuela is party."

Venezuela has long been criticized for rights abuses, allegations that the Chavez government has repeatedly denied. In February, IACHR released a report [text; JURIST report] providing a detailed analysis on the state of human rights in Venezuela, which ultimately concluded that not all citizens are ensured full enjoyment of their basic human rights. The top Venezuelan human rights official criticized the report [JURIST report] and said that the report makes unfair characterizations and undermines Venezuelan democracy. Last year, the US Commission on International Religious Freedom (USCIRF) added Venezuela to its "watch list" [JURIST report] of countries that limit religious freedom. Also last year, the US State Department criticized Venezuela for press restrictions [JURIST report] in its Country Reports on Human Rights Practices. In 2008, Venezuelan officials ordered two senior Human Rights Watch (HRW) [advocacy website] staff to leave the country [JURIST report] after the group released a report concluding that democracy and human rights have suffered during the Chavez administration.




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Switzerland parliament votes to send US banking treaty to referendum
Dwyer Arce on June 15, 2010 8:42 AM ET

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[JURIST] The Swiss Federal Assembly [official website] on Tuesday approved an agreement [text, PDF] with the US that will allow Swiss bank UBS [corporate website; JURIST news archive] to disclose account information of clients suspected by the US government of tax evasion, but also voted to send it to a referendum. The Swiss National Council [official website], the lower house of parliament, voted 81-61 [NYT report] to pass the treaty, also voting 106-80 to submit it to a popular referendum. The agreement would allow UBS to turn over information of 4,450 US clients to the US Internal Revenue Service (IRS) [official website]. The treaty will now return to the Council of States [official website], the upper house of parliament, which voted two weeks ago [AP report] to approve it and forgo a referendum. If the Council of States fails to pass the referendum measure, the two houses will meet in a conciliation conference in order to merge the two proposals, which then must be approved by both houses. The Swiss government hopes to pass a final version of the agreement before parliament adjourns June 18 [DW report] in order to make the information available by August, a deadline it had agreed to with the Obama administration. The soonest possible date for a referendum is early 2011. If the Federal Assembly fails to pass the deal before it adjourns, the US Department of Justice (DOJ) [official website] has stated that it will resume a lawsuit against UBS in US federal court in Florida seeking the names of 52,000 UBS clients. The Swiss Federal Tax Administration [official website] has already transmitted the information of 500 UBS clients [AP report] who signed waivers.

Last week, the Swiss National Council voted 104-76 to reject the treaty [JURIST report], opting to send it to a national referendum if they cannot reconcile their differences with the upper house of parliament. The tax conflict has already cost UBS USD 780 million in fines levied by the DOJ for its admitted assistance [BBC report] of US citizens in avoiding taxes. The agreement is currently before the parliament due to a court ruling in January, when the Swiss Federal Administrative Court [official website, in French] ruled [JURIST report] that an American taxpayer's financial information at UBS may not be disclosed to the IRS pursuant to the August 2009 agreement [JURIST report]. The agreement was found to conflict with a previous treaty, requiring the approval of parliament. Also in January, the Federal Administrative Court ruled [JURIST report] that the Swiss Financial Market Supervisory Authority [official website, in German] violated the law in February 2009 when it ordered UBS to disclose information to the US on more than 250 of the bank's clients without the authority to do so. In September, the US and Switzerland signed a treaty [JURIST report] that would increase the amount of information shared between the two nations on would-be tax evaders. The agreement came one month after a Swiss banker and lawyer were indicted in US federal court [JURIST report] for helping clients hide assets. In March 2009, the Swiss announced their intention to adopt a more stringent definition [JURIST report] of tax evasion and to work with other countries to investigate such claims.




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Israel Cabinet approves internal probe of flotilla raid
Ann Riley on June 15, 2010 8:29 AM ET

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[JURIST] The Israeli cabinet on Monday unanimously approved plans for an internal probe into the May 31 Israeli raid on several Turkish ships bound for the blockaded Gaza Strip [BBC backgrounder]. Israeli Prime Minister Benjamin Netanyahu [official website; BBC profile] expressed his hope that the probe would show that the Israel Defense Forces (IDF) [official website] acted appropriately. During the cabinet meeting, Netanyahu explained the purpose of the probe [statement], stating:
Two main principles guided us in proposing the establishment of the commission. First is maintaining IDF soldiers' freedom of action and the credibility of the IDF investigation. ... The second principle that guided us is providing a credible and convincing response to the responsible countries in the international community about the events, especially in the context of international law. I am convinced that the Commission's uncovering of the facts will prove that the goals and actions of the State of Israel and the IDF were appropriate defensive actions in accordance with the highest international standards.
To head the probe, Netanyahu on Sunday appointed [JURIST report] former Israeli Supreme Court [official website] Justice Yakov Tirkel, along with Shabbtai Rosen, an international law professor and former Israeli diplomat, and retired Major General Amos Horev, a former Israeli army leader. Due to the "exceptional circumstances" of the events in question, the commission will also be overseen by two international observers, Nobel Prize laureate David Trimble and former Canadian military prosecutor Ken Watkin, to ensure the impartiality of the inquiry. The internal probe fails to meet the UN proposal for an international investigation, but was decided upon after deliberations with the US. White House Press Secretary Robert Gibbs called the independent public commission [press release] an "important step" and said the inquiry meets the "standards of a prompt, impartial, credible, and transparent investigation."

The commission will investigate the events that took place in the early hours of May 31, when Israeli forces raided six ships attempting to deliver more than 10,000 tons of aid to the Palestinian territory of Gaza and produce a published report of its conclusions The raid left numerous wounded and resulted in the shooting deaths of nine pro-Palestine activists - eight Turks and one American. Last week, UN Secretary-General Ban Ki-moon [official website] reiterated the importance of an international component [JURIST report] in the investigation into the raid. Ban's original proposal to establish an investigatory panel comprised of representatives from Israel, Turkey, and other unnamed countries, was rejected by Israeli officials [JURIST report]. Israeli officials have insisted that Israel has the ability and the right to resolve matters through an internal investigation and does not require international oversight. Also last week, the IDF launched an internal investigation [JURIST report] into the flotilla attack. The investigatory unit will study the outcomes of the incident, "establish lessons," and present its findings by July 4. Netanyahu and the nation's seven senior ministers also decided to establish a panel of jurists [Haaretz report] to investigate the attack. The panel's inquiry will be independent from the IDF investigation. The Turkish flotilla on which the violence occurred was one of six organized by the Free Gaza Movement [advocacy website] to carry protesters and humanitarian supplies to the isolated Palestinian enclave. The Gaza naval blockade began in 2007 after Hamas forcibly expelled their chief rival, Fatah [CFR backgrounders] from Gaza.




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US mayors pass resolution opposing Arizona immigration law
Andrea Bottorff on June 15, 2010 7:07 AM ET

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[JURIST] The US Conference of Mayors [official website] on Monday passed two resolutions [text, PDF] opposing Arizona's immigration law [SB 1070 materials; JURIST news archive] and supporting federal immigration reform at their annual conference in Oklahoma City. Phoenix Mayor Phil Gordon (D) [official profile] and three mayors outside Arizona submitted Resolution 41, which criticizes the state's immigration law as being "unconstitutional and un-American." Speaking at the conference, Gordon said that the nation's immigration system is "broken" [video] and that the new Arizona law will encourage criminals who profit from smuggling people into the US. The conference also passed Resolution 42, submitted by Los Angeles Mayor Antonio Villaraigosa (D) [official profile], which urges the federal government to reform the country's immigration law and prevent states from creating laws that fail to protect the rights of immigrants. Both resolutions were passed after securing at least two-thirds of a voice vote [AP report] at the conference, which was attended by about 200 mayors.

The US Conference of Mayors is a nonpartisan organization that represents thousands of US cities [press release, PDF] with populations of at least 30,000. The controversial Arizona bill, which was signed into law [JURIST report] in April by Governor Jan Brewer (R) [official website], will go into effect on July 29. Proponents of the law argue that it will discourage illegal immigration, while opponents contend it will lead to discriminatory police practices based on race. Last month, the American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [JURIST report] seeking an injunction against implementation of the law. That lawsuit joined two others filed in April [JURIST report] questioning the constitutionality of the law. Last month, a group of UN human rights experts indicated the measure may violate international standards [JURIST report] that are binding on the US.




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Human trafficking a 'serious problem' in US: State Department report
Hillary Stemple on June 14, 2010 3:14 PM ET

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[JURIST] The US State Department (DOS) [official website] on Monday released its annual report [text, PDF] on human trafficking conditions across the globe, finding that the US adequately complies with international regulations but still has a "'serious problem with human trafficking, both for labor and commercial sexual exploitation." The report also listed 13 countries with the worst records on human trafficking issues. The countries cited for not complying with the US Trafficking Victims Protection Act (TVPA) [22 USC § 78 text] are not considered to be taking "significant actions" to comply with the TVPA and include Burma, the Democratic Republic of Congo, Cuba, the Dominican Republic, Eritrea, Mauritania, North Korea, Kuwait, Iran, Papua New Guinea, Saudi Arabia, Sudan and Zimbabwe. Haiti was listed as a "special case" for having made limited progress before the January 2010 earthquake [BBC backgrounder; JURIST news archive], which significantly impeded its efforts. Somalia was listed as a "special case" for not having an adequately functioning government to address human trafficking issues. The report also listed 59 countries on a "watch list" that are not fully complying with TVPA's minimum standards but are making significant efforts to bring themselves into compliance, even though there has been an increase in the total incidence of trafficking, and there has been a failure to provide evidence of increasing efforts to combat trafficking over the previous year. US Secretary of State Hillary Clinton [official website] announced the publication of the report and indicated that human trafficking is a shared responsibility [remarks]:
Human trafficking crosses cultures and continents. ... All of us have a responsibility to bring this practice to an end. Survivors must be supported and their families aided and comforted, but we cannot turn our responsibility for doing that over to nongovernmental organizations or the faith community. Traffickers must be brought to justice. And we can't just blame international organized crime and rely on law enforcement to pursue them. It is everyone's responsibility.
Clinton noted the specificity of the report in addressing the prevention, protection and prosecutions associated with each country and she indicated that countries not meeting expectations must show true action in the future.

This is the tenth annual report on human trafficking by the DOS, following reports in 2009 [JURIST report], 2008 [materials], 2007 and 2006 [JURIST reports]. In January, the European Court of Human Rights (ECHR) [official website] ruled that sex trafficking violates conventions [JURIST report] against slavery and forced labor. Last October, the US and the EU announced an international criminal treaty [JURIST report] that will greatly increase cooperation between the two governments in fighting the trafficking of humans and the sale of illegal drugs. In March 2009, UN Special Rapporteur on human rights in North Korea [JURIST news archive] Vitit Muntarbhorn cited the country [JURIST report] for various human rights violations including human trafficking. In July 2008, Human Rights Watch (HRW) [advocacy website] released a report [HRW materials; JURIST report] calling on the Saudi government to institute new laws to protect its domestic workers from becoming victims of trafficking.




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Palestinian rights advanced in 2009, still need improvement: report
Dwyer Arce on June 14, 2010 2:11 PM ET

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[JURIST] Israeli human rights group B'Tselem [advocacy website] on Monday released its annual report [text, PDF; press release], noting an advancement in the rights of Palestinians in the Occupied Territories [UNICEF backgrounder] but calling for greater improvement. The report, examining the human rights situation of Palestinians since the conclusion of Israel's Operation Cast Lead [GlobalSecurity backgrounder; JURIST news archive] in January 2009, found that fatalities had declined by 80 percent compared to the previous year, excluding fatalities from the military operation, and the quality of life had improved in the West Bank. This was due to the reduction of checkpoints, fewer administrative detainees and fewer roadblocks. The report also cited the reduced pace of construction of the separation barrier [B'Tselem backgrounder] as an improvement, which it described as an "annexation in the guise of security." The report went on to criticize the West Bank settler communities [B'Tselem backgrounder], which it described as civilian enclaves in a territory that is otherwise under military rule. This system, according to B'Tselem, is one in which a person's rights depend upon their nationality and violates the Palestinian right to their property. The report also argued that settlements preclude any possibility of a future Palestinian state and violate international humanitarian law, stating:
Under international humanitarian law, occupation is a temporary situation. Accordingly, it is forbidden to create "facts on the ground" in the occupied territory. The occupying state holds the territory only as a "trustee," and is required to ensure the wellbeing of the local population and to refrain from exploiting the natural resources for its own population. Also, the occupying state is forbidden to transfer its citizens to the occupied territory or to encourage them to move there.
The report called on Israel to dismantle all settlements, saying that merely halting new settlements is insufficient. The rights organization also chided Israeli security forces for not adequately protecting Palestinians from violence at the hands of Israelis, criticizing a "history of leniency" against the perpetrators of that violence. Additionally, the report was critical of the blockade on the Gaza Strip [BBC backgrounder], which prevented the creation of a stable economy in Gaza and allowed Hamas [CFR backgrounder] to maintain complete control over the Gazan economy through its control of the tunnels used for smuggling items under the Gaza-Egypt border.

Israel has faced rising criticism over the human rights situation in the Occupied Territories. On Monday, the International Committee of the Red Cross [official website] called for an end [JURIST report] to the Israeli blockade of Gaza, which it labeled a violation of international humanitarian law. International pressure to lift the blockade has increased significantly since the May 31 Israeli raid of several ships bound for Gaza. The Gaza naval blockade began in 2007 after Hamas forcibly expelled [BBC report] their chief rival, Fatah [CFR backgrounder] from Gaza. In 2006, Hamas was elected [JURIST report] as the ruling party of the Palestinian Authority after unbroken rule by Fatah. In January 2008, then-UN High Commissioner on Human Rights Louise Arbour also described the blockade as collective punishment [JURIST report]. In March, UN Secretary-General Ban Ki-moon [official profile] called Israeli settlement construction in the West Bank "illegal" [JURIST report], and supported a plan by Palestinian Authority Prime Minister Salam Fayyad [BBC profile] to build the institutions of an independent state by 2011. Two weeks prior, Israel announced the construction of 1,600 new housing units [Haaretz report] in East Jerusalem [GlobalSecurity backgrounder], where Palestinians hope to establish the capital of their future state. Israeli settlements in the Occupied Territories were held to be illegal [opinion, PDF] under international law by the International Court of Justice (ICJ) [official website] in 2004. Shortly after construction of the separation wall began in the West Bank in 2002, the ICJ held that it also violated international law [opinion, PDF; JURIST report], amounting to a "de facto annexation."




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Barcelona to ban full face veil in public areas
Hillary Stemple on June 14, 2010 2:08 PM ET

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[JURIST] The Barcelona city council [official website, in Catalan] on Monday announced the banning of all face coverings, including the burqa [JURIST news archive], in public areas administered by the city. Barcelona Mayor Jordi Hereu indicated that the ban was put in place out of a concern for public safety [El Pais report, in Spanish], and was not aimed at any particular religious group. He contends that it is common sense to require people entering public buildings to show their faces, and that someone wearing a motorcycle helmet will be required to follow the same regulations as someone wearing a scarf for religious purposes. The ban will affect public buildings as well as schools and market districts. Barcelona is the first major city in Spain to ban face coverings in municipal areas, although several smaller cities have already imposed or are considering similar restrictions [AFP report]. No announcement was made as to when the new regulations would go into effect.

Many jurisdictions continue to consider legislation banning the burqa. Last month, Australian state lawmakers voted to end debate [JURIST report] on a bill that would have banned the wearing of the burqa or other face veils in public. Also last month, the French Cabinet approved legislation [JURIST report] that would ban the wearing of the burqa or other face veils in public. The same week the French Cabinet voted, hearings began [CBC report] in Quebec's legislature on a bill introduced in March that would ban women from wearing full face veils from public services. Earlier last month, European Parliament [official website] Vice President Silvana Koch-Mehrin [official website, in German] expressed her support for a continent-wide burqa ban [JURIST report]. In April, the Belgian House of Representatives voted 136-0 to approve [JURIST report] a bill that would ban the burqa and other full face veils in public.




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Five killed in stampede at Kenya anti-constitution rally
Sarah Miley on June 14, 2010 1:58 PM ET

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[JURIST] An anti-constitution rally in Nairobi's Uhuru Park turned deadly on Sunday after two explosions caused a stampede [video] leaving five dead and more than 70 injured. The rally was organized by Christian groups [Africa Review report] opposed to Kenya's draft constitution [text, PDF] because it retains recognition of existing Islamic courts and includes a clause on abortion. Kenyan Prime Minister Raila Odinga [BBC backgrounder] confirmed after a security meeting on Monday that the explosions, which occurred 15 minutes apart, were caused by small grenades. President Mwai Kibaki [official website] condemned that actions of those responsible for Sunday's turmoil and announced that the government has launched a detailed investigation [transcript] into the explosions:
I wish to condemn in the strongest terms possible those behind the disruption of a meeting yesterday at Uhuru Park, which led to deaths and injuries of innocent Kenyans. This is a crime against the people of Kenya. It is an act of intolerance that has no place in the New Kenya that we seek to build. The government will get to the bottom of the heinous crime. The nation's security and other government agencies have launched urgent and detailed investigations to uncover those behind the crime. ... In the meantime, I urge Kenyans to remain calm and tolerant. We must shame any retrogressive forces who do not respect democracy and the rights of Kenyans to hold different views.
The National Council of Churches of Kenya and 14 other churches have claimed that the government is responsible for the explosions on Sunday. The Kenya government, except for a few Christian ministers, are in favor of the new constitution. The National Council of Churches of Kenya and 14 other churches claim that the explosions on Sunday were a political attack by the government [BBC report] on those who oppose the constitution. Odinga rejected this claim and held that all speculation should cease until the investigation is completed. The draft constitution will be put to a public referendum on August 4.

In April, Kenyan Attorney General Amos Wako [official profile] published [JURIST report] the country's draft constitution, which proposes more balance of power in the government. Kibaki, Odinga and Vice President Kalonzo Musyoka have all supported the proposed constitution and have urged citizens to approve it in the public referendum. Despite the government leaders' widespread calls for cooperation and support, the proposed constitution still faces criticism, particularly from Kenyan religious figures who oppose the draft's position on abortion, marriage and divorce. The president's Cabinet members have encouraged the religious leaders to support the draft constitution and then pursue their goals through the political process after the constitution is ratified. Last month, a Kenyan constitutional court ruled that inclusion of Islamic "Kadhi" courts in the nation's current constitution is illegal and discriminatory [JURIST report]. The Kadhi court system, which elevates Islam over the country's other religions, was deemed unconstitutional because it does not coincide with Kenya's secular mandate. The court also held that supporting Kadhi courts with public funds is a form of segregation as it promotes the development of one religion over another. The three-judge panel did not determine whether the Islamic courts should be included in the nation's new constitution.




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Canada police report 35 percent increase in hate crimes
Hillary Stemple on June 14, 2010 1:50 PM ET

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[JURIST] Canadian police reported a 35 percent increase in hate crimes [materials] from 2007 to 2008, according to a report released Monday. During 2008, police reported 1,036 total hate crimes, with 55 percent motivated by race, 26 percent motivated by religion and 16 percent motivated by sexual orientation. That is up from the 785 total hate crimes reported [materials] for 2007. Increases occurred among all groups, with the number of hate crimes related to sexual orientation more than doubling. In addition to the increase in the number of hate crimes motivated by sexual orientation, the report also found that almost 75 percent of these crimes were violent and that men were overwhelmingly the targets of the violence. Hate crimes based on race were violent 38 percent of the time while those based on religion were violent 25 percent of the time. Blacks were the most frequently targeted racial group, while members of the Jewish faith were the most frequently targeted religious group.

Last November, the FBI [official website] reported a two-percent increase [JURIST report] in the 2008 Hate Crimes Statistics [report; press release] for the US, which marked the biggest increase since 2001. Increases were reported in crimes based on race and religion, while crimes motivated by sexual orientation remained at about the same rate as in 2007. Last October, US President Barack Obama signed [JURIST report] into law a defense appropriations bill containing a measure extending the definition of federal hate crimes to include crimes motivated by gender, sexual orientation, gender identity, or disability. The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act [S 909 text], passed the US Senate and House of Representatives [JURIST reports] as part of the National Defense Authorization Act for Fiscal Year 2010 (NDAA) [HR 2647 materials].




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Gaza blockade violates international law: ICRC
Dwyer Arce on June 14, 2010 1:34 PM ET

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[JURIST] The International Committee of the Red Cross (ICRC) [official website] on Monday called for an end [press release] to the Israeli blockade of the Gaza Strip [BBC backgrounder], which it labeled a violation of international humanitarian law. The organization described the blockade as collective punishment, a war crime under Article 33 of the Geneva Conventions [text; ICRC backgrounder], and called on the international community to work to persuade Israel to lift the closure. The ICRC, which has been given a mandate under the Geneva Conventions to protect the victims of armed conflict, traditionally remains neutral [Al Jazeera report], but has decided to publicly criticize the blockade due to the failure of private efforts to ease the restrictions on the territory. In outlining its criticism of the blockade, the ICRC explained:
The whole of Gaza's civilian population is being punished for acts for which they bear no responsibility. The closure therefore constitutes a collective punishment imposed in clear violation of Israel's obligations under international humanitarian law. ... The closure is having a devastating impact on the 1.5 million people living in Gaza. That is why we are urging Israel to put an end to this closure and call upon all those who have an influence on the situation, including Hamas, to do their utmost to help Gaza's civilian population. Israel's right to deal with its legitimate security concerns must be balanced against the Palestinians' right to live normal, dignified lives. ... Under international humanitarian law, Israel must ensure that the basic needs of Gazans, including adequate health care, are met. ... Furthermore, all States have an obligation to allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel.
The ICRC pointed to the restrictions on the Israeli "buffer zone," which has restricted access to farmland, the three-mile restriction on fishing off the coast of Gaza and the power shortages that have crippled the Gazan health care system as instances of this collective punishment. The organization also leveled war crimes charges against Hamas [CFR backgrounder], the group that controls the Gaza Strip, for its refusal to allow the ICRC to visit Gilat Shalit [advocacy website, in Hebrew; BBC backgrounder], an Israeli soldier that has been held in captivity for five years. Also Monday, the EU called on Israel to end the blockade [AP report], coinciding with an announcement by UN Quartet Envoy Tony Blair [official website] that Israel had agreed in principle [Reuters report] to easing the blockade to allow reconstruction materials and commercial goods into the territory.

International pressure to lift the blockade has increased significantly since the May 31 Israeli raid of several ships bound for Gaza. Turkey, a longtime ally of Israel, has included lifting the blockade as a condition upon which the restoration of normal diplomatic ties rests, along with an apology and an international inquiry. Israel has so far refused an international inquiry [JURIST report]. Earlier this month, the UN Human Rights Council [official website] condemned [JURIST report] Israel's raid on the ships and initiated an independent investigation into possible violations of international law. Also that week, the UN Security Council [official website] called [JURIST report] for a "prompt, impartial, credible and transparent investigation" into the raid. The Turkish ship on which the violence occurred was one of six organized [Guardian backgrounder] by the Free Gaza Movement [advocacy website] to carry protesters and humanitarian supplies to the isolated Palestinian enclave. The Gaza naval blockade began in 2007 after Hamas forcibly expelled [BBC report] their chief rival, Fatah [CFR backgrounder] from Gaza. In 2006, Hamas was elected [JURIST report] as the ruling party of the Palestinian Authority after unbroken rule by Fatah. In January 2008, then-UN High Commissioner on Human Rights Louise Arbour also described the blockade as collective punishment [JURIST report].




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