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Legal news from Tuesday, July 27, 2010 |
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ICTY denies early release of former Serb parliament head
Daniel Richey on July 27, 2010 2:48 PM ET

[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Monday denied [decision, PDF] early release to former Bosnian Serb Assembly leader and convicted war criminal Momcilo Krajisnik [ICTY materials, PDF; JURIST news archive]. Krajisnik was sentenced [JURIST report] by the ICTY in 2006 to 27 years in a British prison for his role in the forced evacuation and displacement of several thousand Muslims and Croatians, including women and children, during the Bosnian war in 1992. Though British law dictates that Krajisnik should have been eligible for parole on April 2, ICTY President Patrick Robinson said his decision to deny early release was largely based on the severity of Krajisnik's crimes and the tribunal's treatment of similar convicts:While Mr. KrajiSnik has displayed some evidence of rehabilitation, I am of the view that there remain significant factors that weigh against granting him early release. Mr. Krajisnik's crimes are of a very high gravity, involving a widespread displacement of the non-Serb population in Bosnia and Herzegovina, which caused great suffering. Moreover, in respect of the requirement that the President shall take into account the treatment of similarly-situated prisoners, the practice of the Tribunal is to consider the eligibility of a convicted person only after he has served two-thirds of his sentence; therefore, the fact that Mr. Krajisnik has only recently completed serving half of his sentence does not weigh in favour of his early release. The ICTY reduced [JURIST report] Krajisnik's sentence to 20 years in September 2009, transferring him to a UK prison to serve his time.
At his 2006 trial, the ICTY found Krajisnik not guilty on a charge of genocide for which prosecutors had requested a life sentence [JURIST report]. Krajisnik was initially indicted together with Biljana Plavsic [ICTY materials; JURIST news archive], the former Bosnian Serb president who was sentenced to 11 years in prison in 2003 after testifying against Krajisnik. Former Bosnian Serb leader Radovan Karadzic [ICTY materials; JURIST news archive], with whom Krajisnik worked closely, was arrested in 2008 [JURIST report] and currently faces war crimes charges before the ICTY.


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Serbia parliament rejects Kosovo independence in perpetuity
Dwyer Arce on July 27, 2010 1:22 PM ET

[JURIST] The Serbian National Assembly [official website] on Monday voted 192-26 to pass a resolution [press release] that Serbia would never recognize Kosovo as an independent nation. The declaration comes a week after the International Court of Justice (ICJ) [official website] ruled that Kosovo's unilateral declaration of independence did not violate international law [JURIST report]. The resolution was passed during the National Assembly's Sixth Extraordinary Session [activity report] after 12 hours of debate and stressed the need to maintain Serbian sovereignty and territorial integrity. Additionally, the resolution called for a peaceful resolution to the dispute, which is in line with the Serbian Constitution [text], which expressly prohibits any action to change Serbia's borders. Also during the parliamentary debate, opposition lawmakers criticized the government for subjecting Serbia to international humiliation. In explaining the resolution, the Serbian government stated:The Parliament considers that peaceful negotiation should result in a permanent, sustainable and mutually acceptable solution for Kosovo-Metohija, in accordance with the Constitution of Serbia, allowing for a historical reconciliation of the Serbian and Albanian people, as well as peace and stability in the region. The document calls for national unity and the use of all available diplomatic and political means to preserve the sovereignty and territorial integrity of the country. The Parliament expresses its full commitment to achieving national and political unity regarding the preservation of Kosovo-Metohija, and confirms that the Republic of Serbia will never, either explicitly or implicitly, recognise the unilaterally proclaimed independence of Kosovo-Metohija. The government went on to state that it considered all actions of the Kosovo government from the independence declaration onwards to be void and promised to bring the question of Kosovo's independence before the UN General Assembly [official website] when its session opens in September.
The ICJ issued a non-binding ruling Thursday that Kosovo's 2008 declaration of independence from Serbia [JURIST report] did not violate international law. Serbia had argued 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 argued that the resolution was not meant to exclude the opportunity for secession. The opinion of the court stated that nothing in international law prohibited a unilateral declaration of independence. The ruling could have far-reaching implications for other countries with territories seeking recognition as independent states. Serbia's position was backed by a majority of UN countries, including Russia, China and Spain, but Kosovo has consistently been supported by the US and most European countries. Serbian President Boris Tadic [official profile] maintained that Serbia will not recognize [statement, in Serbian] Kosovo's independence, claiming the ICJ ruling was limited only to the question of whether the declaration itself violated international law, and not whether the secession was legal.


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US government increasing enforcement of immigration laws: report
Daniel Richey on July 27, 2010 11:05 AM ET

[JURIST] Mounting emphasis on enforcement of existing immigration laws under the Obama administration has seen a sharp rise in deportations by US Immigration and Customs Enforcement (ICE) [official website], according to a Washington Post report [text] Monday. The new emphasis on enforcement was outlined in a June memo [text, PDF] from ICE Assistant Secretary John Morton [official profile]. ICE expects to have the resources to deport 400,000 illegal immigrants this year, a 10 percent increase over last year's total. Additionally, raids on corporations suspected of employing illegal immigrants have seen a fourfold increase over the Bush administration, and law enforcement officers have made the deportation of convicted felons and federal offenders their primary focus, according to the memo. Resources should be focused on illegal immigrants that endanger national security, who have been convicted of crimes or otherwise endanger public safety, the memo emphasized. Critics of the Obama administration have decried the latter policy as facilitating arbitrarily uneven enforcement of the law. Earlier this month, President Barack Obama called for comprehensive immigration reform [JURIST report], noting the role of immigrants throughout US history and indicating that immigrants must continue to play a role as the country grows and develops.
Last week, a Syracuse University study indicated that backlogs at US immigration courts are up by more than 30 percent [JURIST report] in the past 18 months. As of January 2009, there were an estimated 10.8 million illegal immigrants in the US, one million less than in 2007, according to the Department of Homeland Security [official website]. In that same period, deportations have more than doubled, peaking at 387,790 last year. Federal authorities have indicated that the workload would continue to grow if Arizona's new immigration law [SB 1070 materials; JURIST news archive] is implemented. The Arizona law 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. The constitutionality of the law has been widely disputed, and the legislation is now facing several lawsuits [JURIST report].


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Algeria court indicts ex-Guantanamo detainee
Dwyer Arce on July 27, 2010 10:42 AM ET

[JURIST] The Algerian prosecutor's office said Monday that former Guantanamo Bay [JURIST news archive] detainee Aziz Abdul Naji [NYT profile] had been indicted, but did not specify the charges. The charges come after a period of detention by the Algerian government under a statute that allows for the detention of terror suspects for up to 12 days. Naji was released Sunday after a judge placed him under judicial supervision [Reuters report], requiring him to appear at the local police station every week. Naji, who was held at Guantanamo since his capture in 2002, was repatriated to Algeria earlier this month after the US Supreme Court [official website] failed to stay the transfer [JURIST report]. Naji had appealed to the court asking that it review his pending transfer and that he be allowed to remain at the Guantanamo facility. In his appeal, Naji expressed concern that he would be tortured or killed [Washington Post report] if returned to Algeria. The Obama administration had indicated it had received assurances from the Algerian government that Naji would not be mistreated after returning to the country, citing the Algerians who have been returned to the country from Guantanamo Bay without incident as proof that Naji would be safe in the country.
In February, an Algerian criminal court acquitted [JURIST report] former Guantanamo detainee Mustafa Hemlili of charges of counterfeiting and affiliation to a militant group that is active abroad. Hemlili was released from Guantanamo, along with fellow inmate Hederbash Sufian, after a six-year detention period. July's transfers brought the total number of Guantanamo detainees transferred to Algeria to over 20. The US Department of Justice (DOJ) [official website] announced in January that two detainees had been transferred to Algeria [JURIST report]. Hassan Zumiri had spent more than seven years in the Guantanamo detention center, while Adil Hadi al-Jazairi bin Hamlili [NYT profiles] had been held for five. Both men are Algerian nationals.


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New Jersey high court declines to hear same-sex marriage case
Dwyer Arce on July 27, 2010 9:24 AM ET

[JURIST] The New Jersey Supreme Court [official website] on Monday declined to hear a case [order, PDF] challenging the constitutionality of New Jersey's civil unions law, holding that it must first be heard in the lower courts. The lawsuit was filed [JURIST report] in March, arguing that the Civil Unions Law [text, PDF] does not adhere to the 2006 ruling in Lewis v. Harris [decision; Lambda Legal backgrounder], which said that same-sex couples should have "full rights and benefits enjoyed by heterosexual married couples." The plaintiffs claim that they face discrimination as couples in civil unions compared to opposite-sex married couples. The court divided evenly 3-3 on whether the hear the case, falling short of the four-justice majority required to hear it. The court cited a lack of a trial record in the decision, which it said was necessary to assess the case on its merits. The three dissenting justices argued that the court should not have dismissed the case without a hearing because if the plaintiffs' allegations of discrimination are true they should not face unnecessary delay. Lambda Legal [advocacy website], an organization representing one of the plaintiffs, expressed disappointment with the ruling [press release], stating:We are terribly disappointed about today's ruling. Our plaintiffs and the New Jersey legislature's own Civil Union Review Commission documented the rampant discrimination same-sex couples face as a consequence of civil union status, and this ruling now relegates our plaintiffs to second-class citizenship for even longer. ... Separating out one group and relegating the people in it to a lesser status, in this case to civil unions in New Jersey, invites discrimination from all quarters—the government, businesses, schools, medical providers, individuals. The case was dismissed without prejudice, and is expected to be brought in the New Jersey Superior Court [offiicial website].
The New Jersey couples filed the lawsuit seeking to legalize same-sex marriage [JURIST news archive] in the Supreme Court claiming that they "and other committed lesbian gay partners in New Jersey live in second-class circumstances, relegated to demonstrably inferior, state-created status of civil unions." They argued that same-sex couples lack workplace benefits and protections, face unequal treatment and lack of recognition in public accommodations and civic life, and that their children are "prejudiced by the unequal and inferior legal and social status" of civil unions. New Jersey has recognized same-sex civil unions [JURIST report] since 2006. In January, the New Jersey Senate voted 20-14 to defeat a bill [JURIST report] that would have legalized same-sex marriage in the state. Same-sex marriage is currently legal in DC, Vermont, New Hampshire, Iowa, Connecticut and Massachusetts [JURIST reports].


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Ex-Khmer Rouge leader to appeal conviction
Dwyer Arce on July 27, 2010 8:45 AM ET

[JURIST] A spokesperson for the Extraordinary Chambers in the Court of Cambodia (ECCC) [official website; JURIST news archive] confirmed Tuesday that former Khmer Rouge [BBC backgrounder] official Kaing Guek Eav [case materials; JURIST news archive], also known as "Duch," intends to appeal his conviction. Kaing's lawyer informed the court of the appeal [AFP report] shortly after Monday's verdict, without stating the grounds for the appeal. The ECCC found Kaing guilty of crimes against humanity [JURIST report] and of violating the 1949 Geneva Conventions, sentencing him to 35 years in prison. Kaing is expected to serve only 19 years due to credit for time served, including a period of "illegal detention" by the Cambodian Military Court starting in 1999 and his period of detention during his ECCC trial. Prosecutors had sought a 40-year sentence, but the court reduced his sentence due to mitigating factors such as his cooperation with the trial, admission of responsibility, remorse and the potential for rehabilitation. Kaing had also faced charges of premeditated murder and torture under domestic Cambodian law. Kaing was not convicted of these charges, however, because the judges were unable to come to a majority [judgment, PDF] on the charges, leaving the court unable to convict under the ECCC law [text, PDF]. Kaing was the head of the Tuol Sleng detention facility under the Khmer Rouge between 1975 and 1979. The court found that, during this time, more than 12,000 people were killed due to mass executions and the conditions in the facility.
Kaing unexpectedly asked to be released [JURIST report] at the close of his trial in November. His request was a complete departure from his previous conduct, as he had cooperated with the trial and repeatedly apologized to his victims and their families. His lawyers took different approaches in their closing remarks, with one stating that his client was not guilty and the other asking for clemency. In March 2009, Kaing accepted responsibility and apologized [JURIST report] for his conduct at the detention facility. He is the first of eight ex-Khmer Rouge officials expected to be tried before the ECCC. In April, the pre-trial chamber of the ECCC dismissed appeals by three other former Khmer Rouge officials [JURIST report] to block the extension of their provisional detention. The three prisoners, Ieng Thirith, Ieng Sary and Khieu Samphan, were arrested in November 2007 and face charges of genocide, war crimes, crimes against humanity, murder, torture and religious persecution. The tre-trial chamber found in each case that "there is sufficient additional evidence in the case file to demonstrate that the case has progressed expeditiously" and that further detention while the investigation continues is reasonable given the "gravity and nature of the crimes" charged.


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Rights group sues UK government over failure to report DRC conflict minerals trade
Andrea Bottorff on July 27, 2010 7:52 AM ET

[JURIST] UK rights group Global Witness (GW) [advocacy website] on Monday filed suit [press release] against the UK government for failing to report several UK companies to the UN Sanctions Committee [official website] for allegedly trading "conflict minerals" from the Democratic Republic of Congo (DRC) [BBC backgrounder; JURIST news archive]. The group argues that the UK government is in violation of UN resolutions 1857 and 1896 [texts, PDF], passed in 2008 and 2009, respectively, which require countries to report any companies involved in trading DRC minerals, believed to have played a large role in ongoing violence [Washington Post report] in the African nation. GW cites violations listed in the 2009 UN Group of Experts report [text, PDF] to support the legal complaint. The government denies the allegations, stating that the UK Foreign Office [official website] has effectively monitored the mineral trade behavior of UK corporations. GW aims to obtain a mandatory court order requiring the coalition government to investigate the conduct of the government office and to ensure compliance with the UN sanctions.
Last week, US President Barack Obama [official website] signed [JURIST report] the Restoring Financial Stability Act [HR 4173 materials] into law. The legislation, which focuses on increasing regulation in the financial sector, included a provision requiring US companies producing electronic equipment like cell phones and laptops, to divulge what steps are being taken to ensure their products do not contain "conflict minerals" from the DRC. Last year, GW published a report claiming that international corporations that purchase minerals from the DRC are responsible for prolonging the conflict [JURIST report] in the African country. The report was critical of several specific corporations, including Amalgamated Metal Corporation, Afrimex and Traxys [corporate websites], for "turning a blind-eye" to the source of minerals they purchase and then sell to manufacturers. In the war-torn country, the Congolese military and numerous militia groups control mines responsible for production of gold and wolframite, and the report alleges that the unregulated market brings significant profit to these groups [BBC report], fueling the conflict. The current conflict in the DRC has been one of the most deadly in the world, claiming an estimated 45,000 [Guardian report] lives per month.


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