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Legal news from Friday, July 30, 2010




Croatia high court upholds lawmaker's war crimes conviction
Dwyer Arce on July 30, 2010 4:48 PM ET

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[JURIST] The Supreme Court of Croatia [official website, in Croatian] on Friday upheld the conviction [judgment, PDF; in Croatian] of former Parliament [official website] member Branimir Glavas [JURIST news archive], but reduced his sentence by two years. Glavas was convicted and sentenced to 10 years in prison [JURIST report] in 2009 for ordering the torture and death of Croatian Serbs in the town of Osijek in 1991 during the Serbo-Croatian War [GlobalSecurity backgrounder]. In confirming the decision of the lower court but reducing the sentence, the Supreme Court held that the war crimes counts of which Glavas was convicted should have been one count instead of two. The court rejected the prosecutor's arguments seeking a higher sentence for Glavas, which could have been as high as 20 years under the charges against him. The court also reduced the sentences of three of Glavas' co-defendants. Glavas has maintained his innocence [AFP report] throughout the proceedings, stating that the convictions are politically motivated. Glavas' lawyer has promised to appeal the decision to the Constitutional Court [official website].

A Bosnian state court refused to extradite Glavas [JURIST report] to Croatia to serve a sentence for war crimes in 2009. Glavas, who holds dual Bosnian and Croatian citizenship, fled to Bosnia to avoid serving his sentence. Shortly after fleeing Croatia in an effort to avoid the sentence, Glavas was arrested on an Interpol warrant in Bosnia. In 2008, Glavas was stripped of his parliamentary immunity [JURIST report] so that lawyers could proceed with his prosecution in Croatia. Glavas is a former prominent member of the ruling Croatian Democratic Union [party website, in Croatian], and was re-elected [JURIST report] to office under the new parliament during the Croatia's November 2007 elections. Glavas staged a 40-day hunger strike in 2006 when he was detained [JURIST report] after the criminal investigation against him initially opened. rder of two Serbs in a separate incident in Osijek.




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Philippines president creates 'truth commission' to probe rights abuses
Jaclyn Belczyk on July 30, 2010 3:49 PM ET

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[JURIST] Philippines President Benigno Aquino [BBC profile] signed an executive order [text, PDF] Friday to set up a "truth commission" to investigate allegations that the outgoing administration engaged in corruption and rights violations. The commission will look into accusations that former president Gloria Macapagal Arroyo [BBC profile; JURIST news archive] and members of her administration rigged the 2004 presidential election, misused government funds and profited from government contracts. Aquino announced plans to create the commission [JURIST report] earlier this month, prompting a call for him to issue an executive order to make the commission official and clear up any ambiguity regarding its authority. Signing the executive order, Aquino said [statement], "[t]he process of bringing a necessary closure to the allegations of official wrongdoing and impunity has begun." The commission, set to finish its work by 2012, will have the power to recommend or file charges [AFP report]. Arroyo has repeatedly denied any wrongdoing.

Arroyo was elected to the lower house of parliament in April after receiving permission to run for the seat [JURIST report] despite protests that her presidency gave her an unfair advantage. In March, Aquino and other presidential candidates criticized as "unjust" a Supreme Court ruling that allowed Arroyo to appoint a replacement for the retiring chief justice [JURIST report], who planned to step down a week after the May presidential elections. Arroyo declared martial law [JURIST report] in December for the first time in 23 years in the wake of a massacre in the Maguindanao province that left 57 dead. In February, prosecutors charged 197 people with murder [JURIST report] in connection with the massacre. A Manila trial court ordered the arrest of 189 more suspects [JURIST report] in March. Eleven policemen and militia members pleaded not guilty [JURIST report] to the charges in April.




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California primary election system challenged
Dwyer Arce on July 30, 2010 1:00 PM ET

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[JURIST] Two prospective third party congressional candidates and six California voters filed a lawsuit [complaint, PDF] Thursday seeking to enjoin enforcement [motion, PDF] of Proposition 14 [text], which alters the primary election system, creating an open primary where only the top two vote-getters would advance to the general election. Proposition 14 was approved by voters last month [JURIST report] and changes elections to create a system in which all candidates for a state or federal office except for president would run in a single primary regardless of political affiliation. From this, only the two candidates with the most votes would appear on the ballot in the general election. The lawsuit, filed in the Superior Court of San Fransisco County [official website], challenges the constitutionality of two provisions, one which disallows state election officials from counting write-in ballots while still providing a space for write-ins, and one that only allows primary candidates to list their party affiliations if they are members of one of six parties qualified for the ballot by the state. The complaint alleges that the write-in provisions violate the free speech, due process and equal protection rights of voters under the US and California [texts] constitutions. In urging the court to issue an injunction against the enforcement of the law, the motion for preliminary injunction states:
California voters were lured into an insidious trap [by Proposition 14]. Eager to reform the way our elections are conducted, a slim majority of voters approved [it], which promised to "protect and preserve the right of every Californian to vote for the candidate of his or her choice." However, many voters did not know that by voting for Proposition 14, they were also approving ... a pernicious law that tramples on our fundamental right to vote and run for office[.] ... Because SB 6 now threatens to disenfranchise voters and muzzle candidates, time is of the essence. Unless this Court swiftly issues a preliminary injunction, Plaintiffs and similarly situated voters and candidates will suffer imminent and irreparable harm.
The Democratic, Republican and Green [party websites] parties of California, in addition to other third parties, have also been considering a lawsuit to enjoin enforcement of the law, which is set to go into effect in 2011.

In June, the proposition was approved by 53.7 percent [results] of voters. Supporters of the change have described it as necessary [LAT report] to alleviate the strong ideological opposition in the state legislature [official website]. California Governor Arnold Schwarzenegger [official website], who included the ballot initiative in his 2010 budget, praised the measure [statement], describing it as a sign of a "sweeping change." The new primary system immediately faced heavy criticism from third parties. The Green Party of California described the new system [press release] as designed to "keep dissenting voices off the ... November ballot." Proposition 14 was based largely on the system used in Washington state, which was implemented there in 2004 after the passage of Initiative 872 [text, PDF]. In 2008, the US Supreme Court [official website; JURIST news archive] upheld Washington's primary election system [JURIST report] as constitutional against a First Amendment [Cornell LII backgrounder] challenge, overturning a contrary decision by the US Court of Appeals for the Ninth Circuit [official website]. Louisiana has a similar system, but, under that system, a candidate who garners over 50 percent of the vote in the primary will forgo the general election.




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UN rights body urges Israel to allow international inquiry into flotilla raid
Dwyer Arce on July 30, 2010 10:29 AM ET

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[JURIST] The UN Human Rights Committee [official website] on Friday called on Israel to cooperate [report, DOC] with an international inquiry into the May flotilla incident [JURIST news archive], in which Israeli forces raided several Turkish ships bound for the blockaded Gaza Strip [BBC backgrounder]. The committee, charged with monitoring compliance with the International Covenant on Civil and Political Rights [text], made a series of recommendations in order to bring the Israeli government into compliance with the covenant, to which it is a state party. It went on to call for an end to the blockade on Gaza, noting that a recent easing [JURIST report] was insufficient to ensure that Gazans had access to basic necessities. The committee also called into question the independence of the Israeli government's internal investigation into the flotilla incident, urging Israel to invite in an international inquiry, something which Israel has refused to do [JURIST reports]. The committee stated:
While noting the preliminary findings of the State party's investigation into the incident, the Committee is concerned at the absence of independence of the commission of inquiry and the prohibition to question the officials of the State party's armed forces involved in the incident. The State party should lift its military blockade of the Gaza Strip, insofar as it adversely affects the civilian population. The State party should invite an independent, international fact-finding mission to establish the circumstances of the boarding of the flotilla, including its compatibility with the Covenant.
The committee went on to criticize Israel's noncompliance with the covenant in several other areas. It called on Israel to amend its Basic Law [text] to include general provisions for nondiscrimination, which are currently lacking, and urged Israel to enforce the provisions of the covenant in Gaza, the West Bank [GlobalSecurity backgrounder] and the Golan Heights [History backgrounder]. The Israeli government argues that this is not required due to an ongoing state of war, something the committee disputes. The committee also called on Israel to repeal its citizenship law, outlaw the use of torture in all circumstances, end construction of the separation wall, reform its housing policies [JURIST reports] and conduct a credible investigation into international human rights violations during Operation Cast Lead [JURIST news archive].

Earlier this week, a senior Israeli official announced that his government would not cooperate with an investigation into the incident conducted by the UN Human Rights Council (UNHRC) [official website], but will comply with a separate UN investigation created under the authority of UN Secretary General Ban Ki-moon [official website]. Also in July, an Israeli military probe found insufficient intelligence and planning in the raid, but also concluded that no punishments were necessary. The military probe was conducted at the same time as a civilian one established by Israeli Prime Minister Benjamin Netanyahu [official profile; BBC profile] last month. In June, the International Committee of the Red Cross (ICRC) [official website] called for an end to the blockade [JURIST report], 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.




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Rights groups sue Hawaii for recognition of same-sex civil unions
Dwyer Arce on July 30, 2010 8:50 AM ET

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[JURIST] Lambda Legal and the American Civil Liberties Union (ACLU) [advocacy website] filed a lawsuit [complaint, PDF] Thursday seeking to force Hawaii to recognize same-sex civil unions [JURIST news archive] that offer the same rights as marriage. The complaint, filed on behalf of six same-sex couples, was in response to the veto of legislation [JURIST report] earlier this month by Hawaii Governor Linda Lingle (R) [official website] that would have created same-sex civil unions. The lawsuit, filed in the First Circuit Court of Hawaii [official website], argues that, by failing to provide same-sex couples with the same rights and benefits available to opposite-sex couples, the state is violating the same-sex couples' right to equal protection, due process and privacy under the Hawaii Constitution [text]. The plaintiffs allege that, by providing only reciprocal beneficiary status, a legal relationship offering limited benefits to same-sex couples, the state is impermissibly denying same-sex couples' right to equal protection by giving their relationship "inferior legal status" and providing an "insufficient and defective safety net for their families." Additionally, the complaint argues that the lack of equal status interferes with the plaintiffs' rights to private family life and would survive no level of scrutiny because it reflects "moral disapproval and antipathy toward lesbians and gay men serv[ing] no legitimate government interest." Explaining the harm caused by these constitutional violations, the complaint argues:
The State's relegation of same-sex couples to the inadequate status of reciprocal beneficiaries subjects the Plaintiff couples to legal vulnerability and related stress, while depriving them of the dignity and legitimacy of a legal status that, while still unequal to marriage, would at least recognize their equal entitlement to the same rights, benefits and obligations as are provided to different-sex couples who marry. The State's family relationship scheme ... sends a clear and purposeful message that the State views lesbian and gay people as secondclass citizens who are undeserving of the legal sanction, protections and support that heterosexual people and their families enjoy.
The lawsuit stops short of seeking recognition of same-sex marriage, noting that the state legislature [official website] has the constitutional authority to define marriage under a 1998 amendment passed following a 1993 Hawaii Supreme Court decision [text] requiring the state to show a compelling reason to deny same-sex marriage.

The ACLU first indicated it would be filing the lawsuit [press release] earlier this month shortly after Lingle's veto. Last week, the ACLU filed a lawsuit seeking to force Montana [JURIST report] to provide legal status to same-sex relationships. The lawsuit seeks declaratory judgment that the state must provide a legal status to same-sex couples that confers the same rights and obligations as marriage under the equal protection, due process, privacy and dignity under provisions of the Montana Constitution [text]. Several jurisdictions in the US have legalized same-sex marriage or recognized same-sex civil unions. Same-sex civil unions that confer the same rights as marriage are currently recognized in Washington, New Jersey, Oregon and Nevada [JURIST reports]. In March, DC legalized same-sex marriage, joining Vermont, New Hampshire, Iowa, Connecticut and Massachusetts [JURIST reports].




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Bosnia ex-policeman indicted for war crimes
Ann Riley on July 30, 2010 8:32 AM ET

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[JURIST] The Prosecutor's Office of Bosnia and Herzegovina (BiH) [official website] on Thursday indicted [press release] former Serb policeman Srpko Pustivuk for allegedly committing crimes against civilians during the Bosnian civil war [JURIST news archive]. Pustivuk was arrested [press release] on July 13 in Bijeljina and has been held in custody since. According to a statement by the Prosecutor's Office, Pustivuk is accused of taking part in a May and June 1992 "attack on civilians which resulted in the death and severe bodily injuries to civilians, some of whom were minors," as a member of the Bosnian Serb special police unit. Pustivuk is charged with the criminal offense of War Crimes against Civilians in violation of Article 173(1) in conjunction with Articles 180(1), and 29 of the Criminal Code of BiH [text, PDF]. Pustivuk is also charged with the unlawful detention, deprivation of liberty of civilians, and violating the Protection of Civilian Persons in Time of War and the Protection of Victims of International Armed Conflicts provisions of the Geneva Convention [texts]. The indictment has been submitted to the Court of BiH [official website].

The BiH war crimes court was set up in 2005 to relieve the caseload of the International Criminal Tribunal for former Yugoslavia (ICTY) [official website] and is authorized to try lower-level war crime suspects. The court delivered its first sentences [JURIST report] against war crimes suspects from Yugoslavia's violent ethnic conflicts of the 1990s in July 2008, convicting seven of genocide for their involvement in killings committed at the Srebrenica [JURIST news archive] prison camp. The ICTY retains jurisdiction over high-level war crimes, such as those against Bosnian Serb wartime leader Radovan Karadzic [ICTY materials; JURIST news archive] and General Ratko Mladic [ICTY materials, JURIST news archive], who are charged with genocide for their alleged roles is the 1995 Srebrenica massacre. Karadzic, on trial before the ICTY, denies all charges while Mladic, a fugitive since 1995, has yet to be arrested [JURIST reports].




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Arizona appeals order partially blocking immigration law
Ann Riley on July 30, 2010 7:44 AM ET

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[JURIST] Arizona Governor Jan Brewer (R) [official website] on Thursday filed an expedited appeal [text, PDF] asking the US Court of Appeals for the Ninth Circuit [official website] to lift the preliminary injunction [press release, PDF] issued Wednesday against several provisions of a controversial immigration law [SB 1070 materials; JURIST news archive]. The appeal and motion [text, PDF] for expedited briefing and hearing schedule asks the court to establish a timeline for briefs, schedule oral arguments for the week of September 13 and expedite its ruling. Explaining Arizona's reasons for the appeal, Brewer said:
If the federal government wants to be in charge of illegal immigration and they want no help from states, it then needs to do its job...Illegal immigration is an ongoing crisis the State of Arizona did not create and the federal government has refused to fix. SB 1070 protects all of us, every Arizona citizen and everyone here in our state lawfully. It ensures that the constitutional rights of ALL in Arizona are undiminished. ... Our state taxpayers cannot sustain the outrageous costs of illegal immigration, and its continued erosion of our time-honored legal immigration traditions.
Wednesday's injunction [JURIST report] came at the request of the US Department of Justice (DOJ) [official website], which filed its suit challenging the constitutionality of the law [JURIST report] earlier this month. Judge Susan Bolton issued the injunction against provisions of the law requiring the verification of the immigration status of people reasonably suspected of being illegal immigrants and authorizing the warrantless arrest of those police have probable cause to believe have committed an offense that could lead to deportation. The court also enjoined a provision of the law requiring noncitizens to carry their registration papers with them at all times. The court declined to enjoin several other provisions of the law, finding that the DOJ was not likely to prevail in its claims against them, including making it a state crime to harbor illegal immigrants and allowing for the impoundment of vehicles used in their transportation.

In its complaint, the DOJ argued that the Constitution and federal law "do not permit the development of a patchwork of state and local immigration policies throughout the country." The DOJ also claims that the federal government has preeminent authority to regulate immigration matters and that the enforcement of the Arizona law is counterproductive to the national immigration policy and will interfere with foreign relations with Mexico and other countries. The law has been widely criticized as unconstitutional and allegedly legalizing racial profiling. Also in July, the American Bar Association (ABA) [official website] filed an amicus curiae brief [JURIST report] in support of the DOJ lawsuit, following the submission of another amicus curiae brief [JURIST report] in support of a lawsuit filed by the American Civil Liberties Union (ACLU) [advocacy website]. In the brief filed in support of the US, the ABA also argues that the Arizona law would interfere with law enforcement officers' public safety functions and infringe on both citizens' and noncitizens' constitutional rights by placing upon them the burden of proving their citizenship.




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