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Legal news from Tuesday, September 7, 2010




HRW calls on Zambia to stop police abuse of prisoners
Sarah Miley on September 7, 2010 2:35 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Tuesday urged the Zambian government to investigate the inhumane treatment of prisoners [press release] in the nation's jails and to hold those implicated accountable. HRW claims that Zambian police officials "routinely engage" in abusing and torturing prisoners in order to extract confessions. HRW urged the Zambian government to train officials on non-abusive interrogation techniques and to adopt a "zero tolerance" policy for inhumane treatment of prisoners. In a letter to the Zambian Minister of Foreign Affairs, HRW stated:
Prisoners we interviewed repeatedly reported that police had beaten them in custody in order to try to coerce a confession, and often inflicted serious injuries. Inmates showed researchers their misshapen fingers—in some cases smashed by hammers or iron bats—and scars on their feet and hands. Many have long-term injuries that require ongoing medical attention, ostensibly due to their treatment in custody. ... Under international human rights law, people in detention retain their human rights and fundamental freedoms. As you will be aware, the most fundamental protection for detainees is the absolute prohibition on torture.
Zambian police officials claim that the use of force against prisoners is not prison policy, but is only used by a "few rotten eggs." HRW disputes this claim, stating that, out of the 246 prisoners interviewed by the rights group, a large proportion were victims of abuse in prison, showing a widespread and systematic execution of inhuman treatment against detainees.

Earlier this year, HRW released a similar statement concerning the alleged abuse of prisoners [JURIST report] in a secret Iraqi prison. HRW stated that detainees held at the Muthanna facility, run by Iraqi authorities, were hung upside-down, deprived of air, kicked, whipped, beaten, given electric shocks and sodomized during torture sessions that detainees faced every three to four days. Iraqi Prime Minister Nouri al-Maliki [official website, in Arabic; BBC profile] denied the reports of a secret prison, claiming the facility was publicly known and that the reports of abuse are exaggerated. In June HRW lauded the Turkish government for its landmark conviction of several prison and police officials [JURIST report] for the torture and death of anti-government activist Engin Ceber while in police custody. The conviction marks the first time a Turkish court has convicted a senior prison official for the conduct of guards under his command.




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Rwanda genocide tribunal opens trial of ex-mayor
Sarah Paulsworth on September 7, 2010 2:28 PM ET

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[JURIST] The International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive] on Monday began the trial [press release] of former Kivumu, Rwanda, mayor Gregoire Ndahimana [case materials; Trial Watch profile]. Ndahimana was charged [indictment, PDF] in July 2001 on charges of genocide or, alternatively, complicity in genocide, and crimes against humanity in connection with the 1994 Rwandan genocide [BBC backgrounder; JURIST news archive]. Ndahimana is thought to have played a leading role in the April 15, 2001, bulldozing of the Nyange parish, which resulted in the deaths of 2,000 Tutsis hiding inside, and is also believed to have been involved in other killings of Tutsis that took place at the same parish between April 6 and April 20, 1994. Although Ndahimana was indicted in 2001, he spent more than 15 years in hiding before he was captured [VOA report] in August 2009 in the Democratic Republic of Congo.

The ICTR continues to try suspects for crimes occurring during the 1994 Rwandan conflict between Hutus and Tutsis in which approximately 800,000 people, primarily Tutsis, died. In August, former Rwandan regional administrator Dominique Ntawukulilyayo was sentenced [JURIST report] by the ICTR to 25 years in prison for his role in the 1994 genocide. In July, Rwandan pastor Jean-Bosco Uwinkindi [Hague Justice profile; case materials] pleaded not guilty [JURIST report] to multiple similar genocide charges before the ICTR. Last October, Ugandan officials apprehended [JURIST report] another highly-sought suspect, former Hutu intelligence chief Idelphonse Nizeyimana [BBC profile; case materials]. Nizeyimana, who pleaded not guilty [JURIST report] to four genocide counts [indictment, PDF], still awaits trial. Nizeyimana was one of four two accused sought by the ICTR in order to complete its mission. In June, UN Security Council [official website] extended the terms [press release] of ICTR trial judges to December 31, 2011, and appellate judges to December 31, 2012.




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Rights groups file suit challenging border laptop search policy
Sarah Miley on September 7, 2010 1:48 PM ET

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[JURIST] The American Civil Liberties Union (ACLU), the New York Civil Liberties Union and the National Association of Criminal Defense Lawyers (NACDL) [advocacy websites] filed a lawsuit [complaint, PDF] Tuesday against the US Department of Homeland Security (DHS) [official website] challenging a government policy that allows border patrol to search electronic devices without reasonable suspicion. The plaintiffs, which also include press photographers and a university student, claim that the law violates constitutional rights [press release] to privacy and freedom of speech:
Electronic devices like laptops, "smart" phones, and external data storage devices hold vast amounts of personal and sensitive information that reveals a vivid pictures of travelers' personal and professional lives, including their intimate thoughts, private communications, expressive choices, and privileged or confidential work product. [The] policies and practices of searching, copying, and detaining these personal devices without suspicion or judicial supervision violates the constitutional rights of American citizens to keep the private and expressive details of their lives, as well as sensitive information obtained or created in the course of their work, free from unwarranted government scrutiny.
American citizen and university student Pascal Abidor had his laptop searched and confiscated while on a train from Montreal to New York. Abidor was interrogated and released without charge several hours later. Documents gathered by the ACLU through the Freedom of Information Act (FOIA) [official website] reported that, under the DHS policy, more than 6,600 travelers, nearly half of whom are American citizens, were subjected to electronic device searches at the border between October 1, 2008, and June 2, 2010.

In 2008, US Senator Russ Feingold (D-WI) [official website] criticized [JURIST report] the Customs and Border Protection (CBP) [official website] for warrantless searches and seizures of travelers' laptops and other digital devices at the US border, calling the searches an unacceptable invasion of privacy [hearing materials]. The Supreme Court has held that reasonable suspicion is not necessary to conduct routine searches at the border, but searches of laptops and other digital devices are analogous to more invasive practices such as strip searches, said Feingold.




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Black farmers urge US Senate to fund settlement in discrimination case
Jay Carmella on September 7, 2010 12:48 PM ET

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[JURIST] Founder and president of the National Black Farmers Association (NBFA) [advocacy website] James Boyd, Jr. [official profile] called [press release] Tuesday for the US Senate [official website] to fund a settlement [JURIST report] in a discrimination case involving minority farmers. The request comes a month after the Senate failed to approve [press release; CNN report] over a billion dollars for a settlement between the US Department of Agriculture (USDA) [official website] and the black farmers. The US House of Representatives [official website] approved a measure in July that included money to fund the settlement, but the bill failed to pass through the Senate for a seventh time. President Barack Obama has expressed his support [USA Today report] for the settlement agreement between the NBFA and USDA.

The battle by the NBFA to receive an allocation of resources is over a decade old. In 2008, the NBFA brought a class action lawsuit [JURIST report] against the USDA, alleging on behalf of more than 800 black farmers that the USDA improperly discriminated against them. Many farmers were left out of the 1999 settlement [text, PDF; NALC backgrounder, PDF] after missing a filing deadline, and thousands more argued that the terms of the settlement were inadequate. After earlier accusations of unfair distribution of resources, the USDA created the Office of the Assistant Secretary for Civil Rights (ASCR) [official website] in 2003 to monitor compliance with civil rights laws and to help ensure equality in the administration of the USDA's many programs.




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Spain high court confirms trial for judge Garzon over Franco probe
Jay Carmella on September 7, 2010 11:31 AM ET

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[JURIST] The Criminal Chamber of the Spanish Supreme Court [official website, in Spanish] unanimously confirmed on Tuesday the lower court order that National Court judge Baltasar Garzon [BBC profile; JURIST news archive] abused his power and must face trial. Garzon was charged [JURIST report] in April for his attempt to investigate the war crimes allegedly committed under Francisco Franco [BBC backgrounder] during the Spanish Civil War [LOC backgrounder]—charges Garzon claims were politically motivated. The board of judges denied [El Pais report, in Spanish] Garzon's appeal of the order, and he will now face trial later this year. The judges found that the witnesses called by Garzon will produce merely personal opinions and also determined that exhumation of 19 mass graves that Garzon ordered [JURIST report] in 2008 was inappropriate. The ruling comes just days after an Argentine court reopened [JURIST report] the case against Franco for his alleged crimes against humanity.

Garzon has faced turmoil since his 2008 decision. In May, the Spanish General Counsel of the Judiciary (CGPJ) [official website, in Spanish] voted unanimously to suspend [JURIST report] Garzon. Later that month, the judiciary oversight committee of the CGPJ approved a request [JURIST report] by Garzon to work with the International Criminal Court (ICC) [official website]. The ICC asked [press release] Garzon to work for them as a consultant for a period of seven months in order to improve their investigative methods. Thousands gathered [JURIST report] in cities across Spain in April in support of Garzon, chanting slogans and displaying flags of the pre-war Republican government ousted by Franco. Garzon is widely known for using universal jurisdiction [AI backgrounder; JURIST news archive] extensively in the past to bring several high-profile rights cases, including those against Osama bin Laden and former Chilean dictator Augusto Pinochet.




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Kenya court convicts Somali pirates
Hillary Stemple on September 7, 2010 11:23 AM ET

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[JURIST] A Kenyan court on Monday convicted seven Somali pirates [JURIST news archive] on charges related to the attack on a German naval supply ship in March 2009, sentencing them to five years in prison. According to prosecutors, the men attempted to hijack the ship [AfricaNews report] using AK47 rifles and rocket propelled grenades, but the hijacking was prevented by security forces on the ship. Following the attack, the pirates were tracked and apprehended by ships acting as part of EU Naval Forces Somalia (EU NAVFOR) [official website] before being transferred to Kenyan custody to stand trial. A lawyer for the men urged the court to be lenient [Xinhua report] in their sentencing, stating that the men would be a burden to Kenyan taxpayers. The men also indicated that they have been rehabilitated through their time in prison and that they will actively work to discourage others from participating in piracy. While the five-year sentence is the shortest handed down by Kenyan courts for piracy charges since the country began hearing piracy cases in 2006, the judge delivering the judgment of the court indicated that it would be a strong deterrent for others considering engaging in piracy. EU NAVFOR praised the judgment [press release] as an "important step in the co-operation between European Union and Kenya in the repression of acts of piracy and armed robbery off the coast of Somalia." The men have 14 days to appeal the court's decision.

The international community continues with efforts to fight maritime piracy, both through the funding of UN-backed piracy courts, and through prosecution in multiple jurisdictions. In July, a court in Seychelles convicted and sentenced [JURIST report] a group of Somali pirates to 10 years in prison following the attempted hijacking of Seychelles coastguard ship. In June, the UN announced the opening of a new high-security courtroom [JURIST report] in Kenya that will hear piracy cases. The announcement came after the UN announced $9.3 million in donations [JURIST report] to help fund piracy courts in Kenya and Seychelles. Also in June, a Dutch court concluded Europe's first Somali pirate trial by convicting and sentencing a group of suspects [JURIST reports] to five years in prison. In May, a Yemeni court sentenced six pirates to death [JURIST report] for their roles in an attack on a Yemeni oil tanker in 2009. Charges are also currently pending [JURIST report] against piracy suspects in the US.




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Federal judge allows indefinite detention of Guantanamo detainee
Hillary Stemple on September 7, 2010 10:40 AM ET

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[JURIST] A federal judge for the US District Court for the District of Columbia [official website] ruled [order, PDF] Friday that the US government can indefinitely hold an Afghan detainee at the Guantanamo Bay [JURIST news archive] detention facility. The detainee, Shawali Khan [NYT profile], is accused of belonging to Hezb Islami Gulbuddin (HIG) [GlobalSecurity backgrounder], an anti-American insurgency group active in Afghanistan with ties to the Taliban and al Qaeda [JURIST news archive]. Lawyers for Khan have argued that he was a shopkeeper [Miami Herald report] in Kandahar and not involved with fighting against American forces. They contend that Khan was captured by corrupt Afghans who turned him over to American forces and lied about his involvement with insurgents. The defense also presented evidence that HIG had no presence in the Kandahar region when Khan was captured, making his involvement with the group unlikely. The court indicated that a redacted version of the full opinion will be released at a later date.

Last month, a federal judge ordered the release [JURIST report] of Yemeni Guantanamo Bay detainee Adnan Farhan Abdul Latif [NYT profile] citing a lack of evidence proving that Latif was part of a terrorist organization. In July, the US Court of Appeals for the District of Columbia Circuit [official website] released a redacted opinion [JURIST report] holding that evidence against Algerian Guantanamo Bay detainee Belkacem Bensaya must be reviewed to determine if he was "part of" al Qaeda. Circuit Judge Douglas Ginsburg, writing the opinion for the panel, held that there appeared to be no direct evidence linking Bensaya to al Qaeda, and that the government's authority under the 2001 Authorization for Use of Military Force (AUMF) [text, PDF] only extends to the detention of individuals who are "functionally part of" a terrorist organization. Bensayah was the only one of the six petitioners from the 2008 Boumediene v. Bush [opinion, PDF; JURIST report] decision who was not granted habeas corpus relief after the Supreme Court remanded the case for further review of evidence.




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Sri Lanka high court approves constitutional changes to remove presidential term limits
Carrie Schimizzi on September 7, 2010 10:24 AM ET

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[JURIST] The Supreme Court of Sri Lanka [official website] on Tuesday approved [press release] a proposed constitutional amendment to eliminate presidential term limits, holding that the amendment is not inconsistent with the Sri Lankan Constitution [materials]. The proposed amendment, which would allow current President Mahinda Rajapaksa [official website] to run for an unlimited number of terms in office, will next be presented for approval before Parliament [official website] later Tuesday where it must pass by a two-thirds majority. Last week, the Sri Lankan cabinet also approved the proposed constitutional reforms [JURIST report]. It is widely believed that Rajapaksa enjoys enough support [Xinhua report] to allow the amendment to easily pass. Critics of the president say he is abusing his power [AP report] and attempting to "create a family dynasty".

While the proposed amendment would allow Rajapaksa to make a bid for an unlimited number of terms in office, his second term has not yet begun, though he easily achieved victory [NYT report] in January elections. Rajapaksa is a consistently popular figure within Sri Lanka, primarily for his efforts in defeating the Tamil Tiger [JURIST news archive] rebels within Sri Lanka. That victory was not without cost, however, as numerous questions have been raised about the government's actions during the conflict, including the treatment of prisoners. Earlier this month, the Sri Lankan defense minister defended [JURIST report] the government's actions during the conflict. In July, UN Secretary-General Ban Ki-moon called on the Sri Lankan Government to improve conditions around UN offices in Colombo after a UN announcement of the formation of an international panel to investigate human rights abuses during the war resulted in days of pro-government protests [JURIST reports] near UN offices.




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Norway suspect pleads not guilty in country's first terror financing trial
Carrie Schimizzi on September 7, 2010 9:10 AM ET

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[JURIST] A Somalia native pleaded not guilty [Aftenposten report, in Norwegian] Tuesday in an Oslo District Court [official website, in Norwegian] at Norway's first trial under its 2002 terror financing law. The unidentified Somali-born Norwegian citizen has been accused [AP report] of sending at least USD $33,000 to senior commanders of the al-Shabaab [CFR backgrounder] rebel movement between August 2007 and February 2008. According to Norwegian newspaper Aftenposten, the indictment states the accused was in contact with the organization and was informed about its actions, which include plans to overthrow the Somali government. The defense counsel for the accused maintains that his client only intended to send money to the Islamic Courts Union and that he did not understand the group had ties to al-Shabaab. The Islamist al-Shabaab movement has been linked to al Qaeda [JURIST news archive] in the past.

Prosecutors in Norway have yet to win a conviction under Norway's anti-terrorism laws [JURIST news archive], which were passed in response to the 9/11 attacks [JURIST news archive] on the US. In 2008, a Norwegian court acquitted three suspects [JURIST report] accused of planning to attack the US and Israeli embassies in Oslo in the first trial under the anti-terrorism law. Norway's anti-terrorism laws have been criticized [JURIST report] by the US in the past for being too lenient.




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