April 2011 Archives


Utah governor files suit to invalidate federal wilderness order
Erin Bock on April 30, 2011 2:41 PM ET

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[JURIST] Utah Governor Gary Herbert [official website] announced on Friday that the state of Utah filed a complaint [statement] in the US District Court for the District of Utah [official website] against the Department of the Interior (DOI) [official website] regarding an order issued by Secretary of the Interior Ken Salazar [official profile] in December. Secretarial Order 3310 [text, PDF] created a new "Wild Lands" designation for public lands and provided that the Bureau of Land Management (BLM) [official website] would maintain an inventory of "lands with wilderness characteristics" within its jurisdiction and integrate the information into decisions regarding land use and management. The order further stated that the BLM should provide recommendations to Congress for designations of areas into the National Wilderness Preservation System [background materials]. The complaint alleges that the order violates provisions of the National Environmental Policy Act (NEPA), the Administrative Procedure Act (APA) and the Federal Land Policy Management Act (FLPMA) [text] by not following proper procedures for notice and rulemaking and is outside of the DOI's legal authority. Hebert relayed his concerns that the implementation of the order would have a negative impact on Utah's economy by hindering land use and development:
In Utah, we have beautiful and resource-rich land. Our lands have supported both a strong energy development industry and a vibrant outdoor recreation industry for years. They can continue to do so if all stakeholders are allowed to collaborate within a proper legal framework to determine the best use for our lands. ... Corporations will not invest the time or resources to prepare new bids and engage in new explorations in an unsteady regulatory environment. This order is bad policy, it's bad for Utah, and it's bad for the entire nation.
The complaint asks the district court to void the order, set aside any BLM manuals created pursuant to the order and prevent the DOI from issuing any further orders that would infringe on any existing BLM management plans.

This is not the first time a district court has been called upon to settle a dispute over wilderness protection. In February, the US District Court for the District of Idaho [official website] dismissed a lawsuit brought by environmentalists [JURIST report] that challenged the state's "roadless rule" [JURIST news archive] to manage and protect its nine million acres of forests. The National Forest Service (NFS) [official website] issued the Roadless Area Conservation Act [text] in 2001, which prohibited the building of roads or the use of roadless lands in National Parks for timber production. The act is currently in force in all states except Idaho and Alaska. Environmentalists argued that Idaho's version of the rule provided less protection than its federal counterpart. In February 2010, the US District Court for the District of Columbia [official website] granted summary judgment [JURIST report] for the NFS, upholding an agreement limiting the amount of timber that can be harvested in Alaska's Tongass National Forest. Several Alaska towns and companies challenged the 2008 forest plan, which, among other things, designated parts of the forest "old growth reserves," limiting the amount of timber that could be harvested.




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Canada high court rules against farm workers union
Erin Bock on April 30, 2011 1:26 PM ET

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[JURIST] The Supreme Court of Canada [official website] on Friday ruled [judgment, PDF] that Ontario's Agricultural Employees Protection Act (AEPA) [text] does not violate the Canadian Charter of Rights and Freedoms [text]. The AEPA denies workers the right to unionize and engage in collective bargaining. The court determined by an 8-1 margin that the APEA does not violate the workers' freedom of association because workers are still permitted to form associations in order to bring grievances to employers. The decision overturned a 2008 decision [text, PDF] by the Court of Appeal for Ontario [official website] finding that the AEPA was in violation of the right and ordered the legislature to create a new law. Representatives for the respondent, United Food & Commercial Workers Union (UFCW) [official website], stated [press release] that they intend to focus on lobbying efforts to change the law and protect workers from rights abuses:
The reality is that appealing to the courts has ended. Appealing to the decency and the will of voters is next. This is also a political issue. Most Canadians would be appalled at the working and living conditions of tens of thousands of Ontario agriculture workers. ... There is an Ontario election coming and we and our allies and members will make this an issue.
The UFCW has been engaged in litigation regarding farm workers' rights to unionize since 1995, after the Ontario legislature repealed the short-lived Agricultural Labour Relations Act of 1994 [text] that gave workers the right to unionize and engage in collective bargaining. In its place, the legislature enacted the Labour Relations and Employment Statute Law Amendment Act (LRESLAA) [text] denying these rights, but the Supreme Court of Canada issued a decision [text, PDF] in 2001 finding the act infringed on freedom of association and ordered new legislation. The legislature enacted the AEPA shortly thereafter in 2002.

Public unions' rights to engage in collective bargaining has become a major issue in the US as well. Earlier this month, Wisconsin's attorney general filed a Petition for Supervisory Writ to the Wisconsin Supreme Court [JURIST report] claiming that a circuit court judge did not have the constitutional authority to issue a restraining order to temporarily block publication [JURIST report] of the state's Budget Repair Bill [Senate Bill 11 text, PDF]. The original lawsuit alleged that Republican lawmakers did not follow the state's open meetings law [JURIST report] when passing the legislation. The court order was issued in response to debate among government officials [JURIST report] that the law, which strips public unions of the vast majority of their collective bargaining rights, went into effect after it was published on the Wisconsin Legislative Bureau's website. Last month, the Ohio Senate passed a bill [JURIST report] that alters Ohio labor law and restricts the collective bargaining abilities of unions and public sector workers. Governor John Kasich signed the bill into law [Plain Dealer report] at the end of March. Opponents of the bill have begun a campaign to put the issue to a vote by placing a referendum on the November ballot. Several other states are considering similar legislation.




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US soldier charged with releasing classified documents competent to stand trial
Carrie Schimizzi on April 30, 2011 12:53 PM ET

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[JURIST] A US Army [official website] panel of experts on Friday declared Pfc. Bradley Manning [advocacy website; JURIST news archive] competent to stand trial for leaking a controversial classified video [YouTube video] of a 2007 US helicopter strike in Iraq and classified State Department [official website] documents on Wikileaks [website] last year. It took a panel of psychiatrists nearly nine months [CBS report] to determine Manning's competency. Manning was transferred [DOJ press release; Kansas Star report] last week from pre-trial solitary confinement to the Joint Regional Correctional Facility [DOJ report, PDF] at Fort Leavenworth, Kansas. A date for the pre-trial hearing has not yet been set.

Manning faces two charges [charge sheet, PDF; JURIST report] under the Uniform Code of Military Justice (UCMJ) [text] for the transfer of classified information and exceeding his authorized computer access. His prosecution has sparked heated debate between defenders and critics. Those who support Manning's actions refer to him as courageous for acting as a whistleblower [advocacy petition] against government crime and corruption. He has been compared to famous US whistleblowers such as Frank Serpico and Daniel Ellsberg [personal websites], who leaked information regarding corruption in the New York Police Department and the Pentagon, respectively. Secretary of Defense Robert Gates [official profile] has criticized the video [WSJ report], claiming it provides the public a view of warfare "as seen through a soda straw." He noted that public attention was not drawn to what was discovered by US ground forces following the helicopter gunfire, including AK-47s and rocket-propelled grenade launchers. He also defended the reality of fighting terrorist organizations, which is made up of combatants who do not wear enemy uniforms.




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Mubarak could face death penalty for protester killings
Carrie Schimizzi on April 30, 2011 11:55 AM ET

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[JURIST] Former Egyptian president Hosni Mubarak [Al Jazeera profile; JURIST news archive] could face the death penalty if convicted of ordering attacks on protesters during the demonstrations in Egypt [JURIST news archive] early this year. Egypt's Justice Minister Mohammed al-Gindi told [AP report] al-Ahram weekly [official website] that Mubarak would face either the death penalty or life imprisonment if convicted. Mubarak is also facing charges [Ahram report] of corruption and embezzlement of public funds. Zakaria Shalash, head judge of the Cairo Court of Appeals, said this month that Mubarak may face execution [Ahram report] and that testimony of former Egyptian interior minister Habib el-Adly, on trial [BBC report] for killing protesters, could help prove Mubarak was an accomplice to the killings. However, if the prosecution cannot prove that the ordered killings were premeditated, a life sentence will likely be imposed. Mubarak is currently being detained at Sharm el-Sheikh International Hospital after he was hospitalized for heart trouble shortly after his resignation [JURIST report]. Earlier this week, public prosecutor Abdel-Maguid Mahmoud ordered [JURIST report] the transfer of Mubarak to a prison hospital in Cairo, but he was deemed unfit for travel [Xinhua report].

Last month, a commission of Arab and Egyptian human rights groups accused the former president [JURIST report] and the country's police of murdering protesters during the demonstrations in Egypt early this year. The joint commission submitted their report to Egypt's top prosecutor for further investigation. The Supreme Military Council of Egypt, which assumed power after Mubarak's resignation, instructed Egypt's top prosecutor to investigate the death of protesters [RIA Novosti report] during the three weeks of demonstrations in the country. Following the demonstrations, Egypt's chief prosecutor requested in February that Foreign Ministry officials take steps to freeze any foreign assets [JURIST report] belonging to Mubarak and his family.




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UN rights council condemns Syria violence
LaToya Sawyer on April 29, 2011 3:59 PM ET

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[JURIST] The UN Human Rights Council (UNHRC) [official website], in an emergency special session on Friday, publicly condemned [text, PDF] the violence used by Syrian authorities against peaceful protesters. Additionally, the council has immediately called for a full investigation of "all alleged violations of international human rights law" in Syria. The council's probe into Syrian violence is a direct endorsement of a US resolution [press release] calling for intervention in Syria to address more than 500 deaths since March. The resolution also calls for Syria to release arbitrarily detained prisoners, to allow humanitarian assistance to those in need and to evaluate its political process to allow for greater social justice and civil liberties. The resolution passed with a 26 to 9 member state vote. Seven member states did not vote, and five were absent from the session.

There has been a major struggle to put an end to Syrian violence since the protests began earlier this year. Last week, UN High Commissioner for Human Rights Navi Pillay [official profile] called for Syria to immediately halt the killings [JURIST report] and violence against civilian protesters in response to the fatal shootings of peaceful anti-government protesters. Also last week, Syrian President Bashar al-Assad [Al Jazeera profile] ended [JURIST report] the country's 48-year-old state of emergency, but protests have continued. Earlier this month, Human Rights Watch (HRW) [advocacy website] reported [text] that Syrian security forces have stopped medical personnel [JURIST report], sometimes violently, from attending to injured protesters. A spokesperson for the group called the practice "both inhumane and illegal." Last month, Pillay urged the Syrian government [JURIST report] to ensure protesters' rights to peaceful expression and to work toward addressing their concerns instead of responding with violence. As demonstrations continued throughout the country in March, the government freed 260 political detainees [AFP report] in an overture to the protesters.




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Federal appeals court reverses stem cell research funding ban
LaToya Sawyer on April 29, 2011 2:44 PM ET

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[JURIST] The US Appeals Court for the District of Columbia Circuit [official website] on Friday overturned [opinion, PDF] last year's ruling that placed a preliminary injunction [text, PDF, JURIST report] on federal funding of embryonic stem cell [JURIST archive] research. In a 2-1 vote by a three-judge panel, the court concluded that those opposing the funding had not shown that their case was likely to succeed on the merits. Additionally, the court gave considerable weight to the inequity that the injunction would impose on researchers who rely on federal funding
The hardship a preliminary injunction would impose upon ... researchers ... would be certain and substantial. The injunction entered by the district court would preclude the NIH [National Institutes of Health] from funding new ... projects it has or would have deemed meritorious, thereby inevitably denying other scientists funds they would have received. Even more problematic, the injunction would bar further disbursements to ... researchers who have already begun multi-year projects in reliance upon a grant from the NIH; their investments in project planning would be a loss, their expenditures for equipment a waste, and their staffs out of a job.
The Obama administration considers the ruling a major victory that will allow for scientists and patients around the world to benefit from the medical developments and discoveries that will arise from the research.

Federal funding for embryonic stem cell research has been a long uphill battle for the Obama administration. In 2009, President Barack Obama [official website] signed [press release] an executive order [text; JURIST report] which removed the previous administration's eight-year restriction on federal funding for human embryonic stem cell research. After the preliminary injunction on stem research was granted last year, the Obama administration appealed [JURIST report] the injunction, arguing that the ruling was overbroad, endangering an array of research across multiple programs and centers while only serving a very attenuated economic interest of the plaintiffs in the case. While the appeals process was underway, the court granted a long-term stay which allowed federal funding to continue [JURIST report] while the court reached a decision.




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Cambodia asks ICJ to review disputed temple on Thailand border
Michael Haggerson on April 29, 2011 12:14 PM ET

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[JURIST] The Cambodian government requested Friday that the International Court of Justice (ICJ) [official website] clarify [press release] its 1962 decision [judgment, PDF] awarding the Temple of Preah Vihear [UNESCO profile] to the Cambodian city of Phnom Penh. Cambodia has requested the clarification in order to "peacefully and definitely settle the boundary problem between [Cambodia and Thailand] in the area of the Temple of Preah Vihear." Parts of the Cambodia-Thailand border have never been formally demarcated, which has led to border disputes [BBS report]. In response to the latest border clash [JURIST report], UN Secretary General Ban Ki-moon [official website; JURIST news archive] stressed that the dispute could not be resolved through military force [statement] and urged both sides to continue working towards a ceasefire.

Cambodia's border with Vietnam has also been a point of controversy. Early last month, Cambodian opposition leader Sam Rainsy [party profile; JURIST news archive] lost his final appeal in the Cambodian Supreme Court on charges [JURIST reports] of intentionally destroying posts marking the Cambodia-Vietnam border and inciting racial discrimination. The ruling was given in absentia because Rainsy has been in self-imposed exile since 2005. At the hearing, Rainsy's representative stated that this was a political issue, not a criminal one. Human Rights Watch [advocacy website] criticized the ruling [JURIST report] as demonstrating the government's control over the judiciary.




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ICC prosecutor to brief UN on Libya war crimes probe
Michael Haggerson on April 29, 2011 11:14 AM ET

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[JURIST] International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] announced [press release] on Thursday his plans to brief the UN Security Council [official website] on May 4 on the progress of his investigation into alleged human rights violations by Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive]. The prosecutor is expected to request that judges issue warrants against the most serious perpetrators of war crimes and crimes against humanity in Libya. The ICC is exercising jurisdiction pursuant to UN Security Council Resolution 1970 [text], the first unanimous referral to the ICC in UN history [JURIST report]. Allegations against Gaddafi [JURIST report] include ordering aircraft to attack civilians, torturing and abducting civilians, ordering the execution of hospital patients and firing on crowds of protestors.

Earlier this month, the UN opened its own investigation [JURIST report] into alleged human rights violations, to work in concert with the ICC investigation which was opened in early March [JURIST report]. Moreno-Ocampo specifically identified Gaddafi, his sons and political allies as targets of the investigation and warned that any Libyan official complicit in the crimes risked prosecution and would not be granted immunity [JURIST report]. The UN General Assembly [official website] voted last month to suspend Libya [JURIST report] from the UN Human Rights Council [official website] in response to the Libyan government's attacks against civilians.




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ICTR removes US defense lawyer from tribunal work
Andrea Bottorff on April 29, 2011 9:22 AM ET

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[JURIST] The appeals chamber of the International Criminal Tribunal for Rwanda (ICTR) [official website] has removed US lawyer and JURIST Forum [website] contributor Peter Erlinder [professional profile; JURIST news archive] from his position as an ICTR defense lawyer. Appeals chamber judges said that last week's decision was based on Erlinder's failure to appear at the tribunal [New Times report] in Arusha, Tanzania. The decision [text, PDF] cites Rule 46 of the ICTR Rules of Procedure and Evidence [text], which allows the tribunal to impose sanctions on lawyers guilty of misconduct, after giving the lawyer proper warning. Erlinder has claimed that he did not travel to the tribunal because his life is in danger and that he is on a reported hit list consisting of the opponents of Rwandan President Paul Kagame [official website; BBC profile]. The ICTR will replace Erlinder with another defense lawyer "as soon as possible."

Rwandan Prosecutor General Martin Ngoga announced in October that Erlinder would be summoned to face charges of genocide denial [JURIST report] in Rwanda, after Erlinder said that it was incorrect to place the blame for the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive] on one side. The appeals chamber of the ICTR released a decision earlier in October that allowed the Rwandan government to pursue charges [JURIST report] against Erlinder. In a reversal of a previous statement [JURIST report], the ICTR decided that Erlinder was charged for actions committed outside the scope of his ICTR employment as a defense lawyer. Erlinder returned to the US in June after spending 21 days in a Rwandan prison following his arrest [JURIST reports] on charges that he denied the genocide, and he has since been touring the US [NYT report] and speaking about his experiences. A week before his return, the High Court of Rwanda [GlobaLex backgrounder] had released Erlinder on bail due to persisting medical problems from what Rwandan officials say was a suicide attempt [JURIST reports].




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Indiana approves legislation banning abortion after 20 weeks
Jennie Ryan on April 28, 2011 4:13 PM ET

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[JURIST] The Indiana House of Representatives [official website] approved legislation [HB 1210, PDF] Wednesday banning abortions performed after 20 weeks of pregnancy, citing the possibility that after that point the fetus may be able to feel pain. Under HB 1210, a physician must "[d]etermine in accordance with accepted medical standards the postfertilization age of the fetus and which trimester the pregnant woman receiving the abortion is in [and] determine whether the fetus is viable" prior to performing an abortion. If the fetus is determined to be beyond the 20 week fertilization period, the abortion is banned. The bill makes the performance of an abortion beyond 20 weeks a criminal act with the limited exception of a procedure deemed necessary to save the life of the mother. HB 1210 also effectively cuts all state funding to Planned Parenthood of Indiana [advocacy website]. The bill prohibits an agent of the state from making a contract with or granting funds to "any entity that performs abortions or maintains or operates a facility where abortions are performed." The bill will be sent to Governor Mitch Daniels [official website] for signature. Also Wednesday, the Florida House of Representatives [official website] also passed legislation [HB 1127 materials] aimed at restricting abortion. HB 1127 mandates an ultrasound be performed, and that the resulting image be viewed by the pregnant woman, before she can seek an abortion.

The legislation in Indiana and Florida adds to the number of states that have recently passed similar legislation restricting the controversial procedure. Alabama, Ohio and Oklahoma [JURIST reports] have each passed legislation this year which restricts the abortion procedure after 20 weeks of pregnancy. Iowa, Kansas, Missouri and Idaho [JURIST reports] have also recently passed legislation restricting late term abortions. In March, South Dakota Governor Dennis Daugaard [official website] signed into law [JURIST report] a bill requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion.




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Bahrain protesters sentenced to death over police killings
Jaclyn Belczyk on April 28, 2011 2:34 PM ET

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[JURIST] A court in Bahrain on Thursday sentenced four protesters to death for their roles in the killing of two police officers. Three others were sentenced to life in prison [BNA report]. The killings were committed last month during mass anti-government protests. Rights activists have expressed concern that the verdict could lead to intensified protests [Reuters report] and violence. Amnesty International (AI) [advocacy website] has condemned the trial as unfair, urging a halt to the executions [press release]. Malcolm Smart, Amnesty International's Director for the Middle East and North Africa, said:
The Bahraini authorities have a responsibility to bring to justice those who commit violent crimes. But when doing so, they must uphold the right to fair trial and they must not use the death penalty under any circumstances. ... In this case, the accused were tried before a special military court, although they are civilians. It also appears that the trial was conducted behind closed doors. As well, those sentenced have no right of appeal except to another special military court, raising great fears about the fairness of the entire process.
Lawyers for the defendants may appeal the verdict to the National Safety Court of Appeals.

Earlier this month, human rights organizations including Human Rights Watch (HRW) and Doctors Without Borders (DWB) [advocacy websites] criticized Bahrain for rampant human rights abuses [JURIST report] related to anti-government protests. Last month, six opposition leaders were arrested [JURIST report] after the government, backed by foreign troops from the Gulf Cooperation Council (GCC) [official website], violently dispersed protesters in the capital of Manana. Days earlier, Bahraini King Hamad bin Isa Al Khalifa [official website] declared [JURIST report] a three-month state of emergency [decree text, in Arabic] in response to growing unrest in the island nation. The state of emergency came just days after a group of 22 Bahraini lawmakers, part of an independent pro-government bloc, called on the King to impose martial law [JURIST report] under articles 36 and 123 of the Bahraini Constitution [text, PDF]. The Bahraini government's response to the ongoing protests have prompted international concern. In February, UN Secretary-General Ban Ki-moon [official profile] called for an end to violence against protesters [JURIST report] in the country, referencing attempts to quell protests sweeping across the region.




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Oklahoma Senate approves legislation targeting undocumented workers
Jennie Ryan on April 28, 2011 2:34 PM ET

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[JURIST] The Oklahoma Senate [official website] on Wednesday approved HB 1446 [materials], a bill creating a criminal penalty for undocumented workers who hold jobs and criminalizing the transportation of those workers into the state. The bill, written by Representative George Faught (R) and Senator Ron Justice (R) [official profiles], makes it a misdemeanor for undocumented immigrants to hold jobs or apply for jobs in the state. In addition to criminalizing certain actions in relation to immigration status, the bill gives police more power to question an individual's immigration status if they suspect an individual is in the country illegally. It also repeals a law allowing illegal immigrants to qualify to pay in-state tuition costs at the state's public universities. The bill was approved by the Oklahoma House [official website] last month and will be sent to Governor Mary Fallin (R) [official website] once differences between the House and Senate bills are reconciled.

This bill is just one of a number of legislative actions targeting illegal immigration that have been passed recently in many different states. Last year, Arizona passed [JURIST report] an immigration law [SB 1070 materials; JURIST news archive] that would require any individual suspected of being an illegal immigrant to present valid identification to law enforcement officials. The Oklahoma Senate passed a similar bill [JURIST report] last month. Within the past year, Georgia, Alabama, Virginia, Utah and Indiana [JURIST reports] have also approved Arizona-style immigration laws. Despite their increased usage, these laws remain controversial. The US Department of Justice [official website] in July filed suit [JURIST report] against Arizona Governor Jan Brewer [official website] seeking to permanently enjoin the state's immigration law. The complaint states that the law is preempted by federal law and therefore violates the Supremacy Clause [text] of the US Constitution. The Arizona law has been widely criticized in regard to the law's constitutionality and alleged "legalization" of racial profiling.




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Costa Rica court sentences ex-president to prison on corruption charges
Andrea Bottorff on April 28, 2011 11:40 AM ET

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[JURIST] A Costa Rican court on Wednesday found the country's former president Miguel Angel Rodriguez [CIDOB profile, in Spanish] guilty of corruption charges and sentenced him to five years imprisonment. Rodriguez, who also served as Secretary General of the Organization of American States (OAS) [official website], accepted more than $800,000 in bribes [AFP report] from global telecommunications company Alcatel-Lucent [corporate website] during his presidency, in exchange for a deal with the Costa Rican Electricity Institute (ICE) [website, in Spanish] that would allow the company to place 400,000 cell phone lines in the country. Alcatel-Lucent reached a $137 million settlement [JURIST report] in December with the US Department of Justice (DOJ) and the US Securities and Exchange Commission (SEC) [official websites] over improper payments made to foreign government officials in order to obtain contracts for business in Costa Rica, Honduras, Malaysia and Taiwan. Rodriguez said the accusations against him are untrue and that he plans to appeal the conviction [Tico Times report].

Rodriguez served as president from 1998 to 2002, and pending charges from the corruption case against him forced him to resign [JURIST report] from his OAS position in 2004. He is the second former Costa Rican president in the last two years to be sentenced to prison on corruption charges. In 2009, former president Rafael Calderon [CIDOB profile, in Spanish] was convicted [JURIST report] of embezzling $520,000 during his presidency and sentenced to five years imprisonment. Calderon was accused and arrested [JURIST report] in 2004 along with seven others on charges of embezzling and taking kickbacks that amount to an estimated $8 million from a $32 million Finnish loan for the purchase of medical equipment and $7.5 million from state funds.




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Federal judge dismisses health care lawsuit
Jaclyn Belczyk on April 28, 2011 9:02 AM ET

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[JURIST] A judge for the US District Court for the Eastern District of Missouri [official website] on Tuesday dismissed [opinion, PDF] a challenge to the federal health care reform law [text; JURIST news archive] for lack of standing. The suit was brought by Missouri Lieutenant Governor Peter Kinder [official website] and six other citizens who alleged that the Patient Protection and Affordable Care Act (PPACA) violates provisions of both the US and Missouri constitutions. Judge Rodney Sippel dismissed the suit, finding that the plaintiffs lack standing:
To whatever extent Plaintiffs allege an injury to the sovereign interests of the State of Missouri, they do not have standing to bring these claims because Plaintiffs, including Kinder, bring this case as individuals. As the Supreme Court has observed, a plaintiff "generally must assert his own legal rights and interests and cannot rest his claim to relief on the legal rights or interests of third parties." ... While the State of Missouri may have standing to assert the claim in Count I, it is not a party to this action and Plaintiff Kinder and the other Plaintiffs do not and cannot bring this action on behalf of Missouri.
Kinder has said that he plans to file an appeal [press release].

Several other challenges to the PPACA have also been dismissed for lack of standing. Last week, a judge for the US District Court for the District of New Jersey [official website] rejected [JURIST report] a lawsuit, brought without an attorney by two New Jersey residents, on jurisdictional grounds, ruling the two men had no standing to challenge the law. In a similar ruling earlier in the month, a judge for the US District Court for the District of New Hampshire [official website] dismissed a lawsuit [JURIST report] also challenging the law's constitutionality and held that the plaintiff, 80-year-old Harold Peterson, lacked standing because his Medicare coverage automatically satisfied the law's insurance mandate. In December, a judge for the US District Court for the Eastern District of Virginia [official website] ruled that the minimum coverage provision of the health care reform law is unconstitutional [JURIST report]. A judge for the US District Court for the Northern District of Florida [official website] has also struck down the law, while judges in Michigan and Virginia have upheld it [JURIST reports].




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Former Ukraine PM sues gas company in US court
Maureen Cosgrove on April 27, 2011 4:18 PM ET

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[JURIST] Former Ukrainian prime minister Yulia Tymoshenko [personal website; JURIST news archive] on Wednesday filed a corruption lawsuit in a US federal court against a natural gas trading company. In the suit against Swiss-based RosUkrEnergo [corporate website, in Russian], Tymoshenko seeks to reverse [AP report] a decision [text, PDF, in Russian] by the Stockholm Arbitration Court [official website] that forced Naftogaz [corporate website], a Ukrainian state energy company, to return 12.1 billion cubic meters of cubic gas [WSJ report] to RosUkrEnergo. The class action suit, which names more than 100 other individuals and companies as parties, was filed under the Racketeer Influenced and Corrupt Organization Act (RICO) [materials] and the Alien Tort Statute (ATS) [text], which grants US courts original jurisdiction over civil actions alleging violation of the law of nations.

Tymoshenko's government was dissolved last March after she narrowly lost the presidential election to Viktor Yanukovych [official website, in Ukrainian]. The Ukrainian Prosecutor General's Office (PGO) [official website, in Ukrainian] combined two separate criminal cases [press release, in Ukrainian; JURIST report] and concluded a pre-trial investigation of Tymoshenko in February. The combined cases against Tymoshenko include charges initiated in December for allegedly misappropriating state funds during her time as prime minister from 2007-2010 and new charges in January alleging that she abused her authority and exceeded her official duties [JURIST reports]. Last May, prosecutors reopened a separate criminal investigation [JURIST report] into allegations that Tymoshenko attempted to bribe Supreme Court judges. The probe was initiated in May 2004 and then suspended [JURIST report] in June 2005. Last February, Tymoshenko withdrew a lawsuit [JURIST reports] filed in the Supreme Administrative Court of Ukraine claiming that the country's presidential election was corrupt. Tymoshenko had alleged that widespread voter fraud allowed Yanukovych to win the election.




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Supreme Court rules federal arbitration law preempts state law
Daniel Makosky on April 27, 2011 2:32 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday ruled [opinion, PDF] 5-4 in AT&T v. Concepcion [Cornell LII backgrounder; JURIST report] that the Federal Arbitration Act (FAA) [text], which provides for judicial facilitation of private dispute resolution through arbitration when the transaction involves interstate commerce, preempts states from enforcing alternate solutions when arbitration clauses are considered unconscionable. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that the FAA does not preempt a California unconscionability law, which allowed a class action against AT&T mobile despite a contractual clause prohibiting such proceedings. Reversing the Ninth Circuit, Justice Antonin Scalia wrote for the majority that, "[s]tates cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons." Justice Clarence Thomas filed a concurring opinion. Justice Stephen Breyer filed a dissent.

In 2002, Vincent and Liza Concepcion purchased a discounted cellular telephone from AT&T and later accused the company of false advertising and fraud upon discovery that they had been charged sales tax on the device's full value. Despite an arbitration clause in their service contract, the couple brought a federal class action suit against the company. Counsel for the Concepcions urged the Supreme Court to uphold the lower court rulings, arguing, in part, that the California law is valid because it "[ensures] that arbitration is a matter of consent and not coercion, and that it represents merely a choice of forum, but not an exemption from the law."




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Supreme Court hears final oral arguments for 2010 term
Jaclyn Belczyk on April 27, 2011 1:33 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in Nevada Commission on Ethics v. Carrigan [oral argument transcript, PDF; JURIST report] on whether the First Amendment allows states to prevent government officials from voting on matters in which they have or appear to have a personal conflict. The Nevada Supreme Court, citing Citizens United v. Federal Election Commission [opinion, PDF; JURIST report], held [opinion, PDF] that preventing an official from casting such a vote violates the First Amendment because voting by an elected public officer on public issues is protected speech. Counsel for the petitioner, the Nevada Commission on Ethics, argued, "[n]eutral laws requiring official recusal for conflict of interest do not abridge free speech because a legislator's vote, however expressive, is not protected speech. It is, rather, a legally binding exercise of State power that he wields as an incident of public office." Counsel for the respondent, City Councilman Michael Carrigan, argued that a ruling for the petitioner would have a chilling effect on political activity.



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Accused Somali pirate pleads not guilty to hijacking charges
Maureen Cosgrove on April 27, 2011 1:30 PM ET

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[JURIST] A Somali man pleaded not guilty on Wednesday in the US District Court for the Eastern District of Virginia [official website] to piracy, kidnapping and weapons charges related to a yacht hijacking in February that left four Americans dead. Mohammad Saaili Shibin is believed to have been the chief negotiator for the pirates [AP report] accused of the highjacking. Shibin, unlike the other pirates suspected in the hijacking, never boarded the yacht and acted as chief negotiator for the pirates who took control of the American-manned yacht in the Arabian Sea. Shibin, whom the US believes to be the highest-ranking pirate it has ever captured, is the first suspected pirate to be taken into custody in Somalia rather than at sea. Though Shibin denies guilt in this case, he acknowledged being paid $30,000 for his participation in negotiating the return of a German vessel that was taken hostage by pirates in May. The US government is currently negotiating with the German government, and additional charges are likely to be brought against Shidin in that case.

In April, a Somali pirate was sentenced [JURIST report] by the US District Court for the District of Columbia [official website] to 25 years in prison [press release, PDF] for attacking a Danish ship off the coast of Somalia in 2008, for which he and other pirates received a $1.7 million ransom. In March, a grand jury in the US District Court for the Eastern District of Virginia indicted [text, PDF] 14 suspects for overtaking Quest, a yacht operated by four Americans. The Americans, who were taken as hostages and later killed by the pirates, were the first US citizens to die in the recent wave of international maritime piracy [JURIST news archive]. The suspects, 13 Somali and one Yemeni, were charged [JURIST report] with piracy, conspiracy to commit kidnapping and the use of firearms during a crime. Piracy remains an issue of international concern, as few countries have been willing to prosecute suspected pirates. The few that have attempted to do so include Germany, Seychelles, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports].




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Guantanamo physicians ignored evidence of mistreatment: study
Daniel Makosky on April 27, 2011 10:14 AM ET

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[JURIST] A study [text] released Tuesday by PLoS Medicine [journal website] asserts that US military medical personnel responsible for treating Guantanamo Bay [JURIST news archive] detainees consciously disregarded evidence of physical and psychological torture. The report's authors, including a retired US Army general, reviewed the medical records and case files of nine detainees, each of whom claim to have been subjected to treatment prohibited under the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [text]. Comparing the detainees' medical histories to their accusations of abuse, the study found that:
The medical affidavits in each of the nine cases indicate that the specific allegations of torture and ill treatment are highly consistent with physical and psychological evidence documented in the medical records and evaluations by non-governmental medical experts. However, the medical personnel who treated the detainees at [Guantanamo Bay] failed to inquire and/or document causes of the physical injuries and psychological symptoms they observed.
The study also argues that it is a breach of World Medical Association (WMA) [official website] ethical guidelines [text] for any medical professional to assist in concealing evidence of abuse.

The military detention facility at Guantanamo Bay, Cuba was opened in January 2002 [JURIST Archives report], and has consistently been a focal point for national and international controversy over the treatment of detainees. Earlier this week, WikiLeaks [official website] began publishing The Guantanamo Files [materials], a collection of more than 700 classified documents relating to the evidence and treatment of almost all detainees held at the facility between 2002 and 2008. A letter from a Guantanamo Bay detainee, made public in 2009, noted his deteriorating medical state and alleged that conditions at the prison worsened [JURIST report] for detainees in the year following President Barack Obama's election. In 2007, more than 260 doctors from 16 countries signed a letter critical of US military physicians for participating in the force-feeding of at least 128 detainees [JURIST reports] on hunger strikes.




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Supreme Court hears arguments on corporate freedom of speech
Hillary Stemple on April 26, 2011 3:46 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in Sorrell v. IMS Health [oral argument transcript, PDF; JURIST report] to determine whether a state law prohibiting prescription drug manufacturers from using data collected from physicians is a violation of the First Amendment [text] right to freedom of speech. The law in question targets pharmaceutical companies and has the effect of limiting the scope of marketing prescription drugs within the state. Counsel for the petitioner, the state of Vermont, argued that the aim of the law was to protect physician privacy, and that pharmaceutical companies have no right to the data in question. The petitioner also argued that the law does not regulate the content of the advertising, but rather the access the companies have to specific data. Counsel for the respondents argued that the court should avoid an "absolute" rule regarding collection of data, but should rather allow states to address privacy issues through laws with a more narrow scope than the Vermont law. The US argued as amicus curiae on behalf of the petitioners in the case.

The US Court of Appeals for the Second Circuit [official website] ruled [opinion, PDF] in August 2009 that the district court erred in their finding that the Vermont statute was constitutionally permissible. The court of appeals held that the statute was an impermissible restriction on corporate speech that does not withstand immediate scrutiny because it is not narrowly tailored to advance a substantial state interest.




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Federal appeals court grants new sentencing for Mumia
Hillary Stemple on April 26, 2011 2:09 PM ET

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[JURIST] The US Court of Appeals for the Third Circuit [official website] on Tuesday ordered [opinion, PDF] a new sentencing hearing for Mumia Abu-Jamal [Philadelphia Inquirer backgrounder], a former member of the Black Panthers who was convicted and sentenced to death for killing a police officer in Philadelphia in 1981. The three-judge panel concluded that the jury that sentenced Abu-Jamal to death was given an improper jury instruction regarding the use of mitigating factors. According to the court, the instructions could have indicated to the jury that there must be unanimous agreement among the jury in order for mitigating factors to be considered, and that the jury could have concluded that they must unanimously agree that the mitigating circumstances outweighed the aggravating factors in order to sentence Abu-Jamal to life in prison. The court concluded that both the verdict form and jury instruction indicated that unanimity was required when considering mitigating circumstances, which is inconsistent with state law. Under Pennsylvania state law, mitigating circumstances are to be considered regardless of agreement among the jury, and the law only requires one juror to find that mitigating circumstances outweigh aggravating factors to result in a life sentence. The court noted that the Pennsylvania sentencing form has been changed since Abu-Jamal's sentencing, that it now "reflects the requirement that jurors not be prevented from considering all evidence in mitigation," and that it "makes explicit that unanimity is not required in determining the existence of mitigating circumstances." According to the court, the clarifications "highlight the ambiguity at issue in this case and on their own serve at least to suggest the substantial probability that some jurors were prevented from considering factors which may call for a less severe penalty" The court ordered Pennsylvania to conduct a new sentencing hearing within 180 days, or the sentence of life in prison would stand. The district attorney representing the state in the case indicated that he would consider an appeal [AP report] to the US Supreme Court [official website; JURIST news archive].

The Supreme Court has considered Abu-Jamal's case in several previous rulings. The court remanded the case to the Third Circuit [JURIST report] in January 2010 for further consideration in light of the ruling in Smith v. Spisak [opinion, PDF; JURIST report]. In 2008, the Third Circuit affirmed [JURIST report] a district court ruling overturning the sentence in Abu-Jamal's case, and the only issue to be determined on remand was whether the court erred in allowing the new sentencing hearing. The Supreme Court declined to review [JURIST report] Abu-Jamal's conviction in April 2009. Abu-Jamal was convicted of killing police officer Daniel Faulkner [advocacy website] after Faulkner pulled over Abu-Jamal's brother for a traffic violation. The case has become a focal point for death penalty opponents, attracting the attention of artists, civil rights activists and politicians.




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Supreme court rules tribe cannot bring same suit in 2 courts
Jaclyn Belczyk on April 26, 2011 11:51 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Tuesday ruled [opinion, PDF] 7-1 in United States v. Tohono O'odham Indian Nation [Cornell LII backgrounder; JURIST report] that the tribe cannot bring a suit based on the same facts in both federal district court and the Court of Federal Claims (CFC) [official website]. 28 USC § 1500 [text] provides that the CFC lacks jurisdiction over "any claim for or in respect to which the plaintiff has any suit or process against the United States" or its agents "pending in any other court." The Tohono O'odham Nation filed a complaint against the US in the US District Court for the District of Columbia, and, one day later, it filed a similar complaint against the US in the CFC. The US Court of Appeals for the Federal Circuit reversed [opinion, PDF] the CFC's dismissal of the case, concluding "that the Nation's complaint in the Court of Federal Claims seeks relief that is different from the relief sought in its earlier-filed district court action." Reversing the decision below, Justice Anthony Kennedy wrote:
The two actions both allege that the United States holds the same assets in trust for the Nation's benefit. They describe almost identical breaches of fiduciary duty. ... Indeed, it appears that the Nation could have filed two identical complaints, save the caption and prayer for relief, without changing either suit in any significant respect.

Under §1500, the substantial overlap in operative facts between the Nation's District Court and CFC suits precludes jurisdiction in the CFC. The Court of Appeals erred when it concluded otherwise.

Justice Sonia Sotomayor filed an opinion concurring in the judgment, joined by Justice Stephen Breyer. Justice Ruth Bader Ginsburg filed a dissenting opinion. Justice Elena Kagan took no part in the decision.

The tribe filed suit in federal district court alleging that the US government had breached its fiduciary duty by mismanaging funds held in trust for the tribe. The suit sought an accounting and other equitable relief. The tribe then filed suit in the CFC seeking monetary relief. The CFC dismissed the suit, finding that it lacked jurisdiction.




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UN report accuses Sri Lanka government of war crimes
Andrea Bottorff on April 26, 2011 11:37 AM ET

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[JURIST] A UN panel of experts said in a report released Monday that the Sri Lankan government and rebel forces may have committed war crimes [report, PDF] during the final stages of the conflict with the Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive]. UN Secretary-General Ban Ki-Moon [official profile] appointed [JURIST report] the three-person panel last year to investigate possible human rights violations during the war. Ban said that he decided to release the report to promote transparency and accountability [statement] while examining the allegations, despite warnings from the Sri Lankan government that publishing the report could lead to renewed violence [Guardian report] in the country. The panel investigators allegedly found evidence showing:
that a wide range of serious violations of international humanitarian law and international human rights law was committed both by the Government of Sri Lanka and the LTTE, some of which would amount to war crimes and crimes against humanity. Indeed, the conduct of the war represented a grave assault on the entire regime of international law designed to protect individual dignity during both war and peace.
Rights organizations like Human Rights Watch (HRW) [advocacy website] responded to the report, calling for the UN to immediately launch an independent war crimes investigation [news release] in Sri Lanka. The Sri Lankan government, which maintains that the conflict did not involve any civilian deaths, has complained that the report is "fundamentally flawed" [statement].

The Sri Lankan Ministry of External Affairs [official website] announced in December that a UN war crimes panel would be allowed to visit [JURIST report] the island to look into alleged war crimes in the final stages of the 26-year civil war. The decision represented a reversal after months of strong opposition [JURIST report] from the Sri Lankan government under President Mahinda Rajapaksa [official profile], who described the UN panel as an infringement of Sri Lanka's sovereignty. Instead, Rajapaksa appointed the Lessons Learned and Reconciliation Commission (LLRC) to investigate the final years of the conflict from the ceasefire in 2002 to its conclusion in 2009. The LLRC's credibility, however, has been contested by several human rights organizations, which say the commission lacks objectivity [PTI report]. The change in position also followed economic sanctions, including the withdrawal of trade concessions worth $150 million per year with the EU. The government has repeatedly denied accusations that its forces violated international law during the conflict.




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Proposition 8 sponsors move to vacate district court ruling
Andrea Bottorff on April 26, 2011 9:55 AM ET

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[JURIST] Sponsors of Proposition 8 [text; JURIST news archive], California's same-sex marriage ban, on Monday filed a motion to vacate in US Court of Appeals for the Ninth Circuit [official website], arguing that the judge who struck down the marriage ban should have recused himself from the case [motion text; case materials] because of a conflict of interest. The motion said that District Judge Vaughn Walker, who has since retired from the US District Court for the Northern District of California [official website], was potentially biased in his ruling last year which found the marriage ban unconstitutional [JURIST report] because he has been in a long-term same-sex relationship. Attorneys for Protect Marriage [advocacy website], the organization sponsoring the ban, argued that Walker was in the same position as the same-sex couples who brought the case and that he had ruled in his own interest. The motion also alleged that Walker failed to properly admit his stake in the case:
Chief Judge Walker thus had a duty to disclose not only the facts concerning his relationship, but also his marriage intentions. ... Only if Chief Judge Walker had unequivocally disavowed any interest in marrying his partner could the parties and the public be confident that he did not have a direct personal interest in the outcome of the case. ... Because he did not do so when the case was assigned to him, and has not done so since, it must be presumed that he has an interest in marrying his partner and therefore was in fact the "judge in his own case."
Walker admitted his relationship to the press [Reuters report] earlier this month and defended his decision, saying that race, gender and sexual orientation should not affect a judge's ability to rule on a case.

Last month, the Ninth Circuit denied a motion [JURIST report] filed by California Attorney General Kamala Harris [official website] to lift the stay order [JURIST report] prohibiting gay couples from marrying while an appeal of the invalidation of Proposition 8 is pending. A week earlier, supporters of the marriage ban urged the Supreme Court of California [official website] to allow them to defend the measure [JURIST report] when state officials refuse to do so. When Walker struck down Proposition 8 last year, then-governor Arnold Schwarzenegger and former attorney general and current Governor Jerry Brown [official website], who were originally defendants in the lawsuit, refused to continue defending the measure on appeal [JURIST report], leaving defendant-intervenors Project Marriage and other groups to defend the law. In February, the Supreme Court of California announced that it would decide the critical procedural issue [JURIST report] to determine if the pending federal appeal of the invalidation of Proposition 8 can continue.




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DOJ to focus on terrorism, financial fraud: Holder
Aman Kakar on April 26, 2011 8:47 AM ET

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[JURIST] US Attorney General Eric Holder [official website] on Monday delineated the priorities and missions [speech text; video] for the US Department of Justice (DOJ) [official website] for the remainder of his present term. Holder said that the DOJ's priorities will include protecting Americans from terrorism at home and abroad, fighting violent crime, combating financial fraud and protecting the most vulnerable members of society. Holder recognized the DOJ's work in fighting terrorism, citing that the department prosecuted more terrorists than in any other two-year period. The DOJ also filed a record number of civil rights and criminal cases and secured an all time high in civil recoveries. Holder touted the DOJ's record recoveries from financial fraud and efforts to increase awareness about financial crimes. He also emphasized that the department will seek to use the federal court system to try terrorism cases.

The speech comes on the heels of Holder's failed attempts to try the 9/11 conspirators in civil trials [JURIST report] in New York. Holder announced earlier this month that Khalid Sheikh Mohammed [BBC profile; JURIST news archive] and four other co-conspirators will be tried before a military commission [JURIST report]. Holder referred the cases to the Department of Defense [official website] after Congress imposed a series of restrictions [JURIST report] barring the transfer of Guantanamo detainees to the US. Holder refused to delay the trial any longer for the sake of the victims of the 9/11 attacks and their families, explaining that the restrictions are not likely to be repealed in the immediate future.




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Egypt prosecutor orders Mubarak to prison hospital
Jennie Ryan on April 25, 2011 3:31 PM ET

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[JURIST] Egyptian public prosecutor Abdel-Maguid Mahmoud on Sunday ordered ousted president Hosni Mubarak [Al Jazeera profile; JURIST news archive] transferred from a private hospital in Sharm el-Sheikh to a prison hospital in Cairo. Mahmoud ordered the transfer [AP report] after Mubarak's doctor cleared him to travel. Mubarak was hospitalized for heart trouble shortly after his resignation [JURIST report]. Prosecutors have urged Mubarak's transfer so that he may be questioned by officials about allegations ranging from embezzlement to murder. The Egyptian Ministry of Interior [official website, in Arabic] will oversee Mubarak's transfer first to a military prison and then to the hospital in Tora Prison where he will be held for questioning.

Last month, a commission of Arab and Egyptian human rights groups accused the former president [JURIST report] and the country's police of murdering protesters during the demonstrations in Egypt [JURIST news archive] early this year. The joint commission submitted their report to Egypt's top prosecutor for further investigation. The Supreme Military Council of Egypt, which assumed power after Mubarak's resignation, instructed Egypt's top prosecutor to investigate the death of protesters [RIA Novosti report] during the three weeks of demonstrations in the country. Following the demonstrations, Egypt's chief prosecutor requested in February that Foreign Ministry officials take steps to freeze any foreign assets [JURIST report] belonging to Mubarak and his family.




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Federal judge denies challenge to Virginia prison grooming policy
Michael Haggerson on April 25, 2011 3:30 PM ET

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[JURIST] A judge for the US District Court of the Western District of Virginia [official website] has ruled [opinion, PDF] that the Virginia Department of Corrections (VDOC) [official website] did not violate the rights of a Muslim inmate by not allowing him to grow a beard. The VDOC grooming policy prohibits inmates from growing long hair and beards except for medical reasons. The Muslim inmate claimed that the prohibition on beards violates his religious rights under 42 USC § 1983 [text] and the Religious Land Use and Institutionalized Persons Act (RLUIPA) [42 USC § 2000cc-1 text]. VDOC argued the restriction was necessary to prevent inmates from altering their appearance or identifying with a gang. The inmate responded that there were no security concerns implicated in the growing of beards, and VDOC had not adopted the least restrictive means. The court ruled Thursday that:
It is not this court's duty under RLUIPA to select on its own the least restrictive alternative but rather to defer, within reason, to the judgments of prison administrators. Consequently, in analyzing whether a particular regulation is the least restrictive means of furthering the government's compelling security interest, the reviewing court must avoid "substituting its judgment in place of the experience and expertise of prison officials."
Defense counsel for the inmate filed an appeal [AP report] on Monday to the US Court of Appeals for the Fourth Circuit [official website].

Last month, the US Department of Justice (DOJ) [official website] sued [JURIST report] the California Department of Corrections and Rehabilitation [official website] for ordering a Sikh inmate to trim his beard in violation of his religious beliefs [Sikh Coalition backgrounder]. The Fourth Circuit has previously upheld [opinion, PDF] VDOC's grooming policy prohibiting the growing of beards and stressed that "due deference" should be given to the judgments of prison officials.




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Supreme Court hears arguments on class certification, sentencing laws
Ann Riley on April 25, 2011 2:37 PM ET

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[JURIST] The US Supreme Court [official website, JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Monday in Erica P John Fund v. Halliburton [oral argument transcript, PDF; JURIST report]. The court will determine whether investor losses need to be proven by a preponderance of the evidence at the class certification stage prior to full discovery in order for the class action lawsuit to proceed. The US Court of Appeals for the Fifth Circuit held [opinion, PDF] that this was procedurally proper. The Fifth Circuit also determined that a plaintiff must establish loss causation to invoke the fraud-on-the-market presumption laid out in Basic v. Levinson [opinion]. Counsel for the petitioner argued that when a court holds at the class certification stage that there is no efficient market, and the issue of efficient market goes to the presumption of reliance, the basis for assuming class-wide reliance is impacted. Further that the Basic reliance presumption can be rebutted at the certification stage. Counsel also explained that loss causation is tested at the pleadings, summary judgment, and trial stages—and "the question is whether a fourth test should be interposed at the class certification stage." Counsel argued that loss causation is a class-wide issue and an element of the merits case, and must be proven at all three stages, but "because it is something that is common for all of the class members, Rule 23 [text] says that is something for trial, not for class certification." Amicus curiae for the government argued that:
The Fifth Circuit erred in requiring proof of loss causation at class certification for three reasons: First, it's conducting a merits inquiry that's not tethered to the Rule 23 requirements; second, it's not taking a presumption and requiring plaintiffs to prove it; and third, it's confusing the distinct elements of reliance and loss causation. ... [The Fifth Circuit] is not talking about rebutting the presumption of reliance, giving the defendants an opportunity to do that at class certification. It is putting an affirmative burden on plaintiffs that they have to meet in every single case, even if the defendants do not come to court with any evidence. And that is a very heavy burden, as the district court in this case realized ... the question is do common issues predominate over individual ones. What you're trying to answer is can this group of people proceed together, not can this group of people make out their case.
Counsel for the respondent argued that according to Basic, "absent the class-wide presumption of fraud on the market reliance, individual issues of reliance predominate." Thus, when a district court finds "that the presumption is unavailable or rebutted, reliance ceases to be a class-wide issue." Further, that Basic sets forth a special rule and is an exception to the rule of nonsusceptibility in class actions to class treatment of fraud cases. According to Basic, it is not just enough to allege operative facts, but you have to plead and prove them and they are subject to common proof. "[U]nless those facts are proven at the class certification stage, the presumption of class-wide reliance doesn't apply and individual issues of reliance predominate."

In McNeill v. United States [oral argument transcript, PDF; JURIST report], the court will determine how retroactive sentencing laws affect the definition of a "serious drug offense" under the Armed Career Criminal Act (ACCA) [18 USC § 924]. Clifton McNeill was arrested in 2007 after police discovered a firearm and 3.1 grams of cocaine during a search incident to arrest for eluding a traffic stop. In light of previous drug convictions in 1992 and 1995, McNeill was convicted under the ACCA. The previous convictions and sentencing structure met the definitions of a "serious drug offense" at the time they were committed, but the statutory sentences for those offenses were reduced in later years and do not currently meet the ACCA definition. The US Court of Appeals for the Fourth Circuit held [opinion, PDF] that the ACCA still applied regardless of the subsequent statutory changes. Counsel for the petitioner argued:

When Congress defined in the Armed Career Criminal Act a "serious" drug offense as one for which a State penalty of 10 years or more is prescribed by law, it meant for Federal courts to look to the law presently in effect in that State. This is the most natural reading of the statute, and words matter. It is also consistent with ACCA's purpose, which is [to] punish the Federal firearms offense ... [but] not to enhance a sentence because of the prior conviction. ... [W]hen the defendant commits the offense, what his status is at that time under the law we think makes sense and is consonant with the purpose of what ACCA is trying to do. ACCA is not trying to punish the State offense at the time. ... The question is, in a statute that defers to the judgment of the States to determine seriousness, are we going to defer to the current State assessment of what seriousness is or are we going to look back to repeal the discarded judgments?
Counsel for the government argued that when sentencing, the court should "consider the offense and the punishment as they were defined by the body of law under which the defendant was convicted and sentenced." Further that the government's reading does not require the court to recharacterize the old offense at all. "[R]equiring the court to look to the time of the underlying conviction and sentencing unifies the inquiry across both components of the definition of serious drug offense and the definition of violent felony. ... And if the State actually thinks that the previous offenses that were committed were less serious, then it could make the decreased maximum term of imprisonment retroactively applicable if it wanted to demonstrate that it really thought that those were mistakes."




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Sudan to hold Darfur referendum in July
Erin Bock on April 25, 2011 1:56 PM ET

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[JURIST] The Sudan National Elections Commission (NEC) [official website, in Arabic] announced on Sunday that an administrative referendum is set for July 1 for residents to determine whether Darfur [BBC backgrounder; JURIST news archive] should continue to be separated into three states or return to one region. State media indicated that a Republican Decree ordered the NEC to schedule the referendum [SUNA report] no later than the July 1 deadline. Sudanese rebel groups [BBC backgrounder] objected to scheduling the referendum [Reuters report] prior to reaching an agreement in the peace talks in Qatar [Al Jazeera backgrounder], which have been ongoing between rebel groups in the region since 2009. The peace talks have produced little progress, and rebels fear that the referendum would eliminate any possibility of reaching a deal. The government stated that it was committed to holding the referendum [AFP report] in July as a result of the Darfur Peace Agreement [text, PDF] signed in 2006 in Abuja, Nigeria.

Another recent referendum has created some instability in Sudan. In January, more than 98 percent of southern Sudanese voters voted in favor of secession [JURIST report] from northern Sudan. Sudanese President Omar al-Bashir [BBC profile; JURIST news archive] issued a formal decree [JURIST report] in February accepting the result of the referendum as the will of the southern people. The secession will officially take place on July 9 in Juba, the capital of Southern Sudan. There have been 101 deaths in the region since Tuesday [Daily Mail report] as a result of fighting between the south Sudanese army and rebel militias. The southern Sudanese government has accused the north of facilitating the fighting in order to create instability in the region to maintain the region's reliance on the north's oil infrastructure. In September, a human rights expert told the UN that Sudan was not prepared [JURIST report] for the referendum and that a lack of infrastructure in southern Sudan could lead to human rights violations, including suppression of free speech and inadequate protection of society due to a lack of well-trained police officers, prosecutors and judges.




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Supreme Court rejects Virginia petition for expedited review of health care law
Ashley Hileman on April 25, 2011 1:31 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday denied [order list, PDF] Virginia's request for the court to rule on the constitutionality of the health care reform law [HR 3590 text; JURIST news archive] on an expedited basis. The writ was filed [JURIST report] in February by the state's attorney general, Kenneth Cuccinelli [official website], who sought to have the high court depart from its traditional procedure and instead review the constitutionality of the law before the US Court of Appeals for the Fourth Circuit [official website] rules on the issue. In the absence of war or a constitutional crisis, the Supreme Court will rarely intervene to decide a legal issue before it has been addressed by the appropriate appellate courts. Judicial review of the health care reform law will now continue in federal appeals court [AP report]. The appeal stems from a December ruling by a judge for the US District Court for the Eastern District of Virginia [official website] that the minimum coverage provision of the health care reform law is unconstitutional [JURIST report]. This ruling has been put on hold, pending appeal.

The enactment of the health care reform law has incited a number of legal challenges in addition to that posed by Virginia. Last week a judge for the US District Court for the District of New Jersey [official website] rejected [JURIST report] a lawsuit challenging its constitutionality. Judge Freda Wolfson dismissed the lawsuit, brought without an attorney by two New Jersey residents, on jurisdictional grounds, ruling the two men had no standing [Cornell LII backgrounder] to challenge the law. In a similar ruling earlier in the month, a judge for the US District Court for the District of New Hampshire [official website] dismissed a lawsuit [JURIST report] also challenging the law's constitutionality and held that the plaintiff, 80-year-old Harold Peterson, lacked standing because his Medicare coverage automatically satisfied the law's insurance mandate. A judge for the US District Court for the Northern District of Florida [official website] has also struck down the law, while judges in Michigan and Virginia have upheld it [JURIST reports].




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UN rights chief urges halt to Syria killings
LaToya Sawyer on April 25, 2011 12:41 PM ET

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[JURIST] UN High Commissioner for Human Rights Navi Pillay [official profile] called Monday for Syria to immediately halt the killings and violence against civilian protesters. The statement follows major condemnations of the Syrian government's excessive use of lethal force and other rights violations against protesters. Syrian security forces have been responsible for fatal shootings of peaceful anti-government protesters [WP report] within the last week, including the April 22 shootings [AFP report] which resulted in more than 75 deaths. In addition to the halt, Pillay has called for a full investigation [UN News Centre report] into the recent deaths with hopes to serve justice against those ordering the shootings. The investigation is supported by UN Secretary-General Ban Ki-moon, who publicly reminded [press release] Syrian authorities of their obligation "to respect international human rights, including the right to freedom of expression and peaceful assembly, as well as the freedom of the press." UN officials hope that these immediate measures will ensure social peace and order and facilitate the development of government reforms in Syria. Human Rights Watch (HRW) [advocacy website] has also called for an international investigation [JURIST report] into the killings.

Last week, Syrian President Bashar al-Assad [Al Jazeera profile] ended [JURIST report] the country's 48-year-old state of emergency, but protests have continued. Earlier this month, HRW reported [text] that Syrian security forces have stopped medical personnel [JURIST report], sometimes violently, from attending to injured protesters. A spokesperson for the group called the practice "both inhumane and illegal." Last month, Pillay urged the Syrian government [JURIST report] to ensure protesters' rights to peaceful expression and to work toward addressing their concerns instead of responding with violence. As demonstrations continued throughout the country in March, the government freed 260 political detainees [AFP report] in an overture to the protesters.




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WikiLeaks releases classified Guantanamo documents
Dwyer Arce on April 25, 2011 11:36 AM ET

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[JURIST] WikiLeaks [official website] on Sunday began publishing The Guantanamo Files [materials], a collection of more than 700 classified documents relating to the evidence and treatment of almost all detainees held at Guantanamo Bay [JURIST news archive] between 2002 and 2008. The documents—detailing things such as the circumstances of detention, the evidence justifying detention, detainee risk evaluations, and the decision process of which detainees to transfer, hold, or release of 758 of the 779 total detainees—were published in part on the WikiLeaks website and released to media outlets. According to the media outlets that have analyzed the documents, they reveal that 220 high value al Qaeda [CFR backgrounder] operatives had been held at Guantanamo, in addition to 150 who had been held for years without significant evidence against them [Guardian report]. The documents also detailed the practice of US forces detaining people in Afghanistan based on their wearing a particular model of watch [Telegraph report] that is known to be used by al Qaeda leaders. Additionally, 20 juveniles were held at the detention facility, including Omar Khadr [JURIST news archive], who was classified as a high value detainee by the Obama administration and agreed to a plea agreement [JURIST report] after eight years in detention. The American Civil Liberties Union (ACLU) [advocacy website] stated that the leaks emphasized the necessity of judicial review [press release]:
These documents are remarkable because they show just how questionable the government's basis has been for detaining hundreds of people, in some cases indefinitely, at Guantanamo. The one-sided assessments are rife with uncorroborated evidence, information obtained through torture, speculation, errors and allegations that have been proven false. If the government had followed the law, it would have established a meaningful and prompt process to separate the innocent from those who are legally detainable.
In responding to the documents, the US Defense Department (DOD) [official website] emphasized that some documents that have not been leaked, including the Guantanamo Review Task Force, which may reflect a change in the government classifications [press release] of detainees. The DOD also stated that the administration had "made the protection of American citizens the top priority and we are concerned that the disclosure of these documents could be damaging to those efforts."

The military detention facility at Guantanamo Bay, Cuba was opened in January 2002 [JURIST Archives report], and has consistently been a focal point for national and international controversy over the treatment of detainees. The leaks come as President Barack Obama has been attempting to close the facility [JURIST report] and transfer the detainees [JURIST news archive] to other countries. Closing the facility has faced several difficulties, however, and attempts to prosecute detainees in civilian courts have recently failed [JURIST reports]. The Guantanamo Files are the latest in a line of leaks that have shed light on the military and diplomatic actions [JURIST reports] of the US government in the aftermath of the 9/11 terror attacks [JURIST news archive].




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Morocco protesters seek radical constitutional reform
Zach Zagger on April 25, 2011 10:29 AM ET

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[JURIST] Thousands of Moroccans engaged in peaceful demonstrations Sunday demanding greater reform in the new constitution expected to be unveiled in June by King Mohammed VI. The protesters, led by the Facebook youth movement Fevrier 20 rejected [CNN report] the king's draft of the new constitution because it was written by his own people. Thousands of protesters took to the streets in Moroccan cities of Casablanca, Tangiers, Marrakesh and the capital of Rabat. Mohammed has made some concessions since the outbreak of protests last February including the release of political prisoners [AFP report] and the development of a new constitution [JURIST report] with greater civil liberties and an independent judiciary. Still, the protesteors Sunday criticized the king's decision to appoint a council to write the new constitution. They also demanded an end to corruption, which they claim has deterred vital foreign investment in the country.

Mohammed said that the new constitution would result in more power being given to elected officials, as well as an independent judiciary. Under the plan, the prime minister would be chosen based on the political party elected to a majority of seats in parliament and more power would be granted to the parliament. Also, local officials would be granted more power through a "regionalization program" where officials would be elected to regional councils through a direct vote. The councils would be responsible for governing the affairs of the region. The announcement of the constitutional reforms came less than a month after thousands of Moroccans demonstrated [AFP report] across the country, demanding limits on the power of the monarch, as well as more sweeping political reform. Similar protests have occurred recently throughout the Middle East and North Africa [BBC backgrounder], and have resulted in the resignations of Tunisian president Zine al-Abidine Ben Ali and Egyptian president Hosni Mubarak [JURIST reports], and an ongoing conflict between protesters and Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive].




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Hungary president signs new constitution into law amid rights concerns
Sarah Paulsworth on April 25, 2011 9:33 AM ET

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[JURIST] Hungarian President Pal Schmitt signed into law [press release] a controversial new constitution [text, PDF, in Hungarian] on Monday, amid concern from civil society leaders and opposition politicians that the document contravenes European human rights principles. According to a statement [text] released by Human Rights Watch (HRW) [advocacy website], the new constitution "enshrines discrimination," and jeopardizes the rights of people with disabilities, women and LGBT people. The Council of Europe's Venice Commission [official website] also released an opinion [text, PDF] criticizing the manner in which Hungary went about getting the constitution approved. Although the commission was asked to comment on the constitution prior to its approval, it was unable to do so because it did not get the document in time. The constitution introduces several changes, including a debt ceiling where the country's debt cannot exceed 50 percent of the country's gross domestic product (GDP); a reform of the Fiscal Council, giving the group the right to veto the budget and dissolve parliament for failure to pass an annual budget by the end of March; a definition of marriage as a union between man and woman; and a statement that the life of a fetus begins at and should be protected from conception. The constitution also includes a new preamble [text, in Hungarian], that condemns the communist and socialist climate in Hungary that existed from 1944 to 1990 and solidifies democratization that began 20 years ago.

The National Assembly of Hungary [official website, in Hungarian] approved [statement, in Hungarian] the new constitution last week by a margin of 262-44 and one abstention, and European lawmakers have already sought EU review [JURIST reports] of the document. Members of the country's socialist party (MSZP) [official website, in Hungarian] and green liberal political party (LMP) boycotted the vote [Reuters report]. The measure was supported by and passed as a result of the ruling Hungarian Civic Party (FIDESZ) [official website, in Hungarian], which has controlled a two-thirds majority of the National Assembly since 2010. Other laws passed by the FIDESZ-led parliament have garnered controversy as well. In February, the government agreed to change its controversial media law following negotiations between Hungarian and EU representatives [JURIST reports]. The law created the National Media Communications Authority (NMHH) [official website, in Hungarian], which controls private television and radio broadcasters, newspapers and online news sites. Under the law, the government could fine broadcasters more than 700,000 euros and newspapers and news websites roughly 90,000 euros if their coverage is deemed unbalanced or immoral by the NMHH, made up of members loyal to FIDESZ. The law was approved in December 2010 and went into effect in January amid protests from members of the media, other European governments as well as Amnesty International [advocacy website], which urged Hungary to amend the law [JURIST report] because it curtails freedom of expression.




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HRW requests international inquiry into killings of Syria protesters
Carrie Schimizzi on April 24, 2011 2:39 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Sunday requested that the United Nations (UN) [official website] begin an international inquiry [press release] into Syria's security forces after numerous civilians were fatally shot [WP report] during peaceful anti-government protests earlier this week. HRW also called on the US and UN to issue sanctions against Syrian government officials who are responsible for the excessive use of lethal force and other rights violations against protesters. UN Secretary General Ban Ki-moon, US President Barack Obama, and the leaders of several European nations issued strong condemnations [AFP report] of the April 22 shootings, which resulted in the deaths of at least 80 protesters. HRW Deputy Middle East Director Joe Stork said condemnations from the international community are "not enough" to stop the violence, saying "faced with the Syrian authorities' 'shoot to kill' strategy, the international community needs to impose sanctions on those ordering the shooting of protesters."

This is not the first time Syria has come under fire for its violent use of force against anti-government protesters, which so far have led to 170 deaths [JURIST report]. Earlier this month, HRW reported [text] that Syrian security forces have stopped medical personnel, sometimes violently, from attending to injured protesters. A spokesperson for the group called the practice "both inhumane and illegal." Last month, Syrian President Bashar al-Assad [Al Jazeera profile] ordered the formation of a committee [JURIST report] that will discuss repealing the country's 48-year-old state of emergency law that bans protests and allows police to detain civilians without charges. Al-Assad announced earlier in March that the government would consider ending the state of emergency [JURIST report]. Also last month, UN High Commissioner for Human Rights Navi Pillay [official profile] urged the Syrian government [JURIST report] to ensure protesters' rights to peaceful expression and to work toward addressing their concerns instead of responding with violence. As demonstrations continued throughout the country in March, the government freed 260 political detainees [AFP report] in an overture to the protesters.




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Federal judge dismisses Bank of America from class action securities lawsuit
Carrie Schimizzi on April 24, 2011 1:48 PM ET

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[JURIST] A judge for the US District Court for the Central District of California [official website] on Friday dismissed [order, PDF] Bank of America (BOA) [corporate website] from a $17 billion lawsuit involving securities based on mortgages issued by Countrywide Financial Corporation [NYT backgrounder], a former subsidiary of the bank. The class action suit [complaint, PDF] was filed by a number of investors who claim to have been financially harmed by Countrywide's misleading customer practices. Judge Mariana Pfaelzer dismissed BOA from the suit after the plaintiffs failed to prove a de facto merger, finding instead that two separate asset acquisition transactions in 2008 did not result in the effective merger of the businesses, thereby protecting BOA from successor liability. The plaintiffs still have claims pending against Countrywide and several other banks that served as underwriters of the securities, including Goldman Sachs Group Inc. and Deutsche Bank Securities Inc. [corporate websites]. The remaining defendants have also filed motions to dismiss [Bloomberg report], but those rulings have yet to be issued.

BOA has recently been the target of several lawsuits. In February, BOA reached a $410 million settlement in a class action suit [JURIST report] accusing the bank of excessive overdraft fees. In January, plaintiffs filed a lawsuit [JURIST report] against Countrywide in New York State Supreme Court [official website] alleging widespread fraud that resulted in substantial financial losses. Arizona Attorney General Terry Goddard filed a lawsuit in mid-December against BOA for misleading customers [JURIST report] in mortgage modification and foreclosure practices. Earlier in the month, the US Securities and Exchange Commission (SEC) [official website] reached a $137 million settlement agreement [JURIST report] with BOA over fraud charges [order, PDF] in a lawsuit that claimed BOA used anti-competitive bidding processes with 20 state municipalities. In June, BOA subsidiary Countrywide Home Loans, Inc. reached [JURIST report] a $108 million settlement agreement [text, PDF] with the Federal Trade Commission (FTC) [official website] in response to a lawsuit that charged it with collecting excessive fees from homeowners facing foreclosure.




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Yemen President Saleh agrees to step down, receives immunity
Drew Singer on April 24, 2011 12:10 PM ET

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[JURIST] Yemen President Ali Abdullah Saleh [official website, in Arabic; JURIST news archive] on Saturday agreed to step down from power, ending his 32-year reign as the nation's leader. Saleh agreed to a proposal requiring him to hand power over to his deputy in 30 days [AP report] in exchange for immunity from prosecution. Opposition groups have accepted the resignation with some reservations [Yemen Post report] — including disagreement with the proposition to form a national unity government in the next week, rather than once Saleh has formally vacated his office. Demonstrators concerned that the resignation was a political ploy continued to protest [Al Jazeera report] throughout Yemen. The Gulf Cooperation Council [official website], a group of six nations from the region, helped to broker the agreement.

Earlier this month, Amnesty International (AI) [advocacy website] released a report [text; PDF] urging the international community to pressure Yemeni authorities to investigate the deaths of protesters [JURIST report]. The report chronicles reports of beatings and use of excessive force by security forces including shootings of peaceful protesters. AI criticizes the response of authorities to the mounting death tolls as woefully inadequate. The US Department of State [official website] earlier this month released the 2010 Country Reports on Human Rights Practices [materials; JURIST report] that, among other things, pointed out the ongoing extrajudicial killings, arbitrary detentions, police and military abuses and restrictions on freedom of expression in Yemen. In March, the Yemeni parliament passed temporary emergency laws [JURIST report], giving the government more power to arrest and detain protesters and to censor the media.




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UN SG calls for ceasefire in Thailand-Cambodia clash
Drew Singer on April 24, 2011 11:31 AM ET

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[JURIST] UN Secretary General Ban Ki-moon [official website; JURIST news archive] on Saturday urged [press release] Cambodia and Thailand to enter into a ceasefire agreement to resolve recent border clashes between the two countries. Saying that a military resolution is impossible [statement], Ban urged the countries to pursue a diplomatic solution and to exercise military restraint. The neighboring nations have been clashing [NYT report] for the past three days over disputed territory, marking the first time since February that the countries broke an informal cease-fire. Last month, both nations agreed to a UN-mediated meeting to discuss ways to safeguard the temple Preah Vihear [UNESCO profile], a location on the UN World Heritage List, which was damaged in previous border clashes between the South-East Asian neighbors earlier this year.


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In addition to armed clashes with Thailand, Cambodia's border with Vietnam has also been a subject of controversy. Last month, Cambodian opposition leader Sam Rainsy [party profile; JURIST news archive] lost his final appeal to the Cambodian Supreme Court on charges of intentionally destroying posts [JURIST report] marking the border between Cambodia and Vietnam and inciting racial discrimination through that act. The ruling upheld Rainsy's September 2010 conviction [JURIST report], given in absentia due to his self-imposed exile since 2005. Human Rights Watch [advocacy website] strongly criticized the ruling [JURIST report], saying that it showed the government's control over the country's judiciary.





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HRW urges UAE to reverse dissolution of civil rights group
Maureen Cosgrove on April 23, 2011 3:32 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] on Friday urged [press release] the government of the United Arab Emirates (UAE) to reverse its decision to dissolve the board of directors of a prominent civil rights group. UAE social affairs minister, Mariam Mohammed Khalfan Al-Roumi, dismissed the elected board members of the Jurist Association civil rights group and appointed state officials in their stead. The decree dismissing the board members alleged that the Jurist Association violated UAE's recently enacted laws that prohibit nongovernmental organizations and its members from interfering "in politics or in matters that impair State security and its ruling regime." Al-Roumi issued the decree in response to a petition filed by the Jurist Association, other nongovernmental organizations, and hundreds of UAE citizens seeking political reform [Reuters report]. The petitioners are calling for increased representation in the UAE government and Federal National Council (FNC) [official website, in Arabic], the country's legislative body.

Three prominent activists who made similar calls for political reform, including rights activist Ahmed Mansoor [HRW press release], have been arrested recently. HRW also urged international public institutions [HRW press release] that have a presence in the country, such as the Guggenheim, New York University (NYU), and the Agence France Museum [official websites], to publicly condemn the UAE government's detention of rights activists. HRW has continued to monitor the UAE's compliance with international human rights standards following a 2010 report [HRW report] suggesting the human rights climate in the UAE has worsened. HRW has been particularly concerned about torture, the deterioration of conditions for migrant workers, restrictions on freedoms of expression and association, and violations of women's rights. In October 2010, HRW condemned [press release; JURIST report] a ruling by the UAE Federal Supreme Court affirming a "husband['s] right to discipline his wife" as a violation of UAE treaty obligations.




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ICC prosecutor to investigate Nigeria post-election violence
John Paul Putney on April 22, 2011 2:31 PM ET

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[JURIST] Luis Moreno-Ocampo, the Chief Prosecutor of the International Criminal Court (ICC) [official websites], on Thursday announced [press release] an investigation into recent violence following national elections in Nigeria [JURIST news archive] earlier this month. The preliminary investigation, a precursor to a formal investigation, comes in the wake of riots that killed over 100 and displaced more than 40,000 [AP report]. Rioting broke over the weekend following the election victory [AFP report] of incumbent President Goodluck Jonathan [BBC profile; JURIST news archive], from the predominantly Christian south, over Muhammadu Buhari [BBC profile] from the predominantly Muslim north. Moreno-Ocampo's office stated:
The Office of the Prosecutor is closely following on the situation in Nigeria and is concerned with the outbreak of violence surrounding the National Assembly and Presidential elections of April 2011. In the context of its on-going preliminary examination activities, the Office will seek to establish whether the recent violence may have been planned and organized and whether crimes falling within the Court's jurisdiction may have been committed. The Office is mindful that the upcoming governorship elections on 26 April could lead to further violence. . . . The Office of the Prosecutor welcomes Nigeria's political leaders' call on their supporters to show restraint and avoid unrest.
Moreno-Ocampo indicated his office will support domestic investigations into the post-election violence as well.

Previous elections in Nigeria have been marred by violence and fraud [JURIST reports]. The recent elections are the first since the death of former president Umaru Yar'Adua [BBC obituary] in May, which resulted in Jonathan taking power [JURIST report]. Last month, Human Rights Watch (HRW) [advocacy website] and the Nigerian Bar Association [association website] called for the Nigerian National Assembly to pass legislation creating a special electoral offenses commission [JURIST report]. In June, a constitutional amendment, known as the Constitution (First Amendment) Act 2010 [text, PDF] was passed, changing federal election law by removing a provision of the constitution that disallowed people who had been charged with fraud from standing for election and requiring candidates for federal office to have a degree beyond secondary education. It also repealed the Independent National Electoral Commission Act 2006 in order to re-instate the Nigerian Independent National Election Commission (INEC) [official website].




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Federal appeals court reinstates case against Blackwater guards
Michael Haggerson on April 22, 2011 1:25 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 case against four former Blackwater [JURIST news archive] employees involved in the September 2007 shootings of 17 Iraqi civilians [JURIST report]. The US Department of Justice (DOJ) [official website] dismissed the charges against a fifth ex-Blackwater employee. The charges against the remaining men include 14 counts of manslaughter. The US District Court for the District of Columbia [official website] initially dismissed the charges [opinion, PDF; JURIST report] because it found the decision to prosecute the men was "tainted" by the use of immunized statements. The appeals court found that the lower court's determination was based upon "an erroneous view of the law" and ruled:
We thus vacate and remand the case for the court to determine, as to each defendant, what evidence—if any—the government presented against him that was tainted as to him, and, in the case of any such presentation, whether in light of the entire record the government had shown it to have been harmless beyond a reasonable doubt.
A victim wounded in the shooting praised [AP report] the court of appeals' decision.

Two ex-Blackwater contractors were convicted of manslaughter [JURIST report] in March for their role in the May 2009 shooting deaths of two Afghan nationals and the wounding of a third. Last April, a federal grand jury indicted five former Blackwater executives [JURIST report] on charges of weapons violations and lying to investigators. In February 2010, the Iraqi government ordered 250 former Blackwater employees to leave Iraq [JURIST report] in reaction to the dismissal of charges against the ex-Blackwater employees allegedly involved in the September 2007 shootings. That month, the DOJ also opened an investigation [JURIST report] into whether Blackwater bribed the Iraqi government to be permitted to continue operating in Iraq following the 2007 shootings. Blackwater ceased operations in Baghdad [JURIST report] in May 2009 when its security contracts expired and were not renewed.




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FCC petitions Supreme Court to reinstate indecency policy
LaToya Sawyer on April 22, 2011 1:10 PM ET

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[JURIST] The Federal Communications Commission (FCC) [official website] on Thursday asked [cert. petition, PDF] the US Supreme Court [official website; JURIST news archive] to reinstate an indecency policy [text] that places restrictions on profanity and nudity during television broadcasting. In July, the US Court of Appeals for the Second Circuit [official website] ruled that the policy was unconstitutional [JURIST report]. The court held that the policy was a violation of the First Amendment [text] right to freedom of speech because it was unconstitutionally vague and could have a "chilling effect" on speech. In its petition, the government expressed concern for the consequences of allowing broadcasting to continue without the restrictions of the policy:
The Court of Appeals' decisions preclude the Commission from effectively implementing statutory restrictions on broadcast indecency that the agency has enforced since its creation in 1934. Accordingly, broadcasters may well believe that they have been freed of the public-interest obligation not to air indecent programming that they assumed when they were originally "granted the free and exclusive use of a limited and valuable part of the public domain."
The court of appeals did not reject the idea of creating a new policy that is constitutional, but the government argues that, until the FCC can find a solution to overcome vagueness, it lacks the power to fulfill its statutory obligation to limit indecency in broadcasting.

This case hinges on indecency issues raised in two separate broadcasts, one in which a nudity scene appeared in a television crime show [Bloomberg report] during prime-time hours, and the other involving celebrities using expletives [WSJ report] during live broadcasting events. The Supreme Court originally remanded the case to the Second Circuit after ruling [opinion text; JURIST report] in April 2009 that the FCC did not act arbitrarily and capriciously in changing its policy regarding fines for the broadcast of isolated expletives. That ruling overturned a previous decision [JURIST report] by the Second Circuit, which held that the 2004 policy was arbitrary and capricious under the Administrative Procedure Act [text] for failing to articulate a reasoned basis for its change in policy. The Supreme Court declined to address the constitutionality of the FCC policy in its decision and remanded the case to the lower court for further consideration of the constitutional issue.




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Indiana House approves amended Arizona-style immigration bill
Alexandra Malatesta on April 22, 2011 12:32 PM ET

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[JURIST] The Indiana House of Representatives [official website] on Thursday voted 64-32 to approve a bill [Amended SB 590 text; materials] considered to be a "watered-down" version of the Arizona immigration bill [JURIST news archive]. The amended bill proposes to revoke tax credits from businesses that hire illegal immigrants and would also require the use of the E-verify System to check the eligibility status of employees. The Indiana Senate passed a similar bill [JURIST report] in February by a 31-18 vote, but also included a controversial provision which would allow police officers to inquire into one's immigration status during a lawful stop, seizure, detention, or arrest. This provision was excluded from the amended bill approved by the House. Supporters of the legislation maintain it is necessary to act on immigration issues [AP report] because of Congress' failure to address the problem, while opponents contend that the bill could harm businesses within the state. The House and Senate are expected to begin work next week on a compromise version of the two bills. Indiana Governor Mitch Daniels (R) [official website] has indicated that he supports the House version of the legislation.

Alabama, Virginia, Oklahoma, Utah and Indiana [JURIST reports] have all approved Arizona-style immigration bills within the past year. Nonetheless, these type of laws remain controversial. Earlier this week, the US Court of Appeals for the Ninth Circuit [official website] upheld [opinion, PDF; JURIST report] a lower court decision to enjoin several provisions of Arizona's controversial immigration law [SB 1070 materials]. The US Department of Justice (DOJ) filed suit [JURIST report] in July to permanently enjoin Arizona from enforcing the law, arguing that it is preempted by federal law and is thus a violation of the Supremacy Clause [text] of the US Constitution. In response, Arizona Governor Jan Brewer [official website] countersued [JURIST report] the federal government alleging an infringement upon state rights. In May, the American Civil Liberties Union (ACLU) filed suit [JURIST report] also seeking an injunction against Arizona's immigration law. The national debate over immigration issues has led President Barack Obama to call for comprehensive immigration reform [JURIST report].




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Mubarak detention extended, name removed from buildings
Drew Singer on April 22, 2011 12:01 PM ET

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[JURIST] Egyptian public prosecutor Abdel Meguid Mahmud on Friday ordered a 15-day extension of the detention of former president Hosni Mubarak [Al Jazeera profile; JURIST news archive], giving authorities more time to decide if they want to send him to jail or a prison hospital. The news comes shortly after an Egyptian court's decision to remove Mubarak's name [Guardian report], along with his wife's, from all public buildings in the nation. Estimates range in the thousands as to how many subway stations, schools, streets, squares and libraries bear the former leader's name. There have been conflicting reports over Mubarak's current health, but he appears to be in unstable condition [Times of India report]. Mubarak was previously moved to a hospital to recover from an unspecified ailment, causing a delay in questioning [JURIST report] regarding his alleged roles in protester deaths and embezzlement of government money. Investigators have been interrogating Mubarak by visiting his temporary home in the resort town of Sharm el-Sheikh to question him.


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Last week, an Egyptian court ordered that Mubarak's political party be dissolved [JURIST report]. It would be illogical [Reuters report] for Mubarak's National Democratic Party, which took control in 1978, to remain an entity, the country's High Administrative Court said. The court also liquidated the party's assets. Analysts call the court's decision an important step in the building of a multi-party system, which the country has not had for more than 30 years. In a televised statement last week, Mubarak denied the corruption charges [BBC report] against him, asserted his right to defend his reputation and expressed his willingness to cooperate [Al Arabiya report] with investigations, denying that he owns property abroad or holds foreign bank accounts.




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Samsung sues Apple for patent infringement
Brian Jackson on April 22, 2011 10:40 AM ET

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[JURIST] Electronics manufacturer Samsung announced on Friday that it has filed patent infringement suits against Apple [corporate websites] in three different countries. The suits, filed in South Korea, Japan and Germany, may be retaliation for infringement suits filed by Apple [JURIST report] against Samsung last week. The two companies are significant competitors in the mobile phone and tablet markets, and Samsung alleges that Apple has infringed its technology [Reuters report] related to energy consumption and preventing data transmission errors. After filing the lawsuit against Samsung, Apple indicated a willingness to continue working with Samsung [Bangkok Post report] as a partner, but it is not clear if the three suits filed by Samsung will change Apple's approach.

Apple has also been embroiled in litigation with Nokia marked by trading accusations of patent infringement. Last month, Nokia filed actions against Apple [JURIST report] in the International Trade Commission and a court in Delaware, accusing Apple of violating seven patents. In December, the litigation spread to Germany, the UK and the Netherlands where Nokia filed 13 patent infringement complaints [JURIST report] against Apple. Last May, Nokia filed a complaint [JURIST report] in the US District Court in the Western District for Wisconsin alleging that Apple iPad and iPhone 3G products infringe additional Nokia patents.




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Montana judge dismisses same-sex marriage lawsuit
Andrea Bottorff on April 22, 2011 9:26 AM ET

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[JURIST] A Montana judge has dismissed a lawsuit [judgment, PDF] that had called for the state to provide legal status to same-sex relationships. The lawsuit, filed in July [JURIST report] by the American Civil Liberties Union (ACLU) [advocacy website] in Montana's First Judicial District Court [official website] on behalf of seven same-sex couples, had alleged that the state has limited the couples' decision-making powers regarding their health care and finances and had sought for the state to provide a legal status to same-sex couples [case materials] that would confer the same rights and obligations as marriage. Montana Attorney General Steve Bullock [official profile] in November moved to dismiss [JURIST report] the lawsuit, arguing that the plaintiffs were not failing to receive protections because they were gay, but because they were not legally married, and that they received the same rights as all other non-married Montanans. District Judge Jeffrey Sherlock said Tuesday that, while he was sympathetic to the personal experiences of the plaintiffs, it is the role of the legislature to change state law:
This Court, in the past, has been willing to exercise its judicial power when it found a violation of the Montana Constitution as it related to a specific statute applying to gay people. ... However, what Plaintiffs want here is not a declaration of the unconstitutionality of a specific statute or set of statutes, but rather a direction to the legislature to enact a statutory arrangement. This Court finds Plaintiffs' proposal, although appealing, to be unprecedented and uncharted in Montana law.
Sherlock added that a ruling in favor the plaintiffs would have violated a voter-approved amendment to the Montana Constitution [text, PDF] that defined marriage as between a man and woman. The ACLU, which argues that the same-sex couples should receive equal rights as opposite-sex couples under the equal protection clause of the state constitution, has 60 days to appeal the decision.

Other states continue to debate the legality of same-sex marriage [JURIST news archive]. Earlier this month, the Indiana Senate [official website] overwhelmingly approved [JURIST report] an amendment to the state constitution that would ban same-sex marriage or any "substantially similar" status, and the Wyoming Senate [official website] in February approved a bill that would void in Wyoming any same-sex marriages and civil unions [JURIST report] performed in other jurisdictions. Also in February, Hawaii Governor Neil Abercrombie signed a same-sex civil unions bill into law [JURIST report]. Same-sex marriage is currently legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and Washington, DC [JURIST reports].




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Federal judge dismisses challenge to health care reform act
Dan Taglioli on April 22, 2011 8:16 AM ET

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[JURIST] A judge for the US District Court for the District of New Jersey [official website] on Wednesday rejected [opinion text] a lawsuit challenging the constitutionality of the 2010 Patient Protection and Affordable Care Act (PPACA) [HR 3590 materials; JURIST news archive]. Judge Freda Wolfson dismissed the lawsuit, brought without an attorney by two New Jersey residents, on jurisdictional grounds, ruling the two men had no standing [Cornell LII backgrounder] to challenge the health care reform law. The plaintiffs alleged that the PPACA violates numerous Constitutional provisions and conflicts with several federal statutes, but could not establish that they were or would be in any way injured by any of the law's provisions. Wolfson noted in her opinion:
The Court is compelled to note that although Plaintiffs claim to represent "We the People" and the "citizens of the State of New Jersey," ... Plaintiffs are not attorneys and this lawsuit has not been brought as a class action. Moreover, no individual signed the Complaint other than the named Plaintiffs. Thus, the Court considers this as a challenge to the Act brought solely on behalf of the two individual Plaintiffs.
Defendants Kathleen Sebelius, Timothy Geithner and Hilda Solis [official websites], individually and in their official government capacities, were granted a motion to dismiss the complaint without oral argument.

Earlier on Wednesday, Idaho Governor CL "Butch" Otter (R) [official website] issued an executive order prohibiting implementation of the PPACA [JURIST report] in the state. Idaho is one of a group of states [JURIST report] which joined in a suit against the federal government [JURIST report] filed in March 2010 in the US District Court for the Northern District of Florida [official website] alleging that PPACA is unconstitutional. The judge in that case struck down [JURIST report] the law. The US Department of Justice [official website] appealed the ruling, and the US Court of Appeals for the Eleventh Circuit [official website] has agreed to hear the case on expedited review [JURIST report]. The health care reform law is also the subject of numerous other legal challenges across the country. Last month, Virginia Attorney General Kenneth Cuccinelli [official website] filed a petition for a writ of certiorari [JURIST report] with the US Supreme Court [JURIST news archive] asking the court to rule on the constitutionality of the law on an expedited basis, before the US Court of Appeals for the Fourth Circuit [official website] rules on the issue. In January, a judge for the US District Court for the Western District of Virginia dismissed a lawsuit [JURIST report] challenging a provision of the health care reform law. In October, a federal judge in Michigan ruled that the law is constitutional [JURIST report] under the Commerce Clause as it addresses the economic effects of health care decisions, and that it does not represent an unconstitutional direct tax.




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UN rights chief says Libya may be committing war crimes
Carrie Schimizzi on April 22, 2011 7:28 AM ET

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[JURIST] UN High Commissioner of Human Rights Navi Pillay [official profile] on Thursday said the use of violent force by the government of Libya in densely populated cities could amount to international war crimes [press release]. The use of cluster bombs and heavy artillery by armed forces under leader Muammar Gaddafi [BBC profile; JURIST news archive] in the city of Misrata has resulted in "substantial" civilian casualties, including women and children. Pillay expressed concern over reported sniper attacks targeting civilians, mortar attacks around medical facilities and an inability to deliver medical aid to reach the victims of the conflict. Pillay warned that the government's actions will be under intense scrutiny by the International Criminal Court investigation [JURIST report] and urged the government to cease the attack on Misrata:
Under international law, the deliberate targeting of medical facilities is a war crime, and the deliberate targeting or reckless endangerment of civilians may also amount to serious violations of international human rights law or international humanitarian law.
Pillay also expressed hope that the presence of human rights investigators and a constant media presence will help to dispel the situation in Libya.

Earlier this month, the UN announced that investigators would enter Libya to begin looking into alleged human rights abuses [JURIST report] by both rebels and the armed forces of Gaddafi. The inquiry into the conditions in Libya had been approved by a unanimous vote [JURIST report] of members of the UN Human Rights Council (UNHRC) [official website] on February 25. Also in February, the UN Security Council voted unanimously [press release] to impose sanctions [JURIST report] on Gaddafi, marking the first unanimous referral to the ICC in UN history. Resolution 1970 also received support from Libya's delegation itself, which renounced Gaddafi [Reuters report]. The UN General Assembly voted to suspend Libya [JURIST report] from the Human Rights Council in response to the violent suppression of peaceful protesters by forces loyal to Gaddafi. According to a statement issued by the court, the ICC will not grant immunity [JURIST report] to any person perpetrating crimes against humanity in Libya.




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Utah AG asks Supreme Court to rule on memorial crosses
Alexandra Malatesta on April 21, 2011 1:49 PM ET

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[JURIST] Utah Attorney General Mark Shurtleff [official website] on Wednesday asked [cert. petition, PDF] the US Supreme Court [official website] to decide whether crosses placed beside highways as memorials to deceased Utah Highway Patrol (UHP) [official website] troopers is an unconstitutional government endorsement of religion. The petition seeks review of an August ruling [JURIST report] by the US Court of Appeals for the Tenth Circuit [official website], which found that "the cross memorials would convey to a reasonable observer that the state of Utah is endorsing Christianity." The memorials in question, erected in 1998 by the Utah Highway Patrol Association (UHPA) [official website], consist of 14 12-foot-high cross memorials displaying the fallen troopers' name, rank, badge number and the official UPH symbol. The memorials were paid for with private funds, but most were placed on public land. Former Texas solicitor general Ted Cruz, representing Utah [press release] pro bono, argues that the lower court improperly applied the Establishment Clause [Cornell LII backgrounder] to "passive public displays" and erroneously deemed the memorials "government speech." Discussing inconsistent precedent, the brief states:
This confusion has generated a three-way circuit split and lower-court disarray regarding the proper test for evaluating Establishment Clause challenges to passive displays on government property. ... In short, the Tenth Circuit's approach, if allowed to stand, will prohibit the government from accommodating public displays of religious symbols, forbid a widely embraced means of commemorating fallen heroes on public property, and manifest an unconstitutional hostility toward religion.
Representatives for American Atheists [advocacy website], the organization that brought the original suit, expressed doubt [AP report] that the petition will be granted.

Last week, the US Court of Appeals for the Seventh Circuit [official website] dismissed [JURIST report] a constitutional challenge to the National Day of Prayer (NDP) [official website], overturning an earlier lower court decision [JURIST report] that found the event in violation of the Establishment Clause by representing government-backed encouragement that Americans engage in non-secular activity. The Supreme Court ruled [JURIST report] last April in Salazar v. Buono [Cornell LII backgrounder] that the lower courts were wrong to ban the government from transferring public land containing a religious symbol to a private entity. The dispute concerned a Latin cross on a rock outcropping in the Mojave National Preserve. The display of the cross on public property had already been found in violation of the Establishment Clause, so the government sought to transfer the portion of land on which the cross was located to a private entity. Last March, the US Court of Appeals for the Ninth Circuit [official website] ruled that a teacher-led recitation of the Pledge of Allegiance [JURIST report] in public schools does not violate the Constitution's Establishment Clause. The court also upheld the use of the phrase "In God We Trust" on currency. In November 2009, the US Court of Appeals for the Third Circuit [official website] ruled that a school district's policy prohibiting the performance of religious holiday songs [JURIST report] does not violate the Establishment Clause.




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Idaho governor blocks implementation of federal health care law
Jennie Ryan on April 21, 2011 1:28 PM ET

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[JURIST] Idaho Governor CL "Butch" Otter (R) [official website] issued an executive order on Wednesday prohibiting implementation of the federal Patient Protection and Affordable Care Act (PPACA) [HR 3590 materials] in the state. Executive Order 2011-03 [text] bars "every executive branch department, agency and institution of the State" from establishing any program or rule that would implement provisions of the law, from accepting any federal funding tied to the law, and from assisting federal employees with its implementation. Otter cited the authority of the Tenth Amendment [text] in support of the argument that the federal government has overstepped its bounds in regulating health care:
PPACA represents a dramatic attempt to assert federal command and control over this country's health care system ... the power to require or regulate a person's choice in the mode of securing health care services. Require employers to provide health insurance coverage to their employees, determine the content of health insurance policies or limit the construction or expansion of the hospital or medical facilities or to impose a penalty related thereto, is not found in the United States Constitution.
The order was issued after Otter vetoed House Bill 298 [text, PDF] which would have nullified the federal law's application in the state. In a letter [text, PDF] to Idaho Secretary of State Ben Ysursa [official website], Otter explained that he supports repeal of PPACA, but that he vetoed the bill out of concern that it would effectively prohibit the state from creating its own insurance exchange program.

Idaho is one of a group of states [JURIST report] which joined in a suit against the federal government [JURIST report] filed in March 2010 in the US District Court for the Northern District of Florida [official website] alleging that PPACA is unconstitutional. The judge in that case struck down [JURIST report] the law. The US Department of Justice [official website] appealed the ruling, and the US Court of Appeals for the Eleventh Circuit [official website] has agreed to hear the case on expedited review [JURIST report]. The health care reform law is the subject of numerous other legal challenges across the country. Last month, Virginia Attorney General Kenneth Cuccinelli [official website] filed a petition for a writ of certiorari [JURIST report] with the US Supreme Court [JURIST news archive] asking the court to rule on the constitutionality of the law on an expedited basis, before the US Court of Appeals for the Fourth Circuit [official website] rules on the issue. In January, a judge for the US District Court for the Western District of Virginia dismissed a lawsuit [JURIST report] challenging a provision of the health care reform law. In October, a federal judge in Michigan ruled that the law is constitutional [JURIST report] under the Commerce Clause as it addresses the economic effects of health care decisions, and that it does not represent an unconstitutional direct tax.




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Syria ends 48-year emergency rule
Julia Zebley on April 21, 2011 11:46 AM ET

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[JURIST] Syrian President Bashar al-Assad [Al Jazeera profile] on Thursday ended the country's 48-year-old state of emergency, following the legislature's approval of the bill [JURIST report] earlier this week. In several decrees [text] issued Thursday, al-Assad also abolished the Supreme State Security Court (SSSC), developed in the wake of the state of emergency [HRW report] to prosecute those deemed a threat to security, and legalized peaceful protest demonstrations, although they must be approved the Ministry of the Interior. The National Organization for Human Rights in Syria [advocacy website, in Arabic] reported that the government is not enforcing the new laws [press release, in Arabic] and government violence continues:
With deep conviction and condemnation, the Syrian authorities continue to use excessive force and violence to disperse a number of peaceful assemblies to isolate the Syrian citizens on 20/04/2011, in a number of provinces and cities in Syria, which led to the occurrence of a number of victims, in addition to the arbitrary arrests by the Syrian authorities against some of the Syrian citizens who had gathered peacefully, despite the announcement of the decision to lift state of emergency and the law of peaceful assembly.
The government has warned citizens not to take to the street [Guardian report] in the wake of the announcement, and some forces have reportedly been taking aggressive action against student protesters. Protesters do not appear appeased, as more protests are scheduled to coincide with Friday prayers [Bloomberg report].

Last month, al-Assad ordered the formation of a committee [JURIST report] that evaluated possible elimination of the country's 48-year-old state of emergency law. The panel was composed of legal experts and charged with examining potential legislative measures that would simultaneously preserve national security and allow the revocation of the law, which permitted arrest without charge and banned political protests. The announcement may have been an effort to appease demonstrators, whose activity had recently increased, while also conveying that any future reforms would proceed at a gradual pace. In March, al-Assad announced that the government would consider ending the state of emergency [JURIST report]. Also in March, UN High Commissioner for Human Rights Navi Pillay [official profile] urged the Syrian government [JURIST report] to ensure protesters' rights to peaceful expression and to work toward addressing their concerns instead of responding with violence.




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Oklahoma governor signs bill banning abortions after 20 weeks
Sarah Paulsworth on April 21, 2011 11:07 AM ET

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[JURIST] Oklahoma Governor Mary Fallin [official profile] on Tuesday signed into law [press release] House Bill 1888 [materials], prohibiting abortions [JURIST news archive] after 20 weeks. The law allows abortions past the 20-week mark only in certain extenuating circumstances where the mother faces death or serious injury. The legislation is based on evidence suggesting that a fetus can feel pain after 20 weeks [Reuters report] and would require doctors to measure the age of a fetus before performing an abortion. A doctor who performs an abortion in violation of the time limit would be subject to criminal prosecution for a felony, but there would be no penalty for the woman undergoing the procedure. The bill includes additional provisions allowing civil suits to be filed for "actual damages" against the doctor by a woman upon whom an abortion is attempted or performed or by the father of the unborn child. Fallin also signed Senate Bill 547 [materials], according to which women can only receive coverage for elective abortions from health insurance providers through the payment of a supplemental fee. According to the bill, non-elective abortions only extend to live-saving abortions, not abortions sought to due incest, rape or medical conditions [Tulsa World report]. This legislation is reportedly intended to prevent insurance subscribers from unwittingly subsidizing abortions. "I believe in the sanctity of human life and the responsibility of our lawmakers to protect life," said Governor Fallin. "Together, these two pieces of legislation will expand protections for unborn children and ensure that Oklahomans are not forced to unknowingly or unwillingly help to pay for procedures that run contrary to their values."

Oklahoma becomes the fourth state to ban abortions after the 20-week mark, following Idaho, Kansas and Nebraska [JURIST reports]. Earlier this month, the Alabama House of Representatives voted 69-19 to approve a bill that would ban abortion [JURIST news report] after 20 weeks of gestation, except in cases where the mother's life is at risk or she faces serious injury. Also in April, the Ohio Senate approved a bill [JURIST report] that would limit the availability of abortions after 20 weeks. The Iowa and Missouri [JURIST reports] Houses of Representatives have also approved similar legislation. In March, South Dakota Governor Dennis Daugaard signed into law [JURIST report] a bill requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion.




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Accused USS Cole bomber to be tried in military court
Daniel Richey on April 21, 2011 10:55 AM ET

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[JURIST] The US Department of Defense (DOD) [official website] announced Wednesday that high-value Guantanamo Bay [JURIST news archive] detainee Abd al-Rahim al-Nashiri [JURIST news archive] will be subject to capital charges and tried in a military court [press release]. According to the Pentagon, the chief prosecutor for the DOD's Office of Military Commissions [official website] plans to charge al-Nashiri with orchestrating the 2000 attack on the USS Cole [JURIST news archive] that left 17 dead and 40 injured. The office will also bring charges in connection with an attack that same year on a French oil freighter that claimed the life of one crewmember and spilled 90,000 barrels of oil into the Gulf of Aden. The American Civil Liberties Union (ACLU) [advocacy website] criticized [press release] the DOD's decision to use a military tribunal, calling the system "broken." ACLU National Security Project Director Hina Shamsi said the case is especially troubling given the looming threat of capital punishment:
We are deeply disturbed that the Obama administration has chosen to use the military commissions to try a capital case in which much of the evidence is reportedly based on hearsay and therefore not reliable enough to be admissible in federal court. Allowing hearsay is a backdoor way of allowing evidence that may have been obtained through torture
The announcement comes after reports emerged [JURIST report] last August indicating that the Obama administration would not pursue a military trial for al-Nashiri, a move the ACLU said demonstrates the "inherent unfairness of the military commissions" [press release]. The DOD refuted the reports at the time.

Complicating the prosecution is the controversial history of al-Nashiri's detention. Former Central Intelligence Agency (CIA) [official website] agents confirmed [Spiegel report] in 2010 the existence of a secret CIA black site [JURIST news archive] in Poland, where al-Nashiri was allegedly waterboarded and subjected to mock executions. According to one agent, al-Nashiri was stripped naked and hooded before a gun and a drill were held close to his head. The allegations led the Open Society Justice Initiative (OSJI) [advocacy website] to launch an abuse investigation [JURIST report] in September 2010. Section 948r of the Military Commissions Act of 2009 [text, PDF] prohibits the use in military courts of evidence obtained through "torture or cruel, degrading or inhuman treatment," a provision that could implicate potential limitations on the prosecutors' ability to use certain evidence if it can be established that al-Nashiri was subjected to such treatment in Poland or at Gitmo. Former Polish prime minister Leszek Miller denied any knowledge of such a facility [JURIST report]. Most recently, Polish prosecutors, who began investigating the potential existence of the Polish CIA prison in 2008, asked US officials [JURIST reports] last month to question al-Nashiri and fellow detainee Abu Zubaydah about the existence of the facility, saying their testimony was essential to establishing its existence.




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Illinois ex-governor Blagojevich back on trial for corruption
Drew Singer on April 21, 2011 8:59 AM ET

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[JURIST] Former Illinois governor Rod Blagojevich [personal website; JURIST news archive] on Wednesday went on trial [criminal complaint] for a second time on corruption charges, including one that he tried to sell President Barack Obama's vacant US Senate seat. Blagojevich tried to avoid the trial last month, but a federal judge declined to formally rule on his request to cancel the trial [JURIST reports], saying that the motion was neither serious, nor did it raise a legal question. Blagojevich's lawyers had submitted a motion [text] to cancel the ex-governor's retrial and sentence him only on the single charge on which he was originally convicted.

Blagojevich was found guilty [JURIST report] last year of making false statements to the FBI, but the jury remained deadlocked on 23 additional charges. His attorneys, who had worked without pay, argued that a retrial was an economic hardship and an unnecessary drain on taxpayer funds. Beyond suggesting that the request was made primarily to arouse public attention, the judge clarified the motion was improperly presented and, therefore, could not be ruled upon. Blagojevich's defense team was granted additional time to file a proper motion, even though the court predicts the issue will dissipate with time. If convicted of making false statements to the FBI, Blagojevich faces a maximum five-year prison sentence.




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EU lawmakers request review of Hungary constitution
Drew Singer on April 21, 2011 8:01 AM ET

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[JURIST] A faction of the European Parliament [official website] on Wednesday requested [press release] that the European Union [official website] review Hungary's new constitution [draft, in Hungarian, PDF], which the country's national assembly approved [JURIST report] on Monday. Guy Verhofstadt, leader of the Alliance of Liberals and Democrats for Europe [official website], wrote in his request that the review would "ensure that the text does not contradict the basic European values of democracy, the rule of law and respect for fundamental rights." The National Assembly of Hungary [official website] voted 262-44 and one abstention in favor of the new constitution.

Members of the country's socialist party (MSZP) [official website, in Hungarian] and green liberal political party (LMP) boycotted the vote [Reuters report]. The measure was supported by and passed as a result of the ruling Hungarian Civic Party (FIDESZ) [official website, in Hungarian; JURIST news archive], which has controlled a two-thirds majority of the National Assembly since 2010. The constitution introduces several changes, including a debt ceiling where the country's debt cannot exceed 50 percent of the country's gross domestic product (GDP); a reform of the Fiscal Council, giving the group the right to veto the budget and dissolve parliament for failure to pass an annual budget by the end of March; a definition of marriage as a union between man and woman; and a statement that the life of a fetus begins at and should be protected from conception. The constitution also includes a new preamble that condemns the communist and socialist climate in Hungary that existed from 1944 to 1990 and solidifies democratization that began 20 years ago.




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Supreme Court hears arguments on attorney-client privilege
Jaclyn Belczyk on April 20, 2011 2:41 PM ET

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[JURIST] The US Supreme Court [official website, JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Wednesday in United States v. Jicarilla Apache Indian Nation [oral arguments transcript, PDF] on whether the attorney-client privilege entitles the US to withhold from an Indian tribe confidential communications between the government and government attorneys implicating the administration of statutes pertaining to property held in trust for the tribe. The US Court of Appeals for the Federal Circuit held [opinion, PDF] that the government cannot deny the tribe's request to discover such communications, adopting a fiduciary exception in tribal trust cases. Counsel for the petitioner, the US government argued that the tribal trust context does not meet the parameters for recognizing a private trust fiduciary exception. Counsel for the respondent noted:
The Jicarilla Apache Nation has sued the government for mismanaging millions of dollars of its trust monies. No trustee in this situation, including the government, is entitled to withhold the legal advice that it has received about managing the beneficiary's money. The beneficiary is entitled to see that legal advice, so that it can determine whether the trustee followed the advice.
Chief Justice John Roberts expressed concerns over the policy implications of the respondent's position in terms of the impact it would have on the attorney-client privilege.



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UK court upholds controversial online copyright infringement act
Daniel Makosky on April 20, 2011 1:08 PM ET

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[JURIST] The UK High Court on Wednesday upheld [judgment, PDF] the nation's Digital Economy Act (DEA) [text and materials], aimed at the prevention of online copyright infringement. Justice Kenneth Parker dismissed four of the five challenges [claim, PDF] brought in July by UK Internet service providers (ISPs) BT Group PLC and TalkTalk Telecom Group PLC [corporate websites], including claims that the bill was not given adequate scrutiny before its passage and that it may require certain amendments in order to comply with EU rules on privacy and policing by ISPs. Parker sustained the remaining challenge, which questions a provision that requires ISPs to pay 25% of the monitoring costs. The ruling allows the DEA to proceed toward entering effect, though officials are expected to reevaluate the funding sources. The court agreed to review [JURIST report] the matter in November.

Last year, the UK Parliament [official website] approved legislation [JURIST report] authorizing the suspension of Internet service for those who repeatedly download copyrighted material illegally. The act also received Royal Assent [text] and is now law. It calls on ISPs to block download sites, reduce a user's broadband speeds and ultimately shut down a user's Internet access in order to prevent piracy of copyrighted materials. The bill, known as a three-strikes law, imposes stricter penalties on repeat digital offenders than had previously existed, and has received a great deal of public criticism. Despite the controversy over the legislation, MPs who support it say that it is a necessary step to protect the creators of digital content. In November, UK Prime Minister David Cameron [official website] announced that Britain's intellectual property laws would undergo a review [JURIST report] with an eye towards modernization, in an effort to encourage innovation and small business. Cameron suggested that the law may be reformed in order to allow for increased use of copyright material without the owner's permission. The announcement, seen as an attempt to restore balance after the controversial DEA, was cheered by Internet freedom campaigners and small businesses alike.




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India high court urges end to practice of honor killing
Sarah Posner on April 20, 2011 12:53 PM ET

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[JURIST] The Supreme Court of India [official website] on Tuesday urged an end [judgment, PDF] to the practice of "honor killing" [AI backgrounder], calling the customary ritual "wholly illegal." The court said that officials who are aware of the practice before or after it occurs and do not report it will face criminal charges. Officials who fail to report perpetrators of the practice will be held directly or indirectly responsible for the crime. Additionally, criminal proceedings will be initiated against individuals who participate in honor killing. The case involved an altercation between two individuals regarding the proper method of tying bullocks. After a verbal insult was directed towards him by the victim, the accused assaulted the victim with sticks causing a fracture on his head. The two parties belong to different castes in India. The court stated:
There is nothing honourable in honour killing or other atrocities and, in fact, it is nothing but barbaric and shameful murder. Other atrocities in respect of personal lives of people committed by brutal, feudal minded persons deserve harsh punishment. Only in this way can we stamp out such acts of barbarism and feudal mentality. Moreover, these acts take the law into their own hands, and amount to kangaroo courts, which are wholly illegal.
The practice of parents killing their children is most common [Reuters report] when the person enters into a relationship with a member of a different caste or religion.

Last June, the Supreme Court of India ordered the central government and seven state governments to explain the steps they have taken to reduce honor killings [JURIST report]. The order came in response to a petition filed by Shakti Vahini [advocacy website], a non-governmental human rights organization seeking the implementation of stricter laws against the perpetrators of honor killings.




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Italy deports former Guantanamo detainee to home country of Tunisia
Dan Taglioli on April 20, 2011 12:35 PM ET

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[JURIST] Italy deported a Tunisian national and former Guantanamo Bay [JURIST news archive] detainee Wednesday for his connections to an extremist group that had planned various acts of terrorism in the country. Accompanied by Italian officials, Abdel Ben Mabrouk [NYT materials] was taken by plane to his native country under an agreement with Tunisian diplomats [AP report] brokered in Rome. Mabrouk was transferred to Italy in 2009 as part of US efforts to shut down the prison at Guantanamo, where he spent eight years as a suspected terrorist after being captured in Afghanistan in 2001. Having lived in Italy before traveling to Afghanistan, Mabrouk was returned to the Italian government, which imposed a two-year suspended sentence [JURIST report] for terrorist association. The judge based the sentence on recommendations from Mabrouk's lawyer and prosecutor Armando Spataro, finding that Mabrouk's time served at Guantanamo and the year he spent in an Italian prison were sufficient punishment. Italian intelligence broke up the group with which Mabrouk was associated after thwarting several of its terrorist plots, including a plan to blow up the famous Milan Cathedral with a car packed with explosives.

The continued operation of Guantanamo Bay remains controversial. Human Rights Watch (HRW) [advocacy website] criticized US President Barack Obama in January for failing to shut down the facility, as Obama's stated desire to close the Guantanamo prison [JURIST reports] has faced heavy opposition in Congress. Earlier in January, Obama signed a bill barring the transfer of Guantanamo detainees [JURIST report] to the US for trial. The legislation authorized funding for defense interests abroad, military construction and national security-related energy programs and barred the use of funds to transfer detainees into the US and limited funds available for transfers to foreign countries. The number of detainees at Guantanamo has been significantly reduced as the administration continues to transfer detainees to a growing list of countries including Germany, Italy, Spain, Maldives, Georgia, Albania, Latvia, Switzerland, Slovakia, Somaliland, Palau, Belgium, Afghanistan and Bermuda [JURIST reports].




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Supreme Court rules prisoners may not seek monetary damages for violation of rights
Aman Kakar on April 20, 2011 11:11 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Wednesday ruled [opinion, PDF] 6-2 in Sossamon v. Texas [Cornell LII Backgrounder] that states do not consent to waive their sovereign immunity to private suits for money damages under the Religious Land Use and Institutionalized Persons Act (RLUIPA) [42 USC § 2000cc, text]. Petitioner Harvey Sossamon sought injunctive and monetary relief from the state of Texas under RLUIPA for prison policies that prohibited him from using the prison chapel for worship. Justice Clarence Thomas, writing for the majority, rejected Sossamon's argument that the words "appropriate relief" in RLUIPA unambiguously waives the state's immunity from damages. Thomas stated that because "appropriate" is context dependent, "appropriate relief" is open-ended and ambiguous about the relief it includes. The court declined to consider a state to have waived its sovereign immunity where a statute can be inferred to have several plausible interpretations. Thomas also rejected Sossamon's contention that because RLUIPA § 3 was enacted pursuant to the Spending Clause [text] of the US Constitution, the states were on notice that they would be liable for damages because Spending Clause legislation operates as a contract, and damages are always available for breach of contract:
Applying ordinary contract principles here would also make little sense because contracts with a sovereign are unique: They do not traditionally confer a right of action for damages to enforce compliance. More fundamentally, Sossamon's implied-contract remedy cannot be squared with the rule that a sovereign immunity waiver must be expressly and unequivocally stated in the relevant statute's text.
The court also rejected Sossamon's attempt to apply § 1003 of the Rehabilitation Act Amendments of 1986's express waiver of state sovereign immunity for violations of any federal statute prohibiting discrimination by recipients of federal financial assistance. Thomas argued that RLUIPA § 3, which prohibits substantial burden on religious exercise, is not unequivocally a statute explicitly prohibiting discrimination within § 1003's meaning. Justice Sonia Sotomayor wrote for the dissent, and maintained that monetary damages are the usual remedy for violation of a legal right under the general remedies principles and included in the phrase "appropriate relief." Justice Elena Kagan took no part in the decision.

The court's ruling affirms the decision [opinion, PDF] by the US Court of Appeals for the Fifth Circuit [official website] that Sossamon was barred from suing for monetary damages because the language in RLUIPA did not provide clear notice to Texas that it was waiving its rights to sovereign immunity from monetary damages. The court heard oral arguments [oral argument transcript, PDF; JURIST report] in the case last year. At oral arguments counsel for Sossamon argued that damages were an appropriate remedy. Counsel for the US government argued as amicus curiae on behalf of the petitioner. Counsel for Texas argued that the ambiguous phrase "appropriate relief" does not permit damages.




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Ex-Rwanda prosecutor arrested in Belgium on genocide charges
Matt Glenn on April 20, 2011 9:31 AM ET

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[JURIST] Belgian prosecutors announced Wednesday that police in Belgium arrested Rwandan Mathias Bushishi Monday for his involvement in the 1994 Rwandan genocide [HRW backgrounder; JURIST news archive]. Police arrested Bushishi [RFI report] on an international arrest warrant [Interpol warrant] that includes charges of war crimes and genocide. Bushishi is accused of using his role as prosecutor to assist in the extermination of Tutsis in the city of Butare during the genocide. Belgian law allows the government to prosecute Belgian residents for war crimes and genocide committed in other countries, meaning Bushishi may be tried in Belgium. Bushishi will appear in court [De Standaard report, in Dutch] Friday.

Last month, the International Criminal Tribunal for Rwanda (ICTR) [official website; JURIST news archive] sentenced former Murambi Commune mayor Jean-Baptiste Gatete to life in prison [JURIST report] after finding him guilty of committing genocide. In January, the ICTR began trying former Rwandan military official Idelphonse Nizeyimana and Germany started trying former mayor Onesphore Rwabukombe [JURIST reports]. Both men are accused of committing war crimes and genocide against Tutsis during the civil war. Belgium has previously tried and convicted four people in connection with the Rwandan genocide. In 2007, a Belgian court convicted former military official Bernard Ntuyahaga of premeditated [JURIST report] homicide for killing 10 Belgian peacekeepers during the conflict.




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UN urges Nepal to punish war crimes, increase women's rights
Julia Zebley on April 20, 2011 8:36 AM ET

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[JURIST] UN Deputy High Commissioner for Human Rights Kyung-wha Kang [official profile] spoke Tuesday to the Constituent Assembly of Nepal (CA) [official website] about several human rights issues in the country, including a reluctance to prosecute war crimes and insufficient progress increasing women's rights [texts, PDF]. The Office of the High Commissioner for Human Rights (OHCHR) and Human Rights Watch (HRW) [JURIST reports] have both previously appealed to the government of Nepal [BBC backgrounder] to investigate human rights violations allegedly committed during its civil war. Among Kang's recommendations were to establish a Disappearances Commission and a Truth and Reconciliation Commission to investigate allegations of disappearance, torture and other crimes:
Post-conflict amnesties cannot be granted to prevent prosecution of egregious human rights violations, including through pardons or the withdrawal of criminal charges. Transitional justice, and criminal justice, should work in a complementary fashion. In this regard, there are a number of cases currently pending in Nepal, for which police investigations, and judicial proceedings, should continue regardless of the fact the establishment of transitional justice mechanisms remains a priority. It is deeply troubling that to date in Nepal no-one has been held accountable for crimes committed during the conflict. Criminal investigations have not moved forward, some perpetrators have even been promoted, and little action has been taken to address and redress the grievance of the victims.
Although Kang was pleased that Nepal is considering criminalizing untouchability practices, she decried that "a number of current draft provisions do not protect basic rights, such as the right to equality. Here, I note particularly gender-based discrimination ... and inadequate respect for the rights of non-citizens." Kang and others are reportedly considering extending [Himalayan Times] the OHCHR-Nepal [official website] presence in the country for two additional years.

The decade-long Maoist guerrilla insurgency that left more than 13,000 people dead ended [JURIST report] in late 2006 when the Nepalese government signed a peace agreement that established the CA. In November, the CA announced it will finish drafting a new constitution [JURIST report] within 18 months. Last May, the CA voted to abolish the monarchy [JURIST report], giving King Gyanendera 15 days to abandon his royal palace, which cleared the way for Maoists to serve in government. As part of the peace accord, the CA was elected [JURIST report] in April 2008, an organization dominated by members of the Communist Party of Nepal - Maoists (CPN-M) [party website].




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UN rights expert urges Algeria to guarantee freedom of expression
John Paul Putney on April 19, 2011 2:54 PM ET

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[JURIST] UN Special Rapporteur on the right to freedom of opinion and expression Frank LaRue on Tuesday called on Algeria [press release] to "guarantee the right to freedom of opinion and expression" including decriminalizing defamation. LaRue noted that, despite significant progress since the 1990s, which saw more than100 journalists killed, a number of challenges remain. LaRue highlighted that the television and radio sectors remain under government control and do not provide unbiased coverage. He also cautioned that the restrictive legal framework continues to impair important rights including peaceful assembly. LaRue urged continued political reform:
The logic of the past can no longer be used to ignore the expectations of the youth and to limit their freedoms. People from all walks of life, in particular the youth, are now demanding their rights, including the right to freedom of expression, right to freedom of assembly, and basic economic, social and cultural rights, such as job opportunities. The Government should listen to such voices.
LaRue did praise government efforts to provide Internet access to eight million through libraries and public centers.

Last week, Algerian President Abdelaziz Bouteflika [official profile, in French] declared an initiative for sweeping constitutional and political reforms [JURIST report] in order to increase the role of democracy in the African nation. In February, the Algerian Council of Ministers approved a draft ordinance repealing the country's 19-year state of emergency, delivering on a promise made the week before [JURIST reports] by Algerian Foreign Minister Mourad Medelci. The state of emergency gave the government power to limit political freedoms and even peaceful protests. Opponents also claimed that the state of emergency gave rise to arbitrary detentions. Algeria had been under a state of emergency since 1992 when the military canceled elections fearing a win by religious fundamentalists. The state of emergency was declared [DOS backgrounder] after it became apparent that the militant Islamic Salvation Front (FIS) would win control of the government. Bouteflika came to power, winning the presidency in 1999 with 70 percent of the official vote and appearing to have the backing of the military.




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Supreme Court rules federal court may hear state agency claim against state officials
Aman Kakar on April 19, 2011 1:08 PM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] 6-2 Tuesday in Virginia Officer for Protection and Advocacy v. Stewart [Cornell LII backgrounder] that a state agency can sue state officials in federal court to remedy a violation of federal law. The Virginia Office for Protection and Advocacy (VOPA) is an independent state agency that is a designated "protection and advocacy" (P&A) system to protect and advocate for the rights of individuals with developmental disabilities under federal law. VOPA sought to force the disclosure of medical records from state officials relevant to the deaths of two individuals who were residents of state-run facilities. In an opinion by Justice Antonin Scalia, the court held that VOPA's action against state officials could proceed under the Ex parte Young [opinion text] doctrine. The court reasoned that the suit satisfies the inquiry under Ex Parte Young of whether the complaint alleges an ongoing violation of federal law, seeks the proper relief and does not offend the distinctive interests protected by sovereign immunity. The opinion stressed that the proper inquiry for determining when a suit is in fact against the sovereign is the effect of the relief sought and not who is bringing the action. The court rejected the respondents' claim that a state's dignity is diminished when a federal court adjudicates a dispute between its components, reasoning that VOPA's power to sue the state officials is a consequence of the Virginia's voluntary decision to establish a public P&A. Additionally, the court reasoned that a state's stature is not diminished to any greater degree when its own agency sues to enforce its officers' compliance with federal law as opposed to a private person bringing a same type of action:
Not every offense to a State's dignity constitutes a denial of sovereign immunity. The specific indignity against which sovereign immunity protects is the insult to a State of being haled into court without its consent; that does not occur just because a suit happens to be brought by another state agency.
The opinion recognized the novelty of VOPA's action, but emphasized that the action contained the necessary elements to invoke the Ex Parte Young exception. The dissent by Chief Justice John Roberts criticized the opinion of the court for expanding a narrow exception. The dissent argued that the majority's decision runs contrary to Alden v. Maine [opinion text] where the court objected to the federal government forcing a state to defend itself before itself.

The opinion overturns the ruling [opinion, PDF] by the US Court of Appeals for the Fourth Circuit [official website] that the suit by the petitioner was barred under the Eleventh Amendment and did not fall within the Ex Parte Young doctrine. The Fourth Circuit reasoned that a suit by a state agency against state officials is an intramural state dispute and to allow it to be brought in federal court would be inconsistent with our system of dual sovereignty. The Supreme Court heard arguments in the case [oral arguments transcript, PDF] last year.




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Supreme Court hears arguments in global warming case
Jaclyn Belczyk on April 19, 2011 12:41 PM ET

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[JURIST] The US Supreme Court [official website, JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Tuesday in American Electric Power Co. v. Connecticut [oral arguments transcript, PDF; JURIST report] regarding whether electric utilities contributed to global warming [JURIST news archive]. The court is being asked to decide (1) whether states and private parties have standing to seek judicially-fashioned emissions caps on five utilities for their alleged contribution to harms claimed to arise from global climate change caused by more than a century of emissions by billions of independent sources; (2) whether a cause of action to cap carbon dioxide emissions can be implied under federal common law where no statute creates such a cause of action, and the Clean Air Act speaks directly to the same subject matter and assigns federal responsibility for regulating such emissions to the Environmental Protection Agency; and (3) whether claims seeking to cap defendants' carbon dioxide emissions at "reasonable" levels, based on a court's weighing of the potential risks of climate change against the socioeconomic utility of defendants' conduct, would be governed by "judicially discoverable and manageable standards" or could be resolved without "initial policy determination[s] of a kind clearly for nonjudicial discretion." The US Court of Appeals for the Second Circuit ruled in 2009 that states can sue power companies for emitting carbon dioxide, reversing a district court decision [JURIST reports] that found the plaintiffs' claim was a non-justiciable political question. The lawsuit was brought by eight states—California, Connecticut, Iowa, New Jersey, New York, Rhode Island, Vermont and Wisconsin—as well as New York City and three land trusts, against coal-burning utilities American Electric Power, Southern Company, Xcel Energy, Cinergy Corporation [corporate websites] and the Tennessee Valley Authority [official website]. At oral argument Tuesday, the justices appeared skeptical of the states' arguments, implying that the Environmental Protection Agency would be better equipped to deal with emissions standards than federal courts. The Obama administration has sided with the power companies.



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Syria lawmakers approve bill to end 48-year state of emergency
Sarah Posner on April 19, 2011 12:19 PM ET

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[JURIST] The Syrian legislature on Tuesday passed a bill that, if signed by President Bashar al-Assad [Al Jazeera profile], will end the country's 48-year-old state of emergency. Prime Minister Dr. Adel Safar chaired the legislative session, which voted to end the emergency law [SANA report] that has been in place since 1963. The government also abolished the Supreme State Security Court, which was established in 1968 to try political prisoners and had faced criticism [HRW report] from human rights groups. Additionally, the government passed a bill protecting the right to peaceful protests under the Syrian Constitution [text], but also requiring demonstrators to receive government permission before protesting in public. Safar emphasized the need to improve communications between the Syrian government and its citizens, and the country's recent legislative actions may reflect the government's aim to promote democracy and protect citizens' rights. Pro-democracy demonstrators flocked the streets [Reuters report] in the city of Banias following the government's decision to lift of the state of emergency. Thousands of Syrians have held demonstrations across the country calling for political reform, following similar movements across the Arab world.

Last month, al-Assad ordered the formation of a committee [JURIST report] that evaluated possible elimination of the country's 48-year-old state of emergency law. The panel was composed of legal experts and charged with examining potential legislative measures that would simultaneously preserve national security and allow the revocation of the law, which permitted arrest without charge and banned political protests. The announcement may have been an effort to appease demonstrators, whose activity had recently increased, while also conveying that any future reforms would proceed at a gradual pace. In March, al-Assad announced that the government would consider ending the state of emergency [JURIST report]. Also in March, UN High Commissioner for Human Rights Navi Pillay [official profile] urged the Syrian government [JURIST report] to ensure protesters' rights to peaceful expression and to work toward addressing their concerns instead of responding with violence.




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Tunisia court drops charges in case that triggered protests across Middle East
Maureen Cosgrove on April 19, 2011 10:13 AM ET

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[JURIST] A Tunisian court on Tuesday dropped charges against a police officer who incited protests in several Arab countries when she allegedly slapped a local fruit vendor. Police woman Fedia Hamdi was accused of slapping Mohamed Bouazizi [TAP report] in December in a dispute during which Bouazizi's cart was confiscated after he was allegedly found without a permit. As a result of the encounter, Bouazizi set himself on fire in front of the governor's office on December 17 and died three weeks later [BBC report]. Pro-democracy protesters generally discontented with unemployment, corruption and repression staged several demonstrations following Bouazizi's death. The mother of the late vendor withdrew her complaint against Hamdi, and the Sidi Bouzid Court of First Instance subsequently dismissed the case [AP report].

Protests erupted in several Arab nations following those in Tunisia. Law enforcement authorities in those countries, including Bahrain, Yemen and Egypt, have been heavily criticized for how they have handled the protests. Amnesty International (AI) [advocacy website] released a report [text; PDF] this month urging the international community to pressure Yemeni authorities to investigate the death of protesters [JURIST report]. The UN Office for the High Commissioner for Human Rights (OHCHR) [official website] also urged the Yemeni government [JURIST report] to discontinue using force against peaceful protesters. In March, a commission of Arab and Egyptian human rights groups accused [JURIST report] former Egyptian president Hosni Mubarak [Al Jazeera profile] and the police of murdering protesters during the demonstrations in Egypt.




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House files motion to defend federal marriage law
Matt Glenn on April 19, 2011 9:06 AM ET

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[JURIST] The Republican-led US House of Representatives [official website] filed a motion [text, PDF] Monday with the US District Court for the Southern District of New York [official website] seeking to intervene in a lawsuit challenging the constitutionality of the 1996 Defense of Marriage Act (DOMA) [text; JURIST news archive]. This follows the Obama administration's February announcement that it would no longer defend [JURIST report] the law's constitutionality. The motion, which purports to be unopposed by the plaintiffs and by the US Department of Justice (DOJ) [official website] seeks to instate the House as a defendant for the limited purpose of defending DOMA's constitutionality. At issue is whether Section 3 of DOMA, which defines marriage as being between one man and one woman, violates the Fifth Amendment's due process and equal protection [Cornell LII backgrounder] requirements. Former solicitor general Paul Clement [professional profile] filed the motion and is expected to lead the House's defense.

Last month, Congressional Democrats introduced legislation that would repeal DOMA [JURIST report]. Earlier in March, House Speaker John Boehner (R-OH) [official website] announced the launch of a legal advisory group [JURIST report] to defend DOMA. The American Civil Liberties Union (ACLU) [advocacy website] filed the lawsuit [complaint, PDF; JURIST report] in which the House wishes to intervene last November on behalf of Edith Windsor. Windsor, who was legally married to another woman, is challenging estate taxes assessed on property transferred to her after her wife's death that would not have been assessed on such a transfer between married partners of opposite sex.




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Apple sues Samsung for patent infringement
Aman Kakar on April 19, 2011 8:36 AM ET

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[JURIST] Apple [corporate website] filed suit Friday claiming that the Samsung [corporate website] "Galaxy" line of products copies its iPhone and iPad technology. The complaint, filed in the US District Court for the Northern District of California [official website], includes 10 patent infringement charges, two trademark violations, two trade dress violations and accusations of unjust enrichment and unfair business practices. The complaint describes various physical and software features that are trademarked to Apple and are copied by Samsung, including the slim profile of the phones and the application icons. Samsung representatives have vowed to defend against the suit [Reuters report] and protect their intellectual property. Apple is seeking actual and punitive damages and an injunction to stop Samsung's alleged intellectual property violations.

Apple has also been embroiled in litigation with Nokia marked by trading accusations of patent infringement. Last month, Nokia filed actions against Apple [JURIST report] in the ITC and a court in Delaware accusing Apple of violating seven patents. In December, the litigation spread to Germany, the UK and the Netherlands where Nokia filed 13 patent infringement complaints [JURIST report] against Apple. Last May, Nokia filed a complaint [JURIST report] in the US District Court in the Western District for Wisconsin [official website] alleging that Apple iPad and iPhone 3G products infringe additional Nokia patents. Apple counter-sued last December, claiming Nokia had stolen 13 patents from the company.




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Supreme Court hears arguments on prison sentences, patents
Ann Riley on April 18, 2011 3:59 PM ET

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[JURIST] The US Supreme Court [official website, JURIST news archive] heard oral arguments [day call, PDF; merit briefs] Monday in Tapia v. United States [oral arguments transcript, PDF] to determine whether a district court may impose a longer prison sentence on a defendant to promote rehabilitation. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that the US District Court for the Southern District of California made no error when basing Alejandra Tapia's sentence on speculation that she could enter and complete the Bureau of Prison's 500-hour drug abuse treatment program [RDAP fact sheet text]. The US Court of Appeals for the Eighth Circuit has similarly held that a longer sentence to promote rehabilitation is permissible, but the US Courts of Appeals for the Second, Third, Eleventh and DC Circuits have held that it is prohibited [issue list, PDF]. Counsel for the petitioner argued that when enacting 18 USC § 3582 [text], Congress did not intend to allow courts to send defendants to prison in order to get treatment, saying:
When it instructed courts to recognize that imprisonment is not an appropriate means of promoting correction and rehabilitation, Congress intended to end the practice of sending defendants to prison so that they might get treatment. The commands of 3582 are clear on this point: Do no imprison and do not lengthen prison sentences for the purposes of rehabilitation. ... Under the statute, judges have the power to sentence defendants to prison but not to prison programs...[W]ith regard to revocation, to the extent that that's at issue, we concur with the Solicitor General that doesn't govern a revocation of supervised release because it's not the imposition of a term of imprisonment but, rather, requiring the individual to serve a portion of the supervised release term in prison. So, by its plain terms, it simply isn't applicable.
Counsel for the government argued that "Section 3582(a) prohibits courts from imposing or lengthening a term of imprisonment to promote a defendant's rehabilitation, including by facilitating her access to a prison drug treatment program." In doing this however, Congress intended to reject the former rehabilitation model of sentencing where defendants were kept in prison until they were deemed rehabilitated, based on their participation in treatment programs. By forcing participation in programs, rehabilitation could not always be achieved in a prison setting. But if other goals of sentencing, like deterrence and protecting the public required a certain term of imprisonment, the court was free to impose it.

In Microsoft v. i4i Limited Partnership [oral arguments transcript, PDF; JURIST report], the court will determine whether the Patent Act [35 USC §§ 1-376 text] requires the invalidity defense to be proven by clear and convincing evidence. The US Court of Appeals for the Federal Circuit followed its precedent and held [opinion, PDF] that a challenger to a patent claim must prove invalidity by clear and convincing evidence. Additionally, the appeals court held that the US District Court for the Eastern District of Texas did not abuse its discretion in admitting evidence as to damages or in granting enhanced damages. Counsel for the petitioner argued that the default standard of review is preponderance of the evidence, which governs all patent cases because 35 USC § 282 "does not specify a heightened standard of proof ... therefore, preponderance, the default standard applies." Counsel further explained that:

[I]t makes no sense to have a heightened standard of proof when the relevant prior art evidence was never even considered by [the Patent and Trademark Office]. Under any view, it was error to require clear and convincing proof of invalidity in this case. ... And, moreover, while the statute does not specify a heightened standard, it does actually speak to and preclude the argument that i4i makes. ... The statute requires a degree of deference by shifting the burden of proof and the burden of going forward, but for i4i to say that we need to go beyond what the presumption is, the normal default standard of preponderance, you need some heightened reason for that. There's absolutely none, particularly when the Patent Office didn't consider the evidence, didn't make a decision, there was no decision and no evidence considered going to the relevant question.
Counsel for the respondent argued that "The long-settled, clear and convincing evidence standard is correct, one, as a matter of statutory interpretation, two, as a matter of stare decisis in a field in which stability is particularly important, and, three, as a matter of first principles." Counsel further explained that Congress is well aware of the clear and convincing evidence standard and has done nothing to change it, even though it has been very active in patent legislation.




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Sri Lanka implicated in possible war crimes by UN panel
Jennie Ryan on April 18, 2011 3:25 PM ET

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[JURIST] A UN panel of experts on Sri Lanka [backgrounder] has found credible allegations of war crimes committed during the country's war with the Liberation Tigers of Tamil Eelam (LTTE) [JURIST news archive], according to excerpts of a report disclosed Monday. The special panel, appointed by UN Secretary-General Ban Ki-Moon [official profile], found that allegations of numerous war crimes and crimes against international humanitarian law asserted against both the government of Sri Lanka and the LTTE warrant further investigation. The panel urged the support and cooperation of the government of Sri Lanka:
[T]he Government of Sri Lanka, in compliance with its international obligations and with a view of initiating an effective domestic accountability process, should immediately commence genuine investigations into these and other alleged violations of international humanitarians and human rights law committed by both sides involved in the armed conflict.
If the allegations of the panel are proven, the Sri Lankan government could be held accountable for human rights violations. Sri Lankan Media Minister Keheliya Rambukwella [official profile] rejected the UN report, calling it biased. The leaked excerpts [materials] were printed in the Sri Lankan newspaper The Island, but the full report has not yet been made available to the public.

In December, the Sri Lankan Ministry of External Affairs [official website] announced that the UN panel would be allowed to visit [JURIST report] the island to look into alleged war crimes in the final stages of the conflict with the LTTE. The decision signaled a reversal after months of strong opposition [JURIST report] from the Sri Lankan government under President Mahinda Rajapaksa [official profile], who described the UN panel as an infringement of Sri Lanka's sovereignty. Rajapaksa appointed his own Lessons Learned and Reconciliation Commission (LLRC) to investigate the final years of the conflict from the ceasefire in 2002 to its conclusion in 2009. Despite having its credibility contested by several human rights organizations, the LLRC began public hearings [JURIST report] in August with an appearance by Sri Lanka Defense Secretary Gotabaya Rajapaksa [official profile], who defended the actions of the government [JURIST report] during the conflict. The government has repeatedly denied accusations that its forces violated international law during the conflict.




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US seeks deportation of El Salvador general for human rights crimes
LaToya Sawyer on April 18, 2011 2:27 PM ET

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[JURIST] The Obama administration on Monday charged General Eugenio Vides Casanova, former defense minister of El Salvador, for human rights crimes committed during El Salvador's 12-year civil war [PBS backgrounder] while he served as the country's top military officer. The US is also seeking to deport [La Pagina report, in Spanish] Vides, who retired in Florida after completing his six-year term as defense minister. Vides, who was once supported by US government in his efforts to stop the spread of Communism in El Salvador, is allegedly responsible for many of the torturous acts carried out by the Salvadoran armed forces during the civil war that claimed more than 70,000 lives, including those of Americans. The US brought this case as the first against a foreign military officer who will face immigration charges by a special humans rights office at the Department of Homeland Security [official site]. Supporters of the administration's decision encourage the step the US is taking to deal with foreigners who have committed humans rights abuses and then seek asylum on US soil. Vides has denied any involvement with the torture. The proceedings are expected to last about a week.

In the past decade, the US has made significant strides in prosecuting those involved in the El Salvadoran civil war. In 2006, US Court of Appeals for the Eleventh Circuit [official website] upheld a $55 million verdict [JURIST report] against Vides and his co-defendant Jose Guillermo Garcia for allowing torture and other human rights violations during the war. In 2005, a US federal court reached a verdict against Nicolas Carranza, top commander of El Salvador's security forces during the civil war, for $2 million in compensatory damages [JURIST report]. The case was brought by five Salvadoran citizens who alleged torture or had family killed by Carranza's soldier during the war. In 2000, however, the US lost the battle to seek justice for the murders of four American churchwomen [NYT report] during the civil war when both Vides and Garcia were acquitted. The ruling was grounded in the doctrine that the generals, although responsible for their soldiers, may not have had complete effective power to reign in the abuses of their troops.




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Hungary parliament approves new constitution
Erin Bock on April 18, 2011 1:13 PM ET

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[JURIST] The National Assembly of Hungary [official website, in Hungarian] approved [statement, in Hungarian] a new constitution [draft, in Hungarian] on Monday by a margin of 262-44 and one abstention. Members of the country's socialist party (MSZP) [official website, in Hungarian] and green liberal political party (LMP) boycotted the vote [Reuters report]. The measure was supported by and passed as a result of the ruling Hungarian Civic Party (FIDESZ) [official website, in Hungarian; JURIST news archive], which has controlled a two-thirds majority of the National Assembly since 2010. The constitution introduces several changes, including a debt ceiling where the country's debt cannot exceed 50 percent of the country's gross domestic product (GDP); a reform of the Fiscal Council, giving the group the right to veto the budget and dissolve parliament for failure to pass an annual budget by the end of March; a definition of marriage as a union between man and woman; and a statement that the life of a fetus begins at and should be protected from conception. The constitution also includes a new preamble [text, in Hungarian], that condemns the communist and socialist climate in Hungary that existed from 1944 to 1990 and solidifies democratization that began 20 years ago. The Hungarian branch of Amnesty International (AI) [advocacy website, in Hungarian] sent a letter [text, in Hungarian] on Friday stating that the new constitution restricts human rights guaranteed in international treaties and erodes women's rights by including provisions regarding fetal protection. AI also charged that the definition of marriage encourages discrimination and prevents the possibility of marriage being extended to same sex-couples in the future. The new constitution is set to go into effect on January 1, 2012.

Other laws passed by the FIDESZ-led parliament have garnered controversy as well. In February, the government agreed to change its controversial media law following negotiations between Hungarian and EU representatives [JURIST reports]. The law created the National Media Communications Authority (NMHH) [official website, in Hungarian], which controls private television and radio broadcasters, newspapers and online news sites. Under the law, the government could fine broadcasters more than 700,000 euros and newspapers and news websites roughly 90,000 euros if their coverage is deemed unbalanced or immoral by the NMHH, made up of members loyal to FIDESZ. The law was approved in December 2010 and went into effect in January amid protests from members of the media, other European governments as well as AI, which urged Hungary to amend the law [JURIST report] because it curtails freedom of expression.




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Kenya leaders ask for evidence from ICC prosecutor
Michael Haggerson on April 18, 2011 1:02 PM ET

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[JURIST] Defense lawyers for six Kenyan leaders charged [materials] in the International Criminal Court (ICC) [official website] with inciting violence after the December 2007 Kenyan elections [JURIST news archive] called for the timely release of evidence against their clients on Monday. The prosecution wishes to partially redact [Daily Nation] portions of the evidence to be used against the six Kenyan leaders in order to protect the identity of witnesses so that they are not interfered with. The six men had been previously warned by the presiding judge when they first appeared before the ICC [JURIST report] not to incite further violence in Kenya.

The six defendants, called the "Ocampo Six," include several high-ranking members of Kenya's government, the head of operations at Kass FM [official website] in Nairobi and the son of Kenya's first president, Jomo Kenyatta [Africa Within backgrounder]. Three of the men are members of the Orange Democratic Movement (ODM) [party website] and the other three are members of the opposing Party for National Unity (PNU). The ODM suspects are charged with fomenting violence against PNU members following the 2007 elections because they believed the election of Kenyan President Mwai Kibaki [official profile] to be rigged. In response, the PNU suspects are charged with the conspiring with the Mungiki criminal organization [Safer Access backgrounder, PDF] to attack members of the ODM party. The ICC summoned the suspects [JURIST report] after determining they would not be charged in Kenya for the alleged crimes. Earlier this month, Kenya requested that the ICC dismiss the case [JURIST report], arguing that the government is capable of prosecuting the six men domestically. The Kenyan government also announced last month that it would challenge the admissibility of cases [JURIST report] relating to the post-election violence in the ICC, as well as the jurisdiction of the court.




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Supreme Court declines to hear Guantanamo detainee case
Ashley Hileman on April 18, 2011 12:55 PM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday denied certiorari [order list, PDF] in a Guantanamo detainee case [JURIST news archive] but granted certiorari in a case involving deportation. Monday marked the second time the case of Kiyemba v. Obama [docket; CCR backgrounder], involving Chinese Muslim Uighers [JURIST news archive] detained at Guantanamo and seeking an order of release into the US, came before the court. In October 2009, the court granted certiorari [JURIST report] to determine whether it is within the power of the judicial branch to order the release of detainees into the US. However, after learning that the petitioners had received and rejected at least two offers of resettlement in other countries, in March 2010, the court remanded [JURIST report] the case to the US Court of Appeals for the District of Columbia Circuit [official website] with orders to reconsider it in light of these new developments. The court of appeals, which had originally decided that the law did not require the detainees' release into the US, found that no further proceedings were necessary and reinstated its prior opinion. Justice Stephen Breyer issued a statement [text, PDF] respecting Monday's denial in which he wrote:
In my view, these offers, the lack of any meaningful challenge as to their appropriateness, and the Government's uncontested commitment to continue to work to resettle petitioners transform petitioners' claim. Under present circumstances, I see no Government-imposed obstacle to petitioners' timely release and appropriate resettlement. Accordingly, I join in the Court's denial of certiorari.
Breyer was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg and Sonia Sotomayor in issuing the statement. Justice Elena Kagan did not participate in deciding the case.

In Judulang v. Holder [docket, cert. petition, PDF], the court granted certiorari to determine whether a lawful permanent resident who was convicted by guilty plea of an offense that renders him deportable may seek a waiver of the conviction and thereby avoid removal under former section 212(c) of the Immigration and Nationality Act (INA) [text]. The US Court of Appeals for the Ninth Circuit denied the petitioner's request for a waiver, holding [opinion, PDF] that his aggravated felony crime of violence was not a ground for exclusion under the statute. The court cited its decision in Abebe v. Gonzalez as controlling the issue. In that case, the court concluded that the lack of a substantially identical statutory counterpart in § 212(a) for aggravated felony sexual abuse of a minor among the grounds for exclusion rendered the alien ineligible for § 212(c) relief.




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Italy court acquits 4 big banks in Parmalat collapse case
Zach Zagger on April 18, 2011 11:55 AM ET

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[JURIST] An Italian court in Milan on Monday acquitted four banks charged with failing to have adequate steps to prevent the 2003 Parmalat SpA [corporate website; JURIST news archive] dairy empire crash. Parmalat collapsed under 14 billion euros in debt and is the largest corporate collapse in Europe. Citigroup, Deutsche Bank, Morgan Stanley and Bank of America (BOA) [corporate websites] were all acquitted of an administrative charge [AP report] for failing to have adequate procedures in place to prevent the fraud that led to the collapse. Last year, former executives were convicted on criminal fraud charges. The banks argued that they too were victims of Parmalat's fraud and committed no wrongdoing. The prosecutors had sought to confiscate 120 million euro from the banks in damages and penalties.

Last December, the founder and former chief executive of Parmalat, Calisto Tanzi [NNDB profile], was convicted [JURIST report] along with 14 other former executives for the company's fraudulent bankruptcy. The court also ordered them to reimburse the company two billion euros. Last July, BOA announced that it reached a settlement [JURIST report] with Parmalat in litigation stemming from its 2003 collapse. Under the terms of the settlement, BOA will pay Pamalat USD $100 million, which includes both cash and non-cash components. The settlement resolves a $10 million lawsuit filed by Parmalat against BOA in 2004 and a counterclaim [JURIST reports] filed by BOA, alleging the company engaged in fraud and is maliciously suing the bank to shift blame. In December 2008, a Milan court in a separate case concerning stock market manipulation sentenced [JURIST report] Tanzi to 10 years in prison for his role in the company's collapse. Tanzi was the first executive to be sentenced in connection with the 14 billion euro fraud scheme in 2003 that bankrupted the company.




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Uganda opposition leader arrested for incitement over 'Walk to Work' protests
Sarah Paulsworth on April 18, 2011 10:18 AM ET

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[JURIST] Ugandan opposition leader Kizza Besigye [JURIST news archive] was arrested Monday in connection with protests against increasing food and fuel costs. Bloomberg reports Besigye was detained during the protest [Bloomberg report], while Al Jazeera reports Besigye was arrested on his way to the protest [Al Jazeera report]. Besigye has been charged with rioting and inciting violence, but was released on bail pending a court hearing. He must appear again in court [NewVision report] on May 18. This is the third time that Besigye has been arrested in the last week in connection with protests—he was also arrested on April 11 [BBC report] and April 14 [AP report]. During the April 14 arrest Besigye was shot in the hand by a police officer. The protests at issue have been labeled the "Walk to Work" protests [VOA report], because participants refrain from taking motor vehicles to show their discontent over high fuel prices. Ugandan police reportedly resorted to using teargas to control the protesters [AFP report], who were throwing stones at people in cars on Monday.

Besigye is the leader of the Uganda's most prominent opposition party, the Forum for Democratic Change [official website]. He lost to incumbent President Yoweri Museveni [BBC profile] in elections held this past February. The elections were criticized by the opposition as fraudulent [Guardian report]. Besigye also ran for president [BBC report] in 2002 and 2006, and, prior to that, he was Museveni's personal doctor. In October 2010, Uganda's Constitutional Court unanimously dismissed treason charges [JURIST report] against Besigye and 10 co-defendants, ruling that there was insufficient evidence and that the state had violated the defendants' rights. Besigye had been charged [JURIST report] with plotting to forcefully overthrow the Ugandan government between 2001 and 2004 but had always maintained his innocence, calling the charges against him politically motivated.




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Former Egypt officials charged with corruption
Dwyer Arce on April 18, 2011 9:17 AM ET

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[JURIST] Egyptian prosecutors charged former prime minister Ahmed Nazif, former finance minister Yousef Boutros and former interior minister Habib el Adly with corruption on Sunday. The charges stem from allegations that the three former officials, all of which served under former Egyptian president Hosni Mubarak [Al Jazeera profile; JURIST news archive], granted a no-bid contract [Al Jazeera report] to a German businessman to sell license plates in Egypt. The deal is alleged to have wasted USD $15 million of public funds by paying more for the plates than market price. The businessman has also been charged [AP report]. Nazif is already in prison, Adly is facing separate corruption charges and Boutros has left the country. The trial date has not been set. The charges come amid a wider effort by the ruling Egyptian Supreme Council of the Armed Forces [NYT backgrounder] to dismantle the vestiges of Mubarak's government. The High Administrative Court on Saturday ordered the dissolution of Mubarak's former ruling party [JURIST report]. The court also liquidated the party's assets.

The decision came just days after the court ordered Mubarak moved to a hospital to recover from an unspecified ailment, causing a delay in questioning [JURIST report] regarding his alleged roles in protester deaths and embezzlement of government money. The week before, the chief prosecutor summoned [Al Jazeera report] Mubarak for questioning, along with his two sons, Gamal and Alaa. Egyptian authorities continued to question Mubarak's sons [AFP report] after Mubarak was taken to the hospital. In a televised statement on Sunday, Mubarak denied corruption charges [BBC report], asserted his right to defend his reputation and expressed his willingness to cooperate [Al Arabiya report] with investigations, denying that he owns property abroad or holds foreign bank accounts.




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Syria emergency laws to be lifted: president
Drew Singer on April 17, 2011 1:55 PM ET

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[JURIST] Syrian President Bashar al-Assad [Al Jazeera profile; JURIST news archive] on Saturday announced in a televised speech that he will lift emergency laws [UPI report] that have been in place for 48 years. For the past four weeks, tens of thousands of protesters have taken to the streets each Friday, demanding, in part, that the emergency laws be revoked. The law will be formally lifted next week, he said.

Last week, Human Rights Watch (HRW) [advocacy website] reported [text] that Syrian security forces have stopped medical personnel [JURIST report], sometimes violently, from attending to injured protesters. A spokesperson for the group called the practice "both inhumane and illegal." According to the report, at least 28 protesters died Friday in protests spread across three cities. Witnesses said security forces opened fire when civilians tried to remove the injured from the scenes and that in Daraa an ambulance was blocked from reaching wounded protesters.




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Egypt court dissolves Mubarak's National Democratic Party
Drew Singer on April 17, 2011 1:18 PM ET

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[JURIST] An Egyptian court on Saturday ordered that the political party of former president Hosni Mubarak [Al Jazeera profile; JURIST news archive] be dissolved. It would be illogical [Reuters report] for Mubarak's National Democratic Party, which took control in 1978, to remain an entity, the country's High Administrative Court said. The court also liquidated the party's assets. Analysts call the court's decision an important step in the building of a multi-party system, which the country has not had for more than 30 years.

The decision came just days after the court ordered Mubarak moved to a hospital to recover from an unspecified ailment, causing a delay in questioning [JURIST report] regarding his alleged roles in protester deaths and embezzlement of government money. The chief prosecutor last week summoned [Al Jazeera report] Mubarak for questioning, along with his two sons, Gamal and Alaa. Egyptian authorities continued to question Mubarak's sons [AFP report] after Mubarak was taken to the hospital. In a televised statement on Sunday, Mubarak denied corruption charges [BBC report], asserted his right to defend his reputation and expressed his willingness to cooperate [Al Arabiya report] with investigations, denying that he owns property abroad or holds foreign bank accounts.




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Algeria president announces constitutional reforms amid political protests
Carrie Schimizzi on April 17, 2011 9:09 AM ET

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[JURIST] Algerian President Abdelaziz Bouteflika [official profile, in French] on Friday declared an initiative for sweeping constitutional and political reforms in order to increase the role of democracy in the African nation. The announcement, which came in a nationally televised address [video], was seen as a progressive step for the country in the wake of political protests in the Middle East and North Africa [BBC backgrounder]. During his speech, Bouteflika pledged to amend the constitution [AFP report] and make changes to current electoral law, ensure fairness in the country's elections, and work to improve relations between opposing political parties before the presidential elections in 2014. Bouteflika also promised to improve media relations [Siasat Daily report] in the country by introducing a new information law [BBC backgrounder] that would decrease fines for defamation and allow the release of currently imprisoned journalists. Unlike other nations, the political protests in Algeria have been relatively small, local events in the capital city of Algiers. However, the political movements have been gaining strength [Reuters report] in recent weeks.

In February, Algerian Foreign Minister Mourad Medelci announced the government will end the 19-year-old state of emergency laws [JURIST reports] amidst growing protests in Algeria and the ongoing protests in Tunisia and Egypt. The state of emergency, which has been in place since a series of decrees in 1992, gave the government power to limit political freedoms and even peaceful protests. Opponents also claimed that the state of emergency gave rise to arbitrary detentions. Algeria has been under a state of emergency since 1992 when the military canceled elections fearing a win by religious fundamentalists. The state of emergency was declared [DOS backgrounder] after it became apparent that the militant Islamic Salvation Front (FIS) would win control of the government. Bouteflika came to power, winning the presidency in 1999 with 70 percent of the official vote and appearing to have the backing of the military.




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Kazakhstan president fires six supreme court justices for corruption
Maureen Cosgrove on April 16, 2011 2:46 PM ET

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[JURIST] Kazakh President Nursultan Nazarbayev [official website, in Kazakh; BBC profile] on Thursday discharged six justices of the Supreme Court of the Republic of Kazakhstan [official website] for corruption. The Kazakh Prosecutor-General's Office [official website] has opened criminal cases [RFE/RL report] against the judges, who are suspected of corruption activity. The Kazakh State Agency for Combating Economic Crimes and Corruption [official website] approached Nazarbayev and asked him to remove the judges [Interfax report]. Supreme Court Chairman Musabek Alimbekov resigned after the charges were filed. Senators voted unanimously to approve Nazarbayev's decision and subsequently approved the appointment of Bektas Beknazarov, chairman of the Aktobe Oblast Court, to replace Alimbekov.

Human rights groups have closely scrutinized Kazakhstan's adherence to its international human rights obligations. Kazakhstan submitted to a Universal Periodic Review (UPR) by the UN Human Rights Council [official websites] in February 2010. Kazakhstan accepted 121 of the recommendations [Kazakhstan UPR materials] to reduce human rights violation, particularly with respect to freedom of the press. In August 2009, the Supreme Court affirmed the conviction of publisher Ramazan Esergepov, who was sentenced to three years in jail for revealing state secrets in his newspaper. A representative of Freedom of the Media at the Organization for Security and Co-operation in Europe (OSCE) [official websites] said that revealing public corruption [press release] is "the main duty of the journalists acting in the public interest," and that "[c]riminal sanctions for 'breach of secrecy' should only apply to the officials whose job descriptions stipulate the duty to protect sensitive information, but not to citizens."




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UN rights office urges probe into Iraq military raid
Maureen Cosgrove on April 16, 2011 1:44 PM ET

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[JURIST] The UN Office of the High Commissioner for Human Rights (OHCHR) [official website] on Friday denounced a deadly Iraqi military raid [press release] on a camp housing Iranian exiles. At least 34 people, including women, were shot to death or trampled by military vehicles during the Iraqi military's April 8 operation at Camp Ashraf. The camp is composed of members of the People's Mujahedin Organization of Iran (PMOI) who seek to overthrow Iranian government officials. The Iraqi militants initiated the raid after Ashraf exiles allegedly threw rocks at soldiers [AP report]. UN High Commissioner for Human Rights Navi Pillay [official profile] indicated that few measures are available for resolving the discord between the Iranian exile group and the Iraqi government:
Everyone had been fearing a tragedy like this for a long time. I am well aware that this is a contentious group, with a complicated history, but leaving them to fester in Camp Ashraf was never going to be a solution. Clearly, since they are unable to go back to Iran, and are in danger in Iraq, the solution is most likely to involve moving them to third countries. I urge governments to take the necessary pragmatic and generous steps to resolve what is an untenable situation.
Pillay also called for a "full, independent and transparent inquiry" into the military operation to ensure that those who exercised excessive force are prosecuted.

The PMOI has been designated a foreign terrorist group by the US since 1997, but it stopped military action in 2001 [WP report], and, since 2003, has been without weapons. The group has also touted its actions in providing information about Iran's nuclear program. In July, a three-judge panel of the US Court of Appeals for the District of Columbia Circuit [official website] ordered [opinion, PDF] the State Department to reconsider the status of the PMOI [JURIST report]. In 2008, the European Court of First Instance [official website] annulled a decision by the EU [JURIST report] to place the PMOI on a list of terrorist groups. That decision followed an order by the UK Parliament to remove the PMOI from a British list of terrorist groups [JURIST report]. PMOI is Iran's main political opposition organization and part of the National Council of Resistance of Iran (NCRI) [group website], an umbrella coalition of Iranian opposition groups. The PMOI has been at odds with the Iranian government since it chose to support Saddam Hussein in the Iran-Iraq war [GlobalSecurity backgrounder] during the 1980s.




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Government asks Supreme Court to rule on warrantless GPS tracking
LaToya Sawyer on April 16, 2011 11:21 AM ET

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[JURIST] The Obama administration on Friday asked [cert. petition, PDF] the US Supreme Court [official website] to determine whether police need warrants to track a suspect's movement using global position systems (GPS) technology. The government is appealing last year's lower court decision that prohibits the use of warrantless GPS technology [JURIST report]. In that decision, the US Court of Appeals for the District of Columbia Circuit [official website] ruled that prolonged use of GPS to monitor suspects' vehicles violates the Fourth Amendment [text] protection against unreasonable searches and seizures. The government rejects the argument that using a GPS tracking system violates a suspect's reasonable expectation of privacy. This view hinges on the Supreme Court decision in United States v. Knotts [opinion, PDF], which allowed for electronic surveillance in public based on a lower expectation of privacy on public roads. The Supreme Court's resolution on the issue, the Justice Department believes, is critical for future law enforcement decisions.

The use of GPS technology and other surveillance devices by law enforcement agents continue to be a controversial issue in the US, with courts across the country coming to divergent conclusions. Last week, the Court of Appeals of Virginia [official website] ruled that using a GPS device to track the movement of a suspect in a string of sexual assaults without obtaining a warrant did not violate the Fourth Amendment [JURIST report]. A Pennsylvania appeals court allowed use of evidence obtained with GPS technology [JURIST report] in December. In September, a three-judge panel for the US Court of Appeals for the Third Circuit [official website] ruled [opinion, PDF] that, at times, the government might need a warrant to obtain cell phone data [JURIST report] to track a person's location. Last year, the US Supreme Court unanimously held that, even if there is a reasonable expectation of privacy in work-issued electronic devices, that an employer's search of private text messages does not violate [JURIST report] the Fourth Amendment so long as the search is not excessive and is pursuant to a legitimate work-related purpose.




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Chile judge orders body of ex-President Salvador Allende exhumed
LaToya Sawyer on April 16, 2011 10:23 AM ET

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[JURIST] Chilean Judge Mario Carroza on Friday ordered the exhumation of former president Salvador Allende [BBC profile] as part of investigations into his death [JURIST report] that began in January. The order follows a request [CNN video, in Spanish] for a new autopsy of the former president from Allende's daughter, Senator Isabel Allende, and other relatives who want to determine the causes of his death. Allende died in a 1973 coup [BBC], in what has since been ruled a suicide. However, many human rights groups and Allende supporters question the suicide and believe he was killed by soldiers during the coup. The investigation into Allende's death is part of a larger probe into alleged human rights abuses under 1973-1990 military dictatorship [press release, in Spanish] of General Augusto Pinochet [BBC profile; JURIST news archive], who seized power after the coup. The autopsy is expected take place later in May.

Allende, a Marxist, was met with opposition after winning the 1970 elections in Chile from those fearing his presidency would support a pro-Soviet communist government. The 1973 coup, backed by the US [JURIST report], was followed by a 17-year military regime lead by Pinochet. In an extraordinary statement released on his 91st birthday Pinochet publicly assumed "full political responsibility" [JURIST report] for the actions of his military regime. Pinochet nonetheless justified the military coup against Allende that brought him to power as having being necessary to preserve Chile's integrity amid "the continuation and worsening of the worse political and economic crisis than one can remember." Pinochet died [JURIST report] in 2006 at the age of 91 without ever facing trial for multiple human rights abuses and tax evasion charges against him.




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Fifth Circuit strikes order to put names of gay adoptive parents on birth certificate
John Paul Putney on April 15, 2011 4:20 PM ET

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[JURIST] The US Court of Appeals for the Fifth Circuit [official website] on Tuesday ruled [opinion, PDF] en banc against same-sex adoptive parents seeking an amended Louisiana birth certificate that listed both unmarried men as the parents of the child. In 2006, Oren Adar and Mickey Ray Smith adopted their child in New York, where unmarried couples can legally adopt [JURIST report]. The child was born in Louisiana, and the state refused to issue a birth certificate naming both fathers. The couple brought suit alleging Louisiana had violated the Full Faith and Credit Clause and the Equal Protection Clause [Cornell LII backgrounders] of the US Constitution. Rejecting the Full Faith and Credit argument, the court clarified that the clause only has compelling effects on state courts and not state officials. Even if the situation were otherwise, the court explained:
The Full Faith and Credit Clause was enacted to preclude the same matters being relitigated in different states as recalcitrant parties evade unfavorable judgments by moving elsewhere. It was never intended to allow one state to dictate the manner in which another state protects its populace. Similarly, the full faith and credit clause does not oblige Louisiana to confer particular benefits on unmarried adoptive parents contrary to its law. Forum state law governs the incidental benefits of a foreign judgment. In this case, Louisiana does not permit any unmarried couples-whether adopting out-of state or in-state-to obtain revised birth certificates with both parents' names on them.
The Court quickly disposed of the Equal Protection claim, finding that "adoption is not a fundamental right[,] ... Louisiana has a legitimate interest in encouraging a stable and nurturing environment for the education and socialization of its adopted children, ... [and] Louisiana may rationally conclude that having parenthood focused on a married couple or single individual-not on the freely severable relationship of unmarried partners-furthers the interests of adopted children."

The ruling overturns a prior decision [JURIST report] in February by a panel of three judges from the Fifth Circuit ordering that the revised birth certificate be issued. Lambda Legal [advocacy website], which represented Adar and Smith, successfully argued a similar case [JURIST report] in 2007, when the US Court of Appeals for the Tenth Circuit struck down an amendment [press release] to the Oklahoma Constitution that would have prevented the state from recognizing adoptions by gay parents that were finalized in other US or foreign jurisdictions. Same-sex adoptive parents have recently been involved in numerous legal battles [JURIST news archive]. Earlier this month, the Arkansas Supreme Court struck down a ban on adoptions [JURIST report] by same-sex couples, finding the ban to be a violation of the state constitution. In September, a Florida appellate court struck down a similar law [JURIST report], finding that it failed rational basis review and violated the state constitution's equal protection clause.




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Former Guantanamo detainee suing Egypt regime officials over torture allegations
Hillary Stemple on April 15, 2011 3:05 PM ET

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[JURIST] A former Guantanamo Bay [JURIST news archive] detainee announced Friday that he is suing members of former Egyptian president Hosni Mubarak's regime over allegations that he was tortured by the government while in Egyptian custody. Mamdouh Habib, an Australian citizen, was arrested in Pakistan in 2001 following the 9/11 terrorist attacks on the US. He was released from Guantanamo [JURIST report] in 2005 without charges being filed against him, after being held at the detention facility for three years. Habib claims that he was tortured and beaten [AFP report] after being taken to Egypt [JURIST report] as part of the CIA's extraordinary rendition [JURIST news archive] program. He claims Egypt's former vice-president Omar Suleiman and Mubarak's son Gamal supervised the torture, and indicated that he is seeking compensation [ABC report] and that he hopes those responsible will be imprisoned. Habib also indicated on Friday that he is hoping to reopen a civil case [The Australian report] against the Australian government alleging their complicity in his torture in Egypt. He settled a civil case against the Australian government last year, but new evidence provided by witnesses in Egypt and Pakistan may further implicate Australian officials in his torture. Habib previously claimed that he was tortured while at the Guantanamo facility, although a US military probe found no evidence to support the allegations [JURIST reports].

Several other Guantanamo detainees have also filed lawsuits alleging torture. In October, former Guantanamo detainee Abdul Rahim Abdul Razak Al Ginco filed a lawsuit against the US military [JURIST report] alleging that he was subjected to torture. The suit names 26 current or former members of the military who are allegedly responsible for the tortuous acts, such as urinating on Ginco, slapping him, threatening him with loss of fingernails, sleep deprivation, extreme cold and stress positions. In July, the UK High court allowed [JURIST report] a lawsuit filed by former Guantanamo Bay detainees alleging that the UK government was complicit in their torture to proceed. In April, former Guantanamo Bay detainee Adel Hassan Hamad [advocacy website] filed a lawsuit [JURIST report] in the US District Court for the Western District of Washington [official website] against the US government and more than a dozen government officials, claiming he was tortured.




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ICTY finds Croatia military leaders guilty of war crimes
Erin Bock on April 15, 2011 1:55 PM ET

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[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] on Friday found former Croatian Colonel General Ante Gotovina [BBC profile; JURIST news archive] guilty [judgment summary, PDF; materials] of several counts of crimes against humanity and war crimes for his involvement in the 1995 Operation Storm [BBC backgrounder]. Gotovina, along with former military leaders Ivan Cermak and Mladen Markac, had been on trial since 2008 [JURIST report]. The men were charged as participants in "a joint criminal enterprise" aimed at the permanent removal of 200,000 Serbs from the Krajina region of Croatia. Gotovina was found guilty of eight counts including murder, plunder, persecution and deportation and sentenced to 24 years in prison. Markac was found guilty of the same offenses and sentenced to 18 years in prison. Cermak was acquitted on all counts. The judgment brought about mixed reactions. Amnesty International (AI) [advocacy website] applauded the judgment [statement] as "the first step to truth and justice for many victims of crimes committed during 'Operation Storm.'" Croatian authorities denounced the judgment [Telegraph report] and stated that they would "do everything in [their] power to change it."

The ICTY continues to hear cases regarding former military leaders in the region and accusations of war crimes committed during the 1990s. Proceedings against former Bosnian Serb leader Radovan Karadzic [case materials; JURIST news archive] resumed this week [Guardian report] after multiple suspensions [JURIST reports]. Karadzic faces 11 war crimes charges, including counts of genocide and murder, for alleged crimes he committed during the 1992-1995 war in Bosnia and Herzegovina. Last month, UN prosecutors demanded that ex-Yugoslav army chief Momcilo Perisic [ICTY profile, PDF; JURIST news archive] receive a life sentence [JURIST report] for alleged war crimes and crimes against humanity committed against Bosnian Muslims in the early 1990s. Perisic's trial began in October 2008 [JURIST report], and closing arguments concluded at the end of March.




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Delaware House passes same-sex civil unions bill
Ashley Hileman on April 15, 2011 1:31 PM ET

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[JURIST] The Delaware House of Representatives [official website] voted 26-15 on Thursday in favor of a bill [SB 30 text] allowing same-sex civil unions [JURIST news archive] within the state. According to the legislation, individuals entering into a civil union "shall enjoy all the same rights, benefits, protections, and shall be subject to all the same responsibilities, as married persons under Delaware law." The bill also provides that "the rights of parties to a civil union, with respect to a child of whom either party becomes the parent during the term of the civil union, shall be the same as the rights (including presumptions of parentage) of married spouses." The Senate voted 13-6 to pass the bill last week. Delaware Governor Jack Markell [official website] has indicated his support for the bill [NYT report], which will now pass to him for his signature and take effect January 1, 2012. Delaware would become the eighth state to allow civil unions for same-sex couples.

Issues surrounding same-sex civil unions and marriages continue to be debated throughout the US. Earlier this month, Washington Governor Chris Gregoire [official website] signed a bill [JURIST report] recognizing out-of-state same-sex marriages [JURIST news archive] as legal domestic partnerships. House Bill 1649 amends the current law [AP report], which acknowledges out-of-state domestic partnerships and civil unions, but excludes same-sex marriage. The Senate approved the bill by a 28-19 vote after the House of Representatives passed the bill [JURIST report] by a similar margin. The bill will become effective 90 days after the close of the current legislative session. Also this month, the Arkansas Supreme Court [official website] upheld [JURIST report] a lower court decision invalidating a state ban on adoptions by same-sex couples. The court affirmed the decision of the Pulaski County Circuit Court invalidating Act 1 [ACLU backgrounder], a state law which prohibits all unmarried couples from adopting or fostering children in the state. The original suit was filed after the law was criticized for effectively denying all gay couples the right to adopt or foster a child because Arkansas does not recognize gay marriage.




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Georgia legislature passes Arizona-style immigration bill
Michael Haggerson on April 15, 2011 1:18 PM ET

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[JURIST] The Georgia General Assembly [official website] passed an Arizona-style immigration bill [HB 87 text; materials] on Thursday that requires police to check the immigration [JURIST news archive] status of anyone they have probable cause to believe has committed a criminal offense and requires businesses to use E-Verify [official website] to check the immigration status of potential employees. The bill also creates a new criminal offense of "aggravated identity fraud" which applies to anyone using fraudulent identifying information to obtain employment, punishable by up to 10 years in prison and a $100,000 fine. Governor Nathan Deal [official website] has indicated that he intends to sign the bill into law [AJC report]. Debbie Seagraves, Executive Director of the American Civil Liberties Union of Georgia [advocacy website], condemned the bill [press release]:
This law undermines our core American values of fairness and equality and will make the rampant racial profiling of people of color that is already going on in Georgia that much worse, threatening the rights of citizens and non-citizens alike. Authorizing police to demand papers from people on the street is a tactic commonly associated with police states, not robust democracies.
The ACLU contends that Arizona-style immigration laws run contrary to federal law and promote racial profiling.

Alabama, Virginia, Oklahoma, Utah and Indiana [JURIST reports] have all enacted Arizona-style immigration laws within the past year. Nonetheless, these type of laws remain controversial. Earlier this week, the US Court of Appeals for the Ninth Circuit [official website] upheld [opinion, PDF] a lower court decision to enjoin several provisions [JURIST report] of Arizona's controversial immigration law [SB 1070 materials; JURIST news archive]. The US Department of Justice (DOJ) [official website] filed suit [JURIST report] in July to permanently enjoin Arizona from enforcing the law, arguing that it is preempted by federal law and is thus a violation of the Supremacy Clause [text] of the US Constitution. In response, Arizona Governor Jan Brewer [official website] countersued [JURIST report] the federal government alleging an infringement upon state rights. In May, the ACLU filed suit [JURIST report] also seeking an injunction against Arizona's immigration law. The national debate over immigration issues has led President Barack Obama [official website] to call for comprehensive immigration reform [JURIST report].




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Idaho governor signs bill banning abortions after 20 weeks
Brian Jackson on April 15, 2011 12:23 PM ET

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[JURIST] Idaho Governor CL "Butch" Otter [official website] on Wednesday signed into law [recently signed bills, PDF] a bill that would prohibit most abortions [JURIST news archive] after 20 weeks of gestation. The bill had passed the state legislature [JURIST report] earlier this month. The new law allows for limited exceptions to the ban, such as in the case of a risk of death or substantial physical injury to the mother or to another fetus. The signing was not accompanied by any press release or statement by the governor, who did tout the necessity of the bill despite a relatively small number [Reuters report] of post-20 week abortions in the state. The bill became law despite an opinion from the state attorney general that the law is unconstitutional [AP report].

Idaho becomes the third state to ban abortions after the 20-week mark, following Kansas and Nebraska [JURIST reports]. Several other states are considering similar measures. Last week, similar legislation was approved by the Ohio Senate and the Alabama House of Representatives [JURIST reports]. Earlier this month, the Iowa House of Representatives also approved a bill [JURIST report] that would prohibit doctors from performing late-term abortions in the state. Last month, South Dakota Governor Dennis Daugaard signed into law [JURIST report] a bill requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion.




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Wisconsin judge dismisses case challenging union bargaining law
Andrea Bottorff on April 15, 2011 9:52 AM ET

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[JURIST] A judge for Wisconsin's Dane County Circuit Court [official website] Thursday dismissed [opinion, PDF] a lawsuit that had challenged [amended complaint, PDF] a controversial state bill limiting the collective bargaining rights of public employee unions. Judge Maryann Sumi ruled that the two county officials who filed the complaint lacked standing to sue as government representatives, but could sue as individuals. Sumi explained in the opinion: "Dane County's claims are not statutory; they are constitutional. Under longstanding Wisconsin law, an agency or arm of government lacks authority to challenge the constitutionality of state statutes." Dane County Executive Kathleen Falk and County Board Chairman Scott McDonell [official profiles] filed the complaint last month, arguing that the state's new Budget Repair Bill [Senate Bill 11 text, PDF] violated the Wisconsin Constitution [PDF] and the state open meetings law [text], a rule that requires 24-hour notice of public meetings in non-emergency situations. Falk said in a statement on Thursday that, while the decision prohibits county officials from challenging the constitutionality of the bill, the state district attorney and attorney general may still litigate the issue [press release, PDF].

Last week, Wisconsin Attorney General JB Van Hollen [official website] filed a Petition for Supervisory Writ directly to the state Supreme Court over Sumi temporarily blocking [JURIST reports] the union bargaining bill last month. The suit claimed that Sumi did not have the constitutional authority to block the publication of the bill. Last month, Sumi issued an order [JURIST report] clarifying that the temporary restraining order prohibits not only publication of the bill, but implementation of its provisions as well. Sumi's order was issued in response to debate among government officials [JURIST report] that the law went into effect after it was published on the Wisconsin Legislative Bureau's website. The judge's temporary restraining order also stemmed from a lawsuit [JURIST report] filed earlier this month by District Attorney Ismael Ozanne [official website] claiming that Republican legislators passed the bill in violation of Wisconsin's open meetings law.




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Pakistan criticized for human rights violations
Carrie Schimizzi on April 15, 2011 8:18 AM ET

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[JURIST] The Human Rights Commission of Pakistan [official website] harshly criticized the Pakistani government Thursday for its poor human rights record and called on government officials to fix the human rights abuses occurring in the country. In its 2010 Annual Report [text, PDF], the group chronicles the repeated human rights violations that have taken place in the country over the past year, citing growing intolerance and extremism in the country. The report praises Pakistan's ratification of various international human rights treaties but acknowledges that immediate improvements have yet to be seen. The report criticizes the government for failing to address the violations and encourages the government to step up its prevention of ongoing abuses. According to the report, religious minority citizens and women, suffered the most abuses. The report also states that every level of the government failed in its protection of basic human rights and encourages the government to implement "mechanisms" to oversee that all international human rights treaties are being followed. The government was also blamed for its inability to reform blasphemy laws and abolish the death penalty [JURIST report].

Last week, the US Department of State (DOS) [official website] released [JURIST report] the 2010 Country Reports on Human Rights Practices [materials]. The governments of Afghanistan and Pakistan [materials] were criticized for their conduct in the war against the Taliban and al Qaeda. However, the 2008 Pakistani elections [JURIST report] were deemed "competitive and reflective of the people's will," restoring democratic rule and leading to some human rights progress. Last month, UN High Commissioner for Human Rights Navi Pillay [official profile] condemned [JURIST report] the assassination of Pakistani Minister for Minority Affairs Shahbaz Bhatti and expressed her opposition to Pakistan's controversial blasphemy law. Controversy surrounding Pakistan's blasphemy law has recently been reignited over the case of Asia Bibi, a Christian woman sentenced to death for insulting the Prophet Muhammad [JURIST news archive] during an argument with other women in her village last year. Bhatti had spoken out in favor of reforming the law.




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Federal appeals court dismisses challenge to National Day of Prayer
Carrie Schimizzi on April 15, 2011 7:21 AM ET

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[JURIST] A three-judge panel for the US Court of Appeals for the Seventh Circuit [official website] on Thursday dismissed [opinion, PDF] a constitutional challenge to the National Day of Prayer (NDP) [official website]. The decision overturns last year's decision [JURIST report] by the US District Court for the Western District of Wisconsin [official website] that the day of prayer more than acknowledged religion, but was an unconstitutional government endorsement of religion in violation of the Establishment Clause of the First Amendment [text]. In a 3-0 decision, the panel concluded that the plaintiffs, members of the Freedom From Religion Foundation (FFRF) [advocacy website], do not have standing to challenge the day of prayer statute [text]. According to the court, because the day of prayer proclamation does not force private citizens "to do anything," the plaintiffs could not have been harmed and, therefore, have no standing to challenge. Chairman of the NDP Task Force, Shirley Dobson [official profile] applauded the decision [press release] and called it a victory:
Since the days of our Founding Fathers, the government has protected and encouraged public prayer and other expressions of dependence on the Almighty. Prayer is an indispensable part of our heritage, and as citizens, we must remain faithful in our commitment to intercede for our nation during this pivotal and challenging time.
This year's National Day of Prayer will take place on May 5. The FFRF has announced that it will petition for an en banc rehearing [press release] of the case.

Last year, the US Court of Appeals for the Ninth Circuit [official website] ruled [JURIST report] that a teacher-led recitation of the Pledge of Allegiance in public schools does not violate the Constitution's Establishment Clause. The court also upheld the use of the phrase "In God We Trust" on currency. In November 2009, the US Court of Appeals for the Third Circuit [official website] ruled that a school district's policy prohibiting the performance of religious holiday songs does not violate [JURIST report] the establishment clause. Also that month, a judge for the US District Court for the District of South Carolina [official website] ruled that license plates [JURIST report] produced by the state bearing a picture of a cross in front of a stained glass window and the words "I Believe" violate the Constitution.




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Somali man indicted in US as alleged pirate leader
Dan Taglioli on April 14, 2011 1:39 PM ET

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[JURIST] A suspected Somali pirate leader appeared [DOJ press release] for a detention hearing in the US District Court for the Eastern District of Virginia [official website] on Wednesday after his March 8 indictment was unsealed. In his announcement, US Attorney Neil MacBride wrote, "[t]oday marks the first time that the U.S. government has captured and charged an alleged pirate in a leadership role—a hostage negotiator who operated in Somalia." Mohammad Saaili Shibin, 50, was reportedly captured by the FBI and military on April 4 and sent to the US to face criminal charges for negotiating ransom payments for four Americans who were kidnapped in February when their yacht was hijacked near Oman. All four hostages were subsequently killed. According to news reports [Reuters report], pirates seized the yacht and were negotiating with the US military when a pirate fired a rocket-propelled grenade at the destroyer USS Sterett. Gunfire then broke out inside the pirate vessel, which prompted American special forces to board the ship, killing two pirates in the process, only to find two more dead pirates and the four slain hostages. Shibin's indictment alleges he performed Internet research to determine both an appropriate ransom amount for the hostages and how to contact their families to make demands for payment. Shibin and 14 alleged co-conspirators have been charged with piracy, conspiracy to commit kidnapping and use of firearms during a crime of violence. If convicted the men could face life in prison. Shibin will remain in federal custody, with his arraignment scheduled for April 27.

Kenya, Germany, Seychelles, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports] have all attempted to prosecute suspected Somali pirates. In the past few months, US courts have sentenced Somali pirates to 25 years, life and 34 years [JURIST reports] in prison. However, in August a federal judge dismissed piracy charges against 6 Somalis [JURIST report] because the government "failed to establish that any unauthorized acts of violence or aggression committed on the high seas constitutes piracy" under 18 USC § 1651 [text]. Somali officials have criticized [BBC report] the US for exercising jurisdiction over suspected Somali pirates and have called for piracy cases to be handled by an international tribunal. Oceans Beyond Piracy [advocacy website] has estimated the total cost of piracy [report, PDF] in 2010 to be in the range of $7-12 billion, including $148 million spent on ransoms and up to $3 billion on re-routing ships. At the end of 2010, approximately 500 individuals were being held hostage by Somali pirates.




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Tunisia charges ousted president with protester abuse
Jennie Ryan on April 14, 2011 1:16 PM ET

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[JURIST] Tunisian Justice Minister Lazhar Karoui Chebbi [profile, in French] announced [press release, in Arabic] Wednesday that the government has charged former president Zine Al Abidine Ben Ali [BBC profile; JURIST news archive] with 18 offenses ranging from murder and conspiracy to trafficking and drug use. The charges stem mostly from allegations that Ben Ali authorized the use of force against protesters during the Tunisian revolution, resulting in the deaths of more than 200 protesters. In January, Chebbi announced an arrest warrant had been issued for Ben Ali [JURIST report]. The country is currently seeking his extradition from Saudi Arabia [JURIST report]. Chebbi also announced that a joint delegation of the Ministry of Justice [official website, in Arabic] and the Ministry of the Interior will travel to International Crime Police Organization (Interpol) [official website] headquarters to seek expedited implementation of the extradition requests.

The charges come after advocacy groups Amnesty International (AI) and Human Rights Watch (HRW) [advocacy websites] called for the Tunisian transitional government to investigate incidents of police violence against protesters and end police brutality [JURIST reports]. In January, the Tunisian Constitutional Council officially announced that Ben Ali had permanently left the office of the presidency after he declared a state of emergency [JURIST report] amid nationwide protests, banning public gatherings and allowing police to fire on anyone refusing to obey orders, and fled the country. The leader of the lower house of parliament, Foued Mebezza, assumed power as interim president [JURIST report] and will remain in power until elections are held, which Prime Minister Mohammed Ghannouchi [Reuters profile] has promised will be in the next few months.




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Bosnia war crimes court indicts former Croat soldier
Alexandra Malatesta on April 14, 2011 12:44 PM ET

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[JURIST] The Court of Bosnia and Herzegovina (BiH) [official website] on Thursday indicted [press release] former Croat soldier Miroslav Anic for war crimes against Bosnian Muslim civilians allegedly committed during the 1992-95 Bosnian civil war [JURIST news archive]. The indictment alleges [Reuters report] that Anic and his unit were responsible for an attack on the village of Grahovc, where eight men were separated from their families and executed with automatic weapons. Anic and his unit are also allegedly responsible for "cleansing" the village of Han Ploca, where 20 men were executed in similar fashion, and murdering 38 more in the village of Stupni Do.

The BiH war crimes court was established in 2005 to reduce the caseload of the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website]. In January, the court sentenced [JURIST report] Sefik Alic, a Muslim commander, to 10 years in prison, overturning his 2008 acquittal. In December, the court convicted four former Bosnian Serb policemen [JURIST report] of killing at least 150 civilians during the Bosnian civil war. In November, suspected war criminal, Dragan Crnogorac, was arrested [JURIST report] on suspicion for having committed genocide in connection with the 1995 Srebrenica massacre [JURIST news archive] during the end of the Bosnian civil war. In August, Spanish officials extradited accused Montenegrin war criminal [JURIST report] Veselin Vlahovic, known as the "monster of Grbavica," to Sarajevo.




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Maritime piracy at all-time high, Somalia waters driving explosion: report
Daniel Richey on April 14, 2011 11:05 AM ET

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[JURIST] International maritime piracy [JURIST news archive] reached an all-time high in the first quarter of 2011, says a report [press release] released Thursday by the International Chamber of Commerce (ICC) International Maritime Bureau (IMB) [official website]. The ICC's piracy reporting center, which has monitored reports of maritime piracy 24 hours a day since 1991, reports that through the end of March, 18 vessels and 344 crew members have been taken hostage, 15 of them in waters off the east coast of Somalia. Forty-five additional ships report having been boarded in 2011, with another 45 saying they have taken fire. The hijackings have accounted for the deaths of seven crew members and injuries to an additional 34. IMB director Pottengal Mukundan says that the problem continues to mount, especially around the Arabian Sea:
Figures for piracy and armed robbery at sea in the past three months are higher than we've ever recorded in the first quarter of any past year. ... We're seeing a dramatic increase in the violence and techniques used by pirates in the seas off Somalia. The overwhelming number of vessels hijacked off Somalia took place east and north east of the Gulf of Aden. The positions of some of the attackers' mother ships are known. It is vital that strong action is taken against these mother ships to prevent further hijackings
Mukundan said that vessels hauling large volumes of highly flammable materials, such as gas and petroleum, have been especially vulnerable. To request a PDF copy of the report, visit the ICC's website [report request form].

Incidents of international maritime piracy continue to climb. Earlier this week, the UN Security Council [official website] unanimously approved a resolution [JURIST report] to consider creating new laws, courts and prisons specialized to address the growing problem of piracy off the coast of Somalia. Last January, the IMB reported [JURIST report] that, to that point, 2009 marked the worst year of piracy since 2003, spiking near Somalian waters then as well. In July 2009, the IMB reported [JURIST report] that pirate attacks around the globe doubled in the first half of 2009. Few countries have been willing to prosecute suspected pirates. The few that have attempted to do so include Germany, Seychelles, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports].




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Bosnian Serb leader seeks referendum on war crimes court
Sarah Paulsworth on April 14, 2011 9:40 AM ET

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[JURIST] Bosnian Serb President Milorad Dodik [official website, in Serbian] initiated legislation [official agenda] in the National Assembly of Republika Srpska [official website, in Serbian] on Wednesday to challenge the legitimacy [legislative materials, in Serbian] of Bosnia and Herzegovina's (BiH) war crimes court and the nation's prosecutor's office. Dodik alleges that the court is biased [AFP report] because it has prosecuted more ethnic Serbs than ethnic Croats or Muslims. Additionally, he said that the international community acted in contravention [AP report] of the Dayton Peace Accords [USDOS materials] by setting up the court, which was not envisaged in the Accords. After Wednesday's debate, legislators in Republika Srpska's 83-member National Assembly approved a referendum [Serbian Voice report, in Serbian] on the matter. The date for the referendum has not been determined.

Republika Srpska is a legal entity within BiH that has a predominantly ethnic-Serb population. According to statistics provided by Dodik, through 2010, ethnic Serbs have been sentenced to a total of 1,067 years of imprisonment by the war crimes court, whereas ethnic Croats were sentenced to 137.5 years and ethnic Bosniacs to 124 years of imprisonment. In addition, the statistics indicate that out of the convictions handed down by the court, 50 have been against ethnic Serbs, 11 against Croats and eight against Bosniacs. In March, the court confirmed the indictment [JURIST report] of a former police officer for his role in the 1995 Srebrenica massacre [JURIST news archive]. In November, Dragan Crnogorac was arrested in BiH [JURIST report] on suspicion of having committed genocide. Crnogorac was also a police officer who is alleged to have shot Bosnian Muslim men and boys.




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Italy lower house approves bill effectively cutting Berlusconi bribery trial short
Ann Riley on April 14, 2011 8:58 AM ET

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[JURIST] The Italian Chamber of Deputies [official website, in Italian] approved legislation [C.3127-A materials, in Italian] by a vote of 314-296 Wednesday to shorten the statute of limitations for criminal trials of defendants who do not have prior convictions. The Italian Senate [official website, in Italian] passed a similar version [S.1880 materials, in Italian] last January, to protect citizens against an infinite duration of judicial processes. The bill [fact sheet, in Italian] is part of a comprehensive reform of the judiciary headed by Italy's Minister of Justice Angelino Alfano [official website, in Italian], to bring the justice system in accordance with Article 111 of the Italian Constitution and Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms [texts]. However, critics argue that the legislation is an attempt by the supporters of Italian Prime Minister Silvio Berlusconi [official website, in Italian; JURIST news archive] to keep him out of jail [Reuters report]. The measure, still needing final approval by the Senate, would shorten the statute of limitations in a bribery case to six or eight months—effectively ending Berlusconi's bribery trial by this summer. Berlusconi is accused of paying his British lawyer David Mills [The Independent profile] USD $600,000 to falsely testify in court about his business dealings. Berlusconi currently has four active trials pending against him.

The Italian Parliament [official website, in Italian] has previously attempted to shield Berlusconi from trial, passing a law [materials, in Italian; JURIST report] last March that granted the premier and other public officials temporary immunity from charges while in office. In January, the Italian Constitutional Court [official website, in Italian] held hearings and subsequently struck down [JURIST reports] portions of the law, finding it in violation of Article 3 of the Italian Constitution [text], which provides that "all citizens have equal social status and are equal before the law." The constitutional review of the law was sought by judges in Milan [JURIST report], where Berlusconi is charged in two cases on corruption and tax fraud. On Monday, Berlusconi attended a hearing [JURIST report] in Milan to defend himself against charges that his media empire, Mediaset [corporate website, in Italian], purchased television rights for US movies through offshore companies and falsely declaring the costs on its taxes. Last month, Berlusconi attended a separate hearing [JURIST report] to defend himself against charges of inflating the price paid to buy television rights for Mediaset to fund political activities. Prior to that hearing, Berlusconi had not attended a case hearing for more than seven years. The recent appearances are a rarity for Berlusconi who has been a defendant in close to 50 trials but has consistently stayed away from court. Last week, Berlusconi failed to attend a trial [JURIST report] on charges against him for abusing the power of his office and allegedly offering cash and jewels in exchange for sex with 17-year-old Moroccan-born Karima El Mahroug, known as Ruby. In addition to the payments, Berlusconi also allegedly called police to secure Ruby's release while she was detained on an unrelated suspicion of theft. In February, an Italian judge ordered Berlusconi to stand trial [JURIST report] on the charges of paying for sex with a minor and abuse of power.




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Ontario court finds Canada medical marijuana laws unconstitutional
Daniel Makosky on April 13, 2011 3:58 PM ET

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[JURIST] A judge for Ontario's Superior Court of Justice [official website] ruled Wednesday that the country's marijuana laws are unconstitutional. Justice David Taliano invalidated [Globe & Mail report] the Marihuana Medical Access Regulations (MMAR) [text], finding that the program's mechanisms for licensing patients to access medical marijuana [JURIST news archive] are insufficient. These inadequate licensing procedures led Taliano to also strike down portions of the Controlled Drugs and Substances Act [text] that criminalize marijuana growth and possession. The ruling cites systemic difficulties for patients seeking medical authorization, as doctors, many of whom lack proper training in prescribing the drug, are often hesitant to approve marijuana use for patients due to insufficient funding for clinical trials. Absent appeal, the government has 90 days to remedy MMAR's authorization processes, lest marijuana growth and use will be legal regardless of the purpose.

US Courts have also been forced to interpret medical marijuana statutes in recent years. In January 2010, the California Supreme Court [official website] overturned [JURIST report] a 2003 law limiting the amount of marijuana that may be possessed under the state's Medical Marijuana Program (MMP) [materials]. Earlier that month, New Jersey became the fourteenth US state [JURIST report] to legalize medical marijuana. In November, voters in Maine approved [JURIST report] an expansion of the state's existing medical marijuana laws, making Maine the fifth state to allow dispensaries, following California, Colorado, Rhode Island and New Mexico. California's Fourth District Court of Appeal ruled in 2008 that the MMP is not in conflict with the Supremacy Clause [JURIST report] and does not violate the Controlled Substances Act (CSA).




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Alleged Nazi guard requests suspension of trial to investigate declassified FBI report
Alexandra Malatesta on April 13, 2011 1:30 PM ET

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[JURIST] The lawyer for alleged Nazi concentration camp guard John Demjanjuk [NNDB profile, JURIST news archive] requested Wednesday that Demjanjuk's trial for accomplice to murder be suspended in order to investigate an Associated Press report [text] stating that a recently declassified FBI field report [FBI report image] questions the authenticity of key evidence used in the prosecution. Ulrich Busch, Demjanjuk's lawyer, requested the suspension [Der Spiegel report, in German] to investigate the material being held at the National Archives in Maryland [officially website]. The report claims that the KGB "quite likely fabricated" evidence central to Demjanjuk's prosecution, specifically the Nazi ID card [ID card image] he allegedly used as a guard at the Sobibor death camp. Demjanjuk, who denies the allegations, currently faces a six-year sentence [JURIST report] if convicted. A verdict was expected within a month, but any grant of a delay may change that schedule.

The Spanish National Court announced in January that it is seeking the extradition of Demjanjuk [JURIST report] so he can stand trial on charges relating to his alleged involvement with the Flossenburg [HRP backgrounder] concentration camp where 60 Spanish citizens were killed during World War II. Demjanjuk's German trial, which began in November 2009, has been marked by extensive delay. In October 2009, Demjanjuk was found fit to stand trial [JURIST report] after the court rejected appeals relating to his health, although the court has limited hearings to no more than two 90-minute sessions per day. Demjanjuk fought a lengthy legal battle over his alleged involvement with Nazi death camps during World War II. He was deported to Germany in May 2009 after the US Supreme Court denied his stay of deportation [JURIST reports].

4/14/11 - The court has rejected the defense request to suspend trial proceedings.




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Spain court turns over Guantanamo torture investigation to US
Sarah Posner on April 13, 2011 1:00 PM ET

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[JURIST] Spanish Judge Eloy Velasco announced Wednesday that the National Court would not investigate six Bush administration officials pursuant to torture claims from Guantanamo Bay [JURIST news archive], in response to a letter [text, PDF] from the US Department of Justice (DOJ) [official website]. The letter assured Spain that the US is investigating the treatment of detainees and has already completed federal criminal prosecution for the detainee mistreatment. The DOJ urged Spanish courts to refer complaints of detainee mistreatment to the US for the investigation and prosecution of perpetrators. Velasco subsequently agreed to discard three lawsuits filed by former inmates who claimed to be Spanish citizens. The Obama administration told the Spanish court that the US would not investigate any of the six former Bush administration officials for allowing the torture of detainees in US custody. In response to the DOJ's letter, the Center for Constitutional Rights (CCR) and European Center for Constitutional and Human Rights (ECCHR) [advocacy websites] issued a rebuttal [text, PDF], supporting Spain's pending criminal complaint against six US officials for alleged involvement in detainee abuse and inhumane treatment. The rebuttal stated:
The U.S. Submission does nothing to alter the conclusion that the criminal case against the so-called "Bush Six"; is properly before the Spanish court: it demonstrates that no competent jurisdiction is investigating or prosecuting the allegations in the complaint. The listed initiatives undertaken by the US government in various fora, while indicating some small measure of concern with the "mistreatment" or "abuse" of detainees and the legal advice provided in relation to the treatment of detainees, are ultimately unresponsive and inapplicable to the allegations raised in the complaint pending in Spain.
Velasco agreed to hand over the case to US courts [Dow Jones report] and pledged to submit information on the lawsuit to US authorities who will investigate the cases and decide which ones to pursue.

In February, the Spanish National Court agreed to continue investigating [JURIST report] allegations of a Moroccan man who claims that he was tortured while detained at Guantanamo Bay. Article 23.4 of the Ley Organica del Poder Judicial (LOPJ) [text, in Spanish] authorizes Spanish courts to hear certain types of international cases, but requires that the case have a "relevant connection" to Spain [Publico report, in Spanish], following a limitation placed on universal jurisdiction [JURIST report] in 2009. The court first opened the investigation in April 2009 [JURIST report], looking into torture allegations at Guantanamo Bay made by four former prisoners. The court based its decision on statements by the prisoners who claimed they were subject to various forms of physical and mental abuse during their imprisonment, as well as CIA interrogation memos [JURIST report] detailing a plan which allegedly authorized the systematic torture and mistreatment of persons who were deprived the basic rights of detainees. The alleged abuses violated the Geneva Conventions [ICRC materials], the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [UN materials], and other international treaties, the court said.




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Kansas governor signs abortion restriction legislation
Dan Taglioli on April 13, 2011 11:51 AM ET

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[JURIST] Kansas Governor Sam Brownback (R) [official website] on Tuesday announced the signing of two pieces of legislation restricting abortions [JURIST news archive] in the state. The Abortion Reporting Accuracy and Parental Rights Act [HB 2035, PDF] requires unemancipated minors to obtain notarized parental signatures before an abortion may be performed, and the "fetal pain bill" [HB 2218, PDF] restricts abortions beyond 22 weeks of pregnancy based on the belief that a fetus can feel pain at that stage of gestation. Brownback took office in January and in his inaugural address urged the Republican–controlled state legislature to again attempt to pass abortion restriction legislation, which had been vetoed by Democratic governors in the last few years. The Kansas Senate [official website] voted last month to send the "fetal pain bill" to the governor [JURIST report], after the House of Representatives [official website] approved the measure [JURIST report] in February. Two other abortion restriction bills have been slowed in the House: one would exclude abortion coverage [SB 65 materials] from health insurance plans unless it is necessary to preserve the life of the mother, and the other would require that abortion clinics have an operating license [SB 36 materials] issued by the Kansas Department of Health and Environment.

Since the November elections state legislatures across the country have been implementing measures to restrict abortions. Last week the Alabama House of Representatives [official website] voted to approve a bill [JURIST report] that would ban abortions after 20 weeks of gestation, except in cases where the mother's life is at risk or she faces serious injury. The Ohio Senate [official website] approved a similar bill [JURIST report] that would limit the availability of abortions after 20 weeks. Last month, the Idaho legislature [official website] also gave final approval to a bill [JURIST report] that would prohibit most abortions after 20 weeks. Also in March, the Iowa House of Representatives [official website] approved a bill [JURIST report] that would prohibit doctors from performing any late-term abortions in the state. Bills proposing similar abortion restrictions were approved in the Missouri House of Representatives and the Oklahoma House of Representatives [JURIST reports] last month. Also last month, South Dakota Governor Dennis Daugaard [official website] signed into law [JURIST report] a bill requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion.




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Uruguay senate votes to overturn 1986 amnesty law
Matt Glenn on April 13, 2011 9:11 AM ET

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[JURIST] Uruguay's Senate [official website, in Spanish] voted 16-15 Tuesday to overturn a 1986 law [press release, in Spanish] granting amnesty to members of the military junta that ruled the country between 1973 and 1985. The decision [AP report] to repeal Uruguay's Expiry Law [text, in Spanish] means that courts will be able to prosecute military leaders whom many claim committed crimes against humanity during the junta's rule. The Inter-American Court of Human Rights (IACHR) [official website, in Spanish] effectively overturned the law [JURIST report] last month when it ruled [judgment, PDF, in Spanish] that Uruguay's government must bring to justice those responsible for the disappearance of a woman abducted by Uruguay government forces in 1976. In November, the Uruguayan Supreme Court [official website, in Spanish] found the law to be unconstitutional [JURIST report]. Uruguay's House of Representatives [official website, in Spanish] must still approve the law.

Prior to November's judgment, Uruguay's Supreme Court had largely upheld the amnesty except in extreme circumstances, and in 2009 a popular vote failed to overturn the law [JURIST reports]. Many of the alleged kidnappings and deaths occurred in connection with Operation Condor [BBC backgrounder], a cooperative effort between the governments of Uruguay, Chile, Paraguay, Argentina, Brazil and Chile to eliminate left-wing political opponents. In June, ex-military officials in Argentina were put on trial [JURIST report] for the deaths of 65 activists in connection with Operation Condor. The Uruguayan government has also attempted to bring those responsible for the disappearance of leftist activist to justice. In 2006, eight former police and military officers were indicted by a Uruguayan court [JURIST report] on counts of kidnapping and conspiracy committed during the 1973-1985 dictatorship. The crimes were related to the 1976 disappearances of five members of an Uruguayan leftist group who fled to Argentina and were detained there by police, and who investigators suspect were victims of Operation Condor.

Read more about Uruguay's Reparations Law on JURIST's Dateline service.




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UN completes Sri Lanka war crimes report
Julia Zebley on April 13, 2011 7:49 AM ET

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[JURIST] The UN announced on Tuesday the completion of a report on allegations of war crimes in Sri Lanka, but Secretary-General Ban Ki-moon [official website] said the report would not be released until President Mahinda Rajapaksa [official website] has time to review it. This has prompted criticism from Human Rights Watch (HRW) and Amnesty International (AI), which demanded the report be made public [HRW press release; AI press release]. The report, based on the work of a three-member panel, evaluated [UN News Centre report] "the modalities, applicable international standards and comparative experience with regard to accountability processes." Earlier this week, Sri Lankan Defense Secretary Gotabhaya Rajapaksa [official website] stated that the government was not concerned with the report [Sunday Observer report]. The Sri Lankan Ministry of External Affairs [official website] announced in October that a UN war crimes panel would be allowed to visit [JURIST report] the island to look into the final stages of the conflict with the Liberation Tigers of Tamil Eelam [JURIST news archive].

A recent HRW report criticized the UN, the Human Rights Council and Ban for failing to adequately enforce human rights. The UN defended against these allegations [JURIST report] in January. The report specifically mentioned Ban's reluctance to put pressure on abusive governments, and substituting dialogue and cooperation for public pressure to promote human rights. HRW's report highlighted the UN's deference toward atrocities in Sri Lanka [JURIST report] as an example of the UN's human rights shortcomings. Sri Lanka faced numerous allegations of human rights violations originating from incidents that took place during the final months of its 30-year civil war. Last May, HRW announced it had acquired new evidence [JURIST report] supporting allegations of war crimes. Although Ban affirmed his commitment to set up a UN panel investigating the human rights violations in Sri Lanka, HRW was dissatisfied with the UN's response.




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UN rights council announces members of Ivory Coast post-election violence panel
John Paul Putney on April 12, 2011 2:30 PM ET

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[JURIST] The UN Human Rights Council (UNHRC) [official website] announced [press release] on Tuesday the appointment of three "high-level experts" to lead the Commission of Inquiry charged with investigating allegations of human rights abuses in the Ivory Coast following elections. The appointments include Vitit Muntabhorn, a professor of law at Chulalongkorn University in Bangkok, who will serve as the Chair of the Commission. Other appointees include Suliman Baldo of Sudan, a widely recognized expert on conflict resolution, emergency relief, development, and human rights in Africa; and Reine Alapini Gansou of Benin who is a lawyer and the Chairperson of the African Commission on Human and Peoples' Rights since 2009. The announcement comes in the wake of the capture and arrest [JURIST report] of incumbent president Laurent Gbagbo on Monday by forces loyal to internationally recognized president, Alassane Ouattara [BBC profiles]. Although allegations of abuses are directed at both sides, a spokesman for Ouattara insisted that the responsibility lies exclusively at the feet of Gbagbo [Aljazeera report]. The Commission of Inquiry's mandate is "to investigate the facts and circumstances surrounding the allegations of serious abuses ... in order to identify those responsible fur such acts and bring them to justice." The UNHRC believes there are hundreds of victims of ethnic and political violence that ensued following the election.

Late last week, Human Rights Watch (HRW) [advocacy website] urged Ivory Coast to investigate [JURIST report] human rights violations and war crimes. Earlier last week, International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] told reporters that he is willing to investigate [JURIST report] alleged war crimes in the Ivory Coast, but a lack of referrals is impeding the process. Earlier this month, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence that took place. Also this month, the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] urged all parties to show restraint [JURIST report]. Last month, the OHCHR called for an independent investigation into post-election violence [JURIST report]. In January, UN officials expressed "grave concerns" [JURIST report] regarding the post-election violence, cautioning that genocide could be imminent. In February, Gbagbo dissolved the country's parliament [JURIST report] and electoral commission based on allegations of voter fraud in the long delayed presidential elections. On disbanding the government, Gbagbo charged Prime Minister Guillaume Soro [BBC profile] with creation of new government and new election format. The violence stems from Gbagbo's refusal to cede power to president-elect Alassane Ouattara, who won the November 2010 runoff election according to international observers. Gbagbo was elected president in 2000 to serve a five-year term, but he has managed to stay in office, delaying six successive elections.




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Egypt prosecutor postpones questioning after Mubarak hospitalized
Sarah Posner on April 12, 2011 2:21 PM ET

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[JURIST] Former Egyptian president Hosni Mubarak [Al Jazeera profile] was hospitalized Tuesday before he was scheduled to appear before Egypt's public prosecutor for questioning about his alleged roles in protester deaths and embezzlement of government money. The chief prosecutor on Sunday summoned [Al Jazeera report] Mubarak for questioning, along with his two sons, Gamal and Alaa. Egyptian authorities continued to question Mubarak's sons [AFP report] after Mubarak was taken to the hospital. In a televised statement on Sunday, Mubarak denied corruption charges [BBC report], asserted his right to defend his reputation and expressed his willingness to cooperate [Al Arabiya report] with investigations, denying that he owns property abroad or holds foreign bank accounts. The prosecutor's announcement came after tens of thousands of Egyptians gathered in Tahrir Square [JURIST report] on Friday to demand the prosecution of Mubarak, his family and members of his regime.

Friday's protests reveal Egyptians' growing frustration with the pace at which the current military council is pursuing the punishment of the regime's political corruption [JURIST reports]. In March, a commission of Arab and Egyptian human rights groups accused Mubarak and the police of murdering protesters during the demonstrations in Egypt, according to a local newspaper [Al-Ahram report, in Arabic]. The joint commission submitted their report to Egypt's top prosecutor for further investigation. The Supreme Military Council of Egypt, which assumed power after Mubarak's resignation, instructed Egypt's top prosecutor to investigate the death of protesters [Ria Novosti report] during the three weeks of demonstrations in the country. Following the demonstrations, Egypt's chief prosecutor requested in February that Foreign Ministry officials take steps to freeze any foreign assets [JURIST report] belonging to Mubarak and his family.




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Rights group claims executions by Gaddafi forces constitute war crimes
Ashley Hileman on April 12, 2011 1:27 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Monday pointed to the executions of opposition fighters as the most recent evidence that forces supporting Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive] continue to commit war crimes. Researchers from AI were shown the bodies of two individuals whose hands and feet had been bound, suggesting their deaths were the result of deliberate killings [press release] carried out by forces loyal to Gaddafi. In addition to viewing these deceased individuals at the morgue, the researchers saw another body, similarly bound, at a hospital in the region and have received four reports of other such cases. Responding to the researchers' report, Malcolm Smart, AI's director for Middle East and North Africa, stated, "[t]he deliberate killing of captured fighters is a war crime. All those responsible for such crimes—those who ordered or sanctioned them as well as those who carried them out—must be left in no doubt that they will be held fully accountable."

The actions of Gaddafi's forces in Libya have been condemned by a number of human rights as well as governmental organizations. Just this week, Human Rights Watch (HRW) [advocacy website] asserted that indiscriminate government attacks on Libyan civilians violate international humanitarian law [JURIST report]. The attacks, led by forces supporting Gaddafi, have claimed more than 250 civilian lives within the last month in the city of Misrata. According to international law, attacks from either party in conflict that do not differentiate between civilians and combatants are impermissible. Furthermore, the law requires that any force applied must take all measures to reduce the harm to civilians. Although the Libyan government denies using indiscriminate force on citizens, many civilians have reported abuse including shootings in medical facilities and populated areas where there is no threat of of war. Earlier this month, the UN announced that investigators would enter Libya [JURIST report] to begin looking into alleged human rights abuses by both rebels and the armed forces of Gaddafi. The inquiry into the conditions in Libya was approved by a unanimous vote [JURIST report] of members of the UN Human Rights Council on February 25. The investigatory panel will cooperate with the International Criminal Court (ICC) [official website], which last month opened its own investigation [JURIST report] into alleged abuses in Libya.




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Rights group urges Iraq forces to end attacks on protesters
Maureen Cosgrove on April 12, 2011 1:08 PM ET

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[JURIST] Iraqi authorities must end attacks on peaceful protesters [press release], according to a Tuesday report from Amnesty International (AI) [advocacy website]. The report, "Days of Rage: Protests and Repression in Iraq" [text, PDF], asserts that Iraqi and Kurdistan authorities have shot and killed demonstrators and have detained and tortured political activists, targeting journalists covering the protests. According to the report, thousands of Iraqis have engaged in peaceful protests since February, calling for an end to unemployment, inadequate government services and corruption. The report calls for an end to human rights violations related to the demonstrations:
Up to now, the Iraqi authorities in both Baghdad and the Kurdistan region have sought to crack down on peaceful protestors. This must change. They should be cracking down on the use of excessive force and torture by their own largely unaccountable security forces, not on the right of people to peacefully protest. The Iraqi authorities should be upholding the rights to freedom of expression and peaceful assembly, including the right to protest, not trying to suppress them. It is high time to do so.
AI alleges that Iraqi authorities have breached the Iraqi Constitution [text, PDF] and the Iraq-ratified International Covenant on Civil and Political Rights (ICCPR) [text], as well as the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (Basic Principles) [text] and the Code of Conduct for Law Enforcement Officials [text], which Iraqi armed forces and securities forces contravened when responding to the February protests. AI recommends that Iraqi authorities ensure that citizens' right to protest peacefully is not infringed and conduct thorough investigations into the killings and torture allegations.

Iraq has been closely scrutinized for human rights violations. AI issued a report in September alleging that the Iraqi government is unlawfully detaining and torturing [press release; JURIST report] thousands of detainees. In June, UN Special Representative to Iraq Ad Melkert urged the Iraqi government [JURIST report] to ratify the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [text]. Melkert stated that Iraq had 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. Last April, Human Rights Watch (HRW) [advocacy website] reported on the repeated torture [JURIST report] of Iraqi detainees in a secret prison in Baghdad. HRW reported that detainees held at the secret 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.




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Egypt military court convicts blogger for insulting army
Zach Zagger on April 12, 2011 11:04 AM ET

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[JURIST] An Egyptian military court convicted blogger Maikel Nabil and sentenced him to three years in prison Monday for criticizing the army and raising questions over reform in the wake of revolution, according to reports from Human Rights Watch (HRW) [advocacy website]. The 25-year-old blogger and activist was arrested [HRW report] at his home on March 28 and charged with "insulting the military establishment" and "spreading false information" for criticizing the army's handling of the revolution that began on January 25. He posted an article on his blog [text, in Arabic] on March 7 saying the army had beat, tortured and killed protesters, including some who were cooperating with security forces. He was then sentenced without a formal hearing and without his lawyers present. HRW deputy Middle East Director Joe Stork released a statement calling the conviction the worst free speech violation in years:
Maikel Nabil's three-year sentence may be the worst strike against free expression in Egypt since the Mubarak government jailed the first blogger for four years in 2007. The sentence is not only severe, but it was imposed by a military tribunal after an unfair trial.
Nabil's lawyers from the Arabic Network for Human Rights Information [advocacy website] said that they were told the court would rule on the case on April 12 [press release, in Arabic], but the lawyers learned that the court had already ruled and sentenced Nabil on April 11 without their presence.

The blogger's conviction raises doubts about the military's commitment to reform after Hosni Mubarak [BBC profile] stepped down. Last month, the Egyptian Supreme Council of the Armed Forces [NYT backgrounder] unveiled an interim constitution that allows the council to retain control over the country until an elected government is installed. The document vests the military council with presidential powers [Al-Ahram report], including the abilities to introduce legislation, veto existing laws and act as Egypt's representative to the international community. Last November, Egypt released blogger Abdel Kareem Nabil [advocacy website] after four years of imprisonment on charges of insulting Islam and causing sectarian strife on his blog [website, in Arabic]. Nabil, a former law student, was convicted in 2007 [JURIST report] for posting statements critical of Islamic authorities and former president Mubarak, calling him a dictator.




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Ivory Coast leader Ouattara promises legal action against Gbagbo
Aman Kakar on April 12, 2011 10:36 AM ET

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[JURIST] Ivory Coast opposition leader Alassane Ouattara announced in a televised speech Monday that he will ask his justice minister to begin legal proceedings against former president Laurent Gbagbo [BBC profiles]. Ouattara guaranteed the security of Gbagbo and his family but stated that Gbagbo, his wife Simone and their collaborators would be investigated by judicial authorities [BBC Report]. Ouattara also announced that he will set up a truth and reconciliation commission and asked Ivorians to abstain from all reprisals and violence. He also asked the European Union [official website] to lift sanctions on the ports of Abidjan and San Pedro and promised to restore security, utilities and meet the basic needs of the people [Guardian report]

Gbagbo was captured on Monday [JURIST report] after six months of turmoil. Gbagbo had refused to surrender the presidency after he was defeated in the presidential elections last November. Last week, a Human Rights Watch (HRW) report urged Ouattara to conduct an investigation [JURIST report] into alleged atrocities carried out by his forces in its attempts to secure the presidency. According to the report, the pro-Ouattara forces, known as the Republican Forces of Cote d'Ivoire, killed more than 100 civilians, raped at least 20 supporters of Gbagbo and burned at least 10 villages in March. Earlier this month, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence. Earlier, the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] urged all parties in the Ivory Coast to show restraint and called for an independent investigation into post-election violence [JURIST reports]. In January, UN officials expressed "grave concerns" [JURIST report] regarding the post-election violence, cautioning that genocide could be imminent.




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Philippines court orders Imelda Marcos to repay stolen state funds
Aman Kakar on April 12, 2011 9:19 AM ET

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[JURIST] The Philippine anti-graft court, the Sandiganbayan [official website], said Monday that it ordered Imelda Marcos, wife of deceased Philippine ex-dictator Ferdinand Marcos [JURIST news archive], to return USD $280,000 in state funds stolen by her husband. The money was stolen from the National Food Authority, a government agency responsible for importing rice, and transferred to a private bank in 1983 [AFP report]. Jesus Tanchanco, former head of the National Food Authority, testified against the ex-dictator in exchange for immunity from prosecution. The initial ruling against Marcos came in September. Marcos dropped her appeal, and the ruling went into effect on April 5. Marcos has until May 5 to return the money.

Ferdinand Marcos ruled the Philippines for 20 years. It is estimated that he and his family stole approximately $10 million of government funds. Recouping the stolen money has been a challenge since much of it is believed to be secured in offshore bank accounts. Imelda Marcos and her family were allowed to return to the Philippines after Ferdinand Marco's death in exile. Imelda Marcos was recently elected to Congress [UPI report] to represent Ilocos Norte, the birthplace of her husband.




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Syria forces preventing access to medical care for protesters: HRW
Matt Glenn on April 12, 2011 9:07 AM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] reported [text] Tuesday that Syrian security forces have stopped medical personnel, sometimes violently, from attending to injured protesters. A spokesperson for the group called the practice "both inhumane and illegal." According to the report, at least 28 protesters died Friday in protests spread across three cities. Witnesses said security forces opened fire when civilians tried to remove the injured from the scenes and that in Daraa an ambulance was blocked from reaching wounded protesters. Witnesses also reported that security forces controlled hospitals in Daraa and Harasta and would not admit injured protesters. State-controlled media claimed that protesters attacked members of the security forces [Sana report, in Arabic], killing 19 of them. The HRW report called on security forces to allow peaceful protest and for an end to the violence in Syria. The recent protests in Syria have led to more than 170 deaths [AP report].

Last month, Syrian President Bashar al-Assad [Al Jazeera profile] ordered the formation of a committee [JURIST report] that will discuss repealing the country's 48-year-old state of emergency law that bans protests and allows police to detain civilians without charges. Al-Assad announced earlier in March that the government would consider ending the state of emergency [JURIST report]. Also last month, UN High Commissioner for Human Rights Navi Pillay [official profile] urged the Syrian government [JURIST report] to ensure protesters' rights to peaceful expression and to work toward addressing their concerns instead of responding with violence. As demonstrations continued throughout the country in March, the government freed 260 political detainees [AFP report] in an overture to the protesters. Last month, Syria appeared to be lifting the four-year-old ban [JURIST report] on social media sites Facebook [website; JURIST news archive] and YouTube [website; JURIST news archive] as a concession to avoid popular upheaval [DP report].




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Ninth Circuit upholds injunction against Arizona immigration law
Jennie Ryan on April 11, 2011 3:29 PM ET

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Monday upheld [opinion, PDF] a lower court decision to enjoin several provisions of Arizona's controversial immigration law [SB 1070 materials; JURIST news archive]. In July, the US District Court for the District of Arizona [official website] granted a preliminary injunction [JURIST report] to the Department of Justice (DOJ) [official website] blocking implementation of the law. Affirming the decision below, the Ninth Circuit held that "the district court did not abuse its discretion in finding that the United States demonstrated that it faced irreparable harm and that granting the preliminary injunction properly balanced the equities and was in the public interest." In addressing the equities and public interest, the Ninth Circuit indicated that the constitutional infringement of the Supremacy Clause [text] alleged by the DOJ could itself constitute irreparable harm to the federal government absent injunctive relief:
We have found that "it is clear that it would not be equitable or in the public's interest to allow the state ... to violate the requirements of federal law, especially when there are no adequate remedies available. ... In such circumstances, the interest of preserving the Supremacy Clause is paramount."
The decision is expected to be appealed to the US Supreme Court [official website].

Last year, the DOJ sued [JURIST report] the state of Arizona and Governor Jan Brewer [official website] arguing that both the Constitution and federal law "do not permit the development of a patchwork of state and local immigration policies throughout the country." The agency also claimed 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. The Arizona law, which 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, was signed into law [JURIST report] in April of last year. The law faces several additional legal challenges including a class-action law suit [JURIST report] filed by the American Civil Liberties Union (ACLU) [official website] on behalf of a number of advocacy groups and several private individuals. A challenge brought by several Tucson police officers claiming the law could not be properly implemented without racially profiling was dismissed [JURIST reports] late last year.




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Bahrain rights leader to face military questioning over detainee photos
Erin Bock on April 11, 2011 2:35 PM ET

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[JURIST] Bahraini authorities said Monday that the head of the Bahrain Center for Human Rights [advocacy website, in Arabic] will face questioning by a military prosecutor over allegations that he tampered with photos of a detainee who died in custody. Nabeel Rajab posted a link on his twitter account to an album of pictures [WARNING: Readers may find these images disturbing] of Ali Isa Sager that revealed signs of alleged torture. Government officials state that these photos differed from photos taken of Sager by the medical examiner [BNA report]. According to a Ministry of Interior Police Media Center [official website] report [text], Sager died last week from injuries he sustained at a detention center while security forces attempted to bring him under control.

Last week, Human Rights Watch (HRW) and Doctors Without Borders (MSF) [advocacy websites] criticized Bahrain for rampant human rights abuses [JURIST report] related to anti-government protests. In March, the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] expressed concern over violence against protesters [JURIST report] in Bahrain and other countries embroiled in protests. The OHCHR released an additional report [text] stating that UN human rights experts question the Bahraini government's commitment to human rights. Also last month, six opposition leaders were arrested [JURIST report] after the government, backed by foreign troops from the Gulf Cooperation Council (GCC) [official website] violently dispersed protesters in the capital of Manama. Days earlier, Bahraini King Hamad bin Isa Al Khalifa [official website] declared a three-month state of emergency [JURIST report] in response to the growing unrest in the the island nation.




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Berlusconi calls tax fraud hearing 'waste of time'
Ann Riley on April 11, 2011 2:25 PM ET

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[JURIST] Italian Prime Minister Silvio Berlusconi [official website, in Italian; JURIST news archive] attended a hearing in Milan on Monday to defend himself against charges of tax fraud. After just two-and-a-half hours, Berlusconi left the trial [AP report] saying the prosecution had no case against him and that the hearing was a waste of time. Berlusconi's media empire, Mediaset [corporate website, in Italian] is accused of purchasing television rights for US movies through offshore companies and falsely declaring the costs on its taxes. Mediaset Chairman Fedele Confalonieri [Mediaset profile] and producer Frank Agrama [IMDB profile] are among the 10 others charged in the case. During Monday's hearing, witnesses provided testimony on the purchase of television rights for Italian television. The trial was set to continue into the afternoon without Berlusconi. Last month, Berlusconi attended a hearing [JURIST report] to defend himself against separate charges of fraud and embezzlement. In that case, Berlusconi is accused of inflating the price paid to buy television rights for his company Mediaset to fund political activities. Prior to that hearing, Berlusconi had not attended a case hearing for more than seven years.

The recent appearances are a rarity for Berlusconi who has been a defendant in close to 50 trials but has consistently stayed away from court. He stated that we would attend as many trials in the four active court cases against him as he can. Last week, Berlusconi failed to attend a trial on charges against him for abusing the power of his office and allegedly offering cash and jewels in exchange for sex with a minor. The minor, Moroccan-born 17-year-old Karima El Mahroug, known as Ruby, also failed to attend the hearing. In addition to the payments, Berlusconi also allegedly called police to secure Ruby's release while she was detained on an unrelated suspicion of theft. The trial was adjourned [JURIST report] after only 10 minutes of opening. In February, an Italian judge ordered Berlusconi to stand trial [JURIST report] on the charges of paying for sex with a minor and abuse of power. Both Ruby and Berlusconi maintain that the two never had sex, and Berlusconi has denied any wrongdoing and has called the charges groundless. In January, the Italian Constitutional Court [official website, in Italian] held hearings and subsequently struck down [JURIST reports] portions of a law [materials, in Italian] backed by Berlusconi that would have granted the premier and other public officials temporary immunity from charges while in office.




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Rights group claims government attacks on Libya civilians violate international law
LaToya Sawyer on April 11, 2011 2:10 PM ET

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[JURIST] Human Rights Watch (HRW) [advocacy website] asserted Monday that indiscriminate government attacks on Libyan civilians violate international humanitarian law [press release]. The attacks, led by forces supporting Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive] have claimed more than 250 civilian lives within the last month in the city of Misrata. According to international law, attacks from either party in conflict that do not differentiate between civilians and combatants are impermissible. Furthermore, the law requires that any force applied must take all measures to reduce the harm of civilians. Although the Libyan government denies using indiscriminate force on citizens, many civilians have reported abuse such as shootings in medical facilities and populated areas where there is no threat of of war. The ensuing violence is a large concern for HRW particularly because the government has blocked the city from receiving humanitarian aid. HRW claims this is yet another reason why the Libyan government is in violation of international law because conflicting parties must allow humanitarian organizations to provide quick and unimpeded aid to civilians.

Attacks on civilians have been the center of several investigations into human rights abuses in Libya. Earlier this month, the UN announced that investigators would enter Libya [JURIST report] to begin looking into alleged human rights abuses by both rebels and the armed forces. Last month, International Criminal Court (ICC) Chief Prosecutor Luis Moreno-Ocampo [official websites] announced that Libyan officials could face war crimes charges [JURIST report] for attacks on civilians. Additionally, the ICC launched a probe to investigate allegations [JURIST report] of crimes against humanity by the Libyan government. Moreno-Ocampo specifically identified Gaddafi, his sons and his political allies as targets of the investigation and warned Libyan officials that complicity in such abuses would result in prosecution. The UN General Assembly has voted to suspend Libya [JURIST report] from the UN Human Rights Council (UNHRC) [official website] in response to the violent suppression of peaceful protesters by forces loyal to Gaddafi. The ICC has also said that it will not grant immunity [JURIST report] to any person perpetrating crimes against humanity in Libya.




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Spain high court indicts judge Garzon for jailhouse wiretap order
Ashley Hileman on April 11, 2011 1:03 PM ET

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[JURIST] The Spanish Supreme Court [official website, in Spanish] on Monday issued an indictment [text, PDF, in Spanish] against National Court judge Baltasar Garzon [BBC profile; JURIST news archive] for his order to place illegal wiretaps in jailhouses for the purpose of recording conversations between inmates and their lawyers. Garzon's order was a part of his investigation [AP report] into a network of businesses alleged to have given money and other gifts to members of Spain's Popular Party, in exchange for contracts in regions under the party's governance. This investigation, now known as "el caso GUrtel" [El Pais report, in Spanish], was commenced by Garzon in 2009, with the wiretap order issued in February of that year. He based his order to wiretap the jailhouse on his belief that it would yield incriminating evidence as the lawyers may be acting as liaisons with others suspected of involvement in this network. However, the court found that Garzon extended the amount of time the jailhouse was wiretapped even after he discovered that the majority of the initial conversations overheard dealt mostly with defense strategies.

Monday's indictment by the Spanish Supreme Court is the second for Garzon. Last month, he filed a petition [JURIST report] with the European Court of Human Rights (ECHR) [official website], challenging a case brought against him in Spain that alleges abuse of power in investigating crimes committed under the Franco dictatorship [BBC backgrounder]. In that case, Garzon faces charges of politically motivated corruption [JURIST report] and violation of the 1977 Amnesty Law, which affords amnesty for Franco-era crimes. The charges are based on Garzon's 2008 order [JURIST report] for certain government agencies, the Episcopal Conference, the University of Granada and the mayors of four cities to produce the names of people buried in mass graves, as well as the circumstances and dates of their burial. His petition follows the September 2010 decision of the Criminal Chamber of the Spanish Supreme Court, which unanimously confirmed [JURIST report] a lower court order that Garzon abused his power and must face trial. 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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UN Security Council to consider special maritime piracy courts
Michael Haggerson on April 11, 2011 12:49 PM ET

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[JURIST] The UN Security Council [official website] unanimously approved [video] a resolution [1976 (2011) text] Monday to consider creating new laws, courts and prisons specialized to address the growing problem of piracy [JURIST news archive] off the coast of Somalia. The resolution, sponsored by Russia, calls for the creation of piracy courts outside of Somalia and cooperation among countries in combating the piracy problem. Russian Ambassador Vitaly Churkin stated that this was the "first practical step in the direction of creating an effective judicial mechanism, one capable of a credible, reliable solution to the problem of bringing pirates to justice." Churkin further asserted:
The worsening situation with piracy off the coast of Somalia requires the international community to adopt qualitatively new measures to combat it. Today we've taken a big step ahead in fighting piracy. The resolution adopted upon our initiative contains a wide array of qualitatively new measures aimed at establishing the necessary conditions for more effectively counteracting the pirates.
Oceans Beyond Piracy [advocacy website] estimated the total cost of piracy [report, PDF] in 2010 to be $7 - $12 billion, including $148 million spent on ransoms and up to $3 billion on re-routing ships. At the end of 2010, approximately 500 individuals were being held hostage by Somali pirates.

Kenya, Germany, Seychelles, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports] have all attempted to prosecute suspected Somali pirates. The US has also been active in prosecuting suspected Somali pirates. In the past few months, US courts have sentenced Somali pirates to 25 years, life and 34 years [JURIST reports] in prison. However, in August a federal judge dismissed piracy charges against 6 Somalis [JURIST report] because the government "failed to establish that any unauthorized acts of violence or aggression committed on the high seas constitutes piracy" under 18 USC § 1651 [text]. Somali officials have criticized [BBC report] the US for exercising jurisdiction over suspected Somali pirates and called for piracy cases to be handled by an international tribunal.




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France forces aid in capture of besieged Ivory Coast leader Gbagbo
Zach Zagger on April 11, 2011 10:52 AM ET

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[JURIST] French special forces Monday aided in the capture of the Ivory Coast leader Laurent Gbagbo [BBC profile] in the city of Abidjan. Gbagbo surrendered after French tanks moved in on his residence [BBC report] while it was surrounded by opposition leader Alassane Ouattara's forces. Gbagbo has refused to leave office since he was defeated in the presidential elections last November. France had deployed forces to the Ivory Coast as part of a UN-backed peacekeeping mission to stem violence over the November election [CIA backgrounder; JURIST news archive]. It was reported that French special forces had captured Gbagbo and turned him over to Ouattar's forces, but Youssoufou Bamba, the UN envoy of president-elect Ouattara, said it was the opposition leader's forces who made the arrest. However, there are still other conflicting reports [WP report] over what forces actually made the arrest. Gbagbo is being held in a hotel with his family under the protection of UN and pro-Ouattara forces. France has claimed that its intervention in its former colony [Reuters report] is only at the UN's request.

Last week, a Human Rights Watch (HRW) report urged Ouattara to conduct an investigation [JURIST report] into alleged atrocities carried out by his forces in its attempts to secure the presidency. According to the report, the pro-Ouattara forces, known as the Republican Forces of Cote d'Ivoire, killed more than 100 civilians, raped at least 20 supporters of Gbagbo and burned at least 10 villages in March. Earlier this month, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence. Earlier, the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] urged all parties in the Ivory Coast to show restraint and called for an independent investigation into post-election violence [JURIST reports]. In January, UN officials expressed "grave concerns" [JURIST report] regarding the post-election violence, cautioning that genocide could be imminent.




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France veil ban goes into effect
Sarah Paulsworth on April 11, 2011 8:54 AM ET

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[JURIST] The controversial French law [materials, in French] that bans the wearing of full Muslim veils, including burqas, nigabs and other facial coverings in public took effect [implementation circular, in French] on Monday. Pursuant to the law, people caught wearing facial coverings in public can be fined 150 euros (USD $215) and/or ordered to take a citizenship class. In addition, anyone convicted of forcing a someone else to cover their face may be fined up to 30,000 euro and jailed for one year [AFP report, in French], and the penalties double if the incident involves a minor. The ban affects citizens, residents and tourists alike, and extends to all public places [Le Figaro backgrounder, in French], including airports, hospitals, government offices and even places of worship that are open to the public. However, France's Constitutional Council [official website] has stated this prohibition cannot "unduly ... restrict the exercise of religious freedom in places of worship are open to the public." On Monday two women wearing nigab were arrested [Al Jazeera report] in Paris after participating in a protest against the new law outside Notre Dame Cathedral. Police reported the women were arrested not for wearing a face covering, but rather participating in a unsanctioned protest. Five million Muslims reside in France, but it is believe that fewer than 2,000 women [Reuters report] wear a type of head covering that would be banned under French law.

In October, the French Constitutional Council ruled that the ban conforms with the Constitution [JURIST report]. The bill was approved by the National Assembly in July and by the Senate [JURIST reports] in September. Legislation banning the use of Islamic burqas has been a point of contention recently in many European countries. In October, Dutch politician Geert Wilders [personal website, in Dutch] said that the Netherlands will ban the burqa [JURIST report] as part of the government's plan to form a minority coalition. In August, Austria's conservative Freedom Party [official website, in German] called for a special vote [JURIST report] on whether to ban face veils and the construction of minarets, two of the most visible symbols of the Islamic faith. In July, Spain's lower house of parliament rejected a proposal [JURIST report] to ban the burqa and other full face veils by a vote of 183 to 162 with 2 abstaining.




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HRW urges Ivory Coast to investigate human rights violations, war crimes
Carrie Schimizzi on April 10, 2011 12:39 PM ET

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[JURIST] Democratically elected Ivory Coast President Alassane Ouattara should investigate "atrocities," including murder and rape, committed by opposing political forces during recent conflicts, a Human Rights Watch (HRW) [advocacy website] report [press release] requested Saturday. According to the report, forces loyal to Ouattara, known as the Republican Forces of Cote d'Ivoire, killed more than 100 civilians, raped at least 20 supporters of rival Laurent Gbagbo [BBC profile] and burned at least 10 villages over the past month. The report also accused forces loyal to Gbagbo of killing at least 100 rival supporters in the month of March. Three HRW investigators conducted investigations and interviews with Ivory Coast civilians over the past month and determined that numerous abuses had occurred on both sides of the political conflict. The report calls on Ouattara to investigate these various violations of International Law and to prosecute those responsible for human rights violations:
Both pro-Ouattara and pro-Gbagbo forces are obligated to abide by international humanitarian law, or the laws of war, for a non-international armed conflict, as found in the Protocol II to the 1949 Geneva Conventions and customary international law. ... Anyone who participates in, orders, or has command responsibility for serious laws-of-war violations committed with criminal intent may be prosecuted for war crimes. Serious crimes, including murder and rape, committed as part of a widespread or systematic attack on a civilian population, such as a political or ethnic group, may be prosecuted as crimes against humanity. States have a responsibility to investigate and prosecute war crimes and crimes against humanity committed on their territory, or ensure that individuals implicated are prosecuted in another venue.
The report emphasized that human rights violations have been a continuous occurrence during the Ivory Coast political conflict [JURIST news archive] and called on Ouattara to provide as much protection as possible to civilians to prevent the continuance of these abuses.

Earlier this week, International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] told reporters that he is willing to investigate [JURIST report] alleged war crimes in the Ivory Coast, but a lack of referrals is impeding the process. Last week, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence that took place. Earlier, the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] urged all parties in the Ivory Coast to show restraint [JURIST report]. Last month, the OHCHR called for an independent investigation into post-election violence [JURIST report]. In January, UN officials expressed "grave concerns" [JURIST report] regarding the post-election violence, cautioning that genocide could be imminent. In February, Gbagbo dissolved [JURIST report] the country's parliament and electoral commission based on allegations of voter fraud in the long delayed presidential elections. On disbanding the government, Gbagbo charged Prime Minister Guillaume Soro [BBC profile] with creation of new government and new election format. The violence stems from Gbagbo's refusal to cede power to president-elect Alassane Ouattara, who won the November 2010 runoff election according to international observers. Gbagbo was elected president in 2000 to serve a five-year term, but he has managed to stay in office, delaying six successive elections.




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Libya officials pledge new constitution, Gaddafi role unclear
Drew Singer on April 10, 2011 10:22 AM ET

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[JURIST] Libyan officials on Sunday promised a new constitution and "a Libyan form" of democracy, but provided no explanation as to what role current Libyan leader Muammar Gaddafi [BBC profile; JURIST news archive] might play in the new government. Libya currently has no constitution, but rather, is governed by a book Gaddafi wrote in the 1970s, as well as Gaddafi himself. Libyan Deputy Foreign Minister Khaled Kaim gathered the media after midnight [Reuters report] on Sunday and indicated that the decision is an attempt to force the opposition's hand, alleging that they are more interested in obtaining power for themselves than actually establishing a democracy.

The announcement comes less than two days after a UN announcement that investigators would enter Libya next week [JURIST report] to begin looking into alleged human rights abuses by both rebels and Gaddafi's armed forces. The inquiry into the conditions in Libya had been approved by a unanimous vote [JURIST report] of members of the UN Human Rights Council on February 25. The three-person team will be led by Cherif Bassiouni [official profile], who indicated that Libyan officials know that the investigative team will be arriving in Libya [Reuters report] next week. The panel will cooperate with the International Criminal Court [official website], which last month opened its own investigation [JURIST report] into alleged abuses in Libya.




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US jury acquits anti-Castro militant on perjury charges
Maureen Cosgrove on April 9, 2011 12:05 PM ET

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[JURIST] A federal jury on Friday acquitted anti-Castro Cuban militant Luis Posada Carriles [BBC profile; JURIST news archive] of charges of lying to federal immigration officials. He was indicted [Miami Herald report] before the US District Court for the Western District of Texas [official website] on two counts of perjury and nine counts of making false statements regarding his involvement in the bombing of tourist attractions in Havana [WP report] in 1997 and the 1976 bombing of a Cuban airliner [ASN backgrounder]. US District Judge Kathleen Cardone suspended the trial several times [Miami Herald report] following mistrial motions filed by Posada's attorney, who accused a government witness of lying on the stand and alleged that the prosecution delayed delivery of important documents. The trial, which lasted 13 weeks and included testimony from 33 witnesses, ended after jurors deliberated for just three hours. Prosecuting attorneys will attempt to have Carriles extradited [BBC report] to Venezuela for further proceedings.

Venezuela and Cuba have sought Posada's extradition under the International Convention for the Suppression of Terrorist Bombings and the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation [texts] on charges related to the bombings. In April 2009, Venezuela renewed its extradition request hoping the Obama administration would be more open to extradition [JURIST reports] following an indictment [court materials; WSJ report] ordering Posada to stand trial in Texas. Citing the UN Convention Against Torture [text], the US has refused to extradite Posada in the past [JURIST report], saying that he cannot be sent to either Venezuela or Cuba because he is likely to be tortured if extradited to either country. Cuba countered that claim during a November 2008 UN Security Council meeting [press release], pointing to Abu Ghraib and Guantanamo Bay [JURIST news archives] and arguing that while the likelihood of torture in Cuba is speculative, the likelihood of torture in the US is not.




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US House votes against net neutrality regulations
Erin Bock on April 9, 2011 11:48 AM ET

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[JURIST] The US House of Representatives voted on Friday to overturn regulations aimed at preserving the Internet as a free and open platform of communication. The Federal Communications Commission (FCC) [official website] approved the regulations last year [JURIST report], which prevent Internet providers from selectively blocking web access. The House voted 240-179 [Reuters report] in favor of a resolution that blocks the regulations. House Majority Leader Eric Cantor (R-VA) [official website] applauded the passage [statement] as "an important step" for House republicans:
These regulations give the government unwarranted authority to control broadband networks which ultimately will hinder a thriving industry, harm competition and stifle innovation...The passage of this resolution is part of House Republicans' pro-growth agenda to give business people in this county the chance to grow, innovate and compete so that people can get back to work.
House Minority Leader Nancy Pelosi (D-CA) [official website] criticized the resolution [statement], stating that it "will not become law" and that it hinders competition amongst service providers and revokes "basic consumer protections."

On Monday, the US Court of Appeals for the District of Columbia Circuit [official website] granted a motion by the FCC to dismiss [JURIST report] a challenge to the new net neutrality rules. The court dismissed the appeal for improper timing because the challenged rulemaking document has yet to be published in the Federal Register [official website]. The challenges were filed by Verizon and MetroPCS [JURIST reports] in January out of concern over the broad authority the regulations would grant to the FCC. A previous court ruling found that the FCC lacks the power to enforce net neutrality [JURIST report]. Net neutrality is thought by supporters to be essential to the goal of an open flow of information over the Internet regardless of the amount of revenue generated by the information.




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US State Department releases 2010 annual rights reports
Dwyer Arce on April 9, 2011 8:46 AM ET

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[JURIST] The US Department of State (DOS) [official website] on Friday released the 2010 Country Reports on Human Rights Practices [materials]. The report outlined three prevailing trends that shaped human rights in 2010. These included the growth of nongovernmental organizations (NGOs), the increase in access to the Internet and mobile phones, and the continuing escalation of violence, persecution and discrimination. The report also noted that the impact of the ongoing protests in the Middle East and North Africa [BBC backgrounder] on international human rights could not be known:
[W]e cannot predict the outcome of these changes, and we will not know the lasting impacts for years to come. The internal dynamics in each of these countries are different, so sweeping analysis of the entire region is not appropriate. In places like Tunisia and Egypt, we are witnessing popular demands for meaningful political participation, fundamental freedoms, and greater economic opportunity. These demands are profound, they are homegrown, and they are being driven by new activists, many of them young people. These citizens seek to build sustainable democracies in their countries with governments that respect the universal human rights of their own people. If they succeed, the Middle East region, and with it the whole world, will be improved.
In Africa, the report noted the "generally free and fair" presidential elections [JURIST report] in Benin [materials], but that local and municipal elections were replete with irregularities and that the country still faced vigilante violence, police abuse and female genital mutilation. In Kenya [materials], despite the enactment of a new constitution following a free and fair national referendum [JURIST reports], the country still faces corruption, ethnic violence, discrimination and police abuse. In Somalia [materials; JURIST news archive], the report outlined progress, particularly in the autonomous regions of Somaliland and Puntland, in addition to rights set backs under the Transitional Federal Government in Mogadishu.

In East Asia and the Pacific, the report noted a downward trend in human rights in China [materials]: "the government took additional steps to rein in civil society, particularly organizations and individuals involved in rights advocacy and public interest issues, and increased attempts to limit freedom of speech and to control the press, the Internet, and Internet access." DOS also pointed to the detention of Liu Xiaobo [JURIST report] and ongoing corruption, widespread censorship, extrajudicial killings and a lack of due process. In Myanmar [materials], DOS accused the military government of severe human rights abuses, including "extrajudicial killings, custodial deaths, disappearances, rape, and torture," and the failure to investigate a 2003 attack on opposition leader Aung San Suu Kyi [JURIST news archive].

In Europe and Eurasia, DOS criticized France, Germany, Switzerland and Italy [materials] for their treatment of the Roma minority and the Swiss ban on minarets [JURIST reports]. Turkey [materials] also faced criticism over the rights of minorities, but noted improvement in rights as Turkey attempts to reform its constitution and join the EU [JURIST reports]. Azerbaijan [materials] faced human rights issues, particularly relating to the arrests of prominent journalists [JURIST report].

In the Near East and North Africa, DOS found the recent protests and uprisings in Egypt, Libya, Tunisia, Bahrain and Yemen [materials] had an ambiguous impact on human rights in the region, particularly in the context of the government overthrows in Egypt and Tunisia [JURIST reports]. The report also pointed to the ongoing extrajudicial killings, arbitrary detentions, police and military abuses and restrictions on freedom of expression.

In South and Central Asia, the governments of Afghanistan and Pakistan [materials] were criticized for their conduct in the war against the Taliban and al Qaeda. The presidential elections in Afghanistan [JURIST report] were marred by significant irregularities and voter intimidation, according to DOS. In contrast, the 2008 Pakistani elections [JURIST report] were "competitive and reflective of the people's will," restoring democratic rule and leading to some human rights progress. Kyrgyzstan [materials] still faced significant rights issues and ethnic violence despite the overthrow of an authoritarian government and the passage of a new constitution [JURIST reports].

In the Western Hemisphere, the report criticized the governments of Cuba and Venezuela [materials] for harassment by authorities, abuse, and threats against political opponents by state security officials acting with impunity. Following free and fair elections in Honduras [materials], which was the first after the overthrow of president Manuel Zelaya [JURIST report], the Honduran government has attempted to address human rights concerns that had arisen out of the coup. Haiti [materials] faced significant human rights abuses, especially following the breakdown of government control [JURIST report] following the January 2010 earthquake.

The DOS issues its yearly reports on human rights practices to Congress under a legal mandate [22 USC § 2151n], and has filed similar reports for 2009, 2008, 2007, 2006, 2005, 2004, 2003, 2002 [JURIST reports] and previous years. The 2010 report marks the 35th year of the report.




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Human rights organizations criticize rampant abuses in Bahrain
John Paul Putney on April 8, 2011 3:00 PM ET

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[JURIST] Human rights organizations including Human Rights Watch (HRW) and Doctors Without Borders (DWB) [advocacy websites] criticized [HRW press release; DWB press release] Bahrain on Friday for rampant human rights abuses related to anti-government protests. HRW deputy Middle East director Joe Stork criticized the island kingdom for using the emergency law to trample on human rights and create a state of fear. In a report [text, PDF] released on Thursday, DWB revealed that military-inflicted wounds were being used to identify protesters in hospitals for arrest and denial of medical care, leading many injured to avoid seeking medical care. DWB general director Christopher Stokes expressed frustration:
The action by the military to declare the hospital a legitimate military target, and the use of the health system as a tool by the security apparatus, completely ignores and undermines the fact that all patients have a right to treatment in a safe environment, and that all medical staff have a fundamental duty to administer treatment without discrimination
HRW cited reports of 430 missing and detained persons who remain unaccounted for by the government.

Last month, six opposition leaders were arrested [JURIST report] in Bahrain after the government, backed by foreign troops from the Gulf Cooperation Council (GCC) [official website], violently dispersed protesters in the capital of Manana. Days earlier, Bahraini King Hamad bin Isa Al Khalifa [official website] declared [JURIST report] a three-month state of emergency [decree text, in Arabic] in response to growing unrest in the island nation. The state of emergency came just days after a group of 22 Bahraini lawmakers, part of an independent pro-government bloc, called on the King to impose martial law [JURIST report] under articles 36 and 123 of the Bahraini Constitution [text, PDF]. Also last month, the member states of the GCC, which includes Bahrain, Saudi Arabia, Kuwait, Oman, Qatar and the UAE, deployed troops to Bahrain [BBC report] for the purpose of guarding oil installations and financial institutions. The Bahraini government's response to the ongoing protests have prompted international concern. In February, UN Secretary-General Ban Ki-moon [official profile] called for an end to violence against protesters [JURIST report] in the country, referencing attempts to quell protests sweeping across the region.




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Wisconsin AG sues judge, calls for state Supreme Court intervention
Drew Singer on April 8, 2011 2:17 PM ET

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[JURIST] Wisconsin Attorney General J.B. Van Hollen [official website] on Thursday filed a filed a Petition for Supervisory Writ [text, PDF] directly to the state Supreme Court over a circuit court judge's temporary blocking [JURIST report] of a controversial bill that limits the rights of public employee unions. The suit claims that Dane County Circuit Court [official website] Judge Maryann Sumi did not have the constitutional authority to block the publication of the Budget Repair Bill [Senate Bill 11 text, PDF]. It then asks the Wisconsin Supreme Court [official website] to immediately take jurisdiction of the case and dismiss it. A Petition for Supervisory Writ is not a direct appeal of any lower court decision, but rather a procedure that starts a new action altogether [Wis. Stat. 809.70 text] because the petitioner claims a judge violated his or her constitutional authority.

Last month, Sumi issued an order [JURIST report] clarifying that the temporary restraining order issued March 18 prohibits not only publication of the bill, but implementation of its provisions as well. Sumi's order was issued in response to debate among government officials [JURIST report] that the law went into effect after it was published on the Wisconsin Legislative Bureau's website. The lawsuit [complaint, PDF] over the bill alleges that Republican lawmakers did not follow the state's open meetings law [text], a rule requiring 24 hours notice—or two hours if there is an emergency—before a public meeting. District Attorney Ismael Ozanne [official website] filed the complaint [JURIST report] in an attempt to invalidate the law, which strips public unions of the vast majority of their collective bargaining right.




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Arizona House approves bill allowing guns on university campuses
LaToya Sawyer on April 8, 2011 2:07 PM ET

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[JURIST] The Arizona House of Representatives [official website] approved a bill [text] on Friday that would allow lawful possession of guns on the public-right-of ways of university campuses. The 33-24 House vote follows Senate approval of the bill after it was amended to prohibit allowing guns inside campus buildings. Supporters of the bill assert that the constitutional right to bears arms should still be upheld on campuses, and that the bill will help people on college campuses to defend themselves in the case of a campus shooting. Opponents of the bill are concerned with putting campus police in danger if a shooting were to occur. Opponents also express fear about guns being on campus when students are emotional due to the stress of grades, exams and other situations. The bill will now be passed on to Governor Jan Brewer [official website]. If Brewer approves the bill, Arizona will become the second state, after Utah, to allow guns on college campuses.

This bill's approval comes shortly after Arizona's January shootings, during which six people were killed [JURIST report] and 13 were wounded, including a federal judge and US Congresswoman Gabrielle Giffords (D-AZ) [official website]. Last month, in response to the shootings, President Barack Obama called for a greater enforcement of gun laws [JURIST report] in order to minimize gun violence. However, Arizona, known as one of the most liberal gun law states [Arizona Republic report] in the nation, is working to loosen even more gun law restrictions. Last year, Arizona passed a law allowing people to carry concealed weapons on their body without a permit [Arizona Republic report]. Gun owners may also carry their weapons inside the state Capitol and in other government buildings. Currently, at least ten other pieces of gun-related proposals are pending in the Arizona legislature.




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Kenya leaders appear before ICC to face allegations of inciting violence
Michael Haggerson on April 8, 2011 1:42 PM ET

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[JURIST] Three Kenyan officials made an initial appearance before the International Criminal Court (ICC) [official website] on Friday and were notified of the charges pending against them [materials, PDF; press release], stemming from violence surrounding the December 2007 Kenyan elections [JURIST news archive]. The charges against the men under the Rome Statute [text] of the ICC include rape, murder, forcible deportation and persecution. The purpose of the hearing was to verify the identity of the suspects, inform them of their rights under the Rome statute and to ensure that they were informed of the pending charges. Uhuru Muigui Kenyatta, current Deputy Prime Minister and Minister of Finance, was among those appearing before the court, and is accused of conspiring with the Mungiki criminal organization [Safer Access backgrounder, PDF] to target members of an opposing political party. During the hearing the presiding judge also noted that the court was aware of reports of efforts within Kenya to reignite the violence, and stressed that "retriggering the violence in Kenya, by way of delivering dangerous speeches" would not be tolerated and would result in "drastic measures," including issuing arrest warrants if court procedures are not followed [JURIST report]. The court is scheduled to hold a confirmation of charges hearing in September in order to determine whether there is sufficient evidence against the suspects to continue to trial.

Three Kenyan leaders connected with the opposing political party appeared before the ICC [JURIST report] on Thursday for their alleged roles in the election violence. Together the two groups of suspects are known as the "Ocampo Six" and their hearings were separated based upon political party affiliation. The men brought before the ICC on Thursday are members of the Orange Democratic Movement (ODM) [party website] and were charged with targeting members of the opposing Party for National Unity (PNU) following the election of Kenyan President Mwai Kibaki [official profile], which they claimed was rigged. All six suspects are believed to have fomented violence, rape and destruction of property during the 30 days of post-election violence, and the ICC summoned the suspects [JURIST report] after determining they were not charged in Kenya for the alleged crimes. Last week, Kenya requested that the ICC dismiss the case [JURIST report], arguing that the government is capable of prosecuting the six men domestically. The Kenyan government also announced last month that it would challenge the admissibility of cases [JURIST report] relating to the post-election violence in the ICC, as well as the jurisdiction of the court.





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Egypt protesters demand swifter prosecution of Mubarak regime
Alexandra Malatesta on April 8, 2011 12:55 PM ET

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[JURIST] Tens of thousands of Egyptians gathered in Tahrir Square on Friday to demand the prosecution of former Egyptian president Hosni Mubarak [Al Jazeera profile], his family, and members of his regime. The protests reveal Egyptians' growing frustration with the pace at which the current military council is pursuing the punishment of the regime's political corruption [JURIST reports]. Predominantly organized by Egypt's Revolution Youth Coalition, an activist group formed in honor of a young protester [BBC backgrounder] killed by Egyptian police, the protest, dubbed "Friday of Purification and Trial," is the largest organized rally since Mubarak resigned from office [video, JURIST report] in February. Authorities announced [AP report] they have recently questioned Mubarak's former chief of staff, Zakaria Azmy, who remains in jail pending further investigation [Ahram report], and plan to question former ruling party chief, Safwat el-Sharif.

Egypt has been heavily criticized by rights groups and international organizations for its handling of protesters. In February, Amnesty International (AI) [advocacy website] reported new evidence that the Supreme Military Council of Egypt had been torturing protester-detainees [JURIST report]. Through various detainee accounts, AI stated that individuals were tortured "to intimidate protesters and to obtain information about plans for the protests." Also in February, Human Rights Watch (HRW) [advocacy website] reported that the Egyptian military was improperly detaining protesters and allowing prisoner abuse [JURIST report]. The report calculated at least 119 arbitrary detentions and five incidents of torture, providing detainee accounts. HRW contends that the military was targeting human rights activists, protesters and journalists. In January, UN officials including Secretary-General Ban Ki-moon and High Commissioner for Human Rights Navi Pillay [official websites] urged the Egyptian government to exercise restraint [JURIST report] and respect the rights of protesters.




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UN to investigate alleged human rights abuses in Libya
Brian Jackson on April 8, 2011 10:12 AM ET

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[JURIST] The UN announced Friday that investigators would enter Libya next week to begin looking into alleged human rights abuses by both rebels and the armed forces of leader Muammar Gaddafi [BBC profile; JURIST news archive]. The inquiry into the conditions in Libya had been approved by a unanimous vote [JURIST report] of members of the UN Human Rights Council on February 25. The three-person team will be led by Cherif Bassiouni [official profile], who indicated that Libyan officials know that the investigative team will be arriving in Libya [Reuters report] next week. The panel will cooperate with the International Criminal Court (ICC) [official website], which last month opened its own investigation [JURIST report] into alleged abuses in Libya.

The eruption of violence in Libya has sparked outrage over alleged abuses by Gaddafi's forces and controversy regarding the proper role of other nations in Libyan affairs. Last month, the ICC's chief prosecutor announced that Libyan officials could face war crimes charges [JURIST report] for attacks on civilians. Earlier in the month, the UN Human Rights Council voted to suspend Libya, which had been a member of that body. With regard to NATO military activity, commentators have argued that military intervention in Libya is contrary to international law [JURIST op-ed]. In the US, one lawmaker proposed legislation that would immediately halt US activities [JURIST report] in enforcing a no-fly zone over Libya, stating that President Barack Obama lacked authority to utilize American forces for that role.




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Alabama House approves bill banning abortion after 20 weeks
Andrea Bottorff on April 8, 2011 10:01 AM ET

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[JURIST] The Alabama House of Representatives [official website] voted 69-19 [roll call] Thursday to approve a bill [HB 18, PDF] that would ban abortion [JURIST news archive] after 20 weeks of gestation, except in cases where the mother's life is at risk or she faces serious injury. The bill is based on evidence suggesting that a fetus can feel pain after 20 weeks [Reuters report] and would require doctors to measure the age of a fetus before performing an abortion. A doctor who performs an abortion in violation of the time limit would be subject to criminal prosecution for a felony, but there would be no penalty for the woman undergoing the procedure. The bill includes additional provisions allowing civil suits to be filed for "actual damages" against the doctor performing the procedure by a woman upon whom an abortion is attempted or performed, or by the father of the unborn child if an abortion is performed. The bill also allows various parties to pursue civil remedies:
A cause of action for injunctive relief...may be maintained by the woman upon whom an abortion was performed or attempted to be performed in violation of this act, by any person who is the spouse, parent, sibling, or guardian of, or a current or former licensed health care provider of, the woman upon whom an abortion has been performed or attempted to be performed in violation of this act, by a district attorney with appropriate jurisdiction, or by the Attorney General.
The bill protects the woman's anonymity in any court proceeding resulting from the proposed abortion law. The Alabama Senate [official website] will review the bill.

Alabama's House bill is part of a wave of acts passed by state legislatures since the November elections aimed at restricting abortions. On Wednesday, the Ohio Senate [official website] approved a bill [JURIST report] that would limit the availability of abortions after 20 weeks. A day earlier, the Idaho legislature [official website] gave final approval to a bill [JURIST report] that would prohibit most abortions after 20 weeks. Last week, the Iowa House of Representatives [official website] approved a bill [JURIST report] that would prohibit doctors from performing late-term abortions in the state. Last month, the Kansas Senate [official website] approved legislation restricting late-term abortions, after the House of Representatives approved the measure [JURIST reports] in February. Bills proposing similar abortion restrictions were also approved last month in the Missouri House of Representatives and the Oklahoma House of Representatives [JURIST reports]. Also last month, South Dakota Governor Dennis Daugaard [official website] signed into law [JURIST report] a bill requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion.




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Bosnia war crimes victims submit evidence against former Serbian officials
Carrie Schimizzi on April 8, 2011 8:36 AM ET

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[JURIST] Bosnian war crimes victims on Thursday submitted evidence to the Prosecutors Office for Bosnia and Herzegovina (BiH) [official website] accusing three former members of the Serbian Supreme Council of war crimes committed during the 1992-95 Bosnian civil war [JURIST news archive]. Former Yugoslav presidents Zoran Lilic and Dobrica Cosic and the former president of Montenegro Momir Bulatovic have been accused of ordering an arms increase [AP report] for the Serbian army during the war in BiH. It is unclear whether the allegations, submitted by an association of Bosnian wartime camp inmates, will warrant charges to be filed against the three former Serbian leaders.

Last month, in an unprecedented civil decision, a French court awarded [JURIST report] a Bosnian family 200,000 euros (USD $280,000) for wartime abuses committed by former Bosnian Serb leaders Radovan Karadzic and Biljana Plavsic [JURIST news archives]. The court's ruling may pave the way for victims of war crimes to obtain civil compensation from war criminals without a criminal trial. Karadzic faces 11 war crimes charges [indictment, PDF], including counts of genocide and murder, for alleged crimes he committed during the war in BiH. Karadzic is defending himself in the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] and has denied all of the charges against him. After multiple suspensions [JURIST reports], Karadzic's trial is expected to last through 2012. In 2009, Plavsic was released [JURIST report] from a Swedish prison after serving two-thirds of her sentence for war crimes committed between July 1991 and December 1992. Plavsic voluntarily surrendered herself to the ICTY in 2001 and was sentenced to 11 years in a Swedish prison. The ICTY agreed to grant her release [JURIST report], citing good behavior and "substantial evidence of rehabilitation."




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Turkish authorities replace prosecutors in coup plot trials
Julia Zebley on April 7, 2011 1:32 PM ET

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[JURIST] Turkish authorities on Thursday replaced lead prosecutors in the Ergenekon coup [BBC backgrounder; JURIST news archive] investigations in response to criticism. The probe has resulted hundreds of arrests, with people awaiting or on trial, but has not yet delivered any verdicts. Among the hundreds arrested are 163 active and retired military officers. On Wednesday, the Turkish Armed Forces (TAF) [official website, in Turkish] criticized [press release, in Turkish] the slow pace of the trials and exonerating evidence being ignored. Several officers have been jailed due to their connection to a military seminar conducted at the time of the coup, which the TAF contends was unrelated:
The Turkish Armed Forces, which has avoided involvement in any action which would be interpreted as an intervention in an ongoing judicial process, has repeatedly explained what that seminar is, what it included and who joined the seminar with which instruction by delivering statements and informing the related authorities in a way so as not to affect the judiciary. ... While the picture is like this, it is hard to understand the continued detention of 163 active and retired Turkish Armed Forces personnel.
Representatives of the ruling Justice and Development Party (AKP) [party website] and the Grand National Assembly [official website, in Turkish] were displeased [AP report] with the TAF's comment. The prosecutor switch was announced a month ago, a rumored reaction to recent arrests of journalists in February and March that have caused a UN rebuke [JURIST reports]. Turkey's detention of journalists was analyzed in the JURIST op-ed Justice Must be Brought to Turkish Journalists.

Trials of military and naval officials have been ongoing since December 2010 and June 2009, while detainment and trial of some suspects has been continuous since 2008 [JURIST reports]. Suspects are accused of attempting to overthrow the government and establish military rule in another plot planned by a group called Ergenekon. The group 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 AKP. Prosecutors in the case will attempt to link 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. The investigations have strained relations between the religiously-inclined government and the secular military, which has been responsible for four coups in the last 50 years. Since the founding of the modern republic in 1923, the military has regarded itself as the defender of the secular legacy of founder Mustafa Kemal Ataturk [Turkish News profile].




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Kenya leaders appear before ICC to deny charges of ethnic killings
Dan Taglioli on April 7, 2011 1:32 PM ET

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[JURIST] Three prominent Kenyans appeared before the International Criminal Court (ICC) [official website] in The Hague on Thursday to hear the charges [materials] against them in connection with the violence that followed [JURIST news archive] the December 2007 Kenyan general elections. Facing charges including murder, deportation, rape, inhumane acts, persecution and torture, the two suspended government ministers and one radio executive denied the allegations of stirring up ethnic hatred that left at least 1,200 people dead and half a million others forced from their homes. The three men are half of the group being called the Ocampo Six that allegedly orchestrated the violence, with the remaining three men facing similar proceedings in the ICC on Friday. The ICC has divided the group according to political allegiances, since the men are accused of fomenting violence from each side of the unrest that resulted after supporters of President Mwai Kibaki were accused of rigging the 2007 election. The violence ended when Kibaki and his rival Raila Odinga agreed to share power by making Odinga prime minister, and to prosecute perpetrators of the violence either in Kenya or The Hague.

Last week, Kenya submitted requests [JURIST report] to the ICC to dismiss the cases [motion, PDF] against the six Kenyans. Kenyan authorities emphasized that "the ICC's jurisdiction [is] complementary to national criminal jurisdictions" and argued that, with its new constitution and reformed judicial system, Kenyan officials are capable of prosecuting the cases domestically. However, the ICC summoned the six suspects [JURIST report] last month after determining that Kenyan authorities had failed to try the cases at home. On Thursday, presiding judge Ekaterina Trendafilova echoed earlier warnings by ICC Chief Prosecutor Luis Moreno-Ocampo [official profile] to the six Kenyan suspects that the summonses would be altered and arrests would ensue if they did not comply [JURIST report] with the court's conditions, including prohibitions on speeches that may incite more bloodshed in Kenya.




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Arkansas high court upholds decision to strike gay adoption ban
Jennie Ryan on April 7, 2011 1:12 PM ET

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[JURIST] The Arkansas Supreme Court [official website] on Thursday upheld [opinion, PDF] a lower court decision invalidating a state ban on adoptions by same-sex couples. The court affirmed the decision of the Pulaski County Circuit Court [official website] invalidating Act 1 [ACLU backgrounder], a state law which prohibits all unmarried couples from adopting or fostering children in the state. The court held that the "fundamental privacy rights, which are implicit in the Arkansas Constitution, are substantially and directly burdened by Act 1's prohibition against the ability of cohabiting sexual partners to foster or adopt children." The American Civil Liberties Union (ACLU) [advocacy website], which brought the suit on behalf of 20 individuals claiming the law unfairly discriminated against them, welcomed the ruling [press release], calling it "a relief for the over 1,600 children in the state of Arkansas who need a permanent family."

The original suit was filed after the law was criticized for effectively denying all gay couples the right to adopt or foster a child because Arkansas does not recognize gay marriage. The lower court made its decision to strike down Act 1 last year after the law was passed by ballot initiative in November 2008 following certification [JURIST reports] the previous August. The measure followed a 2006 Arkansas Supreme Court decision [text, PDF] that struck down an administrative regulation [JURIST report] specifically prohibiting homosexuals from rearing foster children. Reacting to that decision, then-governor Mike Huckabee suggested that such a ban be implemented through legislation [JURIST report]. Arkansas, like many states, has amended its constitution to prohibit the recognition of same-sex marriages [JURIST news archive].




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Federal judge sentences Somali pirate to 25 years in prison
Alexandra Malatesta on April 7, 2011 1:03 PM ET

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[JURIST] A Somali pirate was sentenced by the US District Court for the District of Columbia [official website] on Thursday to 25 years in prison [press release, PDF] for attacking a Danish ship off the coast of Somalia in 2008, for which he and other pirates received a $1.7 million ransom. US Department of Justice (DOJ) [official website] officials say Jama Idle Ibrahim, who pleaded guilty [press release, PDF] last year to conspiracy to commit piracy and conspiracy to use a firearm during a violent crime, and other Somali men were armed with AK-47s and rocket-propelled grenades when they seized the Danish vessel M/V CEC Future and held its 13-member crew for ransom. Ibrahim's sentence will run concurrent with the 30-year sentence [JURIST report] he received in November, stemming from a failed assault on the Navy's USS Ashland.

In November, a federal jury in Virginia convicted [JURIST report] five Somali men on charges of piracy for their roles in an April attack on the USS Nichols. In August, piracy charges against Ibrahim and five other defendants were dismissed [JURIST report] when federal Judge Raymond Jackson ruled that piracy, as defined by the law of nations, does not include violence or aggression committed on the high seas, and rejected the government's argument for an expanded reading of the statute. Piracy remains an issue of international concern, as few countries have been willing to prosecute suspected pirates. The few that have attempted to do so include Germany, Seychelles, the Netherlands, Mauritius, Yemen, Somalia and Spain [JURIST reports].




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Rights group urges Serbia to halt Roma evictions
Michael Haggerson on April 7, 2011 12:20 PM ET

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[JURIST] Amnesty International (AI) [advocacy website] on Thursday urged Serbian authorities to halt the forced evictions [report, PDF; press release] of Roma [JURIST news archive] in Belgrade and provide them with adequate housing and compensation. The AI report alleges that Roma living in these informal settlements, approximately one-third of the Belgrade Roma population, are denied access to water, sanitation and other basic services "that are vital to human rights—including education, health, social insurance and employment." Approximately 17 percent of the Roma population in Serbia fled the 1999 war in Kosovo [CBD backgrounder], and the report states that these people have no choice but to live in informal settlements. The report further contends that a majority of the evictions result from projects funded by the European Bank for Reconstruction and Development (EBRD) and the European Investment Bank (EIB) [official websites]. AI alleges that, as a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR) [text], Serbia is in violation of its obligation to protect and provide adequate housing:
Amnesty International considers that the Serbian government has failed to comply with its obligations under international and regional human rights treaties to prohibit, prevent and end forced evictions. These forced evictions have primarily affected Roma communities living in informal settlements, one of the most marginalized communities in Serbia. ... Some forcibly evicted Roma have not been offered any alternative housing, while others have been provided with inadequate housing, which fails to meet international standards.
AI concluded the report with recommendations for the Serbian government as well as the EBRD and the EIB. Friday marks the International Day of the Roma

The Roma have faced discrimination [JURIST comment] throughout Europe. In March, AI released a similar report alleging rights violations against Roma in Slovenia [JURIST report]. In November, rights groups Open Society Justice Initiative, European Roma Rights Centre and Greek Helsinki Monitor [advocacy websites] issued a complaint [text, PDF] alleging that the Czech government had failed to comply [JURIST report] with a European Court of Human Rights [official website] decision [JURIST report] which determined that the Czech Republic government was discriminating against Roma children. In October, the League of Human Rights [advocacy website, in French] accused the French government of improperly collecting DNA samples [JURIST report] from Roma that had not been either arrested or charged with a crime. In September, AI urged EU members to stop forcibly deporting [JURIST report] Roma migrants to Kosovo. In August, the UN Committee on the Elimination of Racial Discrimination [official website] released a report [text; JURIST report] "express[ing] concern over the difficult situation members of the Roma community were facing with regard to their economic, social and cultural rights" in EU countries.




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Ohio Senate approves bill limiting abortion after 20 weeks
Daniel Richey on April 7, 2011 10:39 AM ET

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[JURIST] The Ohio Senate [official website] on Wednesday approved a bill [SB 72 text, PDF] that would limit the availability of abortions [JURIST news archive] after 20 weeks. The act, which was approved 24-8 by the Republican-dominated assembly, requires doctors to determine the viability of the fetus and seek a second opinion as to whether the child is capable of surviving outside of the womb. In the event that the fetus is viable, an abortion would only be made available if the woman faced "death or a substantial and irreversible impairment of a major bodily function." The Senate bill comes little more than a month after a legislative committee in the Ohio House of Representatives [official website] advanced [Columbus Dispatch report] the "Heartbeat Bill," [HB 125 text], which would ban abortions after the point at which a fetus's heartbeat becomes detectable in the womb. Ohio Right to Life [advocacy website], which strongly supports the Senate bill, has opposed the Heartbeat Bill on the grounds that it is likely to be overturned by courts due to Roe v. Wade [opinion text].

Ohio's Senate bill is part of a wave of acts passed by state legislatures since the November elections aimed at restricting abortions in the wake of disputed medical evidence that suggests that fetuses can feel pain after 20 weeks [Reuters report]. On Tuesday, the Idaho legislature [official website] gave final approval to a bill [SB 1165 text, PDF] that would prohibit most abortions after 20 weeks. Last week, the Iowa House of Representatives [official website] approved a bill [JURIST report] that would prohibit doctors from performing late-term abortions in the state. Last month, the Kansas Senate [official website] approved legislation restricting late-term abortions, after the House of Representatives approved the measure [JURIST reports] in February. Also last month, South Dakota Governor Dennis Daugaard [official website] signed into law [JURIST report] a bill requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion. The Missouri House of Representatives [official website] in March voted in favor of legislation restricting late-term abortions [JURIST report] and imposing penalties on doctors who fail to comply with the new restrictions. The legislation, which is slated to become effective at the end of August, bans abortions of "viable" fetuses. The Oklahoma House of Representatives [official website] also voted in March to approve a bill that would ban abortion after 20 weeks of gestation [JURIST report].




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Federal appeals court denies new trial for ex-Enron CEO
Sarah Paulsworth on April 7, 2011 9:01 AM ET

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[JURIST] The US Court of Appeals for the Fifth Circuit [official website] ruled [opinion, PDF] Wednesday that errors in the prosecution's case against former Enron CEO Jeffrey Skilling [JURIST news archives] are harmless, denying Skilling a new trial. The court, however, went on to vacate the original sentence against Skilling and remand for resentencing due to lower court error. The appeals court said:
[The] five fraudulent schemes, which formed a large part of the basis for the Government's proof at trial, all represent efforts by Skilling and his coconspirators to manipulate Enron's reported earnings or conceal Enron's losses from the investing public with the intent and result of affecting Enron's stock price. Because they are supported by overwhelming evidence, we find that the honest-services instruction was harmless error beyond a reasonable doubt.
The court also said that the Pinkerton instruction [USLegal backgrounder] given to the jury was harmless error, and, therefore, Skilling "has no basis on which to challenge the remaining convictions." Skilling's lawyer has said he will continue efforts to overturn [BBC report] Skilling's convictions.

In June, the US Supreme Court [official website] ruled [opinion, PDF] in Skilling v. United States [Cornell LII backgrounder] that the "honest services" doctrine [18 USC § 1346 text] is not unconstitutionally vague [JURIST report] under a limited construction of the statute and that the district court adequately "detected and diffused" juror prejudice in the pre-trial publicity of Skilling. In February 2009, the Fifth Circuit denied [JURIST report] a petition for an en banc rehearing for Skilling after a three-judge panel upheld [JURIST report] his previous convictions and ordered him to be resentenced due to error in the lower court. Skilling's appeal was based on a previous Fifth Circuit ruling [JURIST report] that overturned convictions for other Enron executives based on "honest services theft" because they had acted in Enron's best interest by direction and did not profit from their actions. The panel ruled that Skilling's case differed from these previous rulings because "no one at Enron sanctioned Skilling's improper conduct" and because Skilling's compensation structure was aligned with Enron's earnings. In 2006, Skilling was convicted [JURIST report] of 19 counts of conspiracy, insider trading and securities fraud. He is currently serving a 24-year sentence. Skilling initially appealed [JURIST report] his conviction in September 2007 claiming prosecutorial and judicial errors.




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Alabama House approves Arizona-style immigration bill
Ann Riley on April 7, 2011 8:35 AM ET

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[JURIST] The Alabama State House of Representatives [official website] on Tuesday approved a bill [HB 56 text, PDF; materials] to create an illegal immigration [JURIST news archive] policy comparable to the controversial Arizona law [JURIST news archive]. The bill, approved by a vote of 73-28, would grant state and local police broad powers to examine the immigration status of anyone detained, no matter what the charge. The bill also denies state services to illegal immigrants and requires businesses to check employees' immigration statuses through the E-Verify [official website] database. The legislation met opposition [Reuters report] from Democrats, who claim that immigration enforcement is the responsibility of the federal government and the additional crackdown would place pressure on Alabama's already strained budget. Civil rights groups remain concerned that the legislation would lead to racial profiling in a state with a sordid history of civil rights violations. The bill will now move to the Alabama Senate [official website] for a vote.

Several states have enacted or proposed legislation [JURIST reports] similar to the controversial Arizona immigration law. Last month, the Oklahoma State Senate [official website] approved [JURIST report] a bill that would give police officers the authority to question the citizenship status of any person lawfully stopped for a traffic violation and arrest them without a warrant if the officer has probable cause to believe the person is in the country illegally. Also in March, Utah Governor Gary Herbert [official website] signed into law [JURIST report] a package of bills aimed at both reforming the state's immigration laws and challenging the federal government to take action for reform nationally. In February, the Indiana Senate [official website] approved a bill [JURIST report] that would require individuals suspected of being illegal to provide proof of their legal status and calls for all public meetings, websites and documents to be in English only. The US Department of Justice (DOJ) [official website] filed suit [JURIST report] in July against Arizona Governor Jan Brewer [official website] seeking to permanently enjoin the state's immigration law. The complaint states that the law is preempted by federal law and therefore violates the Supremacy Clause [text] of the US Constitution. 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. It has been widely criticized in regard to the law's constitutionality and alleged "legalization" of racial profiling.




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Washington governor signs bill recognizing out-of-state same-sex marriages
Daniel Makosky on April 6, 2011 2:14 PM ET

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[JURIST] Washington Governor Chris Gregoire [official website] on Tuesday signed a bill [materials] recognizing out-of-state same-sex marriages [JURIST news archive] as legal domestic partnerships. House Bill 1649 amends current law [AP report] that acknowledges out-of-state domestic partnerships and civil unions, but excludes same-sex marriage. The Senate [official website] approved the bill by a 28-19 vote [Seattle Times report] last week after the House of Representatives [official website] passed the bill [JURIST report] by a similar margin earlier in the month. The bill will become effective 90 days after the close of the current legislative session.

In January, the Wyoming House of Representatives [official website] approved a bill [text, PDF] that would prevent Wyoming from recognizing [JURIST report] same-sex marriages and civil unions performed out-of-state. However, several states recognize out-of-state same-sex marriages. Earlier that month, New Mexico Attorney General Gary King [official website] issued an opinion stating that gay marriages from out of state would likely be legal [New Mexico Independent report] there. Last year, Maryland Attorney General Douglas Gansler [official website] declared that the state should recognize [JURIST report] same-sex marriages performed elsewhere. Same-sex marriage is currently legal in Massachusetts, Connecticut, Iowa, Vermont, New Hampshire and Washington, DC [JURIST reports].




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Berlusconi prostitution, abuse of power trial adjourns 10 minutes after opening
Sarah Posner on April 6, 2011 12:35 PM ET

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[JURIST] The trial for Italian Prime Minister Silvio Berlusconi [official website, in Italian; JURIST news archive] on charges that he paid an underage prostitute for her services was adjourned Wednesday only 10 minutes after opening in Milan. Berlusconi and Moroccan-born teenager Karima El Mahroug, known as Ruby, did not attend the trial. Berlusconi faces charges [Reuters] for abusing the power of his office and allegedly offering cash and jewels in exchange for sex with the 17-year-old Ruby, who is under the legal age of prostitution in Italy. In addition to the payments, Berlusconi also allegedly called police to secure Ruby's release while she was detained on an unrelated suspicion of theft. Both Ruby and Berlusconi maintain that the two never had sex, and Berlusconi denies the charges against him. Critics and supporters gathered outside the court [AP report] as the trial commenced. Berlusconi's trial is scheduled to resume on May 31.

Last month, Berlusconi attended a hearing in Milan [JURIST report] to defend himself against charges of fraud and embezzlement. Prior to that hearing, Berlusconi had not attended a case hearing for more than seven years. In February, an Italian judge ordered Berlusconi to stand trial [JURIST report] on the current charges of paying for sex with a minor and abuse of power. Berlusconi has denied any wrongdoing and has called the charges groundless. In January, the Italian Constitutional Court [official website, in Italian] held hearings and subsequently struck down [JURIST reports] portions of a law [materials, in Italian] backed by Berlusconi that would have granted the premier and other public officials temporary immunity from charges while in office.




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Idaho legislature passes late-term abortion ban
Dan Taglioli on April 6, 2011 12:12 PM ET

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[JURIST] The Idaho legislature [official website] on Tuesday gave final approval to a bill [SB 1165, PDF] that would prohibit most abortions [JURIST news archive] after 20 weeks of gestation. The "Pain-Capable Unborn Child Protection Act" is based on disputed medical evidence suggesting that a fetus can feel pain after 20 weeks [Reuters report], and would permit abortions after that time period only in cases where the mother's life is at risk or she faces serious injury. A doctor who performs an abortion in violation of the time limit would be subject to criminal prosecution for a felony, but there would be no penalty for the woman undergoing the procedure. The bill includes additional provisions allowing civil suits to be filed for "actual damages" against the doctor performing the procedure by a woman upon whom an abortion is attempted or performed, or by the father of the unborn child if an abortion is performed. Also made available by the bill as "civil remedies" are injunctions which can be sought by a range of parties:
A cause of action for injunctive relief . . . may be maintained by the woman upon whom an abortion was performed or attempted to be performed in violation of the provisions of this chapter, by any person who is the spouse, parent, sibling, or guardian of, or a current or former licensed health care provider of the woman . . ., by a prosecuting attorney with appropriate jurisdiction, or by the attorney general.
Regardless, there can be no damages assessed against the woman undergoing the procedure. Idaho Governor C.L. "Butch" Otter [official website] is expected to sign the approved legislation into law.

Since the November elections state legislatures across the country have been implementing measures to restrict abortions. Last week, the Iowa House of Representatives [official website] approved a bill [JURIST report] that would prohibit doctors from performing late-term abortions in the state. Last month, the Kansas Senate [official website] approved legislation restricting late-term abortions, after the House of Representatives approved the measure [JURIST reports] in February. Also last month, South Dakota Governor Dennis Daugaard [official website] signed into law [JURIST report] a bill requiring women to seek counseling at a pregnancy center and wait three days before obtaining an abortion. The Missouri House of Representatives [official website] in March voted in favor of legislation restricting late-term abortions [JURIST report] and imposing penalties on doctors who fail to comply with the new restrictions. The legislation, which is slated to become effective at the end of August, bans abortions of "viable" fetuses. The Oklahoma House of Representatives [official website] also voted in March to approve a bill that would ban abortion after 20 weeks of gestation [JURIST report].




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Rights group urges international community to probe Yemen deaths
Aman Kakar on April 6, 2011 11:34 AM ET

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[JURIST] Amnesty International (AI) [advocacy website] released a report [text; PDF] on Wednesday urging the international community to pressure Yemeni authorities to investigate the death of protesters. The report chronicles reports of beatings and use of excessive force by security forces including shootings of peaceful protesters. AI criticizes the response of authorities to the mounting death tolls as woefully inadequate. While investigations have been announced, they are being conducted by governmental bodies that do not have a mandate to carry out the judicial investigations and they are not likely to be successful. The report also alleges that security forces have used US-made tear gas and rubber grenades to violently repress the protesters. AI recommends that the international community provide Yemeni authorities with the support necessary for an effective and independent investigation into the human rights violations, suspend the supply and transfer of weapons that could be used for excessive force and ensure that the military and security support given to Yemen adheres to international human rights standards. The protests which have been fueled by frustration at corruption, unemployment and repression of freedoms have resulted in 94 deaths.

On Tuesday, the UN Office for the High Commissioner for Human Rights (OHCHR) [official website] also urged the Yemeni government [JURIST report] to discontinue using force against peaceful protesters. The Yemeni Parliament enacted several emergency measures [JURIST report] in March at the request of President Ali Abdullah Saleh [official website, in Arabic] in an effort to end anti-government protests. The new laws give the government greater power [AP report] to arrest and detain protesters and to censor the media. Protests, largely organized by the Joint Meeting Party (JMP), have been ongoing in Yemen since February, largely calling for Saleh to step down. Saleh has been in power since 1978 and is considered popular in Yemen and the international community. However, he and his party, the General People's Congress (GPC), have caused mounting political tensions due to attempts to remove presidential term limits [JURIST report] and expand their political power. In December, the parliament stoked outrage among opposition parties and independents when it amended the constitution [AFP report] to eliminate provisions requiring that opposition parties be represented on the high election commission. Although the government has maintained control in urban areas, the northern and southern parts of the country remain unlawful and dangerous, plagued by southern separatists groups and al Qaeda [JURIST news archive]. The protests in Yemen have been analyzed in two recent JURIST op-eds: Constitutional Enforcement in Tunisia, Yemen, and Egypt by L. Ali Khan, Professor of Law at Washburn University, and The Middle East protest movements: each with a story, all with uncertainty by Dr. Jonathan Schanzer, Vice President of Research, Foundation for Defense of Democracies [advocacy website].




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Virginia appeals court rules GPS tracking of sex offender did not violate Fourth Amendment
Matt Glenn on April 6, 2011 9:38 AM ET

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[JURIST] The Court of Appeals of Virginia [official website] on Tuesday upheld [opinion, PDF] a conviction where police officers used a GPS device to track the movement of a suspect in a string of sexual assaults without obtaining a warrant. The state's second highest appellate court failed to address whether the Fourth Amendment [text] generally requires a warrant in such a situation, ruling on narrower grounds [AP report] that the police would have had access to the same evidence they used to convict the suspect without the GPS device and thus the evidence of sexual assault was excepted from the fruit of the poisonous tree doctrine [Cornell LII backgrounder]. The suspect, David Foltz, was on probation for sexual assault and became a suspect after police noticed a strong similarity between assaults occurring at the time and those previously committed by Foltz. Foltz's only mode of transportation was a work van provided by his employer which Foltz was supposed to use only for work and probation-related meetings. The employer's records showed the van had been near the location of each recent assault. Officers then placed a tracking device on the van and tracked it to the location of a subsequent assault. Finally, police physically followed Foltz as he drove the van and arrested him as he attempted to assault another woman which led to the conviction upheld Tuesday. The court reasoned:
The assault the officers observed was a new and distinct offense from the previously committed crimes the officers were investigating, and sufficiently independent of any information obtained by them from the GPS tracking device. The officers' focus on appellant, a registered sex offender on probation, as the likely perpetrator of the recent sexual assaults did not begin with the placement of the GPS device on his assigned work van. They knew that appellant resided, worked, and attended probation-related meetings where the recent assaults occurred. They knew that the manner in which the perpetrator of the recent sexual assaults attacked those victims was "amazingly like" that appellant used in previous sexual assaults to which he had previously confessed. The additional information obtained from the GPS tracking of the van's locations near the scene of the latest attack was just one more piece of information to add to the already strong focus on appellant as the person responsible for the assaults. * * * We hold that the officers' observations of that criminal act were sufficiently attenuated from any argued taint arising from the placement and use of the GPS device to track the movements of appellant's assigned work van and that there is no basis in law to exclude the officers' eyewitness testimony of a violent assault being committed in their presence."
Two judges filed a concurring opinion, arguing that the court should address the Fourth Amendment issues raised in the case and concluding that did Foltz did not have a reasonable expectation of privacy in his employer's van that he was allowed to use only for limited purposes, especially since officers placed the GPS device on the van's bumper while it was parked on a public street. Tuesday's ruling upheld a decision [opinion] by a three-judge panel from the Court of Appeals of Virginia last year which held that placing the GPS on the employer's van did not violate Foltz's Fourth Amendment rights.

The use of GPS technology and other surveillance devices [JURIST news archive] by law enforcement agents has been a controversial issue in the US, with courts across the country coming to divergent conclusions. In December, the US Court of Appeals for the District of Columbia Circuit [official website] declined to rehear en banc [JURIST report] a bid by the DOJ to overturn a decision that prevents the government from using GPS technology to track suspects without a warrant. A Pennsylvania appeals court allowed use of evidence obtained with GPS technology [JURIST report] in December. In September, a three-judge panel for the US Court of Appeals for the Third Circuit [official website] ruled [opinion, PDF] that at times the government might need a warrant to obtain cell phone data [JURIST report] to track a person's location. Last year, the US Supreme Court unanimously held that, even if there is a reasonable expectation of privacy in work-issued electronic devices, that an employermsearch of private text messages does not violate [JURIST report] the Fourth Amendment so long as the search is not excessive and is pursuant to a legitimate work-related purpose.




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ICC prosecutor urges probe into recent Ivory Coast violence
Julia Zebley on April 6, 2011 8:36 AM ET

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[JURIST] International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] told reporters Tuesday that he is willing to investigate alleged war crimes in the Ivory Coast [BBC profile; JURIST news archive], but a lack of referrals is impeding the process. Moreno-Ocampo said that his office is "concerned" [press release] with recent reports of 1,500 casualties during the struggle to force Laurent Gbagbo [BBC profile] to cede power but conceded that the office does not have strong enough evidence to proceed:

The Ivory Coast is a member of the Rome Statute [text] which established the ICC, and other member states can refer a country's conduct for scrutiny by the court. Moreno-Ocampo said that this would be helpful in allowing his office's investigation to proceed and discussed a possible a referral from the Economic Community of West African States (ECOWAS) [official website], which counts the Ivory Coast as a member. ECOWAS issued a statement [text] on Tuesday "to express its horror at the reported massacre" in the Ivory Coast and "the use of unarmed civilians as human shield in areas of conflict." The ICC's profile on the Ivory Coast [ICC profile] does not contain recent allegations, but the Office of the Prosecutor [official website] lists the investigation as pending. It is reported that Gbagbo is attempting to leave the country [Reuters report] and has instructed his forces to quit fighting [UN News Centre report].

Last week, the International Committee of the Red Cross (ICRC) [official website] reported the deaths of at least 800 civilians [JURIST report] in the Ivory Coast town of Duekoue as a result of intercommunal violence that took place. Earlier, the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] urged all parties in the Ivory Coast to show restraint [JURIST report]. A spokesperson acknowledged unconfirmed reports that the Ivory Coast Republican Forces had "engaged in looting and extortion as well as serious human rights violations such as abductions, arbitrary arrests and ill-treatment of civilians" during their advance towards the country's capital of Abidjan. Last month, the OHCHR called for an independent investigation into post-election violence [JURIST report]. In January, UN officials expressed "grave concerns" [JURIST report] regarding the post-election violence, cautioning that genocide could be imminent. In February, Gbagbo dissolved [JURIST report] the country's parliament and electoral commission based on allegations of voter fraud in the long delayed presidential elections. On disbanding the government, Gbagbo charged Prime Minister Guillaume Soro [BBC profile] with creation of new government and new election format. The violence stems from Gbagbo's refusal to cede power to president-elect Alassane Ouattara, who won the November 2010 runoff election according to international observers. Gbagbo was elected president in 2000 to serve a five-year term, but he has managed to stay in office, delaying six successive elections.




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ICC prosecutor claims to have evidence Gaddafi planned attacks on civilians
John Paul Putney on April 5, 2011 3:01 PM ET

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[JURIST] International Criminal Court (ICC) Chief Prosecutor Luis Moreno-Ocampo [official websites] on Tuesday revealed that his office has uncovered evidence that embattled Libyan leader Mummar Gaddafi [BBC profile; JURIST news archive] planned to attack civilians to forestall regime-toppling revolution. Moreno-Ocampo indicated that the plans were made in response to the conflicts in Tunisia and Egypt and included shooting civilians [NYT report]. Moreno-Ocampo wants to interview the recently defected foreign minister of Libya, Moussa Koussa, to gather more inside information on the Gaddafi government [AP report]. The prosecutor hinted at possible immunity for Koussa, who fled to London last month, but stopped short of a guarantee [Reuters report]. Gaddafi remains defiant even as several key figures have defected and NATO-led air strikes have grounded his planes.

Last Month, Moreno-Ocampo told the press that he is 100 percent certain his office will bring charges [JURIST report] against Gaddafi. Also last month, the ICC launched a probe into allegations of crimes against humanity [JURIST report] by the Libyan government. Moreno-Ocampo specifically identified Gaddafi, his sons and his political allies as targets of the investigation and warned Libyan officials that complicity in such abuses would result in prosecution. Additionally, the UN appointed a team of special prosecutors [JURIST report] to investigate allegations that Gaddafi ordered forces to torture and abduct opponents. The UN General Assembly has voted to suspend Libya [JURIST report] from the UN Human Rights Council (UNHRC) [official website] in response to the violent suppression of peaceful protesters by forces loyal to Gaddafi.




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Switzerland court rules Google Street View constitutes breach of privacy
Ashley Hileman on April 5, 2011 12:41 PM ET

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[JURIST] The Swiss Federal Administrative Court (FAC) [official website, in German] on Monday publicized its ruling that Google Street View constitutes a breach of privacy for the country's citizens and ordered Google [corporate website; JURIST news archive] to take extra steps to ensure adequate protection. The FAC officially ruled on the claim [media release] brought by the Swiss Data Protection Ombudsman and Public Domain (FDPIC) [official website] against Google on March 30. According to the judgment, before publishing any pictures on the web, Google must make all faces and license plates unrecognizable as well as ensure the anonymity of individuals in the vicinity of sensitive facilities. In making its decision to impose restrictions on Google's Street View, the FAC considered the interests of the public in having a visual record and the commercial interests of the defendants, but ultimately determined that these did not outweigh the rights an individual has over one's own image. Google now has the opportunity to appeal the decision to the Swiss Federal Supreme Court. The FDPIC originally brought the claim in November 2009.

Google has recently faced a number of allegations from the international community related to violating privacy laws by capturing personal data through Google Street View. Just last month, A Berlin high court ruled [JURIST report] that Google's Street View mapping service is legal in Germany. The case stems from a suit against Google, brought last year by a woman alleging that photos posted on Google Street View of herself, her family and the front of her house violated her property and privacy rights. The court held that, because the photos were taken from the street, Google did not violate her property rights. Furthermore, the court found no further violations because Germans can opt out of the service, and Google blurs faces and license plates in the posted images. The ruling, which cannot be appealed, was narrowly focused on property rights, ignoring larger data protection issues the company is currently confronting. Additionally in March, the French National Commission of Information Technology and Liberty (CNIL) [official website, in French] fined Google [JURIST report] 100,000 euros (USD $141,300) for violating French data privacy laws by capturing personal data through Google Street View cars, used for its Google Maps service. CNIL stated that Google was not responding to requests in a timely manner and has not stopped using the seized data. Google admitted to the collection of e-mails, passwords and other data over unsecured WiFi networks, but maintained that it was a mistake and that it did not intend to include the code which captured payload data from unsecured WiFi networks. In response to the controversy, Google grounded its Street View cars.




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Kenya urges ICC to drop post-election violence cases
Sarah Posner on April 5, 2011 12:35 PM ET

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[JURIST] Kenya has urged the International Criminal Court (ICC) [official website] to dismiss the cases [motion, PDF] against six senior Kenyan leaders accused [materials] of committing crimes against humanity and contributing to the 2007-2008 post-election violence [JURIST news archive]. Kenyan authorities last week emphasized that "the ICC's jurisdiction [is] complementary to national criminal jurisdictions" and argued that, with its new constitution and reformed judicial system, Kenyan officials are capable of prosecuting the cases domestically:
The adoption of the new Constitution and associated reforms has opened the way for Kenya to conduct its own prosecutions in Kenya for the post-election violence in respect of persons at the highest levels of authority and for the most serious crimes...The recent and current initiatives have all been designed and adopted to cure problems, or shortcomings, of the past. They demonstrate that the time is ripe for Kenya to exercise jurisdiction which the ICC should yield.
The ICC on Monday announced that its judges will review Kenya's motion [press release], but that under the Rome Statute [official website], the judges are not required to reach a decision within any specific period of time. The trial will continue while the motion is under review, with the accused leaders scheduled to appear [HJP report] before the court next week.

In December, ICC Chief Prosecutor Luis Moreno-Ocampo [official profile] identified the six suspects [JURIST report], including current Deputy Prime Minister Uhuru Muigai Kenyatta and several Ministry heads. All six are believed to have fomented violence, rape and destruction of property during the 30 days of post-election violence, but they have not yet been charged in Kenya for the alleged crimes. Last month, Moreno-Ocampo warned the six Kenyan suspects that arrests would ensue if they did not comply with the court's conditions [JURIST report]. The warning followed a summons [JURIST report] issued by the ICC earlier that month for the suspects to appear before the court on April 7 for an initial hearing. The Kenyan government also announced last month that it would challenge the admissibility of cases [JURIST report] relating to the post-election violence in the ICC, as well as the jurisdiction of the court.




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UN rights office urges Yemen to halt use of force against protesters
Maureen Cosgrove on April 5, 2011 12:11 PM ET

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[JURIST] The UN Office for the High Commissioner for Human Rights (OHCHR) [official website] on Tuesday urged the Yemeni government to discontinue using force against peaceful protesters [UN News Centre report]. The OHCHR insisted that Yemen [BBC profile] deliver on its promise to establish a commission to inquire into recent alleged government-led killings and abuses that occurred during protests, including those that took place in the capital of Sana'a [JURIST report] in March and in Taiz [Guardian report] yesterday. Forty-five protesters were reportedly killed [Reuters report] at the anti-government rally in Sana'a, and a reported 15 protesters were killed in Taiz. The OHCHR also called on the Yemeni government to halt the targeting of marginalized minority groups.

The Yemeni Parliament enacted several emergency measures [JURIST report] in March at the request of President Ali Abdullah Saleh [official website, in Arabic] in an effort to end anti-government protests. The new laws give the government greater power [AP report] to arrest and detain protesters and to censor the media. Protests, largely organized by the Joint Meeting Party (JMP), have been ongoing in Yemen since February, largely calling for Saleh to step down. Saleh has been in power since 1978 and is considered popular in Yemen and the international community. However, he and his party, the General People's Congress (GPC) have caused mounting political tensions due to attempts to remove presidential term limits [JURIST report] and expand their political power. In December, the parliament stoked outrage among opposition parties and independents when it amended the constitution [AFP report] to eliminate provisions requiring that opposition parties be represented on the high election commission. Although the government has maintained control in urban areas, the northern and southern parts of the country remain unlawful and dangerous, plagued by southern separatists groups and al Qaeda [JURIST news archive]. The protests in Yemen have been analyzed in two recent JURIST op-eds: Constitutional Enforcement in Tunisia, Yemen, and Egypt by L. Ali Khan, Professor of Law at Washburn University, and The Middle East protest movements: each with a story, all with uncertainty by Dr. Jonathan Schanzer, Vice President of Research, Foundation for Defense of Democracies [advocacy organization].




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Lawyers for convicted Vietnam rights activist allege improper trial
Matt Glenn on April 5, 2011 9:41 AM ET

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[JURIST] Lawyers for human rights lawyer and activist Cu Huy Ha Vu claimed Tuesday that the judge failed to allow key evidence at Vu's trial on charges of carrying out anti-state propaganda. The court convicted Vu [JURIST report] on Monday, sentencing him to seven years in prison followed by three years of house arrest, on the basis of interviews given to international media in which Vu advocated an end to Vietnam's one-party system and other reforms. In their complaint, Vu's lawyers claim that the judge violated Vu's rights [AP report] under Vietnamese law by not giving lawyers access to or reading for himself complete transcripts of the interviews. During the trial, one of the Vu's lawyers was ejected from the court for repeatedly asking the judge to read the full transcripts, and Vu's other three lawyers left in protest forcing Vu to defend himself. Last week, Human Rights Watch [advocacy website] called for the Vietnamese government to release Vu [press release], calling him "one of the most prominent defenders of cultural, environmental and human rights in Vietnam," On Monday, the US Department of State [official website] expressed concerns [press release] over Vu's conviction, saying it "runs counter to the Universal Declaration of Human Rights, and raises serious questions about Vietnam's commitment to rule of law and reform."

Vu is among several dissidents in Vietnam who have been convicted for anti-government activity. In January, a Vietnamese court sentenced former communist official Vi Duc Hoi to eight years in prison [JURIST report] for advocating democracy and a multi-party system. In January 2010, a Vietnamese court sentenced [JURIST report] writer and democracy activist Pham Thanh Nghien to four years in prison on charges of spreading anti-state propaganda. That same month, a Vietnamese court convicted four democracy activists [JURIST report] of subversion. Following the one-day trial, human rights lawyer Le Cong Dinh [JURIST news archive] was sentenced to five years in prison. The four defendants were accused of activities aimed at ending communist rule in Vietnam. Dinh admitted to advocating multi-party democracy in Vietnam and joining the banned Democracy Party. Prior to Dinh's conviction, a Vietnamese court sentenced [JURIST report] pro-democracy dissident Tran Anh Kim in December 2009 to five-and-a-half years in prison for subversion.




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Federal appeals court dismisses challenge to FCC net neutrality rules
Aman Kakar on April 5, 2011 8:09 AM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Monday granted [order; PDF] a motion [text, PDF] by the Federal Communications Commission (FCC) [official website] to dismiss a challenge to the new net neutrality rules. Verizon and MetroPCS [corporate websites] filed an appeal challenging the new net neutrality rules [text, PDF] that allow the government to regulate Internet traffic to preserve the Internet as a free and open platform of communication. The court dismissed the appeal for improper timing because the challenged rulemaking document has yet to be published in the Federal Register and is not a licensing decision with respect to the specific parties as required by 47 CFR § 1.4(b)(1) [text]. The court said it would be subject to judicial review once it is published in the Federal Register. Verizon spokesperson Ed McFadden said that the notices of appeal were filed because the FCC's rules governing timing of appeals were unclear [Reuters report] and the company did not want to lose its right to appeal. Verizon plans to file a second appeal when the rules are published in the Federal Register.

Verizon and MetroPCS [JURIST reports] filed the challenges in January out of concern over the broad authority the new rules would grant the FCC. The FCC has long been trying to exert more control over Internet regulation. Last year, US Senator Jim DeMint (R-SC) [official website] introduced legislation [JURIST report] intended to block the FCC from implementing its National Broadband Plan [official website; materials]. The Freedom for Consumer Choice Act would remove the FCC's ability to declare the actions of a communications provider illegal unless there was a clear showing that the practice causes harm to consumers and will not be corrected by market forces. A month earlier, the FCC opened a new proceeding [JURIST report] to identify the legal approach that will best support its efforts to develop universal access to "high quality" Internet broadband services. A previous court ruling found that the FCC lacks the power to enforce net neutrality [JURIST report]. Net neutrality is thought by supporters to be essential to the goal of an open flow of information over the Internet regardless of the amount of revenue generated by the information.




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Dutch court upholds ban on religious headscarves in Catholic school
Jennie Ryan on April 4, 2011 3:06 PM ET

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[JURIST] A Dutch court in the Amsterdam district of Haarlem on Monday upheld [CGB press release, in Dutch] a ban on Islamic headscarves [JURIST news archive] at Don Bosco College [academic website, in Dutch], a Catholic school in Volendam. The court stressed that a prohibition on headscarves is in line with the schools interest in maintaining its Catholic character and held that the ban on headscarves does not constitute religious discrimination because hats and similar attire are also banned. The court chose to uphold the ban despite a finding [materials, in Dutch] by the country's Equal Treatment Commission (CGB) [official website, in Dutch] that the practice of banning headscarves amounts to religious discrimination. The suit originated when a student at Don Bosco filed a complaint with the CGB alleging that the schools practice of banning headscarves constituted religious discrimination. It is unclear whether the decision will be appealed.

Religious headscarves have been banned in schools in several European countries. In 2009, a similar ban was instituted in all Dutch-speaking Belgium schools [JURIST report] in the northern region of Flanders. In 2008, the Dutch government announced plans to ban burqas [JURIST report] in schools. In that same year, the European Court of Human Rights (ECHR) [official website] unanimously ruled [JURIST report] that there was no human rights violation when a French school expelled two students in 1999 for refusing to remove their headscarves. In 2004, France banned religious clothing and symbols in public schools [JURIST report]. A German court has upheld a similar ban [JURIST report].




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Spain court seeks extradition of Guatemalan massacre suspect
LaToya Sawyer on April 4, 2011 2:36 PM ET

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[JURIST] A Spanish court issued an international arrest warrant on Monday for the extradition of Jose Sosa Orantes, a former Guatemalan soldier being held in Canada for his involvement in a 1982 massacre during Guatemala's 36-year civil war [GlobalSecurity backgrounder]. Arrested in Canada [AP report] in January for lying on his US citizen application about his ties to the Guatemalan military, Sosa now faces charges of crimes against humanity for the killing of more than 250 people in the village of Dos Erres. In December 1982, Sosa and other members of an elite military unit known as the "kaibiles'" allegedly ransacked Dos Erres looking for stolen weapons and, in search of them, killed men, women and children. The Spanish court issued the arrest warrant on Friday via the International Crime Police Organization (Interpol) [official website]. Sosa is the ninth suspect sought under a 1999 lawsuit brought by Nobel Peace Prize laureate Rigoberta Menchu [DW backgrounder] for crimes and disappearances during the Guatemalan civil war. Because Sosa holds citizenship in both the the US and Canada, it is uncertain whether he will be extradited to the US or Spain. Guatemala is also vying for his arrest.

In spite of the lack of arrests made under the 1999 lawsuit, Guatemala has actively sought to punish those involved in crimes against humanity, corruption and disappearances. In October, two former National Police were sentenced to 40 years [JURIST report] in prison for the disappearance of student and union leader Fernando Garcia after he was shot and hospitalized in 1984. In August, the International Commission Against Impunity in Guatemala (CICIG) [official website, in Spanish] announced that it had issued arrest warrants for former government officials including those for former interior minister Carlos Vielmann, former police director Erwin Sperissen and former prison director Alejandro Giammettei in relation to the extrajudicial killing of several inmates [JURIST report]. In 2009, a retired Guatemalan colonel was sentenced [JURIST report] to 53 years in prison for his role in the disappearance of eight indigenous Guatemalans during the civil war.




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Holder announces 9/11 conspirators to face military trials
Ann Riley on April 4, 2011 2:23 PM ET

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[JURIST] US Attorney General Eric Holder [official website] announced Monday that Khalid Sheikh Mohammed [BBC profile; JURIST news archive] and four other co-conspirators will be tried before a military commission [statement] for their roles in the 9/11 terrorist attacks. Holder, who wanted the accused be tried before a federal civilian court [JURIST report], referred the cases to the Department of Defense (DOD) [official website] after Congress imposed a series of restrictions [JURIST report] barring the transfer of Guantanamo detainees to the US. Holder refused to delay the trial any longer for the sake of the victims of the 9/11 attacks and their families, explaining that the restrictions are not likely to be repealed in the immediate future. While deciding to proceed with military commissions, Holder defended the federal judiciary, saying:
Too many people ... have expressed doubts about our time-honored and time-tested system of justice. That's not only misguided, it's wrong. The fact is, federal courts have proven to be an unparalleled instrument for bringing terrorists to justice. Our courts have convicted hundreds of terrorists since September 11, and our prisons safely and securely hold hundreds today, many of them serving long sentences. There is no other tool that has demonstrated the ability to both incapacitate terrorists and collect intelligence from them over such a diverse range of circumstances as our traditional justice system. Our national security demands that we continue to prosecute terrorists in federal court, and we will do so. Our heritage, our values, and our legacy to future generations also demand that we have full faith and confidence in a court system that has distinguished this nation throughout its history.
Also on Monday, a judge for the US District Court for the Southern District of New York [official website] granted prosecutors' motion to dismiss and unsealed the indictment [text, PDF] of the co-conspirators, allowing the case to be transferred to the DOD. The American Civil Liberties Union (ACLU) [advocacy website] has spoken out against the administration's decision [press release], saying that the military commissions system is "rife with constitutional and procedural problems and undermines the fundamental American values that have made us a model throughout the world for centuries."

The Obama administration changed its position despite repeated appeals from rights groups to utilize civilian courts over military commissions for the trials of suspected terrorists. Last March, UN Special Rapporteur on human rights and counterterrorism Martin Scheinin [official website] called on the Obama administration to hold civilian trials [JURIST report] for Mohammed and other suspected terrorists saying that the military commissions system is fatally flawed and cannot be reformed. Earlier that month, the ACLU released a full-page advertisement in the New York Times urging President Barack Obama [JURIST report] to uphold his pledge to try 9/11 suspects in civilian criminal court. That release came just days after White House advisers announced they were considering recommending [JURIST report] that Mohammed be tried in a military court rather than through the civilian criminal justice system. In an interview last July, Holder stated that the main goal of the administration is to hold the people responsible [JURIST report] for 9/11 accountable in the most effective way possible. Holder reiterated his support for holding the trials in civilian courts [JURIST report], saying that the criminal justice system has been proven an effective location for terrorism trials and that excluding civilian courts as a possible tool in fighting terrorism would ultimately weaken the nation's security. Holder announced in November 2009 that Mohammed would be tried in a civilian court [JURIST report] in Manhattan, drawing intense criticism and leading the Obama administration to reconsider the decision.




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Supreme Court rules challengers to Arizona tax credit lack standing
Erin Bock on April 4, 2011 1:17 PM ET

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[JURIST] The US Supreme Court [official website] ruled [opinion, PDF] 5-4 Monday in Arizona Christian School Tuition Organization v. Winn [Cornell LII backgrounder; JURIST report] that respondents lacked standing to bring suit regarding the constitutionality of an Arizona tax credit. The tax credit [Ariz Rev Stat Ann § 43-1089 text] applies to donations given to organizations that provide scholarships at private schools, many of which have religious affiliations. The taxpayers who brought suit argued that the tax credit program violates the Establishment Clause [Cornell LII backgrounder] because it unconstitutionally endorses or advances religion by incentivizing individuals to direct more contributions to religious organizations. The US Court of Appeals for the Ninth Circuit held [opinion, PDF] that the taxpayers had standing to challenge the constitutionality of the law and allowed the claim to proceed. In an opinion authored by Justice Anthony Kennedy, the Supreme Court determined that respondents lacked standing based on its decision in Flast v. Cohen [opinion text] because they were challenging a tax credit as opposed to a governmental expenditure. Kennedy also emphasized the importance of the concept of standing:
In an era of frequent litigation, class actions, sweeping injunctions with prospective effect, and continuing jurisdiction to enforce judicial remedies, courts must be more careful to insist on the formal rules of standing, not less so. Making the Article III standing inquiry all the more necessary are the significant implications of constitutional litigation, which can result in rules of wide applicability that are beyond Congress' power to change. The present suit serves as an illustration of these principles.
Justice Antonin Scalia wrote a concurring opinion in which Justice Clarence Thomas joined that referred to Flast as "an anomaly" and stated that the majority opinion did not need to consider the case and should have denied standing based on pure Constitutional grounds. Justice Elena Kagan wrote a dissent in which she was joined by three other justices that criticized the majority for creating a distinction between tax credits and government expenditures and stated that the law still financed religious activity.

Before the tax credit law went into effect, the Arizona Supreme Court ruled in Kotterman v. Killian [opinion, PDF] that, based on the construction of the statute, it did not on its face violate the Establishment Clause or provisions of the Arizona state constitution. In 2007, the Supreme Court ruled In Hein v. Freedom from Religion Foundation [opinion text] that taxpayers do not have standing [JURIST report] to challenge executive branch actions under the Establishment Clause. The Freedom from Religion Foundation (FFR) filed a lawsuit over the use of government funds to promote then-president Bush's Faith-Based and Community Initiatives.




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Supreme Court limits federal habeas review
Ashley Hileman on April 4, 2011 1:06 PM ET

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[JURIST] The US Supreme Court [official website] on Monday ruled [opinion, PDF] in Cullen v. Pinholster [Cornell LII backgrounder; JURIST report] that review under the federal habeas law is limited to the record that was before the state court, reinstating the death penalty for a convicted man. The court's ruling reversed an en banc decision of the US Court of Appeals for the Ninth Circuit, which held that the evidentiary hearing before a federal habeas court was not barred by section 2254(e)(2) of the Antiterrorism and Effective Death Penalty Act of 1996, 28 USC § 2254 [text]. Based on its holding, the appeals court then considered new evidence adduced during the evidentiary hearing and ultimately concluded that the California Supreme Court [official website] had unreasonably applied clearly established federal law in denying Scott Pinholster's state habeas petition. In reviewing the Ninth Circuit's decision, the Supreme Court first considered whether review under § 2254(d)(1) permits consideration of evidence introduced in an evidentiary hearing before the federal habeas court. Justice Clarence Thomas, writing for the majority, stated:
We now hold that review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits. Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that resulted in a decision that was "contrary to", or "involved" an unreasonable application of, established law. This backward looking language requires an examination of the state court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time—i.e., the record before the state court. This understanding of the text is compelled by "the broader context of the statute as a whole," which demonstrates Congress' intent to channel prisoners claims first to the state courts.
The court then went on to consider whether the Ninth Circuit properly granted Pinholster habeas relief on his claim of penalty-phase ineffective assistance of counsel. Holding that this decision was also in error, Thomas wrote, "[b]ecause Pinholster has failed to demonstrate that the adjudication of his claim based on the state-court record resulted in a decision "contrary to" or "involv[ing] an unreasonable application" of federal law, a writ of habeas corpus "shall not be granted" and our analysis is at an end." Justice Samuel Alito filed a separate opinion, concurring in part and concurring the in judgment. Justice Stephen Breyer also filed a separate opinion, concurring in part and dissenting in part, while Justice Sonia Sotomayor filed a dissenting opinion in which Justices Ruth Bader Ginsburg and Elena Kagan joined in part. In her opinion, Sotomayor disagreed with the court's restrictive interpretation of § 2254(d)(1), arguing that it will result in "federal courts [turning] a blind eye to new evidence in deciding whether a petitioner has satisfied § 2254(d)(1)'s threshold obstacle to federal habeas relief "even when it is clear that the petitioner would be entitled to relief in light of that evidence."

Pinholster was convicted of the 1982 killing of two men during a burglary in Los Angeles. During the guilt phase of his trial, Pinholster rejected assistance from attorneys and insisted on representing himself. However, after being informed that the prosecution planned to offer aggravating evidence during the penalty phase to support a sentence of death, Pinholster accepted the trial court's appointment of two attorneys to his case. Pinholster's attorneys moved to exclude aggravating evidence on the ground that the prosecution had failed to provide notice of the evidence to be introduced, but it was later discovered that Pinholster, while representing himself, had in fact received notice and had denied the motion to exclude. The same jury that had convicted Pinholster in the earlier guilt phase of the trial sat for the penalty phase and voted unanimously for death. The California Supreme Court affirmed and subsequently denied two habeas petitions.




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Supreme Court declines to rule on Guantanamo detainee cases
Zach Zagger on April 4, 2011 11:28 AM ET

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[JURIST] The US Supreme Court [official website; JURIST news archive] on Monday granted certiorari [order list, PDF] in two cases from the US Court of Appeals for the Third Circuit [official website] but denied review of three Guantanamo cases [JURIST news archive]. In Florence v. Board of Chosen Freeholders of the County of Burlington [docket; cert. petition, PDF], the court will examine whether a suspect's Fourth Amendment [text] rights were violated when he was strip searched twice after being arrested for a non-criminal offense and the circumstances did not suggest that he was carrying contraband. Petitioner Albert Florence sued under 42 USC § 1983 [text], obtaining summary judgment from the district court, which rejected a categorical rule that all arrestees be strip searched regardless of the alleged crime. The judgment was overturned [opinion, PDF] by the Third Circuit. Florence was arrested in New Jersey after being pulled over when it was discovered that there was an outstanding warrant against him for failure to pay a fine. He produced a letter to the officer that he had paid the fine, but officer made the arrest anyways. Florence was eventually transported to a local jail where he was forced to strip naked for inspection. Florence was then held at the jail for a week while his family tried to secure his release before being transported to another corrections facility where he was again subjected to a strip search. The alleged failure to pay the fine is considered a non-criminal offense in New Jersey.

In Greene v. Fisher [docket; cert. petition, PDF], the Supreme Court is being asked to determine what the temporal cutoff is for one of its decisions to become "clearly established Federal Law" under 28 USC § 2254(d) [text], as amended by the Antiterrorism and Effective Death Penalty Act of 1996. Petitioner Eric Greene was convicted and sentenced to life imprisonment for involvement in a robbery of a convenience store in which the store's owner was shot and killed. At the trial, Greene had objected to the admission of confessions of his conspirators and co-defendants on Confrontation Clause [Sixth Amendment text] grounds. The court allowed the confessions with Greene's name redacted. He renewed this objection on appeal, arguing on the grounds of the Supreme Court's decision in Gray v. Maryland. Gray was decided before Greene's conviction became final but after the state court's last decision on the merits. Greene argues that whether the Gray case should apply will be outcome determinative of his appeal. The Third Circuit held [opinion, PDF] that an opinion issued after a decision on the merits in state court is not "clearly established Federal Law," acknowledging that its decision created a circuit split.

The court also denied certiorari in three Guantanamo detainee cases, allowing the decisions of the US Court of Appeals for the District of Columbia Circuit [official website] to stand. The court did not act in a case involving the Uighurs [JURIST news archives], a group of Chinese Muslims captured in Afghanistan. The Uighurs claim they were wrongfully captured and have attempted to challenge their indefinite detention. Some are still being held at Guantanamo since being captured in 2001. Of the 22 Uighurs originally detained at Guantanamo Bay, 17 have been relocated.




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DOJ files brief in support of health care reform law
Dwyer Arce on April 4, 2011 10:22 AM ET

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[JURIST] The US Department of Justice (DOJ) [official website] on Friday filed a brief [text, PDF] with the US Court of Appeals for the Eleventh Circuit [official website], arguing that the health care reform law [HR 3590; JURIST news archive] is constitutional. In January, a judge for the US District Court for the Northern District of Florida struck down the law [JURIST report] as a violation of the Commerce Clause [Cornell LII backgrounder] of the US Constitution. In its brief, the DOJ argued that the interstate health market can be regulated by Congress because it is fundamentally different from other markets due to the pervasive government involvement in health care spending. It also argued that the minimum coverage provision, which is the focus of the litigation, is constitutional because it regulates only economic activity, disputing the lower court's finding that failure to purchase health insurance could not be regulated as interstate commerce. Citing to the US Supreme Court case of Gonzales v. Raich [JURIST report], the brief argued that there only needed to be a rational basis [Cornell LII backgrounder] for Congress to believe that the regulated conduct substantially affects interstate commerce, which was met here.
Congress's findings and the legislative record leave no doubt that the minimum coverage provision—which regulates the way people pay for services in the interstate health care market—is a valid exercise of the commerce power under the standards established by the Supreme Court. It regulates activity that is commercial and economic in nature, and that substantially affects interstate commerce. First, Congress found that people who consume health care without insurance shift billions of dollars of costs annually to other participants in the interstate health care market. Second, Congress found that the minimum coverage provision is key to the viability of the Act's regulation of medical underwriting, which guarantees that everyone will be insurable regardless of illnesses or accidents.
The DOJ also argued that the law was constitutional as an exercise of Congress's taxing power, and that plaintiffs did not have standing to bring the suit in the first place.

The Eleventh Circuit denied the petition for initial hearing en banc [JURIST report] in the appeal. The order confirmed that the appeal will nonetheless be expedited. Oral arguments are currently scheduled for June 8 before a randomly-selected three-judge panel. The identities of the panel members will not be disclosed until at least 14 days before the arguments. Last month, the Obama administration filed a brief with the court contesting the plaintiff states' request [JURIST report] to have the appeal heard by an en banc court. Last month, Virginia Attorney General Kenneth Cuccinelli filed a petition for a writ of certiorari [JURIST report] with the US Supreme Court asking the court to rule on the constitutionality of the law on an expedited basis, before the US Court of Appeals for the Fourth Circuit rules on the issue, but the Obama administration opposes the petition [JURIST report]. In January, a judge for the US District Court for the Western District of Virginia dismissed a lawsuit [JURIST report] challenging a provision of the health care reform law. In October, a federal judge in Michigan ruled that the law is constitutional [JURIST report] under the Commerce Clause as it addresses the economic effects of health care decisions, and that it does not represent an unconstitutional direct tax.




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Vietnam rights lawyer jailed after calling for government reform
Sarah Paulsworth on April 4, 2011 9:41 AM ET

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[JURIST] A Vietnamese court on Monday convicted well-known lawyer and activist Cu Huy Ha Vu of carrying out anti-state propaganda and sentenced him to seven years of imprisonment and an additional three years of house arrest. During the trial, which lasted only one day, Vu's lawyers were thrown out of court [AP report], and Vu was forced to defend himself. Vu has been in prison since November because of interviews he gave to the international press in which he advocated for elimination of the one-party political system [BBC report] in Vietnam and other democratic reforms. His detention has been widely criticized by international human rights groups, including Human Rights Watch (HRW) [advocacy website], which called VU's arrest the latest incident [press release] in a "campaign of repression" against activists. In 2009, Vu sued Vietnamese Prime Minister Nguyen Tan Dung [BBC profile] in connection with a government initiative to develop, in collaboration with China, a bauxite mine. Vu is the son of Cu Huy Can, a leader in former Vietnamese president Ho Chi Minh's government and highly respected poet.

Vu is among several dissidents in Vietnam who have been convicted for anti-government activity. In January, a Vietnamese court sentenced former communist official Vi Duc Hoi to eight years in prison [JURIST report] for advocating democracy and a multi-party system. In January 2010, a Vietnamese court sentenced [JURIST report] writer and democracy activist Pham Thanh Nghien to four years in prison on charges of spreading anti-state propaganda. That same month, a Vietnamese court convicted four democracy activists [JURIST report] of subversion. Following the one-day trial, human rights lawyer Le Cong Dinh [JURIST news archive] was sentenced to five years in prison. The four defendants were accused of activities aimed at ending communist rule in Vietnam. Dinh admitted to advocating multi-party democracy in Vietnam and joining the banned Democracy Party. Prior to Dinh's conviction, a Vietnamese court sentenced [JURIST report] pro-democracy dissident Tran Anh Kim in December 2009 to five-and-a-half years in prison for subversion.




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Federal judge upholds Wisconsin supreme court campaign finance law
Carrie Schimizzi on April 3, 2011 3:16 PM ET

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[JURIST] A judge for the US District Court for the Western District of Wisconsin [official website] on Friday dismissed [order, PDF] two challenges to campaign financing schemes for Wisconsin Supreme Court elections. Wisconsin Right to Life [advocacy website] and the Wisconsin Center for Economic Prosperity challenged the Impartial Justice Act [SB 40 materials, PDF] saying the law violates their First Amendment [Cornell LII backgrounder] rights and had sought a federal injunction to stop public financing before the April 5 election. The plaintiffs had challenged three provisions of the law which require reports of third-party disbursements, a $360,000 trigger of supplemental grants to candidates that elect for public financing and a $1,000 cap on individual contributions made to privately-funded candidates. In upholding the law, Judge William M. Conley found the plaintiffs were not unduly burdened by the law and that any burden on their First Amendment rights was outweighed by the state's "compelling interest in the election of justices to its highest court free from an appearance of bias." Conley did acknowledge, however, that his decision may be undermined by the US Supreme Court's expected ruling on the appeal [JURIST report] of a similar Arizona campaign financing law:
Obviously, even the narrow holding by this court today may be undermined by the Supreme Court's decision in McComish, and the court considered a decision on the merits here pending further guidance from the Supreme Court ... At the same time, the court is painfully aware that its decision may merely be contributing to public financing's 'death by a thousand cuts,' as Justice Breyer put it during oral argument earlier this week in McComish, recognizing that money, like water seems to find its own level.
The plaintiffs said they plan to immediately appeal for emergency relief [MJS report] before the election on Tuesday.

The US Supreme Court [official website] granted certiorari [JURIST report] to the Arizona campaign financing case in November. In McComish v. Bennett [docket; cert. petition, PDF], the court will determine whether Arizona's matching funds and the law regulating campaign financing to equalize resources among candidates and interest groups, rather than advancing a compelling state interest in the least restrictive manner, violate the First and Fourteenth Amendments. The US Court of Appeals for the Ninth Circuit concluded [opinion, PDF] that the Arizona public financing scheme and matching funds provision did not offend the First Amendment. In Arizona Free Enterprise Club's Freedom Club PAC v. Bennett [docket; cert. petition, PDF] the court will determine whether the First Amendment forbids states from providing additional government subsidies to publicly financed candidates that are triggered by independent expenditure groups' speech against such candidates or by the candidates' privately financed opponents.




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Israel calls for UN to retract Goldstone report
Drew Singer on April 3, 2011 10:44 AM ET

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[JURIST] Israeli Prime Minister Benjamin Netanyahu [official website] on Sunday called [statement] on the UN to retract the Goldstone Report [text, PDF; JURIST news archive] following statements made by Richard Goldstone in a Washington Post op-ed [text]. The Goldstone Report, which found that Israel committed war crimes [JURIST report] in Operation Cast Lead [JURIST news archive] after a fact finding mission, was called into question Friday by Goldstone's article, where he said: "if I had known then what I know now, the Goldstone Report would have been a different document." According to Goldstone, new evidence has shown that Israel never targeted civilians in the conflict as originally alleged.
The allegations of intentionality by Israel were based on the deaths of and injuries to civilians in situations where our fact-finding mission had no evidence on which to draw any other reasonable conclusion. While the investigations published by the Israeli military and recognized in the U.N. committee’s report have established the validity of some incidents that we investigated in cases involving individual soldiers, they also indicate that civilians were not intentionally targeted as a matter of policy.
Goldstone went on to commend Israel and the Palestinian Authority for conducting investigations into the report's allegations, noting that Hamas had not done so. He also noted the positive effect the report had in the conflict, leading to reforms in the conduct of the Israel Defense Forces. Citing these statements, Netanyahu called for the report to be nullified [Al Jazeera report].

The report said that Israel regularly and impermissibly disregarded the welfare of civilians and even targeted them during the conflict in violation of the International Covenant on Civil and Political Rights, the Fourth Geneva Convention, and the First Additional Protocol to the Geneva Convention [texts]. The report also found that Israel failed to look into alleged misconduct by its soldiers and used white phosphorous [GlobalSecurity backgrounder] in violation of international law. The report accused Palestinian fighters of firing mortars indiscriminately into civilian areas and mistreating prisoner of war Gilad Shalit [JURIST news archive] in violation of the Third Geneva Convention [text]. Israel dismissed the report [MFA press release] as prejudiced and one-sided, citing the large number of countries that did not support the fact finding mission.




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Military training for 'Don't Ask Don't Tell' repeal to be complete midsummer
Drew Singer on April 3, 2011 10:25 AM ET

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[JURIST] US Undersecretary of Defense Clifford Stanley [official biography] on Friday testified [hearing record] that the repeal of Don't Ask Don't Tell (DADT) [10 USC § 654; JURIST news archive] is on track to be complete midsummer. Nine percent of the military was trained in the past month without resistance, Stanley told the House of Representatives Armed Services Committee Subcommittee on Military Personnel [official website] at the hearing. Stanley said the transition has gone "extremely well" and that the military is on track to meet its goal of completing the repeal training by midsummer. Stanley spent the majority of the meeting contesting Republican challenges that the new policy is bad for the military.

Last month, the Obama administration asked the US Court of Appeals for the Ninth Circuit to delay its review of an order striking down DADT [JURIST report] policy because the it will soon be ended. In December, President Barack Obama signed legislation that would repeal DADT [JURIST report] as soon as the president, secretary of defense and chairman of the Joint Chiefs of Staff certify that the necessary policies and procedures are in place within the military to implement the repeal.




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Bankrupt mortgage company CEO pleads guilty to $1.5 billion fraud scheme
Maureen Cosgrove on April 2, 2011 4:08 PM ET

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[JURIST] The US Department of Justice (DOJ) [official website] announced on Friday that the former CEO of mortgage company Taylor, Bean & Whitaker (TBW) [corporate website] pleaded guilty [press release] on charges of fraud related to the Troubled Asset Relief Program (TARP) [materials; JURIST news archive]. Paul Allen pleaded guilty to making false statements and conspiring to commit bank and wire fraud for his role in a USD $1.5 billion fraud scheme that contributed to the failure of the mortgage company. Allen admitted that from 2005 through August 2009 he and other co-conspirators engaged in a scheme to defraud financial institutions that had invested in a lending facility called Ocala Funding. In an effort to cover up inadequate assets backing its commercial paper, Allen told a co-conspirator to produce fraudulent reports and knew that these reports were sent to Ocala Funding investors and other third parties. The cover-up led investors in Freddie Mac, Colonial Bank [corporate websites] and Ocala Funding to believe they had an undivided ownership interest in thousands of the same mortgage loans. Allen also admitted to making false statements in a letter to the US Department of Housing and Urban Development [official website], omitting concerns raised by an independent auditor. Five other individuals have pleaded guilty for their roles in related fraud schemes. Allen will be sentenced in June, when he faces a maximum penalty of five years in prison for each count.

A grand jury indicted [press release; JURIST report] the former chairman of TBW, Lee Farkas, in June, alleging that he and his co-conspirators engaged in a USD $1.9 billion complex fraud scheme that contributed to the failure of Colonial Bank in order to cover financial losses suffered by TBW. 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 2010, 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 Securities and Exchange Commission (SEC) [official website] filed a civil suit [JURIST report] against Goldman alleging securities fraud. In November 2009, 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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Germany urges EU export ban on execution drug
Maureen Cosgrove on April 2, 2011 2:55 PM ET

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[JURIST] Germany urged the European Union (EU) [official website] on Friday to impose an export ban on a drug used for lethal injections [JURIST news archive] in several US states. Germany's human rights commissioner, Markus Loening, requested that the drug sodium thiopental be placed on the list of drugs [AP report] that require governmental consent prior to export. Sodium thiopental is one of three drugs used in the lethal injection sequence and is manufactured by three German companies that sell the drug locally for anesthesia purposes. Loening indicated that it was important that no drugs from Germany or the EU were used in US executions. US states are facing shortages of the drug following an announcement by Hospira, Inc. [official website], the sole US manufacturer of the drug, that it will cease production of sodium thiopental. The German Medical Association and the Association of Research-Based Pharmaceutical Companies [official websites] endorse the ban on sodium thiopental exports to the US. Capital punishment is prohibited in the EU.

The shortage of sodium thiopental in the US has caused several states to modify lethal injection protocol, which has lead to a number of constitutional challenges by death row inmates. In March, two Texas inmates requested stays on their executions [USA Today report] to obtain more information on the new protocol and possibly challenge the protocol as unconstitutional. Texas acknowledged that its supply of sodium thiopental had an expiration date of March 1. Arizona, Georgia and Oklahoma have faced similar challenges and are seeking to substitute the sodium thiopental used in the lethal injection "cocktail" with pentobarbital. Kentucky and Tennessee surrendered supplies of sodium thiopental [NYT report] to the Drug Enforcement Administration (DEA) [official website] after the agency seized Georgia's supply in order to investigate whether the drug was properly imported. In September, the US Court of Appeals for the Ninth Circuit [official website] ordered [text, PDF] a district court judge to reconsider the stay of execution [JURIST report] in the case of Albert Brown. The court noted that the timing of Brown's execution was influenced by the expiration of the state's supply of sodium thiopental, and stated that it was "incredible to think that the deliberative process might be driven by the expiration date of the execution drug."




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ICRC: hundreds killed in Ivory Coast massacre
Erin Bock on April 2, 2011 12:13 PM ET

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[JURIST] The International Committee of the Red Cross (ICRC) [official website] on Saturday reported [press release] the deaths of at least 800 civilians in the Ivory Coast [JURIST news archive] town of Duekoue as a result of intercommunal violence that took place on Tuesday. A spokesperson for the ICRC condemned the violence, which has been ongoing in the area since last Monday: "We are shocked by the brutality and scale of this act. The ICRC condemns any and all direct attacks on the civilian population and reminds the parties to the conflict of their obligation to protect, in all circumstances, the population of the territory under their control." The ICRC stated that the death toll was calculated by field delegates and volunteers, and warned that they believe there is a risk that another mass killing could occur [AP report] in the area. A UN military spokesman indicated that the UN was aware of fighting in the region, but unaware of any reports of mass killings.

On Friday, the UN Office of the High Commissioner for Human Rights (OHCHR) [official website] urged all parties in the Ivory Coast to show restraint [JURIST report]. A spokesperson acknowledged unconfirmed reports that the Ivory Coast Republican Forces had "engaged in looting and extortion as well as serious human rights violations such as abductions, arbitrary arrests and ill-treatment of civilians" during their advance towards the country's capital of Abidjan. The violence stems from former president Laurent Gbagbo's refusal to cede power to president-elect Alassane Ouattara who won the November 28 runoff election according to international observers. Last month, the OHCHR called for an independent investigation into post-election violence [JURIST report]. In January, UN officials expressed "grave concerns" [JURIST report] regarding the post-election violence, cautioning that genocide could be imminent.




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Former Somalia PM can be questioned under oath in federal suit
Erin Bock on April 2, 2011 11:33 AM ET

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[JURIST] A judge for the US District Court for the Eastern District of Virginia [official website] on Friday denied a motion to dismiss a federal suit against former Somali prime minister and defense minister Mohamed Ali Samantar [JURIST news archive]. Lawyers for Samantar argued that the case should be dismissed [AP report] because the statute of limitations had expired and because the courts should not interfere in political matters. In addition to allowing the case to move forward, the ruling also means that Samantar can be questioned under oath [BBC report] regarding allegations that he spearheaded a campaign of ethnic repression against the northern Somali Isaaq clan during his tenure in office. Representatives for the plaintiffs indicated that they were pleased with the ruling, which will force Samantar to face his accusers. Samantar continues to deny any wrongdoing and was not present at Friday's hearing.

In February, a federal judge rules that Samantar was not entitled to legal immunity from civil lawsuits [JURIST report]. This ruling came after the US <