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Legal news from Wednesday, May 4, 2011 |
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ICC prosecutor to request warrants for Libya leaders
Jennie Ryan on May 4, 2011 4:05 PM ET

[JURIST] International Criminal Court (ICC) [official website] Chief Prosecutor Luis Moreno-Ocampo [official profile] on Wednesday announced [press release, PDF] that an investigation has uncovered enough evidence to allow him to pursue warrants for forces loyal to Muammar Gaddafi [BBC profile] for crimes against humanity and war crimes. Moreno-Ocampo said he has found evidence that Libya began hiring mercenaries as early as January in anticipation of protests after unrest began in the Middle East [JURIST news archive]. According to the chief prosecutor, those mercenaries have been used against protesters, resulting in the deaths of thousands. Regarding war crimes, the chief prosecutor claims to have uncovered evidence of the use of "cluster munitions, multiple rocket launchers and mortars, and other forms of heavy weaponry, in crowded urban areas, in particular Misrata. There are also reports of forces blocking humanitarian supplies ... the use of civilians as human shields and the torture of prisoners of war or civilians."The evidence collected establishes reasonable grounds to believe that widespread and systematic attacks against the civilian population have been and continue to be committed in Libya, including murder and persecution as crimes against humanity. Additionally and since the end of February, there has been an armed conflict in Libya. In this context, there is also relevant information on the alleged commission of war crimes. Moreno-Ocampo will present his evidence to the Pre-Trial Chamber of the ICC [official website] and request warrants be issued for three individuals. Those individuals were not named in the statement.
In March, the ICC announced it would launch an investigation [JURIST report] into the recent violence in Libya. The ICC was given jurisdiction over the current situation in Libya by UN Security Council [official website] Resolution 1970 [text]. Also in March, the UN Security Council voted unanimously [press release] to impose sanctions [JURIST report] against 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]. Subsequently, the UN General Assembly [official website] voted to suspend Libya [JURIST report] from the Human Rights Council (UNHRC) [official website] 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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Germany high court rules preventive detention unconstitutional
Jennie Ryan on May 4, 2011 2:58 PM ET

[JURIST] The German Federal Constitutional Court [official website, in German] ruled [press release] Wednesday that the preventive detention of prisoners beyond the maximum sentences for their crimes is unconstitutional. The court held [judgment, in German] that the laws governing the practice of extending prison terms for prisoners deemed to be a public safety threat violates provisions of the German constitution [text, PDF, in German]. "[T]he provisions on the retrospective prolongation of preventive detention beyond the former ten-year maximum period and on the retrospective imposition of preventive detention in criminal law relating to adult and to juvenile offenders infringe the rule-of-law precept of the protection of legitimate expectations." The court said that the country's current preventive detention laws infringe the constitutional minimum distance requirement for preventative detentions in that they are not sufficiently distinguished from normal prison terms. The distance requirement mandates that "the deprivation of liberty effected by preventive detention must keep a marked distance from the execution of a prison sentence." The court did not impose an outright ban on all preventative detention, but rather set narrow guidelines for the German parliament, the Bundestag [official website, in German], to follow in designing a law which emphasizes the "liberty-oriented execution aimed at therapy [and] which clearly shows to the detainee under preventive detention and to the general public the purely preventive character of the measure." The current preventative detention laws will remain in place until parliament passes new legislation. The court set a deadline of May 2013 by which the legislature must enact new legislation.
In other countries, controversial laws pertaining to the preventative detention of prisoners deemed a threat to public safety have also come under fire. Last month, rights groups called for reform [JURIST report] of a Kashmir law they allege is being used to detain people despite the absence of sufficient evidence for a trial. Last year, the US Court of Appeals for the Fourth Circuit [official website] ruled [opinion, PDF] unanimously that a federal law allowing for the indefinite detention of mentally ill sex offenders was constitutional [JURIST report].


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Holder: Bin Laden killing 'lawful'
Jaclyn Belczyk on May 4, 2011 2:01 PM ET

[JURIST] US Attorney General Eric Holder [official website] said Wednesday that the killing [JURIST report] of Osama Bin Laden [WP obituary; JURIST news archive] by US forces on Sunday was lawful and justified [video]. Testifying [hearing materials] before the US Senate Judiciary Committee [official website], Holder said that the shooting of Bin Laden was "consistent with our values," and that the soldiers who killed him "conducted themselves totally appropriately." In a prepared statement [text], Holder said:Three days agothanks to many dedicated military and civilian leaders; intelligence and law enforcement officers; diplomats and policymakers; investigators, prosecutors and counterterrorism expertsthe decade-long manhunt for Osama bin Laden came to a successful end. This historic achievement was a tremendous step forward in attaining justice for the nearly 3,000 innocent Americans who were murdered on September 11, 2001. And I hope it will inspire a renewed commitment to collaboration - across party lines, branches of responsibility, and agenciesso that we can effectively address the most pressing challenges facing the American people. Holder also expressed concerns that Bin Laden's death may prompt attempts at retaliation.
Last week, Holder announced that the Department of Justice's priorities will include protecting Americans from terrorism [JURIST report] at home and abroad, fighting violent crime, combating financial fraud and protecting the most vulnerable members of society. The speech came on the heels of Holder's failed attempts to try the 9/11 conspirators in civil trials [JURIST report] in New York. Holder announced last 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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ICTY allows Seselj war crimes trial to continue
Jaclyn Belczyk on May 4, 2011 11:54 AM ET

[JURIST] The International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] ruled Wednesday that the war crimes trial of former Serb nationalist politician Vojislav Seselj [case materials; JURIST news archive] can continue. Seselj, charged with 14 counts of crimes against humanity and violations of the laws or customs of war, had sought last month to have the charges dismissed. The ICTY rejected his request [AFP report], finding sufficient evidence for the trial to continue. There has been no word from the court on when the trial will resume.
Seselj's war crimes trial, which began in 2006, resumed in early 2010, after being delayed [JURIST reports] for nearly a year over fears that witnesses were being intimidated. In February, Seselj went on trial [JURIST report] on charges that he released the names of 11 ICTY witnesses in violation of a confidentiality order. Last May, the ICTY appeals division upheld a 2009 contempt verdict [JURIST reports] against Seselj for revealing the identities of other witnesses that were supposed to remain confidential. Seselj is accused of establishing rogue paramilitary units affiliated with the SRS, which are believed to have massacred and otherwise persecuted Croats and other non-Serbs during the Balkan conflict.


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HRW urges Thailand to investigate crimes committed by government officials, protesters
Ashley Hileman on May 4, 2011 11:02 AM ET

[JURIST] Thailand's government should investigate crimes allegedly committed by both government officials and protesters during 2010's violent political protests [JURIST news archive], according to a report [text, PDF] released Monday by Human Rights Watch (HRW) [advocacy website]. The report details the violence [press release] that resulted from the "red shirt" [BBC profile; JURIST news archive] pro-democracy movement and specifically from clashes between security forces and anti-government protesters acting under the direction of the United Front for Democracy against Dictatorship (UDD) [party website]. According to investigations by HRW, the high death toll and injuries were the consequences of excessive and unnecessary lethal force by the government as well as deliberate attacks, aimed at inciting more violence, by armed forces of the UDD. The information within the report is based on 94 interviews with victims, witnesses and government officials, among others. One witness account described such behavior:[M]edic volunteers who were tending the wounded inside the temple compound were amongst those killed. These included a nurse who was shot while tending to a wounded man near the nursing station at the front of the temple, and 22-year-old man who was fatally shot in the head and body inside the medical tent after providing first aid to the nurse. Based on these findings, HRW made a number of key recommendations to the government of Thailand within the report, including the immediate initiation of an "impartial, transparent, and independent inquiry into the violence" to "ensure all perpetrators of serious human rights abuses are brought to justice" as well as providing "prompt, fair and adequate compensation for the victims ... of human rights violations."
HRW is not the only voice calling for more information. In January, the "red shirt" movement petitioned [JURIST report] the International Criminal Court (ICC) [official website] to launch a preliminary investigation into whether the government committed crimes against humanity during the Bangkok protests. The application for petition cites specific evidence developing a substantial basis to show that international crimes of murder, imprisonment and other severe deprivation of physical liberty, other inhumane acts, and persecution were committed in conjunction with the suppression of red shirt protests. Evidence obtained from multiple active-duty officers of the Royal Thai Army recounts the planning and execution of the military response to the red shirts. The application also includes reports from Thai law enforcement officials knowledgeable of the official investigation conducted by the Thai Department of Special Investigations (DSI) into the killings of protesters.


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US files suit against Deutsche Bank alleging mortgage fraud
Ashley Hileman on May 4, 2011 9:30 AM ET

[JURIST] US Attorney Preet Bharara filed a civil suit [complaint] on Tuesday against Deutsche Bank [corporate website] in the US District Court for the Southern District of New York [official website] accusing the bank of engaging in mortgage fraud. Through the suit, the US seeks more than $1 billion [Reuters report], including punitive damages and fines. Specifically, the complaint alleges that, from 1999 to 2009, Deutsche Bank consistently lied to the Federal Housing Administration (FHA) [official website] in order to obtain and maintain the Direct Endorsement Lender (DEL) status of its subsidiary, MorrgageIT. Through the DEL program, private lenders are granted authority to endorse mortgages that are qualified for FHA insurance. As part of its participation in the program, a lender is responsible for carefully reviewing mortgages for eligibility and is required to implement a quality control plan to provide procedures for correcting any problems in a lender's underwriting operations. The US argues that during the 10-year period in which MortgageIT acted as a DEL, it endorsed more than 39,000 mortgages for FHA insurance while failing not only to abide by the eligibility rules set forth by the program, but also to implement quality control procedures:For instance, Deutsche Bank and MortgageIT failed to audit MortgageIT's early payment defaults; Deutsche Bank and MortgageIT failed to dedicate sufficient staff to quality control; MortgageIT repeatedly failed to address dysfunctions in the quality control system, which were reported to upper management; MortgageIT took the only staff member dedicated to auditing FHA-insured mortgages, and reassigned him to increase production instead; and when an outside auditor provided findings to MortgageIT revealing serious problems, those findings were literally stuffed in a closet and left unread and unopened. The suit is being viewed as the latest attempt by the US to redress the financial crisis and punish those it views as responsible.
Last month, the US Department of Justice (DOJ) [official website] announced that the former CEO of mortgage company Taylor, Bean & Whitaker (TBW) [corporate website] pleaded guilty [JURIST report] 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, omitting concerns raised by an independent auditor. Five other individuals have pleaded guilty for their roles in related fraud schemes. Allen, who faces a maximum penalty of five years in prison for each count, will be sentenced in June.


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