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Legal news from Friday, July 22, 2011




Obama certifies 'Don't Ask Don't Tell' repeal
Jaclyn Belczyk on July 22, 2011 6:24 PM ET

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[JURIST] US President Barack Obama [official website] on Friday certified [text, PDF] the repeal of "Don't Ask Don't Tell" (DADT) [10 USC § 654; JURIST news archive], the controversial policy barring openly gay individuals from serving in the military. The repeal was also certified by newly sworn-in Defense Secretary Leon Panetta [official profile] and the Joint Chiefs of Staff and delivered to Congress. Panetta [statement] called the change "essential to the effectiveness of our all-volunteer force." Chairman of the Joint Chiefs of Staff Adm. Mike Mullen [statement] said that he "believe[s] the U.S. armed forces are ready for the implementation of the repeal of Don’t Ask, Don’t Tell." Obama [statement] praised the repeal:
Today, we have taken the final major step toward ending the discriminatory ‘Don’t Ask, Don’t Tell’ law that undermines our military readiness and violates American principles of fairness and equality. ... As Commander in Chief, I have always been confident that our dedicated men and women in uniform would transition to a new policy in an orderly manner that preserves unit cohesion, recruitment, retention and military effectiveness. Today’s action follows extensive training of our military personnel and certification by Secretary Panetta and Admiral Mullen that our military is ready for repeal. As of September 20th, service members will no longer be forced to hide who they are in order to serve our country. Our military will no longer be deprived of the talents and skills of patriotic Americans just because they happen to be gay or lesbian.
The repeal will take effect in 60 days.

Obama signed [JURIST report] the Don't Ask, Don't Tell Repeal Act of 2010 [HR 2965 materials] into law in December, shortly after it was approved by the Senate and the House of Representatives [JURIST reports]. Last week, the US Court of Appeals for the Ninth Circuit [official website] ordered DADT to remain partially in place [JURIST report] in order for the court to fully consider the issues concerning the policy's complete repeal. The Ninth Circuit had previously ordered a halt to the policy's enforcement, prompting the Obama administration to ask the court to reinstate the policy [JURIST reports] until the repeal process was complete.




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Ghana rights group warns of anti-gay crackdown
Julia Zebley on July 22, 2011 2:29 PM ET

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[JURIST] The Centre for Popular Education and Human Rights Ghana (CEPEHRG) [advocacy website] warned Friday that the nation is on the verge of an "anti-gay hate campaign," following reports of government-endorsed anti-gay sentiments. A spokesperson for the CEPEHRG said that the nation's largely underground LGBT community is in a panic [Reuters report] over recent remarks by Western Region Minister Paul Evans Aidoo [official profile], who is also a member of parliament. In June, Aidoo called for investigations [MyJoyOnline report] into homosexuals living in Ghana, stating that Ghana's intelligence agency the Bureau of National Investigations (BNI), the Ghana Health Service and other non-government agencies were working together on the issue. On Wednesday, Aidoo suggested that soon the government will be arresting all homosexuals [MyJoyOnline report] via the BNI. Aidoo encouraged landlords to inform on tenants they see engaged in homosexual activity and criticized the Ghana AIDS Commission (GAC) [advocacy websites] for not revealing the names of approximately 8,000 homosexual men registered with their organization. Homosexuality is currently a misdemeanor under Ghana's criminal code, but several legal professionals in Ghana have opined that the law would not hold if tested in the Supreme Court.

Last month, the UN Human Rights Council (UNHRC) [official website] passed [JURIST report] the "Human rights, sexual orientation and gender identity" resolution [text, PDF] with a vote of 23-19 and 3 abstentions [UN webcast archive]. All African nations involved voted against the resolution except for South Africa, where gay marriage is legalized. As of the 2011 International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) [advocacy website] State-Sponsored Homophobia report [text, PDF], 76 countries still criminalize same-sex relationships, and five enforce the death penalty against homosexuals.




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UN urges DRC to prosecute perpetrators of mass rapes
Julia Zebley on July 22, 2011 1:11 PM ET

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[JURIST] The UN Organization Stabilization Mission in DR Congo (MONUSCO) in conjunction with the UN High Commissioner for Human Rights (OHCHR) [official websites] released a report [text, PDF] on Friday accusing soldiers in the Armed Forces of the Democratic Republic of Congo (FARDC) of committing mass rape in last summer's conflict in the Democratic Republic of the Congo's (DRC) [BBC backgrounder]. The report is the first to officially provide evidence that national forces perpetrated mass rape, as opposed to reports of opposition forces using it as a weapon [JURIST report]. Some soldiers in the FARDC allegedly raped 47 women, including a minor, in villages of Bushani and Kalambahiro. The UN also admitted that they had likely given aid to the attackers shortly before the incident.
In addition, during its investigation missions in Bushani, the team found packagings bearing the references of food rations distributed to "screened" battalions which received support from MONUSCO within the framework of Operation "Hatua Yamana." In so far as the investigations carried out by the team could establish the presence of the 2331 battalion in particular in the area of the villages attacked between the end of December 2010 and the beginning of January 201129, it cannot be excluded that the alleged perpetrators of the violations were FARDC soldiers who had received support from MONUSCO.
MUNUSCO was chastised, and the report recommended they better monitor the support they give to the FARDC. The report criticizes the Congolese government's lack of investigation into FARDC as possible perpetrators and pleaded for further judicial action to prosecute rapists. Also, the report emphasized the need to protect survivors of rape from reprisals, which has been a frequent occurrence to silence victims.

In February, a military court found Lt Col Kibibi Mutware guilty of involvement in mass rapes [JURIST report] that took place on New Year's Day and sentenced him to 20 years imprisonment, dismissing him from the military. This has been the only action taken on the issue. DRC has been struggling with a number of human rights issues. Last month, a military court sentenced four policemen to death for killing prominent human rights activist Floribert Chebeya last year. In early October, Human Rights Watch called for the DRC government [JURIST report] to arrest general Bosco Ntaganda pursuant to an outstanding warrant for war crimes issued by the International Criminal Court (ICC) [official website]. Earlier that same week French authorities arrested a leader [JURIST report] of the FDLR for crimes committed by that group in the DRC. In October, UN peacekeeping forces and the DRC government arrested Mai Mai Cheka [JURIST report] for allegedly leading a rebel group responsible for mass rapes in the country.




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Federal appeals court throws out SEC proxy access rule
Maureen Cosgrove on July 22, 2011 12:13 PM ET

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[JURIST] The US Court of Appeals for the District of Columbia Circuit [official website] on Friday overturned [opinion, PDF] the Securities and Exchange Commission (SEC) [official website] "proxy access" rule. The rule allowed certain shareholders to have their board nominees listed on company-mailed proxy ballots that also list the management's preferred candidates. Otherwise, the shareholders would incur the costs of mailing out separate ballots. The petitioners, the US Chamber of Commerce (COC) and the Business Roundtable [official websites], argued that the SEC failed "adequately to consider the rule's effect upon efficiency, competition, and capital formation" in violation of the Administrative Procedure Act [5 USC § 551 text]. The three-judge panel agreed, calling the rule "arbitrary, capricious, [and] an abuse of discretion." President and CEO of the COC Thomas Donohue welcomed the court's decision:
This is a big win for America's job creators and investors. We applaud the court's decision to prevent special interest politics from being injected into the boardroom. Companies and directors need to continue to focus on the important work of creating jobs and reviving our economy. Today's decision also sends a strong message that regulators need to meet their statutory requirement to clearly prove that the benefits of regulation outweigh the costs.
The SEC has failed in this same court to enforce similar laws on three other occasions, though it will now have the opportunity to reevaluate and potentially reissue the rule.

Some investor groups, including labor unions and pension funds, espouse proxy access rules, arguing that such rules ensure that company management is held accountable [WSJ report]. Companies, however, contend that proxy access rules give too much power to minority or special interest groups. The SEC was authorized to implement proxy access rules under the Dodd-Frank Wall Street Reform and Consumer Protection Act [text, PDF], which was signed into law [JURIST report] by President Barack Obama in July 2010 and created the new regulatory council to monitor financial institutions in order to prevent companies from becoming "too big to fail." In addition to creating the US Financial Stability Oversight Council (FSOC) [offical website], this legislation also gives the Federal Reserve [official website] new oversight over the largest financial institutions, creates a bureau of consumer protection, introduces multitudes of new regulations on derivatives and other financial instruments and limits the amount of capital banks can invest in hedge funds. In June 2009, the administration proposed a broad series of regulatory reforms [press release; JURIST report] aimed at restoring confidence in the US financial system in the wake of economic crisis [JURIST news archive].




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Mexico AG purges office, charges 111 officials with corruption
Julia Zebley on July 22, 2011 11:02 AM ET

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[JURIST] Following Mexican Attorney General Arturo Chavez's resignation [JURIST report] in April, the Attorney General's Office (PGR) [official website] charged 111 officials who served under him with corruption on Thursday. Sixty-seven were charged [El Sol de Mexico report, in Spanish] with fraud while others were charged with varying offenses including falsifying documents, theft, interfering with administration of justice, misusing public service, abuse of power, lying in court, bribery, embezzlement and forgery. Twenty-six were issued arrest warrants. On Friday, Attorney General Marisela Morales also fired 140 police officers [CNN report] and released that 280 more under investigation within the organization. Of those fired, several were charged with having connections to organized crime, murder, robbery and extortion, while seven were fired due to convictions on kidnapping, murder and extortion charges, all stemming from Mexico's rampant drug trade problem.

Mexico has struggled to combat the drug cartels' influence on the government and the country as a whole. There have been more than 27,000 drug-related deaths since 2006 [STRATFOR report], and the violence has steadily escalated over the last few years. In April 2009, Mexico's Senate passed a constitutional amendment [JURIST report] permitting the seizure of suspected drug traffickers' property prior to their conviction. In 2008, a former assistant attorney general was arrested for receiving bribes, and Mexico's prosecutor's office admitted that it had been infiltrated [JURIST reports] by the drug cartels.




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North Dakota court temporarily blocks medical abortion law
Maureen Cosgrove on July 22, 2011 10:40 AM ET

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[JURIST] A North Dakota judge on Thursday issued a temporary injunction [press release] against a state law [HB 1297 text] that effectively bans non-surgical abortions [JURIST news archive]. The Center for Reproductive Rights (CRR) [advocacy website] filed a complaint [text] challenging the North Dakota and seeking an injunction [JURIST report] on Monday. The law restricts the use of mifepristone, misoprostol [FDA backgrounders] and other drugs approved by the Food and Drug Administration (FDA) [official website] to induce first-trimester abortions. The complaint, filed on behalf of the sole abortion provider in the state, alleges that the law would altogether prohibit medication abortions, preventing women who prefer the non-surgical abortion procedure from obtaining treatment. The plaintiffs also contend that the law is impermissibly vague, constitutes an improper delegation of legislative authority, violates the privileges and immunities and bodily integrity rights of women, and creates an undue burden, among other challenges. North Dakota Supreme Court [official website] Judge Wickham Corwin said "the public is best served if these questions are considered before the challenged provisions are enforced." CRR President and CEO Nancy Northup welcomed the injunction and condemned the law:
We are extremely pleased that, for the time being, women in North Dakota will still have access to an alternative to surgical abortion that has been widely recognized as safe and effective by medical experts and organizations around the world. This law has nothing to do with protecting women's health—it defies reason, science and medical expertise in a clandestine attempt to limit women's access to abortion.
The law, which was slated to take effect on August 1, will not be enforced until a hearing takes place on August 29.

North Dakota is one of many states to introduce more restrictive abortion regulations in recent months. In June, the Ohio House of Representatives [official website] voted 54-43 to approve legislation [HB 125] that would prohibit abortions after a fetal heartbeat is detectable [JURIST report], which could occur as early as six weeks into the pregnancy. The Iowa House of Representatives [official website] also voted in June in favor of a bill [HF-1736 text, PDF] that would effectively ban abortions after 18 weeks of pregnancy [JURIST report], making it the most restrictive abortion law in the country. In May, a judge for the US District Court for the Southern District of Ohio [official website] upheld an Ohio law [2919.123 text] that limits the use of the "abortion pill" [JURIST report], overturning a 2006 injunction [JURIST report]. Oklahoma has also prohibited the use of mifepristone [JURIST report]. Multiple states have acted to ban abortions after 20 weeks, when some studies suggest a fetus can begin feeling pain, including Missouri, Indiana, Alabama, Oklahoma, Kansas and Idaho [JURIST reports].




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Saudi Arabia anti-terrorism law would thwart political dissent: AI
Maureen Cosgrove on July 22, 2011 9:52 AM ET

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[JURIST] A proposed Saudi Arabian counterterrorism law [text, in Arabic] would allow authorities to prosecute anti-government protestors, Amnesty International (AI) [advocacy website] announced [press release] Friday. AI revealed that the Draft Penal Law for Terrorism Crimes and Financing of Terrorism seeks to punish those who "question the integrity of the King or Crown Prince," with minimum penalties amounting to 10 years in prison. The law permits authorities to extend detention of suspects without charge or trial and authorizes incommunicado detention. AI also contends that the legislation's definition of "terrorist crimes" is broad and would allow authorities to prosecute protestors for a wide range of conduct. AI Deputy Middle East and North Africa Director Philip Luther expressed concern for the law's implications on human rights and called on Saudi Arabian authorities to reconsider the law:
This draft law poses a serious threat to freedom of expression in the Kingdom in the name of preventing terrorism. If passed it would pave the way for even the smallest acts of peaceful dissent to be branded terrorism and risk massive human rights violations. At a time when people throughout the Middle East and North Africa have been exercising their legitimate right to express dissent and call for change, Saudi Arabian authorities have been seeking to squash this right for its citizens. King Abdullah must reconsider this law and ensure that his people's legitimate right to freedom of expression is not curtailed in the name of fighting terrorism.
AI further claims that the draft law conflicts with international human rights treatises such as the UN Convention Against Torture (CAT) [text].

The proposed law comes in response to recent civil unrest in Saudi Arabia and other Middle Eastern and North African nations, but this is not the first time Saudi Arabia has been criticized for rigid counterterrorism practices. Human Rights Watch (HRW) [advocacy website] reported [text, PDF] in 2009 that Saudi Arabia was illegally detaining thousands [press release] under the auspices of combating terrorism. The report echoed another AI report [text; JURIST report] which claimed that Saudi Arabian officials were allegedly using anti-terrorism measures as an excuse to secretly detain, imprison, torture and even kill thousands of people. In February 2009, the US Department of State released its 2008 Report on Human Rights Practices for Saudi Arabia [text; JURIST report], in which it identified several significant human rights issues, including denial of public trials and lack of due process in the judicial system, detention of political prisoners, incommunicado detention and lack of government transparency. Saudi Interior Minister Prince Nayef bin Abdul-Aziz [official website, in Arabic] announced in October 2008 that the kingdom had indicted 991 [Reuters report] suspected al Qaeda members. HRW sought access [HRW request] to the trials in an attempt to ensure compliance with international standards, but was denied.




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Hadzic extradited to Hague to face ICTY
Julia Zebley on July 22, 2011 9:17 AM ET

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[JURIST] Goran Hadzic [ICTY backgrounder] was extradited to The Hague [press release] on Friday, where he now awaits trial for war crimes [indictment text]. Hadzic was the last fugitive of the original 161 sought for war crimes by the International Criminal Tribunal for the former Yugoslavia (ICTY) [official website] and was arrested earlier this week [JURIST report]. Hadzic waived his right to appeal extradition and, after visiting with a few relatives in Serbia, was flown to The Hague. The date of his initial appearance has not been set. Croatian President Ivo Josipovic said that although he understands The Hague has jurisdiction, he would like Hadzic to face trial in Croatia [B92 report]. There has been international praise for Hadzic's arrest. Earlier this week, UN Secretary-General Ban Ki-Moon [official website] remarked [text] that he, "commends President Tadic and the Serbian authorities for their leadership in ending impunity for those indicted for serious violations of international humanitarian law."

Hadzic was a key player in the Bosnian Civil War [JURIST news archive] and has been at large for approximately seven years. Hadzic's official charges [case information sheet, PDF] are: persecutions on political, racial or religious grounds; extermination; murder; torture; inhumane acts; deportation and forcible transfer; cruel treatment; wanton destruction of villages, or devastation not justified by military necessity; destruction or willful damage done to institutions dedicated to education and religion; and plunder of public or private property. Hadzic's indictment contends that, in his role as president of the Serbian nationalist forces during the war, he attempted to permanently and forcibly remove a majority of the Croat and other non-Serb population from the disputed territory. He is accused of murdering or ordering the murders of hundreds of non-Serb citizens, including children and the elderly. Further, he allegedly displaced more than 20,000 non-Serb civilians. Hadzic was found near the small Serbian village of Krusedol [B92 report], living under a false name. Although he was armed, he did not resist arrest. He was discovered after attempting to sell a painting by Italian artist Amedeo Modigliani, due to running out of money to facilitate his hiding. Hadzic was also reportedly harbored by members of the Serbian Orthodox Church (SPC) [official website]. Hadzic was the final remaining war criminal at large from the Bosnian Civil War, along with Ratko Mladic [JURIST news archive], who was arrested in May [JURIST report].




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Ohio collective bargaining law to go before voters in November
Michael Haggerson on July 22, 2011 8:04 AM ET

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[JURIST] Ohio voters will decide whether to repeal a law [SB 5 text, PDF] limiting the collective bargaining rights of state workers after opponents of the bill gathered 915,456 signatures [press release] Thursday, almost 700,000 more than the required 231,147 signatures. The bill was passed [JURIST report] in March, but will not go into effect until it survives the public referendum in November. The law includes [summary] provisions prohibiting public employees from striking and disallowing public unions to collectively bargain for any reason other than wages or equipment for personal safety. Opponents of the bill argue [Columbus Dispatch report] that it is union busting masquerading as cost control and is an attach on the middle class. Proponents of the bill, including Building a Better Ohio [advocacy website], argue that public unions have grown too powerful and substantial cuts in union power are necessary for budget control.

Anti-union and anti-collective bargaining laws have been a major issue of controversy in the US this year. In March, the New Hampshire House of Representatives [official website] passed an amendment to their current budget that would require public employees to make concessions automatically [AP report] or become at-will employees. Earlier that month Wisconsin Governor Scott Walker [official website] signed a bill [JURIST report] limiting the rights of state workers to collectively bargain. Although the law was enjoined by judicial order, it has since been upheld [JURIST reports] by the Wisconsin Supreme Court [official website].




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